AP Wireless II (UK) Limited v On Tower UK Limited
Decision date: 18 December 2024
Neutral citation: [2024] UKUT 429 (LC)
Overall AI summary confidence: medium
Short overview
This short overview is intended to summarise the case, issues and outcome so far as they are supported by the judgment.
AI confidence in this short overview: medium
This appeal concerned whether an assignee of a pre‑2017 electronic communications licence (On Tower) is "a party to a code agreement" under Part 5 of the Electronic Communications Code when it occupies the site and pays licence fees but has not directly contracted with the site provider. The Tribunal held that an assignee who lawfully occupies the site and has assumed primary responsibility for performing the licence obligations is to be treated as the operator/party for Part 5 purposes; on the facts On Tower may have covenanted with Arqiva by the 2019 block transfer (resolving the First Issue if proved) but failed to prove title at the Ampthill site and so lost on that point.
Ratio decidendi
This summary is intended to identify the ratio decidendi, meaning the legal reasons for deciding and the binding part of the decision.
AI confidence in this ratio decidendi summary: medium
For Part 5 purposes an assignee of a subsisting licence who lawfully occupies the site and has assumed the primary responsibility for performing the licence obligations (including payment of the licence fee) stands in the shoes of the original licensee and is to be treated as a party to the code agreement, even though statutory provisions expressly dealing with post‑2017 assignments (paras 16(4)–(5)) do not apply to subsisting agreements; conversely, mere assignment of the benefit, or payment/acceptance of fees, without assumption of the primary contractual burden is insufficient to make the assignee a party to the code agreement.
Obiter dicta
This summary is intended to identify obiter dicta, meaning observations made by the way that were not necessary to deciding the case and are not binding.
AI confidence in this obiter dicta summary: medium
The judgment confined Gencomp: it did not endorse any rule that an assignee holding only the benefit (and not the burden) of a licence is automatically a party to the code agreement. The Tribunal gave practical guidance that parties should plead and identify the basis of standing/party status and the underlying contractual basis at the outset, and that para 12(1) should not be read as importing entire contractual burdens onto assignees.