A brief guide
As has been widely reported, the Office of Fair Trading (“OFT”) has and continues to focus upon the construction industry.
The OFT has wide powers to investigate suspected competition law infringements. These powers include entering and searching business premises (and potentially the homes of executives or other relevant individuals), often without notice.
The following guidance is intended as a brief summary of the key principles and some practical suggestions in the event of a so-called “dawn raid”. However, we strongly recommend that you take urgent legal advice in such circumstances.
On arrival
The first indication that the OFT is carrying out a dawn raid will usually be the unannounced arrival of OFT inspectors in your reception or knocking on the door.
- Immediately summon a senior manager or director and your legal representative to meet the OFT officers. The OFT will usually wait for a short period for an external lawyer to arrive.
- In the meantime, do not destroy or remove any documents or make any contact with any third parties about the raid. The OFT may insist upon the sealing of filing cabinets, the suspension of external email and that they are permitted to remain in your offices if there is a short delay before the lawyer arrives.
- Check the OFT inspector’s credentials and authorisation. Send copies to your legal representatives in order to check the scope of the investigation. The OFT may have obtained a warrant from a High Court Judge. If so, they will have wider powers, including the right to search your premises.
During the raid
The OFT inspectors want to examine certain documents in their present locations, including electronic documentation. They may wish to see inside cupboards or filing cabinets, and even inside vehicles. They are only entitled to examine documents that are relevant to their investigation and which are not legally privileged. The OFT will take copies of certain documents.
- Have a team of employees and/or lawyers ready to accompany the OFT officials, to supervise the process and to record all documents examined by the officials.
- Take your own set of copies of each document copied by the OFT.
- If you believe any document may be subject to legal privilege (i.e. a document prepared by or for external lawyers), insist upon the right to take legal advice before the document is examined by the OFT.
- If the OFT ask questions about relevant facts or documents, have the relevant individuals with the appropriate knowledge and seniority to deal with such requests. You do not have to make admissions of guilt but you must answer truthfully and to the best of your knowledge. Do not volunteer information beyond the specific questions. Keep a full and accurate record of anything anyone says to the OFT officials.
A dawn raid will probably be the first stage of a wider investigation by the OFT. They may also send written requests for information or the production of specific documents which must be treated with the same degree of seriousness.
Please contact Iain Colville on 01926 880753 or Philip Harris on 01926 880766 for more information.
