The Upper Tribunal (Property Chamber) has flexed its muscles under the 2017 Electronics Communications Code (“the Code”) in the case of Cornerstone Telecommunications Infrastructure Limited v Central St Giles General Partner Limited and Clarion Housing Association Limited  UKUT183 and has put down a marker that it will do all it can to uphold the Code’s objectives to facilitate the provision of telecommunications services without delay and at limited cost.
This case involved a request by Cornerstone Telecommunications Infrastructure Limited (“CTIL”) for access to a building to carry out a survey. The building comprised 53 flats, owned by the first respondent, Central St Giles (“CSG”) and leased to the second respondent, Clarion Housing Association. The principle that access for initial surveys was capable of being a Code right had already been established in the case of Cornerstone Telecommunications Infrastructure Limited v The University of London  UKUT 356.
CTIL first sought access in February 2018, when it became clear that they would lose an important site nearby. In correspondence between the agents for CTIL and CSG in November 2018 the principle of access was agreed and at this point solicitors became involved to negotiate a document dealing with the access rights. The issue over which the parties appear to have fallen out concerns the level of indemnity against any claims arising out of the exercise of the rights, CTIL wishing to cap this at £1 million and CSG insisting on £10 million.
A stalemate was reached and CTIL served notice under the Code requiring interim rights for a period of 28 days. However, apparently out of an abundance of caution, CTIL’s lawyers requested not just rights of access for survey purposes but the full extent of rights allowed by the Code, including the right to install undefined apparatus and to keep it installed on the building. By way of explanation CTIL indicated that the rights were framed in this way because it was not sure what rights it would need and did not want to be tripped up by a legalistic interpretation of a less comprehensive agreement. In practice the access required was expected to be for a few hours on two or three occasions over a 28-day period.
Agreement was reached over access at the doors of the Tribunal, CTIL having conceded the £10 million indemnity, and the only issue before the Tribunal was that of costs. By this point the second respondent was also involved and in aggregate the costs exceeded £100,000, including the costs of three well-known solicitors’ firms and three counsel, one in silk. The costs of preparing CSG’s witness statement alone ran to £13,000! All parties argued that they were the successful parties and sought payment of their costs.
The Tribunal showed little sympathy with any of the parties. It said that the dispute over the extent of the rights had been provoked by CTIL but had been taken to a wholly unnecessary level by CSG. CSG demanded completely unreasonable information in response to CTIL’s notice and these demands were “at best obtuse and at worst deliberately obstructive”. CTIL for their part had “asked for too much and then refused to modify its demands, thereby provoking an entirely unnecessary dispute”.
Ultimately the Tribunal found that the respondents were the successful parties but said that the manner in which the proceedings were conducted on both sides had been wholly disproportionate to the dispute and this was the responsibility of all of the parties. Accordingly, it ordered CTIL to make a costs payment to each of the respondents, but limited this to a contribution of £5,000 for each respondent, which the Tribunal considered to be a proportionate sum for the resolution based on the issues in dispute.
In doing so the Tribunal emphasised the importance it placed on discouraging “senseless disputes” of this sort and made it clear that if parties were allowed to use the preparatory stages of determining the suitability of the site as an occasion for preliminary trials of strength involving legal firepower on the scale deployed in this case there was a serious risk of the objectives of the Code being frustrated.
This case sends an important message to operators and site-providers alike that if they conduct themselves in a way which does not reflect the spirit and purpose of the Code then all sides may ultimately find themselves counting the cost!
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