Upper Tribunal hears first compensation case under the new Electronic Communications Code

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In a packed Court 21 of the RCJ, the Deputy President of the Upper Tribunal (Lands Chamber) yesterday finished hearing evidence and submissions in (1) EE LIMITED (2) HUTCHISON 3G UK LIMITED v THE LONDON BOROUGH OF ISLINGTON Case No. TCR/68/2018. The final hearing in the matter has been eagerly anticipated by the telecoms industry, as the judgment will constitute the first opportunity for the tribunal to interpret the compensation and consideration provisions under the New Code. The Operators contend that the proper consideration for the imposition of a code lease of space on the roof of Threadgold House, owned by the Respondent Site Provider is nominal. The Site Provider contends for substantial consideration and compensation. Matters in issue that may be addressed in the judgment include:

  • Whether the Tribunal has jurisdiction to impose a lease on the Site Provider rather than a licence or some other species of agreement;
  • The meaning of para 24 and the proper approach to consideration under the Code;
  • Whether para 25(1) of the New Code constitutes a freestanding right to compensation such that the potential heads of compensation at para 84(2) are non-exhaustive;
  • The extent of a site provider's right to make a future application for compensation under para 25(2)(b) of the Code.
Judgment is expected by 24 February 2019. Jonathan Wills represented the site provider, the London Borough of Islington.

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