AP Wireless II (UK) Limited v On Tower UK Limited

An assignee of the benefit of a subsisting code agreement becomes a party to that agreement for the purposes of Part V of the Electronic Communications Code where it covenants with the assignor to perform the agreement’s obligations, including by way of indemnity. The relevant question is whether the assignee is principally liable, as between assignor and assignee, to perform those obligations. It is not necessary that the site provider can enforce the obligations directly, or indirectly through a predecessor in title. A general term expressing an intention that successors in title will be bound does not alter that analysis where the agreement is a licence.

The Tribunal had previously determined the substantive issues arising from AP Wireless II (UK) Limited’s appeal against the First-tier Tribunal’s decision, reported as [2024] UKUT 429 (LC). It held on the First Issue that an assignee may be a party to a code agreement if it has covenanted with the assignor to perform the agreement’s obligations.

The Tribunal then invited further submissions because the parties had not addressed whether On Tower UK Limited had given the relevant covenants. AP Wireless disputed that such covenants existed in relation to Sandbach and Blackwell Grange. The central issue was whether On Tower’s indemnity covenants with Arqiva made it principally liable, as between assignor and assignee, to perform the licence obligations.

1. Outcome. AP Wireless’s appeal on the First Issue was formally dismissed in relation to Sandbach and Blackwell Grange. On Tower had covenanted with Arqiva, by way of indemnity, to pay the rent or licence fee and perform the obligations in each agreement.
2. Assignee’s status. An indemnity covenant by an assignee in favour of the assignor makes the assignee principally responsible, as between assignor and assignee, for discharging the burden of the agreement. The assignee therefore becomes a party to the code agreement for the purposes of Part V of the Electronic Communications Code.
3. Successors-in-title wording. A clause expressing an intention that successors in title should be bound did not prevent a lawful assignee from being a party to a code agreement without a direct covenant to the successor in title of the licensor. Nor did it negate the indemnity covenant given to the assignor.
4. Enforcement. The decisive question was whether On Tower stood in the shoes of Arqiva as the person principally liable, between them, to perform the obligations. Whether AP Wireless could enforce the agreement directly or indirectly against On Tower was irrelevant.
5. In relation to Lubbards Lodge, the Tribunal expressed no view on the contingent issue because its earlier decision that the agreement created a tenancy rather than a licence had become final.

1. First-tier Tribunal: AP Wireless appealed the First-tier Tribunal’s decision.
2. Upper Tribunal (Lands Chamber): The substantive appeal was determined in [2024] UKUT 429 (LC). In this further decision, the Tribunal resolved the outstanding factual issue concerning On Tower’s covenants and formally dismissed the appeal on the First Issue.