EE Limited & Anor v HSBC Bank Plc

Costs in a reference for interim electronic communications rights are discretionary. Where an operator requires an order imposing survey rights, the usual order is that the operator pays the site provider’s costs of the reference, normally summarily assessed. That approach reflects the principle that the reference, and associated statutory compensation, are necessitated by the operator’s wish to obtain rights which cannot be conferred by agreement alone. The practice is consistent with the treatment of costs incurred in determining compensation following compulsory acquisition. The usual order may be reinforced where the site provider was willing to grant access and the operator commenced proceedings without properly engaging with the proposed agreement.

The claimants sought interim rights under paragraph 26 of the Electronic Communications Code to enter land at the Maybird Centre to survey its suitability for electronic communications apparatus. Before the hearing, the parties agreed the terms of an order imposing the interim rights, and the Tribunal made that order.

The live issues were compensation and costs. The Tribunal ordered compensation under paragraphs 25 and 84 of the Code, including a payment on account, and summarily assessed the respondent’s costs of the reference at £15,000. Written reasons were provided to explain the Tribunal’s usual approach to costs in such references.

1. The Tribunal had discretion over the costs of the reference under paragraph 26 of the Electronic Communications Code. Where the parties had not agreed that there should be no order for costs, the usual order was that the operator should pay the site provider’s costs, ordinarily summarily assessed.

2. That usual order reflected the fact that interim Code rights could not be conferred by agreement alone and could be imposed only by order of the Tribunal. Statutory rights to compensation under paragraphs 25 and 84 of the Code likewise arose through the Tribunal’s order. The costs incurred by the site provider because the operator sought compulsory interim rights should not, in principle, be borne by the site provider.

3. The approach was consistent with the Tribunal’s practice in compulsory acquisition cases. Costs incurred in establishing compensation were treated as part of the expense imposed by the acquisition and would normally be paid by the acquiring authority, as reflected in paragraph 24.2 of the Tribunal’s Practice Directions.

4. The circumstances provided an additional reason for the order. The respondent had been willing throughout to permit access for surveys, but the claimants commenced the reference without responding to the respondent’s proposed agreement.

5. The agreed interim-rights order was imposed. The claimants were directed to pay the respondent’s reasonable transaction costs, subject to agreement or determination by the Tribunal, with £12,500 paid on account, and the respondent’s reference costs of £15,000.