In a relatively punchy judgment in the case of CTIL v Central Saint Giles General Partner Limited and another handed down on 7 June, Martin Rodger QC did not mince his words. The message is clear: the now-not-so-new Telecoms Code regime was intended to facilitate the provision of telecommunications services without delay and at limited cost, and parties who litigate at great expense over what should be a straightforward issue, will be penalised on costs, even if they are deemed to be technically “successful”. Here the parties had between them instructed three firms of solicitors and three counsel, one in silk, and incurred costs of over £100,000. Ultimately the successful parties were allowed only to recover £5,000.
The case concerned CTIL’s request for access to survey the rooftop of part of the well-known Central St Giles complex in the West End to assess its suitability to install electronic communications apparatus. The Central St Giles complex was described by the judge as “a group of iconic buildings of high quality” where the owners were understandably keen to preserve the buildings and to prevent anyone from doing work without notice and an opportunity to consider the consequences. Whilst it appeared that the owners were initially content to allow access in principle, the parties fell out principally over the terms of the indemnity to be provided by the operator (with £1m being offered by the operator and £10m being sought by the owner). Subsequently the communications between the parties becoming increasingly entrenched with the owners making what the judge described as “unnecessary” demands for technical information they did not really need and the operator uncompromisingly refusing to clarify even in general terms what they intended to do during their initial survey. Reading between the lines, the judge was somewhat exasperated by both parties' conduct.
Mr Rodger QC’s judgment should be seen as a tool designed to positively encourage landowners, site providers, operators and their advisors to avoid incurring significant legal costs in disputes concerning the Telecoms Code that do not warrant the expense that is necessarily incurred in court proceedings. The purpose of the judgment was for the Upper Tribunal “to put down a marker that the conduct which this case illustrates, over-reaching on one side and obstruction on the other, is disproportionate, inappropriate, and unacceptable”. The moral of the story? Choose your battles wisely. The Tribunal will not be attracted by excessively technical arguments on for example the form of Code notices or matters such as access to survey. As the judge said in this case: “There are legitimate matters to argue about in [Code] cases, and nothing in this decision is intended to discourage those from being raised, but whether a small number of surveyors is permitted to go on a rooftop for a few hours on two or three occasions to establish whether it is even suitable for the installation of apparatus ought not to be one of them”.
Of course the industry awaits the outcome of the appeal in the case of CTIL v UOL which is understood to be listed for hearing in November 2019. It may be that the court will overturn the Tribunal's finding in that case that a right to survey is a Code right after all. But in the meantime, this judgment does illustrate, in the context of disputes concerning the Telecoms Code (of which there is currently a flurry), that the Upper Tribunal is running out of patience with what it perceives to be aggressive or unreasonable behaviour by either party. Operators cannot expect “unquestioning cooperation” from owners, but neither should owners expect to recover costs incurred on litigating peripheral issues. Parties impacted by the Code should bear these considerations in mind.
If you have any queries concerning the Telecoms Code, please contact me at Rashpal.Soomal@bclplaw.com.