EE Limited and Hutchison 3G UK Limited v 100 Nox S.A.R.L

An application for interim rights under paragraph 26 of the Electronic Communications Code requires a good arguable case that the conditions for conferring Code rights are met. Formal service at a registered office does not necessarily justify granting relief where there is no evidence that the respondent received the notice or proceedings, and no real effort was made to contact it by other means. A notice addressed to the wrong person may be materially misleading, even if the correct respondent is named in an annexed agreement. The applicant must also establish that it has identified the proper person entitled to grant the rights and provide sufficient evidence of the proposed works and potential prejudice to permit the paragraph 21 balancing exercise.

The claimants sought interim electronic communications rights under paragraph 26 of Schedule 3A to the Communications Act 2003. The proposed rights would permit an intrusive survey of the rooftop of premises owned by the respondent.

The respondent, a Luxembourg company, did not respond to correspondence, the paragraph 26 notice or the notice of reference, and did not attend the hearing. The paragraph 26 notice was addressed to the Mayor and Burgesses of the London Borough of Lambeth, although the draft agreement identified the respondent. The central issues were whether the notice was effective, whether the respondent had been correctly identified, and whether the claimants had shown a good arguable case under paragraph 21.

1. The application was refused. The Tribunal had a discretion under paragraph 26 of the Electronic Communications Code to confer interim rights where the applicant had served a compliant notice under paragraph 20(2) and shown a good arguable case that the paragraph 21 conditions were met.
2. Although service at the respondent’s registered office was accepted as permitted by paragraph 91 of the Code and section 394 of the Communications Act 2003, the Tribunal was not required to exercise its discretion in the claimants’ favour. There was no evidence that the respondent had received the correspondence, notice or proceedings, and the claimants had made no real effort to contact it through the occupiers of the building or other possible telecommunications operators.
3. The paragraph 26 notice was mis-addressed. The fact that the correct parties appeared in the annexed agreement did not prevent the notice from being misleading, particularly to an overseas respondent. A recipient might reasonably regard the document as being sent only for information.
4. The claimants had not shown that the respondent was the correct person against whom the rights should be sought. The registered title showed numerous leases, and the evidence did not establish who occupied the roof, whether any lease or easement covered it, or who controlled access through the stairs or lift.
5. There was also insufficient evidence of what the proposed intrusive survey involved. Without knowing the works proposed, the Tribunal could not assess the public benefit against prejudice under paragraph 21, even on the good arguable case standard. The defect could not be cured by an adjournment because it was too late to cure the paragraph 26 notice, and the application would in any event have failed on the evidential deficiencies.

Not stated in the judgment.