Telecommunications – Electronic communications code – Right of entry – Costs – Claimant operator seeking access for inspection of potential site – Claimant claiming full Code rights on interim basis for multi-skilled visit (MSV) – Respondent building owner and head lessee refusing access – Parties reaching agreement enabling claimant to obtain access on terms acceptable to respondent owners and occupiers of building – Dispute arising as to costs – Whether parties entitled costs having succeeded in reference – Whether costs of reference proportionate – Judgment accordingly
The claimant company, which installed and maintained apparatus for electronic communications networks, wanted access to the roof of Matilda Apartments, 4 Earnshaw Street, London WC2 to carry out a multi-skilled visit (MSV) to determine whether it was suitable for such installations. The freehold of the building belonged to the first respondent. The flats and common parts of the building, but not the roof, were leased to the second respondent. When stalemate was reached over the detailed terms on which access would be allowed, the claimant gave notices to the respondents under para 26(3) of the Electronic Communications Code seeking interim rights, including the right to install apparatus and to keep it installed on the building.
The matter was referred to the Upper Tribunal for determination but the parties reached an agreement before the hearing. The agreement allowed access to the claimant but emphasised that access was only required for the purposes of the MSV to assess the suitability of the site. The claimant conceded the £10 million indemnity sought by the first respondent.
However, the parties were unable to agree the question of costs. The claimant submitted that it had succeeded in the reference, having obtained a Code agreement and sought its costs against the first respondent. It did not ask for an order against the second respondent, but resisted any suggestion that it should be responsible for the second respondent’s cost. The first respondent asked for its costs on the basis that it had agreed to allow access for an MSV and had been prepared to agree the original terms for that visit. The only issue at that stage was the level of the indemnity which had been agreed at the level which the first respondent had always sought. The second respondent also sought its costs against the claimant arguing that it could not grant access while the first respondent was refusing it.
Held: Judgment accordingly.
(1) The fact that agreement had been reached meant that the tribunal did not have to determine the arguments on which the respondents relied to resist the imposition of a Code agreement in principle. The tribunal was not attracted to excessively technical arguments about the form of Code notices where no question of jurisdiction was engaged. There had been two real issues dividing the parties. The first was the level of the indemnity. The second was the manner in which the rights of access which everyone was ultimately content for the claimant to have should be expressed, and in particular whether they should include additional rights which it demanded as a matter of policy rather than because they were required in this case. The claimant had conceded the issue of indemnity.
(2) The dispute over the manner in which the rights should be expressed was provoked by the claimant but had been taken to a wholly unnecessary level by the first respondent. The claimant refused steadfastly to place any limit on the rights which it required over the roof of the building other than to say that those rights were only required for the purpose of the MSV for a period of 28 days. That left the respondents in a position of some uncertainty. However, the first respondent’s position in correspondence in demanding technical information and maintaining that the claimant was asking for something wholly unreasonable, was at best obtuse, and at worst deliberately obstructive. But responsibility for the confusion, and in large part for the subsequent confrontation, fell on the claimant. The access it needed was not out of the ordinary but the claimant first asked for too much and then refused to modify its demands, thereby provoking an entirely unnecessary dispute.
(3) In light of the agreement reached, the successful parties in the reference were the respondents. On the other hand, they had conceded the principle which they disputed at length in their pleadings and skeleton arguments. Additionally, the manner in which the proceedings had been conducted on all sides had been wholly disproportionate to the dispute. Responsibility for that fell on both the claimant and the respondents. Therefore, both respondents’ costs of the reference should be paid by the claimant but they should not have the whole of their costs. The appropriate order was that the claimant should pay £5,000 towards the costs of each of the respondents. That was a proportionate sum for the resolution of the issues on which, in light of the agreement reached, the respondents could be considered to have been successful.
Per curiam: The tribunal wished it to be known by other parties who refused access to their land or buildings for surveys that, whatever the outcome, they could not expect to recover costs on the scale incurred in these proceedings. Equally, operators could not simply demand unquestioning cooperation from property owners. The tribunal also wished to emphasise the importance it placed on discouraging senseless disputes of this sort, and to put down a marker that the conduct which this case illustrated, over-reaching on one side and obstruction on the other, was disproportionate, inappropriate, and unacceptable. The tribunal would do what it could to ensure such conduct would not become a recurring feature of Code disputes concerning new sites. There were legitimate matters to argue in such cases but whether a small number of surveyors was permitted to go on a rooftop for a few hours on two or three occasions to establish whether it was even suitable for the installation of apparatus ought not to be one of them. The new Code regime was intended to facilitate the provision of telecommunications services without delay and at limited cost. If the preparatory stages of the installation of new equipment were allowed to become the occasion for preliminary trials of strength involving legal firepower on the scale deployed in this reference there was a serious risk of the objectives of the Code being frustrated.
Oliver Radley-Gardner (instructed by TLT LLP) appeared for the claimant; Justin Greenhill QC (instructed by CMS Cameron McKenna Nabarro Olswang LLP) appeared for the first respondent; Stephanie Lovegrove (instructed by Weightmans LLP) appeared for the second respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Cornerstone Telecommunications Infrastructure Ltd v University of London
