Procedure to be followed in applications under the 2017 Electronic Communications Code

This Guidance Note explains the procedure which the Tribunal intends to follow in applications made under the Electronic Communications Code introduced into the Communications Act 2003 by Schedule 1 to the Digital Economy Act 2017 and contains guidance as to what is expected of parties. Because many of these applications are subject to a 6 months’ time limit for decision the Tribunal requires to impose a timetable which will ensure that it is possible to achieve that. The Tribunal will therefore deal much more prescriptively with procedure in these cases than is its practice in other areas of its jurisdiction. In particular it may require to fix hearings without regard to the convenience of parties or the availability of their representative; dates fixed will not be subject to change only because a particular counsel or solicitor is unavailable.

The procedure to be followed

The procedure intended to be followed is this:

  1. The Tribunal has no prescribed form for the lodging of applications under the Code but applications must contain a statement of the orders sought, a Statement of Facts and identification of the relevant law. Answers lodged by respondents must make clear what is admitted, what is believed to be true, what is not known and not admitted and what is denied, as well as the respondents’ own positive assertions of fact and must make clear (a) what has been agreed or is, from the respondents’ point of view, capable of agreement and (b) the issues which remain for resolution by the Tribunal. Preliminary points may be taken by way of pleas-in-law.
  2. On receipt of an application the Tribunal will fix a hearing, to be known as a First Hearing, 6 weeks ahead (or as close to that as is possible) and an order will be issued appointing parties to be heard at that hearing as well as ordaining answers to be lodged within the usual 21 days. The balance of the 6 week period may be used by parties for adjustment.
  3. The scope of a First Hearing will depend on the nature and scope of the application. Where no interim or temporary Code rights are sought and there are no challenges to the competency or relevancy of the application, nor any other preliminary challenges, it will be purely procedural and a timetable will be fixed for disposal of the case. In such cases where procedure is agreed it may be possible to dispense with the First Hearing. Where interim or temporary Code rights are sought that will be dealt with at the First Hearing, without prejudice, of course, to the right of applicants, in situations of particular urgency, to seek an earlier hearing. The procedure to be followed for consideration of such interim orders is explained below. Similarly, if there are challenges to the competency, relevancy or specification of the application, or any other preliminary challenge, these will also be dealt with at the First Hearing. In all cases a timetable will be decided upon for disposal of the substantive merits of the application (within the statutory time limit, if it applies) assuming the application survives any preliminary challenge.
  4. Following the practice of the UK Upper Tribunal (Lands Chamber) as illustrated in the case of EE Limited and Hutchison 3G UK Ltd v The Mayor and Burgesses of the London Borough of Islington [2018] UKUT 361 (LC), applications for interim code rights under para 26 of the Code will be dealt with by way of summary procedure, that is to say, on the basis of written submissions, affidavits, reports and similar documentation lodged in advance, supplemented by submissions made by parties’ representatives at the First Hearing. No oral evidence will be heard. The Tribunal will endeavour to pronounce its decision in respect of the orders sought at the close of the First Hearing, which failing, as soon as possible thereafter.
  5. All of the above is subject to the requirements of the interests of justice and to the right of the Tribunal to regulate its own procedure contained in Rule 14 of its Rules.

What the Tribunal expects from parties

In terms of para 21(4) of the Code the policy consideration which underpins it is the public interest in access to a choice of high quality electronic communications services. Parties and the Tribunal therefore have a duty to bear that public interest in mind at all stages. There is a requirement to avoid delay. Parties’ representatives are therefore encouraged to make every effort to see what can be agreed, and agree it, before resorting to the Tribunal. Where for example parties are unable to reach agreement as to specific terms for an agreement for code rights, the Tribunal will expect each party to have set out the terms which it would seek in the event of an agreement being imposed, and to explain the basis for its position where specific proposed terms are in dispute. When an application is brought to the Tribunal, parties should state their cases fully, whilst avoiding prolixity and the pleading of law (which is a matter for later written submissions), avoid creating unnecessary difficulties and comply fully and timeously with all Tribunal orders. Parties failing to do so may be liable to a sanction in expenses as well as putting themselves at a disadvantage in terms of what they hope to achieve.