Communications Act 2003, Schedule 3A, paragraph 25

What rights to the payment of compensation are there?

SCHEDULE 3A The electronic communications code

25 (1) If the court makes an order under paragraph 20 the court may also order the operator to pay compensation to the relevant person for any loss or damage that has been sustained or will be sustained by that person as a result of the exercise of the code right to which the order relates.

(2) An order under sub-paragraph (1) may be made—

(a) at the time the court makes an order under paragraph 20, or

(b) at any time afterwards, on the application of the relevant person.

(3) An order under sub-paragraph (1) may—

(a) specify the amount of compensation to be paid by the operator, or

(b) give directions for the determination of any such amount.

(4) Directions under sub-paragraph (3)(b) may provide—

(a) for the amount of compensation to be agreed between the operator and the relevant person;

(b) for any dispute about that amount to be determined by arbitration.

(5) An order under this paragraph may provide for the operator—

(a) to make a lump sum payment,

(b) to make periodical payments,

(c) to make a payment or payments on the occurrence of an event or events, or

(d) to make a payment or payments in such other form or at such other time or times as the court may direct.

(6) Paragraph 84 makes further provision about compensation in the case of an order under paragraph 20.

Definitions used in Schedule 3A, paragraph 25 3

the operator

18 (1) This paragraph applies where, immediately before the abolition of licensing, a person holding a licence under section 7 of the 1984 Act (“the operator”) —

(a) is a person to whom the telecommunications code applies in respect of the running of a telecommunications system by him (“the operator’s system”); and

(b) in pursuance of a condition of his licence imposed for the purpose of securing that sufficient funds are available to meet code-related liabilities specified in the licence, is a party to any guarantee arrangements.

Defined in Sch.18 para.18(1) · see it in the full Act
relevant person

(7) In sub-paragraph (6)(a) “relevant person”, in relation to land to which section 90B(5) of the Scotland Act 1998 applies, means the person having the management of that land.

Defined in Sch.3A para.104(7) · see it in the full Act
provide

“provide” and cognate expressions, in relation to an electronic communications network, electronic communications service or associated facilities, are to be construed in accordance with section 32(4);

Defined in s.405(1) · see it in the full Act

Cases considering Schedule 3A, paragraph 25 4

The University of London v Cornerstone Telecommunications Infrastructure Limited

[2019] EWCA Civ 2075 · 26 November 2019

Paragraph 25 governs compensation for loss and damage resulting from the exercise of code rights. Its application through paragraph 26 helped safeguard landowners where an interim right is temporary. (see paras [15], [74], [82]) Paragraph 25(2) permits compensation to be ordered when an agreement is imposed or later. Because paragraph 25 applies through paragraph 26, a separate paragraph 20 application is unnecessary to safeguard compensation. (see paras [15], [82])

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

[2022] UKUT 152 (LC) · 17 June 2022

The Tribunal treated paragraph 25 compensation as a principal protection for a site provider against loss or damage from the exercise of Code rights. It rejected contractual terms that sought to duplicate or extend that statutory protection. (see paras [47]-[48]; [51]; [108]; [195])

EE Limited & Anor v Affinity Water Limited

[2022] UKUT 8 (LC) · 17 January 2022Interprets

Compensation for loss or damage sustained as a result of Code rights includes reasonable expenses incurred in pursuing a claim for Code rights before the order is made. The Tribunal awarded reasonable legal and valuation fees, subject to proof of the expenditure (see paras [85]-[89]).

What each judgment says about Schedule 3A, paragraph 25 is in the case-law panel in the full Act.