Electronic Communications Code: Ensure you play by the rules!

In its latest Code decision, the Upper Tribunal set a further marker of its expectations relating to the conduct of parties in Code litigation.

01 May 2020
The Upper Tribunal has on a number of occasions given clear guidance of its expectations as to the proper conduct of negotiations and disputes between parties in cases relating to the Electronic Communications Code (see, for example, Cornerstone Telecommunications Infrastructure Limited -v- (1) Central Saint Giles General Partner Limited (2) Clarion Housing Association Limited). In its decision in EE Ltd & Anor v Trustees Of The Meyrick 1968 Combined Trust ([2020] UKUT 105 (LC)), it set a further marker that it takes a very dim view of failures to comply with the Tribunal procedure and of poor conduct in negotiations.

Background

In a previous hearing between these parties, the Tribunal found that the landowners did not satisfy the redevelopment ground contained in Paragraph 21(5) of the Code to oppose the grant of Code rights in favour of EE and H3G. Accordingly, the Tribunal listed directions for the parties to agree the terms of a Code agreement. A fundamental part of that procedure was the usual process of comment and counter comment on a travelling draft Code agreement.

The purpose of this process is to seek to narrow the issues in dispute between the parties prior to a hearing and encourage negotiations between the parties. The timetable in this case set a deadline for the landowner to respond to EE/H3G with any comments on the draft agreement.

Prior to this date, the landowner confirmed that they had no further comments on the draft. Shortly after this EE/H3G suggested two further amendments but the landowner failed to provide comment on these. The position prior to the tribunal hearing was, therefore, that only two amendments were not yet agreed. These related to whether the operators should be able to include 'trunking' and 'associated and ancillary equipment' in the definition of equipment listed in the Code agreement.

However, shortly before the hearing, the landowner wrote to the tribunal suggesting there were, in fact, three outstanding issues which were much wider than just the two amendments.

Decision

The majority of the judgment focuses on the landowner’s failure to comply with the procedural timetable and its late widening of the issues apparently in dispute. The Tribunal saw this conduct as evidence of a deliberate lack of engagement in the negotiation process and an attempt at hijacking the final determination. They described the conduct as 'vexatious' and stated that it would not be indulged by the Tribunal. As a result, it refused to consider the wider issues raised at the last moment by the landowner and instead focussed on the two minor issues in dispute in the travelling draft. As the landowner had not responded to those amendments in good time, the Tribunal did not even take into account their arguments on these amendments.  

Unsurprisingly in that context, the Tribunal decided in favour of EE and H3G on both counts. In relation to the wording 'associated and ancillary equipment', the Tribunal felt it was reasonable for the operators to have a right to store certain small items which are not detailed in the equipment specification.

Key points to take away

Very simply, play by the rules and comply with the procedural timetable. The Tribunal will take a dim view of non-compliance and of issues in dispute being raised at the last minute.

Key contact

Chris Preston

Chris Preston Partner

  • Real Estate Disputes
  • Real Estate
  • Retail

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