Arqiva Ltd & Ors v Everything Everywhere Ltd & Ors

Roaming may amount to carriage of voice or data traffic and to sharing or consolidation of network rights, even where no new physical equipment is installed. Contractual restrictions must be construed in the context of the rights granted and the commercial purpose of the agreement.

Where an agreement restricts use of sites or equipment to separate networks, permitting another licensed operator’s customers to use that equipment may fall outside the permitted use. Consent provisions may therefore be engaged. After contractual expiry, continued occupation and payment may continue the previous contractual terms, subject to termination on reasonable notice. A contractual breach does not generally make an existing licensee a trespasser.

Arqiva sought declarations and injunctive relief concerning agreements governing mobile-network sites. Everything Everywhere, Orange-related companies and MBNL were integrating their networks and had introduced, or planned to introduce, 2G and 3G roaming and further network sharing.

The expedited trial concerned the construction of the Suite of Agreements between Arqiva, EE, H3G and MBNL, and the Orange MSSA, Orange NEA and Orange SSL. It also concerned whether OPCS remained the holder of spectrum licences, which party occupied sites after expiry of the Orange agreements, whether any conduct constituted trespass, and the principles relevant to injunctive relief.

1. The court held that roaming involved a customer of one mobile network operator accessing another operator’s network and frequency. There was no material technical distinction, for the contractual issues, between the different forms of roaming.

2. Clause 20.14 of the Framework Agreement, as rectified, operated against the background of the rights granted by the MSSA. It prevented EE from using the relevant sites, facilities, equipment, frequencies or technology for an arrangement carrying another licensed operator’s traffic where there was a significant and material risk that the other operator would decommission Arqiva sites. The evidence established that risk in relation to OPCS while it remained a licensed operator.

3. Clause 28.1 prevented further consolidation of EE’s network with that of another mobile licensed operator. Consolidation included sharing or combining networks, or part of the radio access network, and did not require new equipment or physical alteration. The relevant question was whether the other operator was licensed when consolidation occurred.

4. By permitting Orange-brand customers to use EE’s equipment, EE shared rights outside the permitted use and breached clauses 28.2 and 28.3. MBNL’s position did not require separate determination because the parties accepted that its position followed EE’s.

5. Under clause 2.1.1(d) of the Orange MSSA, roaming involved shared use of the client’s equipment and consequently of the station, accommodation and equipment. Arqiva’s approval was required, although roaming remained within the purpose of providing telecommunications services. Clause 5(ix) of the Orange SSL likewise prohibited OPCS from dealing with its rights by allowing roaming without prior written consent.

6. The Orange NEA and Orange SSL continued after 30 November 2010 on the same terms, except that they became terminable on reasonable notice. OPCS or OH, rather than EE, remained in occupation. The fact that EE owned the equipment, serviced it and made payments did not alter that conclusion.

7. A party using a site without any permission may be a trespasser. However, where an agreement gives a party a right to occupy, breach of a contractual term does not itself terminate that right or make the party a trespasser.

8. The court deferred final submissions on the appropriate relief. It recorded that the agreements concerned property rights, that damages might be difficult to assess, that Arqiva had reserved its rights, and that the defendants had indicated compliance with the contractual construction determined by the court.

First-instance expedited trial. The court determined the contractual and related issues and invited further submissions on the appropriate relief and consequential orders.