Meyrick 3 – The Latest Tribunal Judgment and Costs Outcome
This is the third written decision to arise out of the Tribunal reference; EE v Meyrick [2020] UKUT 0105 (LC) (“Meyrick”). It is perhaps the most powerful yet, with the Respondents’ conduct being very strongly criticised on a number of counts and, as such, it being ordered to pay EE’s costs, on an exceptional indemnity basis.
This Judgment will/should serve as a salutary lesson not only to those directly involved in the claim, but to all those in the telecoms sector.
Firstly, however, let’s look at how we got to this point.
Meyrick 1. So back in July last year, the Tribunal ruled that the Respondent landowners did not satisfy the test under para 21(5)[1] to resist the grant of Code rights to EE, on the grounds of a purported redevelopment.
In reaching this view, the Tribunal determined that the Respondents’ redevelopment plans were not a bone fide attempt to improve broadband coverage on its land, as claimed, but rather were a device to seek to frustrate the grant of rights to EE, on Code terms.
Meyrick 2. In our previous article, we considered the Tribunal’s determination (in the absence of the agreement of the parties) of the terms upon which the Code rights would be granted.
To re-cap, whilst the Tribunal had set down directions for the parties to seek to resolve this question by mutual agreement if at all possible, the Respondents had not engaged with that process and sought to introduce a number of contested issues very late in the day, shortly before the hearing[2].
This approach did not impress the Tribunal to say the least, who viewed the Respondents’ approach as an attempt “to delay the resolution of the reference and to hijack the final determination by raising issues that should have been raised months ago”.
As such, the contested terms of the agreement were determined in EE’s favour.
Meyrick 3. This latest Judgment, released as an addendum to Meyrick 2, determines the costs of the Reference.
EE’s position on costs was that, as it had been successful in both Judgments, then it should be awarded indemnity costs on account of the fact that the Respondents’ conduct was wholly unreasonable.
The Respondents accepted that they should pay costs, but only on the standard basis.
At paragraph 37 of the Judgment, the Tribunal records the fact that “both parties recognise that the award of indemnity costs is exceptional and reflects unreasonable conduct to a high degree”. So, a very high bar for EE to overcome. However, that is exactly what it did.
The following quotations from the most recent Costs Judgment set out how and why the Tribunal arrived at the view it did:-
On Meyrick 1:
“Much of the evidence adduced by the Respondents was kept deliberately opaque and rather than elucidate the true nature of their intentions it only served to prevent the Tribunal from discerning what those intentions were”.
“Scepticism hardened into disbelief when it became clear during the hearing that the respondents had misled the local planning authority and attempted to mislead the Tribunal”.
“Deliberately misleading evidence to the Tribunal is egregious conduct and lies well outside the acceptable norm”
“The redevelopment plans were conceived as a smoke screen in order to defeat the claim for Code rights”.
“Accordingly, the Respondents’ conduct – not only their misrepresentation of their evidence but the whole basis of their case – was unreasonable to a high degree”.
And on Meyrick 2
“This was not simply a case of “a party being criticised for failing to respond in time” as suggested by the Claimants. This was cynical conduct with mischievous intent which we found to be vexatious and unacceptable”
“Such conduct is unreasonable to a high degree”
In the light of these comments, it is no surprise that indemnity costs were awarded in favour of EE.
This case and the costs outcome is therefore a very clear warning from the Tribunal to those who consider misrepresenting their intentions and/or evidence in support in an attempt to frustrate the grant of Code rights, as well as those who fail to co-operate and comply with the Tribunal’s rules and directions. Such is the impact of this Judgment that we expect the number of instances of such conduct coming before the Tribunal in future will reduce significantly.
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- Electronic Communications Code, Schedule 3A to the Communications Act 2003, as inserted by the Digital Economy Act 2017
- *Written determination
