EE Limited and Hutchinson 3G UK Limited v David Paul Stephenson & Anor

An operator seeking to replace an expired pre-Code agreement need not plead a site-specific need for a new agreement. The general business and technical benefits of an agreement reflecting the Electronic Communications Code may justify that course.

Under paragraph 34, the Tribunal must first decide which statutory order, if any, is appropriate in all the circumstances. It must then determine the terms of any new rights or agreement. The existing agreement is material when terms are specified, but does not impose a general presumption against change.

However, an applicant may not seek a different form of statutory relief unless its prior notice identified that proposed change.

The claimants were operators under an expired lease of a telecommunications site. The lease was a subsisting agreement under the transitional provisions of the Digital Economy Act 2017. They served notices proposing termination of that agreement and a new Code-compliant agreement, then applied under paragraph 33(5) of the Code.

The second respondent accepted that an application could be made, but contended that it was bound to fail because the claimants had not pleaded a site-specific need for a new agreement. It also challenged the claimants’ general alternative request for any other order under paragraph 34.

The preliminary issues were whether a site-specific justification was required and whether alternative relief could be claimed without prior notice and particulars.

1. The first preliminary issue was determined for the claimants. An operator under an expired subsisting agreement need not establish a site-specific need before seeking termination and a new Code-compliant agreement. The general business and technical opportunities afforded by the Code, including its additional rights and valuation regime, may themselves justify the application. The Tribunal respectfully followed EE Limited / Hutchison 3G Limited v Duncan [2021] CSIH 27.

2. Paragraph 34 requires two distinct decisions. First, the Tribunal decides which order, if any, to make from the statutory menu, having regard to all the circumstances and particularly the factors in paragraph 34(13). Secondly, if rights or a new agreement are to be imposed, it specifies the terms under paragraphs 34(10) to (12).

3. The terms of the existing agreement are material when specifying new terms. The approach in O’May v City of London Real Property Co Ltd [1983] 2 AC 736 therefore informs paragraph 34(12). But the Code has different purposes from Part II of the Landlord and Tenant Act 1954, and paragraph 34(12) does not create an overriding presumption against change or determine which paragraph 34 order should be made. Cornerstone Telecommunications Infrastructure Ltd v Ashloch Limited [2021] EWCA Civ 90 had not decided that broader issue.

4. The second preliminary issue was determined for the respondents. A paragraph 33 notice defines the change on which the parties are to attempt agreement. An applicant cannot seek a different type of paragraph 34 order, including through a general claim for further relief, unless that change was identified in a prior notice. The Tribunal nevertheless retains jurisdiction to select any appropriate paragraph 34 order, and the claimants may answer the respondent’s case that a different order is preferable.

5. The general alternative claim for “such other order” was struck out. The merits of whether termination and a new agreement is the appropriate order were reserved for trial.

not stated in the judgment.