Attended in person:
Mr Justice Edwin Johnson, Chamber President (CP)
Martin Rodger KC, Deputy Chamber President (DP)
Elizabeth Cooke, Upper Tribunal Judge
Mark Higgin FRICS, Upper Tribunal Member
Peter McCrea FRICS, Upper Tribunal Member
Diane Martin MRICS, Upper Tribunal Member
Donald Scannell, Registrar
Thomas Armstrong (DWF)
Rob Bridgman (Gowling WLG)
Sabrina Cader (Winkworth Sherwood LLP)
Alicia Foo (Pinsent Masons)
Clare Hartley (DAC Beachcroft)
Alice Pearson (Knights)
Oliver Radley-Gardner KC (Falcon Chambers)
Martin Thomas (Gowling WLG)
Jonathan Wills (Landmark Chambers)
Attended by video link
The Chamber President introduced himself and thanked all those attending for their participation. He particularly commended the Tribunal’s staff whose work has enabled the efficient management of the telecommunications jurisdiction.
Alexandra Herbert (DWF)
Charlina Walter (Knights)
2. Minutes of meeting on 13 October 2022 were approved without amendment.
3. Matters arising
Referring to the item noted in the minutes under AOB, the DP said that there had been further recent examples of consent orders being submitted before parties have reached a final agreement. Ambiguous correspondence has been relied on as evidence of consent and on one occasion an order was made on the understanding that an email signified consent when, read in wider context, it did not. Negotiations for a settlement are privileged until the settlement has been completed and it is improper to disclose them to the Tribunal, or prematurely to claim settlement has been reached. A signed consent order, or other explicit confirmation of consent by both sides should always be provided. If necessary premature references by consent will be struck out as an abuse of process.
4. Update on case numbers
The DP provided the following updated figures, which show the continued growth of the telecommunications jurisdiction.
Receipts – 785 Code references have been received by the Upper Tribunal since the first arrived in December 2018.
y/e 30 March
2021 – 106
2022 – 171
2023 – 222
146 new Code references had been received in the six months to 30 September 2023. As at 12 October 2023 21 Code references remain open in the Upper Tribunal.
Transfers – 227 of 785 (30%) of all references received have been transferred to the FTT.
2022 – 36 of 171 (21%)
2023 – 105 of 222 (47%)
6 months to 30.09.23 – 85 of 146 (58%)
351 of 785 references (45%) have been recorded as having settled by consent (without being transferred to the FTT)
2022 – 84 of 171 (49%)
2023 – 94 of 222 (42%)
6 months to 30.09.23 – 48 of 146 (33%)
As the number of references being transferred to the FTT increased, the figure for settlements in the Upper Tribunal largely represented cases which were commenced as joint references by parties who wanted the benefits which the Code allows to imposed agreements.
5. Users’ expectations of future case numbers – TILPA, PSTI
The consensus amongst users was that the number of references made to the Tribunal would continue to grow on a similar trajectory (which would see total receipts for the year to March 2024 exceed 300). This number was thought likely to double when the provisions of the Product Security and Telecommunications Infrastructure Act 2022 came into force, allowing the renewal of business tenancies of telecoms sites under Pt 2, Landlord and Tenant Act 1954 on Code valuation terms.
None of those present was aware of any use having been made of the Telecommunications Infrastructure (Leasehold Property) Act 2021 and it was not expected that TILPA applications would be made to the FTT.
6. Product Security and Telecommunications Infrastructure Act 2022 changes in prospect
The DP and Judge McGrath summarised their understanding of the likely timetable for the commencement of Part 2 of the PSTI which will allow for the renewal in the tribunals of business tenancies conferring Code rights.
So far, only powers to make regulations, and sections 57-60, 66, 68, 69 had been brought into force. Sections 61 to 65, concerning the renewal of business tenancies, were not yet in force.
It was assumed that this group of sections would be brought into force together, but that had not yet been confirmed.
Separately from the commencement of ss.61-65 amendments will be required to the 2017 Jurisdiction Order (commencement of proceedings) and to the FTT and UT Rules. The earliest that could happen would be April 2024. It was expected that there would be some flexibility about where cases can be commenced (UT or FTT) and that the detail would be left to practice directions.
A number of users commented that the long running pilot which had allowed unopposed business lease renewals to be managed through the FTT had been successful and that the FTT was the obvious forum for unopposed Code renewals. The opportunity to commence cases raising any new points of principle in the UT (for example concerning transitional provisions or valuation) was also thought to be important. The DP and Judge McGrath agreed that there would be consultation with users before a joint practice direction was finalised.
7. I’m glad you asked me that!
A number of questions submitted in advance by Leona Briggs were addressed:
7.1 Paragraph 20 renewals: The Tribunal does not appear to be applying the 6 month requirement in regulation 3 of The Electronic Communications and Wireless Telegraphy Regulations 2011 to renewals under paragraph 20 of the Code. We understand that regulation 3(1)(a) references the “granting of rights to install facilities” but is there any intention to apply the 6 month rule at some point to move the paragraph 20 renewals through reasonably quickly? If there is no plan to apply the 6 month rule, how long should the parties anticipate a paragraph 20 renewal to take from issue of the reference through to final hearing?
