UT Lands Chamber Telecommunications Users Group Meeting Minutes – 25 May 2021

Lands Chamber (Upper Tribunal)

1. Introduction and apologies

1.1 In response to an inquiry about membership of the Users Group, the Deputy President explained that prospective new members are welcome to request an invitation, but that the preference of the Tribunal was that the Group should remain quite small to ensure that meetings are manageable and useful.

2. Minutes of meeting on 2 February 2021

2.1 No amendments were suggested.

3. Matters arising

Item 3.3 – Tomlin Orders. The Deputy President explained that he was aware that the Tribunal has not always responded consistently to requests for orders in “Tomlin” form, but its preference is to avoid their use unless there is some good reason for the Tribunal’s file to be kept open.  That the terms of settlement of a reference provide for the payment of money, or for land to be vacated by a particular date, are not good reasons to adjourn the reference generally thereby requiring the Tribunal to keep its file open. 

4. Update on case numbers and forthcoming hearings

4.1 To give the Group some idea of the relative significance of Code cases in the Tribunal’s workload, the Deputy President reported that 104 new Code references had been received in the financial year 2020-21, of which 63 remain live (some are stayed). [Half year update, 52 references received Jan-June 2021]. It is expected that the annual references will settle at around 100, which would be more than the usual numbers for CPO compensation references or rating appeals, but fewer than FTT appeals.

4.2 In addition to references within the Tribunal’s own jurisdiction its Judges were also managing a small number of County Court cases (currently four). (See also item 8 below.)

4.3 On 27 May the President will hear the important case of EE Limited & Hutchison 3G UK Limited v David Paul Stephenson & APW Wireless II (UK) Limited, which will address the same issues recently decided by the Court of Session in Scotland in the case of EE Limited & Hutchison 3G UK Limited v John Stewart Duncan.

5. Introduction of CE-Filing – 28 June 2021

5.1 Access for tribunal users to the Tribunal’s electronic filing platform, known as CE-File, would be available from 28 June 2021.  A draft Practice Note was being prepared and would be published in advance, and a number of webinars were being arranged to introduce users to the new method of commencing and conducting proceedings in the Tribunal.  The Practice Note would be in similar form to one already published by Upper Tribunal, Tax and Chancery Chamber which could be found on its website.

5.2 The use of CE-File would not be compulsory at this stage, but professional users should assume that it will become the required means of commencing proceedings in the Tribunal after an initial familiarisation period.  The Deputy President encouraged all Tribunal users, especially professional users who make regular use of the Tribunal’s services, to engage with CE-File by registering as users of the system and using it to commence and manage their cases.  This would assist the Tribunal to progress cases more efficiently.

5.3 The Tribunal had been using the case management functions of CE-File since October 2020. All cases commenced before that date would “migrate” to CE-File on 14 June and would be given a new reference number. From 28 June users who register for CE-File will be able to manage these legacy cases using the CE-File platform.

6. Transfer of Code cases to the First-tier Tribunal from June 2021

6.1 As regular users are aware, although all Code cases are required to be commenced in the Upper Tribunal, the First-tier Tribunal has a concurrent jurisdiction.  From 1 June 2021 suitable Code cases (expected to be about 20 – 25 per year) will be transferred to the FTT, Property Chamber for case management and hearing. These are likely initially to be cases concerning redevelopment issues and smaller “domestic” cases affecting individual householders. Other types of cases may also be transferred if there is an increase in new case numbers (especially those requiring determination within six months).  It was unlikely that references to which the six-month deadline applied would be transferred.

6.2 All Code references will continue to be commenced in the Upper Tribunal, which will serve the notice of reference and issue initial directions at the point of transfer as currently happens; the directions will include a transfer to the FTT and will not fix a date for the initial case management hearing. The original Tribunal reference number will continue to be used by the FTT which will then fix a date for the CMH.

6.3 Applications by consent for the imposition of interim rights will remain in the Tribunal and will not be transferred.

6.4 Judge Jackson explained that he and Judge Barlow are the full time Regional Judges of the FTT Property Chamber based in Birmingham and will manage and hear the majority of transferred Code cases.  All case management hearings will be conducted remotely.  Once a case has been transferred documents should be sent by email, unless very large when a document upload centre is available, by liaison with the FTT administrator Kelly Whittaker. It is expected that a three month turn-around time should be achievable.

