EE Limited and Hutchinson 3G UK Limited v David Paul Stephenson & Anor
Decision date: 14 July 2021
Neutral citation: [2021] UKUT 167 (LC)
Overall AI summary confidence: high
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: high
This appeal concerned two preliminary questions under Part 5 of the Electronic Communications Code: whether an operator must plead a site-specific need when applying (after expiry of a subsisting agreement) for termination of that agreement and entry into a new Code-compliant agreement, and whether the operator may seek alternative types of relief not specified in the prior OFCOM-prescribed para 33 notice. The Tribunal held an operator need not plead site-specific justification for a new agreement where a subsisting agreement has expired; general business and technical needs together with the fact the agreement is out of step with the Code can justify the application. The Tribunal also held the operator could not pursue alternative orders that were not identified in the prior para 33 notice and struck out the claimant’s broad alternative plea.
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: high
For expired subsisting agreements, an operator is not required to plead site-specific justification to apply for termination and for a new Code-compliant agreement; the statutory framework allows reliance on the benefits of the Code and the operator’s general business and technical needs, and para 34(12)’s requirement to have regard to the existing agreement’s terms does not bar such an application. Conversely, an applicant cannot seek a type of order under para 34 unless that alternative was identified in the para 33 notice.
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 Tribunal noted that decisions of the Court of Session may be followed with respect where persuasive on statutory construction but are not strictly binding in England and Wales. It also observed that the statutory menu of orders in para 34 is permissive and that, in exceptional cases, the court might make no order.