British Telecommunications Plc v The Office of Communications [2018] EWCA Civ 2542 (14 November 2018)

British Telecommunications Plc v The Office of Communications [2018] EWCA Civ 2542 (14 November 2018)

The Court of Appeal held that the CAT did not err in law by adopting the starting point that costs follow the event in regulatory appeals under section 192 of the Communications Act 2003. The CAT's discretion under Rule 104 allows it to consider all relevant factors, and the distinction between dispute resolution and regulatory appeals justifies different starting points. The CAT's approach aligns with civil litigation principles and provides flexibility to account for Ofcom's regulatory role and public interest duties. There is no binding authority requiring the CAT to adopt a 'no order as to costs' starting point in regulatory appeals.

Citation
[2018] EWCA Civ 2542
Parties
Applicant/respondent: British Telecommunications PLC; Respondent/appellant: The Office of Communications
Jurisdiction
England and Wales
Judgment Date
14 November 2018
Procedural Posture
Appeal From Competition Appeal Tribunal (cat) / Court of Appeal Judgment
Outcome
Appeal dismissed; CAT's costs decision upheld.
Legal Topics
Costs in Regulatory Appeals, Regulatory Decision Making, Judicial Review of Regulatory Bodies
Competition Law Telecommunications Law Administrative Law Costs in Regulatory Appeals Regulatory Decision Making Judicial Review of Regulatory Bodies

Case Brief

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Parties

British Telecommunications PLC

Applicant/respondent

The Office of Communications

Respondent/appellant

Procedural Posture

Appeal From Competition Appeal Tribunal (cat) / Court of Appeal Judgment

Legal Issues

  1. 1 What is the correct starting point for costs in appeals under section 192 of the Communications Act 2003 against regulatory decisions by Ofcom?
  2. 2 Should costs follow the event or only be awarded against Ofcom in cases of unreasonableness or bad faith?

Ratio Decidendi

The Court of Appeal held that the CAT did not err in law by adopting the starting point that costs follow the event in regulatory appeals under section 192 of the Communications Act 2003. The CAT's discretion under Rule 104 allows it to consider all relevant factors, and the distinction between dispute resolution and regulatory appeals justifies different starting points. The CAT's approach aligns with civil litigation principles and provides flexibility to account for Ofcom's regulatory role and public interest duties. There is no binding authority requiring the CAT to adopt a 'no order as to costs' starting point in regulatory appeals.

Court Disposition

Appeal dismissed; CAT's costs decision upheld.

Orders

  • CAT's order requiring Ofcom to pay 50% of BT's recoverable costs is affirmed.
  • Ofcom to pay £500,000 on account of costs.