By Brian Taylor

Link to article on BBC.co.uk

Day Two of the hearing in the HBOS competition appeal. And how's it going?

The Merger Action Group, who're contesting the deal with Lloyds TSB, reckon they're getting at the very least a serious, substantive hearing from the bench at the Competition Appeal Tribunal.

HBOS says it is confident the appeal will be dismissed, describing the legal move as "an unhelpful and unnecessary distraction."

On Friday, we are due to learn whether HBOS shareholders back the merger with Lloyds TSB.

That means timing is crucial. If the appeal is granted, it means that the Tribunal is saying Lord Mandelson was wrong to set aside competition concerns raised by the Office of Fair Trading with regard to the potential merger.

In that case, I would anticipate that the UK Government would appeal. That would be heard by the Court of Session in Edinburgh - because the tribunal case is being conducted according to Scots Law, despite sitting in London.

The government - and the boards of the two banks - would be keen to expedite that issue before the Friday vote.

Court proceedings

On the other side, it's claimed that Friday's HBOS vote could become "meaningless", depending on the outcome of the court case.

Their logic is this. A swift, uncontested merger needed the UK Government to ignore competition concerns.

That was a fundamental part of the deal from the outset.

If, following court proceedings, competition concerns are now reactivated, then the initial logic behind merger fades or vanishes.

PS: May I draw the attention of the court (aka this blog) to the case of MacCormick and Another v The Lord Advocate (1953 SC 396)?

No, I haven't finally flipped in excitement at United's elevated league position. Hear me out.

You'll remember the stushie at the weekend when it was suggested that the UK Government might pursue costs against the Merger Action Group, should MAG lose the tribunal case.

Facing costs

Some interpreted this as a threat or unwarranted pressure. HMG said it was nothing of the sort. It was a sensible offer to save money.

And the 1953 case? That was when John MacCormick contested the right of the Queen to bill herself as Elizabeth II in Scotland.

Ian Hamilton QC, who was involved in the case, has now contacted the Merger Action Group, arguing that there should be no question of facing costs should their case fail.

He says that, after the MacCormick case failed, costs were moved for - but were refused.

Mr Hamilton (whose fascinating book on the Stone of Destiny I have recently finished re-reading) says that "the court is reluctant to award costs" in Scotland where people act in the public interest, even if unsuccessfully.