Vodafone Ltd & Ors v The Office Of Communications

Vodafone Ltd & Ors v The Office Of Communications

The proper measure of restitution for payments made under quashed regulations is the difference between the sums paid under the unlawful regulations and the sums lawfully due under the existing valid regulations. The court rejected the counterfactual approach of hypothesising what the authority could have lawfully charged under different regulations. The Woolwich principle requires repayment of all sums paid without lawful authority, except for amounts due under existing legislation.

Parties
Claimant/respondent: Vodafone Limited; Claimant/respondent: Telefónica UK Limited; Claimant/respondent: EE Limited; Claimant/respondent: Hutchison 3G UK Limited; Defendant/appellant: The Office of Communications (Ofcom)
Jurisdiction
England and Wales
Judgment Date
19 February 2020
Procedural Posture
Civil Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Unjust Enrichment, Ultra Vires Charges, Restitution for Unlawful Levies, Principle of Legality, Woolwich Principle, Counterfactual Analysis in Restitution
Administrative Law Restitution Telecommunications Law Unjust Enrichment Ultra Vires Charges Restitution for Unlawful Levies Principle of Legality Woolwich Principle +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 34 Party arguments 2 Amounts and remedies 12
Sign in to unlock

Parties

Vodafone Limited

Claimant/respondent

Telefónica UK Limited

Claimant/respondent

EE Limited

Claimant/respondent

Hutchison 3G UK Limited

Claimant/respondent

The Office of Communications (Ofcom)

Defendant/appellant

Procedural Posture

Civil Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 What is the proper measure of restitution for payments made under quashed (ultra vires) regulations?
  2. 2 Can a counterfactual approach be used to limit restitution by hypothesising what the authority could have lawfully charged?
  3. 3 Does the Woolwich principle require full repayment of unlawfully levied charges, or only the excess over what could lawfully have been charged?

Ratio Decidendi

The proper measure of restitution for payments made under quashed regulations is the difference between the sums paid under the unlawful regulations and the sums lawfully due under the existing valid regulations. The court rejected the counterfactual approach of hypothesising what the authority could have lawfully charged under different regulations. The Woolwich principle requires repayment of all sums paid without lawful authority, except for amounts due under existing legislation.

Court Disposition

Appeal dismissed

Orders

  • The MNOs are entitled to restitution of the annual licence fees paid over and above those due under the 2011 Regulations.
  • No counterfactual reduction of restitution based on hypothetical lawful regulations.