Attendance in person:
Mr Justice Johnson, Chamber President; Martin Rodger KC, Deputy Chamber President; Judge Lizzie Cooke, Mr Mark Higgin, Mrs Diane Martin, Donald Scannell, Registrar.
Alicia Foo, Pinsent Masons; Thekla Fellas, Eversheds Sutherland; Tess Geraghty, Eversheds Sutherland; Michael Watson, Knights; Jonathan Wills, Landmark Chambers.
Attendance by video link
Judge Siobhan McGrath, Chamber President FTT(PC); Judge David Jackson, Regional Tribunal Judge FTT (PC) Midland Region.
Rob Bridgman, Gowling WLG; Leona Briggs, Osborne Clarke LLP; Rebecca Collins, CAAV; Sian Gibbon, Ashfords LLP; Clare Hartley, DAC Beachcroft; Luke Maidens, Blacks Solicitors; Oliver Radley-Gardner KC, Falcon Chambers; James Robinson, Birketts LLP; Emily Van Schalkwyk, Osborne Clarke LLP.
Mr Peter McCrea; Emma Ranaweera, UT Lands; Sue Brady, UT Lands
Thomas Armstrong, DWF Law; Sabrina Cader, WS Law; Dan Cuthbert, Freeths LLP; Alexandra Herbert, DWF Law; Tim Meers, Knights; Paul Sagar, Blacks Solicitors.
2. Minutes of meeting on 2 February 2021 – Approved.
3. Matters arising – None which were not already on the agenda.
4. Update on case numbers
171 Code references had been received in the year to 31 March 2022 (y/e 31/3/21 – 106)
106 new references had been received in the six months to 30 September 2022
Most recent references were MSV cases and a number of re-development cases, where the operator is applying for new rights after receipt of a break notice, most of which were transferred to the FTT. Very few applications for new sites or renewals had been registered.
DJ reported that 82 cases had been transferred to the FTT, all but four being renewals. Re-development was often the underlying issue but most have settled.
5. Users’ expectations of future case numbers
JW had canvassed opinion which confirmed the theme of plenty of re-development cases. TF commented that service of notice at an early stage is often a precaution made necessary by the 18-month notice period but there is usually settlement and few of these cases will require determination.
CH reported that the Shared Rural Network has a target date in 2024 which will generate plenty of activity.
The DP asked users to alert the Tribunal when a case has an important point of principle so that it can be retained, rather than transferred to the FTT only to come back either at case management or on appeal. Although cases are transferred before the respondent’s statement of case has been filed, where the parties are talking before the reference it should be clear if there is an important point. If the parties have not engaged in advance, responsibility for alerting the Tribunal to any unusual or important feature rests with the claimant.
SMcG confirmed that the criteria in FTT rule 25 for transfers to the UT are quite restrictive and the procedure relatively cumbersome (requiring liaison between both Chamber Presidents) but rule 6 is also available and allows a simpler route for transfer whenever the FTT considers another court or tribunal a more appropriate forum.
6. Revision of standard directions and 7. Non-expert witnesses in Code cases
The DP confirmed that there is no rule that no more than one non-expert witness can be called in Code cases. Parties are encouraged to limit evidence to what is necessary to deal with specific disputes and should remember that both the Tribunal and the FTT are very familiar with both the background and the usual issues.
Permission to rely even on one expert will not be given in routine cases until the parties have clearly identified that there is an issue which requires expert evidence, but where there is a need permission will be given.
A discussion about travelling drafts concluded with a consensus that directions for exchanges to be timetabled so that they can be completed in good time ahead of the hearing would help focus attention on resolving terms. Parties will be encouraged to agree an appropriate timetable for more than one round of exchanges which can be included in standard directions.
For the hearing a final version of the travelling draft clearly identifying each side’s proposals is often preferable to a schedule of disputed terms with repetitious argument. Skeleton arguments should deal with the issues.
RC noted that DCMS set up a working group to create a template of standard terms, but this was difficult so a set of guidance notes may be produced instead, for example on lift and shift terms.
6.3 FTT procedural requirements
DJ pointed out some differences between the procedures of the FTT and the UT.
The FTT does not make Tomlin orders because it does not have enforcement powers.
The FTT does not routinely approve directions agreed between the parties for renewal applications, because experience suggests many will not need to be listed for hearing. Listing will not take place until evidence is complete to avoid over-filling the calendar with cases which are likely to settle. This usually results in earlier hearing dates for cases which require a hearing, and these can then be listed quite quickly, within one to two months of close of evidence.
6.4 Other points of procedure
Statements of case should be economical, with annexes limited to a plan and the agreement to be imposed. MSV applications can additionally annex copies of any relevant correspondence, and should be supported by a statement of truth, since they are determined at the first hearing.
The DP repeated previous discouragement of orders in Tomlin form. The Tribunal does have full enforcement powers but is not aware of anyone having tried to use them in a Code case. The Tribunal will not order general stays of proceedings after agreement has been reached (unless there is some very good reason) and consent orders should provide for full and final settlement.
8. Product Security and Telecommunications Bill.
Attention was drawn to changes anticipated in 2023 once the Bill currently going through parliament is enacted. 1954 Act renewals for telecoms sites will be assigned to tribunals rather than the County Court. Both UT and FTT will have jurisdiction and cases will be allocated between them by reference to criteria to be included in a joint practice direction. It is likely that this will provide for most cases to commence in the FTT.
A draft practice direction will be circulated for comment by users in due course.
Where a case assigned to the FTT raises a point of principle the same opportunity will be available as at present to seek transfer to the UT under rule 6 or rule 25 of the FTT Rules.
As drafted, the Bill gives the Secretary of State power to prescribe time limits for the determination of telecoms cases. Even without time limits the Tribunal will continue to deal with Code cases promptly.
9. Future of Users Group
There was continued support for a specialist users group for telecommunications work. By the time of the next meeting it was likely that most telecommunications cases would be in the FTT and a joint user group would be appropriate. DJ and the DP would give some thought to how the group would be administered.
Concern was raised about one case in which parties had reached a consensus on terms for a new agreement and a reference had then been made on the basis that it was by consent but without the site provider being aware that that was being done. The DP stressed the importance of good communication but said that if the Tribunal was being asked to make an order by consent it was essential that evidence of consent by representatives for both parties be provided to the Tribunal.
11. Next meeting
To be held in Autumn 2023.