Vodafone Ltd & Ors v The Office of Communications (Ofcom)

Vodafone Ltd & Ors v The Office of Communications (Ofcom)

Where a statutory charging regime is quashed and a prior lawful regime remains in force, claimants are entitled to restitution of the difference between sums paid under the unlawful regime and sums due under the lawful regime. The court will not hypothesise new or amended legislation to reduce the amount...

Source-derived case information.

Parties
Claimant: Vodafone Limited; Claimant: Telefónica UK Limited; Claimant: Hutchison 3G UK Limited; Claimant: EE Limited; Defendant: The Office of Communications (Ofcom)
Jurisdiction
England and Wales
Judgment Date
17 May 2019
Procedural Posture
Civil (restitution/unjust Enrichment) / Judgment After Trial of Consolidated Claims Under CPR Part 8
Outcome
Judgment for the claimants (MNOs) for the net sum claimed by each, with interest.
Legal Topics
Unjust Enrichment, Restitution of Unlawfully Levied Fees, Principle of Legality, Counterfactual Reasoning in Restitution, Public Law Remedies, Secondary Legislation, Judicial Review
Administrative Law Restitution Telecommunications Law Unjust Enrichment Restitution of Unlawfully Levied Fees Principle of Legality Counterfactual Reasoning in Restitution Public Law Remedies +2 more

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Parties

Vodafone Limited

Claimant

Telefónica UK Limited

Claimant

Hutchison 3G UK Limited

Claimant

EE Limited

Claimant

The Office of Communications (Ofcom)

Defendant

Procedural Posture

Civil (restitution/unjust Enrichment) / Judgment After Trial of Consolidated Claims Under CPR Part 8

Legal Issues

  1. 1 What is the appropriate measure of restitution for licence fees paid under quashed regulations?
  2. 2 Are claimants entitled to restitution of the difference between sums paid under unlawful regulations and sums due under lawful regulations, or should a counterfactual approach be adopted?

Ratio Decidendi

Where a statutory charging regime is quashed and a prior lawful regime remains in force, claimants are entitled to restitution of the difference between sums paid under the unlawful regime and sums due under the lawful regime. The court will not hypothesise new or amended legislation to reduce the amount recoverable. The principle of legality precludes a public authority from retaining sums not lawfully authorised, and unjust enrichment is established for the excess paid over the lawful amount.

Court Disposition

Judgment for the claimants (MNOs) for the net sum claimed by each, with interest.

Orders

  • Restitution of the difference between sums paid under the 2015 Regulations and sums due under the 2011 Regulations to each claimant.
  • Simple interest awarded at 2% above the Bank of England base rate from the date of each relevant payment.