Upper Tribunal Lands Chamber Telecommunications Users group meeting minutes – 2 February 2021

Lands Chamber (Upper Tribunal)

1. Purpose of the Users’ Group

1.1 Electronic communications is currently one of the Tribunal’s busiest and most pressured jurisdictions with the prospect of a large number of relatively complex cases which require to be resolved within short deadlines.  From the Tribunal’s perspective the purpose of the Users’ Group was to provide an opportunity for it to hear the views of its frequent professional users about how these cases can most effectively be managed, to explain its procedures, to answer users’ questions, and to inform them directly of the Tribunal’s expectations and potential changes in its procedures. The Tribunal also hopes the Group will encourage cooperation between professional users.

2. Update on case numbers

2.1 Since its commencement in December 2017 the Tribunal has received 216 references under the Code of which 161 have been resolved and 55 are pending.  Final decisions had been handed down after contested hearings in 20 cases.  The pattern of receipts of Code cases was:

  • 2018 – 49
  • 2019 – 59
  • 2020 – 101
  • YTD – 7

3. Current procedures – effectiveness and improvement

3.1 A form of directions commonly used in Code cases was discussed and improvements suggested:

  • It was agreed that Scott schedules of disputed terms were of little practical utility and were disproportionately time-consuming and expensive.  They should no longer be routinely required.
  • Any disputed term should be identified in the final version of a travelling draft agreement, which should be as up to date as possible when it is filed.  The argument for or against a particular term can be outlined in skeleton arguments.
  • Directions for disclosure should be used sparingly in Code cases and only after the parties had discussed and agreed the specific issue to which disclosure should be directed, as required by PD 6.3.  Disclosure is unlikely to be directed in disputes over consideration or terms, but will be required of site providers in redevelopment cases.  The duty to disclose adverse documents remains important in all cases.
  • Because indiscriminate reference to a large amount of transactional evidence had become a feature of recent cases, the Tribunal would now generally exercise its powers under rule 19(6) to limit expert evidence.  An expert proposing to refer to more than 10 comparable transactions would be required to explain why and obtain the Tribunal’s consent. 
  • Last minute production of new evidence of comparables had also become a feature of some recent cases and would be discouraged by requiring experts, before preparing their reports, to exchange details of all transactions to which they intended to refer, and preventing reliance on additional comparables without consent.    

3.2 A draft order for directions taking these points into account, as annexed, will be published on the Tribunal’s website. An early case management hearing is directed in all Code cases, but the Tribunal will usually dispense with the hearing if sensible directions have been agreed.

3.3 There was a discussion of the circumstances in which the Tribunal would make a “Tomlin” order, staying a case on agreed terms, with permission to the parties to apply to lift the stay for the purpose of enforcement.  The Registrar explained that, although the Tribunal has all the power of the High Court in relation to enforcement of its orders, it is rarely asked to exercise them.  Users explained that this form of order had been regularly used in cases in the County Court under the old Code, but that it had rarely been necessary for steps to be taken to enforce the agreed terms.  It was confirmed that the Tribunal has power under s.25, TCEA 2007, to make such orders, but rarely regards them as appropriate. Most settlements can be documented by a consent order which finally disposes of the case, leaving the Tribunal free to close its file.  Where a case is settled on terms requiring the removal of apparatus by a particular date use of the Tomlin form may be justified.

3.4 The publication of a new Practice Direction concerning the content of witness statements for use in trials in the Business and Property Courts ( CPR PD 57AC) was anticipated shortly and it was likely to contain much that could usefully be applied to Code cases in the Tribunal.  In particular, the purpose of a trial witness statement is to set out in writing the evidence in chief that a witness of fact would give if they were allowed to give oral evidence at trial without having provided the statement.  It is not the purpose of a witness statement to argue the case, or to comment on the evidence of other witnesses or on documents of which the witness was not the author.  Unnecessarily lengthy, elaborate or argumentative witness statements were expensive and unhelpful, and the Tribunal would, if appropriate, exercise its power to exclude them.  

