PLAYING BY THE RULES: The need to fight fair under the Electronic Communications Code

How far can parties push it in Code litigation? The Upper Tribunal has been extremely astute to control its processes, and rightly so. There are enormous numbers of Code cases in the system, on top of those going through in its other jurisdictions. The latest signal that the Upper Tribunal expects parties to co-operate and adhere to the rules comes in the form of EE v Meyrick [2020] UKUT 0105 (LC) (this is the second decision in this case, concerning terms; the first decision was about the ability to claim code rights: [2019] UKUT 164 (LC)).

What The Rules Say About Cooperation

The Practice Direction of the UT says (at paragraph 9) that "the Tribunal will throughout seek to adopt a procedure that is proportionate, expeditious and fair in accordance with the overriding objective".

The Upper Tribunal (Lands Chamber) Rules 2009 state at rule 2 that:

"(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes—

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d) using any special expertise of the Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Tribunal must seek to give effect to the overriding objective when it—

(a) exercises any power under these Rules; or

(b) interprets any rule or practice direction.

(4) Parties must—

(a) help the Tribunal to further the overriding objective; and

(b) co-operate with the Tribunal generally."

What the Upper Tribunal Says About Cooperation

Litigants have been warned by the UT before, on two clear occasions. The first was the second EE v Islington [2019] UKUT 53 (LC), where the Deputy President had this to say:

"[24] Where a party fails to co-operate with the Tribunal to such an extent that the Tribunal is unable to deal with the proceedings fairly and justly the Tribunal has power under rule 8(3)(b) of The Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 to strike out the whole or part of that party’s case. We consider that the respondent’s failure in this case falls within that description. The Tribunal cannot force parties to agree, but it can require them clearly to state their case so that it can identify and determine the matters in dispute within the time limit fixed by Parliament."

The upshot was that the Respondent was debarred from opposing terms.

The second was Cornerstone Telecommunications Infrastructure Ltd v Central Saint Giles General Partner Ltd & Anor [2019] UKUT 183 (LC). The Deputy President foreshadowed certain observations of the Court of Appeal when he noted that (emphasis supplied)

"[4] The new Code regime is intended to facilitate the provision of telecommunications services without delay and at limited cost." 

He went on to note that:

"[30] The Tribunal wishes it to be known by other parties who refuse access to their land or buildings for surveys that, whatever the outcome, they cannot expect to recover costs on the scale incurred by the parties in these proceedings. Equally, the Tribunal wishes to make it clear to operators, as it has done in the past, that they cannot simply demand unquestioning cooperation from property owners." 

Meyrick (No 2)

There is therefore no doubt about the view the UT takes. The processes are meant to be quick, and they are meant to be cheap. This is what the policy of the code requires. It is also what the overriding objective, which has real teeth, requires. And this means that party-party cooperation is not optional, it is mandatory. It is clear that, at the moment, code litigation is not universally carried out like that, and those who practice in the area will be acutely familiar with the deployment of myriad arguments about agreement terms which have the effect, if not also the objective, of causing delay and cost. We will all have seen the sheer volume of factual and expert evidence that is generated in these cases, mostly quite unnecessarily. The UT of course has visibility of this problem, It is now standard that the number of pages is limited, and that the use of experts and the need for disclosure is restricted in furtherance of the policy of the code and for the procedural protection of the UT.

Enter Meyrick (No 2). Following Meyrick (No 1), it was established that EE could claim code rights, and the site provider did not continue to oppose. The problem that arose is one all too depressingly familiar - it was impossible to get the travelling draft agreement over the line. The UT has previously indicated in cases that it is not, as it were, a taxpayer-funded conveyancing service. It is there to impose agreements, and not to refine the parties' drafting.

The factual position in Meyrick (No 2) was that the dispute on terms was so narrow that written representations were agreed as appropriate. These were duly submitted by two leading specialist counsel. It is with a sense of foreboding that one reaches paragraph 6 of the decision:

"[...] like all references under the Code it involves the public interest in the provision of electronic communications and should be dealt with as expeditiously as possible. The Tribunal requires a high degree of co-operation from the parties and is particularly unsympathetic to tactics designed to delay the resolution of the dispute."

Where the Claimants thought they had got to was that a travelling draft agreement had passed between them and the Respondents. The Claimants had accepted the Respondents' amendments and had made two minor amendments which were re-submitted to the Respondents for comment, but there was no further comment. Accordingly, the Claimants asked the UT to have the final say on those two amendments which were not agreed. Those minor changes were to the equipment listed in the draft agreement. When the Respondent acknowledged the UT application, it referred to the dispute in rather broader terms, about equipment generally, and upgrading rights. The Claimant expressed concern that the Respondent was seeking to widen the dispute beyond the narrow points raised by its final amendments.

This conduct was deprecated by the UT in the very strongest terms (paragraph [23]):

"the respondents have sought to delay the resolution of the reference and to hijack the final determination by raising issues that should have been raised months ago. Had comments been made upon the final amendments within a reasonable time [...] we would have been prepared to engage with those comments, but we are not willing to decide an issue raised deliberately at the last minute. This is vexatious conduct and the Tribunal will not indulge it."

Both minor amendments proposed by the Claimant were allowed.

Conclusion

It is regrettable that the clear messaging from the UT is not getting through. There is plainly a need for a tactical re-think. Operators have historically faced criticism for their approach to site providers, but this isn't a one-way street. It is perhaps important for all to reflect on how these cases are approached, particularly when the UT is already stretched, but facing even greater demands due to the present circumstances, and when (as we have seen) the demand for operators' services are likely only to increase as we get accustomed to our new working lives. It is also important to remember that proportionate costs in litigation is not only procedurally mandated by the UT's rules. It is a core foundation stone on which the Code has been built.

Meyrick (No 2) is here: https://landschamber.decisions.tribunals.gov.uk//judgmentfiles/j1594/TCR-28-2019%20WRs.pdf

Thank you to Alicia Foo for bringing it to my attention.