Office of Communications & Anor v Floe Telecom Ltd

Where the Competition Appeal Tribunal sets aside a regulator’s decision and remits the whole matter, it ordinarily determines the appeal. The CAT then has no continuing case-management jurisdiction under rule 19 or rule 20. It cannot use Competition Act 1998, Schedule 8, paragraph 3(2)(d) to impose an internal timetable on the regulator, or infer such a power from paragraph 3(2)(a). The CAT is not a general supervisor of regulatory investigations. Unreasonable delay after remission is ordinarily for judicial review in the Administrative Court. Article 6 does not give the CAT power to impose an advance deadline. The CAT may express a view on urgency and may attach appropriate conditions to remission. An order requiring action with a view to completion within a period is exhortatory unless expressed as a mandatory requirement.

Floe Telecom complained to the Director General of Telecommunications that Vodafone had abused its dominant position by disconnecting services. On 3 November 2003 the regulator decided that there had been no infringement of the Chapter II prohibition under the Competition Act 1998.

The Competition Appeal Tribunal allowed Floe’s appeal and set aside the decision, giving judgment reported at [2005] CAT 14. It remitted the whole matter to Ofcom. In its subsequent order the CAT required Ofcom to reinvestigate with a view to issuing a non-infringement decision or statement of objections within five months, and fixed a case management conference. Ofcom and the Office of Fair Trading appealed. The central issues were whether the CAT retained jurisdiction after full remission and whether it could impose a timetable or case management directions on the regulator.

1. Disposition. The Court of Appeal declared the legal position but made no order because the investigation had been completed and no further relief was required. The CAT had been wrong in principle to claim power to impose a timetable and to fix a case management conference after full remission.
2. End of the appeal. Under Schedule 8, paragraph 3 of the Competition Act 1998, the CAT may determine an appeal on its merits and set aside and remit the challenged decision. Once the whole matter was remitted by the order of 1 December 2004, the appeal was fully determined and there was no continuing appeal to which rule 19 or rule 20 of the Competition Appeal Tribunal Rules 2003 could apply. A different result might arise in the unusual case where remission did not dispose of the appeal, or where a point was referred back while the appeal remained pending.
3. Statutory limits. Schedule 8, paragraph 3(2)(d) concerns directions or steps which the regulator could itself impose under the Act, particularly directions under sections 32, 33 and 35. It does not extend to internal management of the regulator’s investigation. Nor does paragraph 3(2)(a) carry an implied power to control the timing or conduct of a further investigation. The CAT has no general statutory supervisory function over regulators.
4. Judicial review and Article 6. After remission, the regulator must act under its own statutory duties. Unreasonable delay may be challenged by judicial review in the Administrative Court. Article 6 of the European Convention on Human Rights did not alter that division of functions. Compliance with the reasonable-time requirement depends on the circumstances and ordinarily cannot be determined prospectively by fixing a deadline. The approach in Dyer v Watson [2002] UKPC D1; [2004] 1 AC 379 supported that conclusion.
5. Effect of the order. The order requiring Ofcom to reinvestigate with a view to issuing an instrument within five months was exhortatory rather than mandatory. Failure to meet that period would not itself breach the order, although the CAT’s view on urgency could be relevant in later judicial review proceedings. The Court did not decide whether breach of a CAT order could constitute contempt of court.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 768, the court held that full remission disposed of the appeal, that the CAT lacked power to impose the timetable or fix the case management conference, and made no order.
2. Competition Appeal Tribunal: In [2005] CAT 14, the CAT allowed Floe’s appeal, set aside the regulator’s decision and remitted the whole matter to Ofcom. It subsequently ordered reinvestigation with a view to completion within five months and fixed a case management conference. An extension was later granted in [2005] CAT 17.
3. Director General of Telecommunications: On 3 November 2003, the regulator decided that Vodafone had not infringed the Chapter II prohibition.