Telecommunications – Electronic Communications Code – Interim Code rights – Claimants seeking access to respondent company’s building to inspect and carry out “intrusive survey” of premises to determine suitability as site for telecommunications equipment – Notice under paragraph 26 of Code being addressed to wrong party – Whether claimants showing that correct respondent identified – Whether “good arguable case” made out – Application dismissed
The claimants made a reference under schedule 3A to the Communications Act 2003 (the Electronic Communications Code) seeking interim Code rights under paragraph 26 to enable it to inspect and carry out an “intrusive survey” of the rooftop of the respondent’s premises at 100 New Oxford Street, London WC1. They needed access in order to determine whether it would be a suitable site for telecommunications equipment, to replace a site nearby that the claimants were required to leave.
The respondent was the registered proprietor of the premises, which was the subject of multiple leases. It was a company that was registered in Luxembourg and had a registered office in Luxembourg. In January 2022, the claimants served a notice under paragraph 26 of the Code seeking interim Code rights by international tracked delivery requiring a signature. The accompanying paragraph 26 agreement cited the correct parties but the notice was addressed to the Mayor and Burgesses of the London Borough of Lambeth. The notice was not signed for and no response was made to it.
However, the claimants issued the reference in March 2022. It was served on the respondent at its registered office by the Upper Tribunal together with directions stating the hearing date of 13 May 2022. The respondent did not respond to the notice and did not appear at the hearing.
Held: The appeal was dismissed.
(1) The Upper Tribunal was given a discretion, pursuant to paragraph 26 of the Code, to make an order conferring interim rights on the claimants if they had served on the respondent a notice complying with paragraph 20(2) of the Code (setting out the rights sought) and could show a “good arguable case” that the test for the conferral of Code rights in paragraph 21 of the Code was met. The test in paragraph 21 included the second condition that: “… the public benefit likely to result from the making of the order outweighs the prejudice to the relevant person. (4) In deciding whether the second condition is met, the court must have regard to the public interest in access to a choice of high-quality electronic communications services.”
(2) In the present case, the claimants had failed to establish that the respondent knew of the application. There was no evidence that the respondent had received any of its communications, nor that the claimants had made a real effort to contact the respondent. Common sense required them to visit the property, enquire of the occupants of the building or seek to identify other operators through whom contact with the respondent might be made. The claimants’ efforts appeared to have been restricted to checking the register of title held by HM Land Registry and the Luxembourg register of companies and then relying upon the registered address. There was no evidence that the claimants had visited the property or made any enquiries of its occupants as to how they communicated with their landlord. As a matter of common sense, all that should have been done once the respondent failed to answer the correspondence.
(3) The paragraph 26 notice served by the claimants was mis-addressed. The claimants argued that that did not invalidate the notice, since the information required to be conveyed by paragraph 20(2) of the Code was given, and an explanation was provided in a covering letter so that the notice would not have misled the respondent. However, there was no reason why an overseas respondent would not have been misled by a notice that was clearly not addressed to it. Although the annexed agreement named the respondent as a party, a representative of the respondent who had seen that the notice was not addressed to the respondent might easily have concluded that the notice was simply a copy sent to it for information, and might not have read as far as the notice itself.
Further, it was not known whether the claimants had identified the correct respondent. There was no evidence as to whether any of the leases included part of the roof or any easements over the roof. So it was not known that the respondent was the only person in occupation of the roof or whether it was in occupation of the roof at all. Nor had the claimants any idea who was in occupation of the stairs or lift inside the premises, by which they would gain access to the roof.
(4) There was also no evidence as to what the claimants were going to do on the roof by way of “intrusive survey”. The claimants indicated that they were going to penetrate the roof, but the tribunal was not aware of any reference in which it had made an order for an intrusive survey to a building where that had been opposed by the respondent, let alone in a case where the respondent was unaware of the application, or one where the claimants could not say what they were going to do. More fundamentally, the tribunal could not perform the balancing exercise set out in paragraph 21 of the Code, even on a “good arguable case” basis, where it did not know what the claimants wanted to do and did not know anything about the respondent or about possible prejudice to it.
In all the circumstances, the claimants’ application for interim rights would be refused.
Camilla Chorfi (instructed by DWF Law LLP) appeared for the claimants; the respondent did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of EE Ltd and another v 100 Nox SARL
