In these times of great upheaval, the latest determination to be issued under the Electronic Communications Code in the case of EE v Meyrick [2020] UKUT 0105 (LC) serves as a timely and stark reminder of the need to cooperate and the severe consequences of a failure to do so.
This is the second case for EE v Meyrick, the first having concluded last year with the Respondents unsuccessful in their arguments to resist the imposition of Code Rights ([2019] UKUT 164 (LC), or “Meyrick 1”). Necessarily it followed that the parties were left to agree, if possible, the terms of the Code Agreement to be imposed, and the Upper Tribunal gave directions requiring the parties to exchange a travelling draft agreement.
Meyrick 2
The parties did exchange a travelling draft, as directed, such that a week prior to the listed hearing the only apparent remaining issues in dispute were two relatively minor amendments to the “Equipment Specification”, both proposed by the Claimant. It was for this reason (and not, the Tribunal was keen to stress, because of Covid-19) that all agreed to proceed on the basis of written submissions only.
However, the Respondents sought to include within their written submissions three new issues, none of which could be divined from the travelling draft. The bulk of comment within the Upper Tribunal’s determination goes to dealing with this ‘vexatious conduct’, as so termed in paragraph 23 of the Determination. To illustrate the point further:
- At paragraph 6, the Tribunal states that it is “particularly unsympathetic to tactics designed to delay the resolution of the dispute”;
- At paragraph 8, it reproduces the entirely unambiguous comments made in the EE v Islington case ([2019] UKUT 53 (LC)] wherein a similar failure to co-operate led, in that case, to the respondent not being permitted to give evidence or to make submissions on the terms of the agreement;
- At paragraph 23, the Respondents stand accused of seeking “to delay the resolution of the reference and to hijack the final determination by raising issues that should have been raised months ago”.
The overriding objective pursued by the Tribunal, in accordance with the Upper Tribunal (Lands Chamber) Rules 2019, is to ensure cases are dealt with ‘fairly and justly’. The Tribunal has taken the unfortunate opportunity presented by this case to make clear again that “any failure to comply with directions or to frustrate the process” (para 9) will be viewed very seriously indeed.
Suffice to say, the Tribunal did not entertain the Respondents’ new submissions, the points in issue were taken to be only those apparent on the travelling draft, and the Claimant’s two amendments were inserted as drawn.
The state of play, were it not already clear from EE v Islington, has been hammered home here: “all references under the Code…involve[] the public interest in the provision of electronic communications and should be dealt with as expeditiously as possible” (para 6). All parties must have an eye firmly on these comments to make sure they do not act so as to exaggerate the time and cost spent on a matter where such might reasonably be avoided by even a somewhat basic degree of co-operation.
Other points to note from Meyrick 2
The following may also be of interest:
• Operators’ Paragraph 20 Notices
The Operator is required under p20 of the Code to set out ‘all other terms of the agreement’ in addition to the Code rights sought within the notice. The comments made at para 5 of this Determination suggest that an Operator should append a draft agreement to its notice.
Although not definitive, this might provide some guidance on the matter.
• Travelling Draft Agreement
Although a draft agreement might have been appended to the Operator’s para 20 notice, para 7 of this Determination confirms that the subsequent travelling draft agreement need not necessarily be that same draft, particularly if some time has passed since service of the notice.
• Equipment Rights
In considering the Claimant’s request for the words ‘Associated and ancillary equipment’ to be added to the Equipment Specification, the Tribunal had regard to the wording of the previous lease of the site to the Claimant’s predecessors, to the heads of terms agreed between the present parties in 2017, and to the definition of ‘Equipment’ within the draft agreement, all of which included similar wording.
In these circumstances, the Tribunal noted that the Respondents’ new aversion to the words “is a mystery” (para 30).
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