Judge Cooke explained that paragraph 20 applications relating to new sites had always been treated as subject to the six-month time limit, and that time limit had been met in all cases in the Lands Chamber. Part 5 renewals, by contrast, had not been subjected to that time-limit. The only real difference in the treatment of such cases is that the Tribunal has been willing to stay the reference by consent, which of course is not possible in six month cases. All contested renewals have been heard within a year of the reference being commenced (any that have lingered longer have done so because they have been appealed or stayed pending another appeal). Paragraph 20 renewals are a creature of Compton Beauchamp and there have as yet been very few, and there has been no suggestion that they have not moved along reasonably quickly.
7.2 FTT case allocation: How are cases allocated between the FTT and UT, as, for example, most MSV cases are referred to the FTT but some are retained by the UT?
The DP explained that the Tribunal’s practice on transferring cases had evolved in the last year. Originally paragraph 20 references had been retained in the Tribunal, because of the statutory time limit for their determination. This was no longer the practice as the FTT’s experience of dealing with Code cases had increased and compliance with the time limit was not expected to be a problem.
Factors which had been taken into account had been (1) whether a reference raised a significant issue which has not been determined before; (2) whether a reference was of a type which, though not necessarily difficult, the Tribunal had not yet given a decision on e.g. incorporation of a redevelopment break-clause or opposition to renewal on redevelopment grounds; (3) rare cases where, for one reason or another, it was too late to make a transfer decision while remaining confident that the statutory time limit could be met.
The current practice was for all routine cases to be transferred to the FTT. In response to a question from Jonathan Wills the DP explained that the Tribunal still largely depended on claimants, when filing new references, to draw attention in a covering letter to any which were likely to raise a new point of principle and to request that they remain here. In practice this was rarely done. Additionally, if claimants were aware that the intended respondent considered that the reference raised such an issue and should not be transferred, the Tribunal would expect that fact to be drawn to its attention by the claimant when commencing the reference.
7.3 Paper judgments: where is the Tribunal’s latest thinking on moving the more simple cases (for example, most MSVs) to be dealt with on paper only to avoid delay and costs for both parties?
The DP doubted that the determination of cases on paper would be quicker than at a hearing or that it need necessarily be cheaper. If there was an issue which parties were unable to agree then they would need to be given the opportunity for submissions and counter submissions. It was not intended to change the Tribunal’s current practice which was to fix an early hearing date at which parties could usually expect a final determination.
Judge David Jackson, the Regional Judge of the Property Chamber with responsibility for supervising telecoms cases transferred to the FTT, said that he was always keen to deal with suitable cases on paper, but that in this field, in cases where parties were unable to agree, there was always likely to be an issue which needed to be considered at a hearing.
7.4 FTT Judges: As the FTT is clearly getting much busier, are there plans to expand the roster of judges who sit in the FTT to avoid any delays in listing etc
Judge Jackson explained that the FTT had many judges who were interested in hearing telecoms cases and had already participated in appropriate training.
Judge McGrath agreed and said that, as part of routine renewal, new FTT judges were currently being recruited. She did not expect the FTT to have difficulty in managing the new case load.
7.5 Virtual hearings: Are there plans to alter the approach to virtual v in person hearings?
The DP said that there were no such plans in the UT. The practice would remain that case management hearings and summary cases where a decision was made on written evidence only (e.g. MSV case) would generally be online, while other substantive hearings would generally be in person.
Judge Jackson confirmed that most cases in the FTT were being dealt with remotely, but that the facilities were available for in person hearings if either party preferred.
7.6 Witness Statements: following the discussion on this at the last meeting, is there any further guidance from the Tribunal on expectations in relation to number of witness statements deemed appropriate, in particular, for MSV applications? Will the Tribunal be considering a limitation on the number of witness statements which can be filed in the reference?
As far as the UT was concerned the DP reiterated that in an MSV case sufficient evidence could usually be presented by a single witness for a claimant to meet the good arguable case threshold and that the preparation of elaborate evidence by a number of witnesses was rarely necessary. Similarly a respondent who had realistic grounds for resisting the imposition of MSV interim rights would be likely to be able to explain why through a single witness. But there is no limit on the number of witnesses on whom parties can rely and the Tribunal did not intend to impose one.
Judge Jackson said that the same was true in the FTT.
7.7 Interim arrangements: Clare Hartley (DAC Beachcroft) asked a question about the management of “interim arrangements” applications once section 67, PSTI Act 2022 came into force on 7 November 2023. Paragraph 35 of the Code will be amended to allow operators to apply for interim consideration while an application for renewal is proceeding. The DP said that the Tribunal would respond to interim arrangement applications as they were made and had no particular arrangement in mind. He assumed that parties would not be asking for a separate hearing to quantify interim consideration and that, if not agreed, it would be quantified at the final hearing. That is the norm with applications for interim rent under the 1954 Act, and it is generally how the Tribunal has dealt with consideration where it has imposed interim rights on a paragraph 26 reference at the same time as giving case management directions for a paragraph 20 reference for the same site – the consideration payable during the interim rights period has been left over to be agreed or quantified when the permanent rights are finalised.
