BT3G Ltd & Ors, R (on the application of) v Secretary Of State For Trade & Industry

An interested competitor may participate in an appeal where the outcome could affect its legal or financial position in a more than fanciful way. A possible obligation to repay unlawful state aid may suffice, even where the appellant’s proposed arrangements would otherwise preserve the competitor’s financial position. The appeal court has discretion to permit participation without restricting oral submissions or imposing an automatic costs order. A person served with judicial review proceedings merely as a matter of courtesy, and appearing with the judge’s permission, is not necessarily a party as of right on appeal.

BT3G and One 2 One appealed from Silber J’s decision in the Administrative Court concerning the Secretary of State’s decision to allow Vodafone to defer payment of third-generation mobile telephone licence fees. The challenges alleged irrationality and unlawful state aid contrary to Article 87 of the EEC Treaty. Vodafone had participated before Silber J but had not been served with the notices of appeal or skeleton arguments.

Vodafone applied to participate in the appeal. Master Venne allowed that participation, relying on Regina v Licensing Authority ex parte Generics UK. The issue before the Court of Appeal was whether Vodafone should be permitted to participate and, if so, on what terms.

1. Permission granted. Vodafone was permitted to participate as a respondent without conditions, subject to any directions or sanctions imposed by the full court hearing the appeal.
2. Vodafone had a more than fanciful interest in the appeal. Although an agreement might have enabled the Secretary of State to equalise BT3G’s and One 2 One’s financial position if the appeal succeeded, the appeal could still result in a finding of unlawful state aid requiring, or potentially requiring, Vodafone to repay sums. Vodafone was also the recipient of the alleged aid and a competitor in the relevant market.
3. The court declined to limit Vodafone to one hour of oral argument or to require it to bear its own costs automatically. The full court could control wasted or unnecessary court time by appropriate sanctions.
4. The better view was that Vodafone required the court’s permission to appear. A person served with judicial review proceedings as a matter of courtesy, and thereafter appearing with the judge’s permission, was not thereby served or intervening by virtue of rules of court or statutory provision. The court made no definitive ruling on the construction of section 151(1) of the Supreme Court Act 1981.
5. The quality of participation under Order 53 rule 5(3) differed from that under Order 53 rule 9(1). The former concerned a person directly affected by the decision without an intermediate agency; the latter involved a person whom the court considered proper to be heard.

• Court of Appeal (Civil Division): Vodafone permitted to participate in the appeal as a respondent without conditions; costs directions made.
• Administrative Court: Silber J dismissed the applications challenging the Secretary of State’s decision.