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Lawbite - Putting down a marker - conduct & costs under the Electronic Communications Code

  • United Kingdom
  • Litigation and dispute management

09-07-2019

Cornerstone Telecommunications Infrastructure Ltd v (1) Central Saint Giles General Partner Ltd (2) Clarion Housing Association Limited [2019] UKUT 183 (LC)

The Upper Tribunal has recently issued a clear warning to parties involved in Code disputes about the importance of conduct in the context of determining liability for costs.

The dispute concerned Matilda Apartments in London, part of the Central Saint Giles complex, owned by Central St Giles and part of which is leased to Clarion Housing. CTIL sought access to Matilda Apartments for a multi-skill visit (MSV) to assess their suitability for the siting of electronic communications apparatus.

By the time of the hearing access for the purposes of the MSV was no longer opposed and the one issue in dispute, the extent of an indemnity to be given by CTIL, was resolved by agreement.

The Tribunal was asked to determine liability for costs of the application. In aggregate costs exceeded £100,000.

The Tribunal determined that whilst the respondents were entitled to their costs, such costs should be limited to £5,000 each. The Tribunal was critical of the manner in which the dispute had been conducted by all parties which it considered “disproportionate, inappropriate and unacceptable” and “an entirely unnecessary dispute”.

Key points

  • The Tribunal was critical of the conduct of the parties and the level of costs incurred particularly given that the main issue in dispute had been decided upon in Cornerstone Telecommunications Infrastructure v The University of London [2018] UKUT 356 (LC). In that case it was found that the right to enter a building for a MSV was a Code right
  • Parties to similar disputes who refuse access cannot expect to recover significant costs, whatever the outcome
  • The Tribunal considered the first respondent had made demands which were “..wholly unreasonable,…at best obtuse, and at worst deliberately obstructive” and that CTIL had asked for too much, then refused to modify its demands stressing that operators cannot simply demand unquestioning co-operation from property owners

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