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Judge Elizabeth Cooke in the Upper Tribunal has heard a two-day witness trial in the case of Arqiva Services Ltd v AP Wireless II (UK) Ltd TCR/324/2019. It perhaps seems appropriate that the Lands Chamber’s first witness trial conducted through electronic communications should concern the Electronic Communications Code[1]. The judgments in Compton Beauchamp[2] and Ashloch[3] have placed very significant restrictions on the circumstances in which an Operator in situ can seek new Code rights under para 20 of the Code. The former case awaits a Supreme Court permission decision, and the latter has permission from the Court of Appeal. The Arqiva trial concerned two preliminary issues, both of which are likely to involve the first detailed analysis of some aspects of the Code. The issues are: (1) Whether Arqiva had a “subsisting agreement” within the meaning of paragraph 1(4) of the new Transitional Provisions[4], with important consequences for security of tenure and their ability to seek rights under the New Code. Within this question were issues as to whether Arqiva had a periodic tenancy or a tenancy at will following the expiration of an Old Code[5] agreement, and also whether an occupier ‘holding over’ would satisfy the ‘in writing’ requirement under the Old Code. (2) Whether the Tribunal has jurisdiction to impose an agreement under paragraph 20 of the Code despite the Operator being already in occupation, given that Arqiva has also made an application under para 27 of the Code. The Upper Tribunal has reserved judgment. Jonathan Wills appeared as junior counsel for the Respondent, led by Wayne Clark of Falcon Chambers. [1] Schedule 3A to the Communications Act 2003 [2] CTIL v Compton Beauchamp [2019] UKUT 107 (LC); upheld on appeal at [2019] EWCA Civ 1755 [3] CTIL v Ashloch [2019] UKUT 0338 (LC) [4] Schedule 2 to the Digital Economy Act 2017 [5] Schedule 2 to the Telecommunications Act 1984
