British Telecommunications Plc v Office of Communications & Ors

An appeal from a communications regulator to a specialist tribunal is not statutorily confined to material considered, or which ought to have been considered, by the regulator. The requirement that an appeal body consider the merits does not mean only the merits of the regulator’s decision on the material then available. Fresh evidence is therefore admissible in principle. Its admission remains discretionary. The party seeking to rely on it must show good reason, and the tribunal must decide whether admission is in the interests of justice. Encouraging parties to present their cases fully to the regulator, and possible prejudice through cost or delay, are relevant considerations. They do not create a rigid exclusionary rule. The tribunal’s specialist expertise and case-management responsibilities justify a flexible approach.

Ofcom determined a dispute between BT and mobile network operators under the Communications Act 2003. BT appealed to the Competition Appeal Tribunal. The CAT ruled that it could admit fresh evidence, including evidence which had not been presented to Ofcom, and evidence submitted too late for Ofcom to consider. Ofcom appealed to the Court of Appeal, accepting that some late evidence could be considered but maintaining its objection to evidence developed for the appeal. The central issues were whether section 192 imposed a statutory limit on fresh evidence, whether the rule in Ladd v Marshall applied, and whether the CAT had exercised its discretion lawfully.

Appeal dismissed unanimously. Toulson LJ gave the leading judgment, with Sullivan LJ and the Chancellor of the High Court agreeing.

1. Article 4 of the Directive 2002/21/EC requires an appeal body with appropriate expertise to take account of the merits of the case. The expression merits of the case is not confined to the merits of the regulator’s decision on the material available when that decision was made. Section 192(6)(a) of the Communications Act 2003 therefore did not create the statutory exclusion proposed by Ofcom.
2. The rule in Ladd v Marshall [1954] 1 WLR 1489 was not a general exclusionary rule governing appeals to the CAT. The statutory process differed materially from an ordinary civil appeal: Ofcom determined disputes on paper, acted investigatively as well as adjudicatively, and oral evidence could arise only at the appeal stage. The CAT was consequently entitled to adopt a more permissive approach to fresh evidence.
3. Admission of fresh evidence was not a matter of right. The party seeking admission had to show good reason. The controlling question was whether, in all the circumstances, admission was in the interests of justice. Relevant considerations included the need to encourage parties to present their cases fully to Ofcom and potential prejudice to other parties through cost, delay or otherwise. The Court declined to prescribe a more precise or exhaustive test.
4. The CAT was a specialist tribunal with particular expertise in case management. It was not appropriate for the Court of Appeal to dictate how the CAT should balance relevant considerations. In the circumstances, BT had been deprived for most of the dispute-resolution period of a fair opportunity to address the economic effect of the particular charges, following Ofcom’s change in the scope of its determination. The CAT was entitled to conclude that excluding the evidence would risk injustice and prevent a proper appeal on the merits.
5. Ofcom’s appeal was accordingly dismissed. The Court expressed no view on the substantive fairness of the charges. In a postscript, it observed that Ofcom need not actively participate in every appeal merely because it was formally named as respondent, although it might properly appear where issues of wider importance or criticism of its conduct arose.

• Court of Appeal (Civil Division) dismissed Ofcom’s appeal against the CAT’s procedural ruling: [2011] EWCA Civ 245.
• Competition Appeal Tribunal admitted both categories of fresh evidence in its preliminary ruling: [2010] CAT 17.