4. Transfer of Code cases to the First-tier Tribunal

4.1The power to transfer cases to the FTT would begin to be exercised once a change to the FTT’s procedure rules had been made allowing costs to be awarded in Code cases.  The Tribunal Procedure Committee has now approved the change which will be made by statutory instrument expected to be laid in March 2021.

4.2 Once the rule change has been made the transfer of suitable cases would begin, initially in small numbers.  Cases will still require to be commenced in the Tribunal but directions will be given for a case management hearing which will take place in the FTT

4.3 Only cases commenced after the rule change will be transferred and initially redevelopment cases and small-scale renewal cases are likely to be considered suitable.  Claims relating to new sites are likely to remain in the Tribunal until the FTT has acquired experience of the Code.  Cases raising new points of principle will remain in the Tribunal; the assistance of the parties will be required to ensure that such cases are identified and retained.

4.4 Judge McGrath, the Chamber President of the FTT PC, explained that transferred Code cases will be heard by a panel comprising a Judge alone, or a Judge and a Member.

5. Telecommunications cases in the County Court

5.1 The Court of Appeal has confirmed in CTIL v Ashloch that subsisting agreements with security of tenure under Part 2, Landlord and Tenant Act 1954 can only be renewed in proceedings in the County Court under the 1954 Act.

5.2 The Deputy President explained that he and Judge Cooke were both Judges of the County Court.  At the request of Designated Civil Judge for the relevant County Court they could be deployed to sit on telecommunications cases which raise points of principle concerning the relationship between the Code and the 1954 Act.  It was usually convenient for the administration of such cases to be managed from the Tribunal.

5.3 Three cases had so far been managed in this way, of which one had come to trial (Vodafone v Hanover Capital, a case in the Manchester County Court).

5.4 Decisions on judicial deployment are taken by the Designated Civil Judge for the relevant County Court, and any request for a Tribunal Judge to hear a particular case should be made to the DCJ, explaining why the case is considered to be suitable.  A copy of any such request should be sent to the Deputy President, who would liaise with the DCJ.  The earlier a request is made the more likely it is that arrangements can be put in place.

6. CE-File

6.1 CE-File, a digital platform for electronic filing of new cases and for the management and progression of new and existing cases is expected to become available to users of the Tribunal in about May 2021. The use of CE-File would become mandatory for professional representatives after an introductory period.  Views were invited on how long that introductory period should last.  The introduction of CE-File was welcomed by some users who had experience of it in court proceedings.

6.2 Information and general guidance on the use of CE-File is already available, as it already applies in some Courts, and can be found at: https://www.gov.uk/guidance/ce-file-system-information-and-support-advice

6.3 Additional guidance will be shared with users in draft at or before the next meeting.

7. Virtual public access to hearings

7.1 A question was asked about access to hearings conducted in the Tribunal using remote digital platforms because of the current public health restrictions.  It was confirmed that in principle all hearings in the Tribunal are conducted in public, and that access to “virtual” hearings is available to the public.  Details are published on the daily cause list and if a representative of the media or member of the public wishes to attend a hearing they should contact the Lands Chamber listing section at Lands@Justice.gov.uk who will provide further information.

8. Process after hearings

8.1 There was a discussion on orders for costs and other matters dealt with after a decision had been handed down.  The Tribunal’s preference is to conduct a summary assessment of costs in cases lasting one day or less, but it does not insist on doing so if the parties preferred detailed assessment.  It is not necessary for parties to provide a statement of costs before a final hearing, and an opportunity is always given for parties to make submissions on costs or other consequential matters in writing after a decision has been handed down.  If the successful party wanted a summary assessment they should provide a statement of costs at that stage.

9. Valuation evidence and comparables

9.1 Dealt with under 3.1

10. AOB

10.1 The Deputy President invited members of the Users’ Group who had questions or suggestions to raise them by email with him, copying other members of the Group if the matter was likely to be of wider interest. 

11. Next meeting

11.1 c.3 or 4 months