6.5 Judge McGrath confirmed that the right of appeal from the FTT in Code cases would be to the UT. The FTT rules have been amended so that they have full costs-shifting powers for this jurisdiction.

7. Review of interim rights procedures

7.1 The Deputy President introduced a general discussion on the management of references in which the only claim was for interim rights.  In most of these cases the right sought was for access to a prospective new site for an operator to undertake an “MSV”.  Many of these references are eventually dealt with by agreement, and those which are not are usually determined on a summary basis at the first hearing.  The Deputy President was concerned that disproportionate costs were being incurred in over-elaborate presentation of these cases, despite the very limited scope of the issues.  Claimants regularly file unnecessarily complex statements of case exhibiting numerous irrelevant documents and lengthy schedules detailing correspondence, together with two or sometimes three repetitious witness statements, including detailed technical material from radio planners.  Unnecessary Tribunal time, and substantial costs were being incurred as a result (in one recent case, where no response had been received from the prospective site provider and the reference was unopposed, an application was made to recover costs in excess of £50,000).

7.2 In the discussion which followed the significance of an MSV was emphasised: landowners who did not want apparatus on their land were sometimes prepared to resist each step in the process and were entitled to do so.  Those present who generally represent site providers are not instructed in cases where there is no serious issue. It was pointed out that operators often could not tell in advance whether a reference would be seriously contested and prepared on the assumption that it might be.  It was also recognised that interim rights could not be conferred by agreement, without the involvement of the Tribunal, and that some of the cost of a reference was inevitable. 

7.3 The Deputy President agreed that a site provider who did not wish to allow access to their land was perfectly entitled to contest a reference and the Tribunal did not wish to discourage anyone from doing so.  The difficulty he perceived was that most MSV references were not contested on the basis of any serious issue and overwhelmingly orders were agreed or granted unopposed, but only after disproportionate expense.  He suggested that, while it was for the parties to determine how they presented their case,  a much more conservative approach could properly be taken to MSV cases, similar to that which would be adopted by a utility provider seeking an order for access to land in the Magistrates Court.  In cases where preliminary exchanges between the parties had not identified any substantive issue which needed to be addressed, a competent statement of case, supported by a statement of truth signed by a responsible employee of the claimant, or by a solicitor, ought to be capable of providing the evidence necessary to enable the site provider and the Tribunal to determine whether there were grounds to make an order permitting an MSV.  If, after a notice of reference had been served, a site provider was not prepared to allow access, and filed a response explaining their grounds of opposition, the Tribunal would consider whether the issue could fairly be determined at the first hearing on the material available.  If the site provider had raised an issue on which further evidence was required, directions would be given for an early exchange of evidence and a date would be fixed for a new hearing or for a determination of the issues on paper.  The further consideration of the reference would be on the same summary basis, without live evidence or cross examination.  The result might be that, in a small number of cases, the determination of the reference might take a month or two longer, but that the majority of cases would be resolved at significantly lower cost either by agreement or at the first hearing.

8. Telecommunications cases in the County Court

 8.1 The Deputy President reminded users that 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 in their capacity as a County Court Judge should be made by letter to the DCJ for the relevant Court, copied to the Deputy President, rather than by application in the case.  Cases proceedings in the Mayor’s and City, Birmingham, and Oxford County Courts were currently being managed on that basis but the number of such cases needed to be limited.  The object was to have sufficient cases determined by Judges with Code experience to provide guidance to parties in other cases and there should be no assumption that any 1954 Act renewal of a mast site could be dealt with in the same way.  Any request should explain why the case is considered to be suitable for a Tribunal Judge to hear, e.g. issues of rent, terms of the agreement.  Liaison would then take place between the Judges concerned and the earlier a request is made the more likely it is that arrangements can be put in place.

9. AOB

9.1 No other matters were raised.

10. Next meeting  

10.1 Thursday, 4 November 2021, 4.30pm, format to be considered closer to the date.  It is suggested that a possible for topic for consideration might be the preparation and management of references seeking renewal or modification of subsisting agreements, but participants are invited to suggest any other current topic of interest for discussion.