8. FTT applications, orders and fees
Judge Jackson raised three points about the procedure in the FTT (the had previously been circulated on 31 July)
8.1 The FTT had an application form for case management directions which should be used. A request for directions or any other decision by a Judge should be made using that form, and not in the body of an email. Any such application should be copied to the opposing party by the applicant when it was made to the tribunal.
8.2 When filing a Consent Order for approval by the FTT please attach a Word version of the Order and a separate pdf of any agreement to be annexed. (NB the UT practice is different, see 9 below)
8.3 The FTT receives a number of requests to debit fee accounts. The current position is that the FTT Fees Order has not yet been amended to include Code cases so no fees are payable.
9. Consent orders – different requirements of UT and FTT
The DP explained that the preference of the UT was to include an imposed agreement as part of a single electronic document comprising the order and the agreement. This avoided the risk of any uncertainty about what had been imposed. It was difficult to achieve using a pdf and a single document should be supplied with the order and the agreement in Word.
10. Keeping consideration under review
The DP said that many of the Tribunal’s decisions on the level of consideration appropriate in cases involving different types of property were now several years old. In a time of relatively high inflation guidance provided by Tribunal in previous cases may need to be uprated from time to time, either by agreement or when an opportunity arises in a contested case.
11. Amalgamation of Users Groups
Once the ECC Jurisdiction Regulations 2017 are amended to permit commencement of Code cases in the FTT the main focus of telecoms cases would shift from the UT to the FTT and it would then be appropriate for this group to become a Users’ Group of the FTT. The DP said that he and other UT judiciary would continue to participate in the group but that telecoms topics could also be raised directly with him or in the general UT Lands Users’ Group which also meets annually and which all users are welcome to attend.
Judge Jackson commented that it was his intention to convene a meeting of users before the anticipated transfer of jurisdiction came into effect.
12. Draft Revised Practice Directions
Judge Cooke explained that the Tribunal’s Practice Directions were last reviewed in October 2020 after consultation with users. A review has recently been undertaken and some limited changes are proposed.
The main changes are:
• A new section 3, dealing with communicating with the Tribunal, including the use of CE-File by professional users which is now mandatory throughout the Upper Tribunal.
• A slimmed down treatment of the procedure for judicially reviewing a refusal of permission to appeal from the FTT, at para 11.21.
• Section 15, dealing with references under the Electronic Communications Code has been substantially reduced and now reflects the current practice of transferring these cases to the First-tier Tribunal.
• Para 19.15 has been modified to remind expert witnesses that, in addition to the declaration which the Tribunal requires to be included in all expert reports, they may also be required by their own professional body to include a separate statement of compliance.
• Para 20.3 deals with the form of hearing bundles. A hybrid involving a full electronic bundle and a paper core bundle was often the most helpful approach, but litigants in person may continue to prefer a paper bundle.
Dovid Pink (Amsy Chartered Surveyors) raised two difficulties which he encountered in acting for individual site providers. The first concerned the risk of costs being awarded by the Tribunal against a site provider who did not want apparatus on their land. The second concerned the incorporation of contractual compensation provisions into new agreements which were not imposed by the Tribunal but were entered into voluntarily.
The DP responded by pointing out that he could not comment on any individual case but that it was not his experience that the Tribunal awarded costs against a site provider simply because they preferred not to enter into a consensual agreement. If the principle of whether an agreement should be imposed was genuinely in issue, the Tribunal’s usual approach was that the unsuccessful party would pay the successful party’s costs (unless there was reason to make a different order). But where there was no dispute of principle and the reference was not actively opposed, costs were not usually awarded; even where there were issues about the details of terms, it was often difficult to say that one party was successful and the other unsuccessful and costs were often not awarded.
The second issue was more problematic. Clare Hartley (DAC Beachcroft) said that in her experience contractual compensation provisions were now routinely incorporated into new agreements so that it was not necessary for a reference to be commenced simply to ensure that compensation would be available in future. Dovid Pink’s experience was different and was that some operators are reluctant to agree to contractual compensation clauses and use the supposed threat of adverse costs orders if a reference is made to the Tribunal as a tactic to secure agreement from site providers.
When this issue had first been raised with him in March 2023 the DP had suggested that it might be suitable for discussion at this meeting. No opportunity had since arisen in which the Tribunal could express a view when deciding an individual reference, and it was in the nature of the problem (that imposed agreements carry statutory compensation rights, but consensual agreements do not) that such an opportunity may never arise. Nevertheless, the Code clearly anticipated that site providers would receive consideration and additionally would have access to future compensation. If agreement could not be reached on a contractual compensation clause it was difficult to see how a site provider’s insistence on a reference to secure compensation rights could be thought unreasonable. If negotiations over the inclusion of a compensation clause led to an increase in the costs reasonably incurred by a site provider, the Code provided for compensation to cover such costs.