The Independent Committee for the Supervision of Standards of Telephone Information Services v Andronikou & Ors

Under the statutory scheme for premium rate services, conditions requiring compliance with an approved code bind the persons to whom they apply. An enforcement authority may therefore recover by action for debt monetary sums which a network operator was directed to withhold and then pay over under the approved code. That conclusion is subject to the limits imposed by the statute and the code.

Clear wording requiring payment of funds actually withheld cannot be read as extending to funds which were merely directed to be withheld. Practical regulatory considerations cannot justify substantially departing from the ordinary meaning of the direction or code.

ICSTIS sought declarations concerning its entitlement to recover sums from the liquidators of Allied Communications Ltd. The application had begun in the Companies Court and was transferred to the Administrative Court so that public-law questions concerning the statutory scheme could be determined.

The principal issues were whether ICSTIS could sue in debt for sums withheld under its directions, whether it could recover sums not actually withheld, and whether recovery was possible where the relevant service provider lacked legal personality or had not been accurately identified.

1. Question 1. The statutory scheme made the relevant conditions binding on communications providers. Sections 120 and 121 of the Communications Act 2003 contemplated an enforcement authority responsible for administering and enforcing an approved code. The ordinary resources of the courts were therefore available to enforce monetary obligations arising under the code. ICSTIS could sue in debt for sums which Allied had withheld from service providers pursuant to an ICSTIS direction and which ICSTIS had directed Allied to pay over. The declaration was granted.
2. The power to recover depended on the terms of the relevant direction and the code. Paragraph 2.3.5(e) of the Code authorised payment to ICSTIS of an amount of funds withheld under paragraph 2.3.5(d). The direction in question required the withheld revenue to be forwarded. Neither the direction nor the code could be construed as authorising recovery of sums which had not in fact been withheld. Regulatory effectiveness and the possibility that a network operator might otherwise benefit from non-compliance did not justify departing from clear language. The declaration on question 2 was refused, with a negative declaration available to the liquidators.
3. The court rejected the submission that the statutory role of OFCOM excluded enforcement by ICSTIS. Sections 120 to 124 provided OFCOM with additional powers, but preserved the primary enforcement role of the enforcement authority. The principle in Attorney General v the Great Eastern Railway Company [1880] 5 APP 473 did not prevent ICSTIS from suing.
4. The identity issues under questions 3 and 4 were not determined, because the liquidators accepted that they did not arise where specific premium-rate numbers had been identified and Allied had withheld the relevant sums. The matter was transferred to the Companies Court for further directions. Costs were awarded to ICSTIS on issue 1, to the liquidators on issue 2, and were ordered to lie where they fell on issues 3 and 4.