Upper Tribunal gives first judgment imposing interim Electronic Communications Code rights

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(1) EE Limited (2) Hutchison 3G UK Limited v London Borough of Islington Martin Rodger QC, the Deputy President of the Upper Tribunal (Lands Chamber) has given what is understood to be the first judgment imposing interim rights under the new Electronic Communications Code (“the New Code”). He allowed the operator to carry out non-invasive works only at the landowner’s building, with the right to carry out invasive works being contingent on the grant of planning permission at another site from which the operator asserts it is likely to vacate. The Deputy President set out a number of general principles as to how interim applications should be dealt with, including that it is consistent with the statutory scheme for them to be dealt with swiftly, and there would generally not be extensive disclosure or cross examination. Under paragraph 26(3)(b) of the New Code, the Tribunal can only impose an interim agreement if it:

“thinks that there is a good arguable case that the test in paragraph 21 for the making of an order under paragraph 20 is met.”

The tribunal confirmed the applicability of the approach to a “good arguable case” set out in Canada Trust v Stolzenberg (No.2) [1998] 1 WLR 547 at 555 (originally in the context of wording under RSC Ord 11 for service out of the jurisdiction), that “one side has a much better argument on the material available.” The Law Commission in its Report No.336 had previously considered that Canada Trust reflected the appropriate interpretation of “good arguable case” for the purposes of the Code: see para 9.63 and the footnote thereto, in which the Commission referred to the “significant consequences” for a defendant. Although urgency is not a term used in the statutory test, the urgency of an operator’s needs is relevant both to the question of balancing the public interest against prejudice to the landowner, and also to the final stage of the tribunal’s reasoning, namely the exercise of its discretion as to whether to grant an Order. The tribunal held as a matter of principle that an agreement imposed under para 26 should not be in the same form as that likely to be imposed under para 20 at a final hearing. The rights granted at the interim stage should be kept to a minimum pending final resolution. Accordingly, the Tribunal made no ruling on whether it had the power to impose a tenancy on a landowner, rather than merely a species of statutory right. This may be thought to remain an open question. Jonathan Wills acted for the London Borough of Islington, the landowner.

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