Dogma in telecoms, cream for the CAT: 08- numbers in the Supreme Court

The Supreme Court yesterday handed down judgment in British Telecommunications plc v Telefónica O2 UK Ltd & Ors [2014] UKSC 42. Reversing the decision of the Court of Appeal (blogged on here by Emily Neill), Lord Sumption for a unanimous Supreme Court held that there had been no basis for Ofcom to disallow BT’s introduction of “ladder pricing” in wholesale termination charges for certain non-geographic telephone numbers (specifically 080, 0845 and 0870, whence the litigation’s popular name among telecoms lawyers: “08- numbers”).

This is the Supreme Court’s first foray into the arcana of the EU framework for telecommunications regulation and, in particular, the dispute resolution jurisdiction of national regulatory authorities under Article 20 of the “Framework” Directive 2002/21/EC and Article 5 of the “Access” Directive 2002/19/EC, exercised in the UK’s case by Ofcom under sections 185 to 191 of the Communications Act 2003. Always one of the deeper mysteries of the regulatory framework for a telecoms neophyte, dispute resolution has often been described as a “third regulatory restraint”: a member, together with ex post competition law and ex ante regulation of undertakings with Significant Market Power, of a regulatory trinity. Dispute resolution, according to orthodoxy, is one of the means by which national regulators are to achieve their regulatory objectives under Article 8 of the Framework Directive of promoting competition, the interests of consumers etc.; and the test in an interconnection dispute has been said to be whether interconnection terms are “fair and reasonable” in the sense of appropriate having regard to the regulatory objectives (see TRD [2008] CAT 12 and the decision of the Court of Appeal in 08- numbers itself).

Although not completely scotched by Lord Sumption’s judgment, the orthodox view now requires considerable adjustment. The starting point is that the regulatory framework takes a ‘market-oriented and essentially permissive approach’, relying principally upon free negotiation between operators in a competitive market to ensure interconnection between networks (paragraphs 10, 33, 43). The way that English law ensures that the regulatory objectives are given effect in operators’ contracts is by treating a contractual discretion to fix or vary prices, such as that enjoyed by BT, as being implicitly subject to those objectives (paragraph 37). When Ofcom comes to determine an interconnection dispute, its first role is “adjudicatory” rather than regulatory: to determine the parties’ contractual rights (paragraphs 31, 32, 34). If there is no contractual right to vary interconnection terms, Ofcom can only allow the variation if it is necessary to achieve end-to-end connectivity (e.g. if in its absence it would be impossible for O2 customers to call BT-hosted 08- numbers) or to achieve the Article 8 objectives; but if there is such a right, Ofcom cannot disallow the variation unless it finds that it would be inconsistent with the Article 8 objectives (paragraph 34, 43). In other words, Ofcom’s role is not to impose what it considers the best regulatory solution, but to adjudicate upon the parties’ contractual rights and then determine whether there is any positive regulatory reason to depart from the contractual position.

On that approach, there was no basis to interfere with BT’s introduction of ladder pricing. BT had a contractual right to introduce it, and Ofcom had not found that such pricing would be inconsistent with the Article 8 objectives (paragraphs 42 and 43), the economic effects being too complex to make a finding whether the changes would be beneficial or harmful to consumers overall; there is no burden upon an operator to justify variations to its charges. Although there may be cases in which the risk of an unproven adverse effect on (say) consumers may itself be inconsistent with the Article 8 objectives, this was not such a case (paragraph 44).

The Supreme Court’s judgment is in some respects surprising, particularly since (I am told) BT had not appealed from the Court of Appeal’s conclusion that the contractual variation clause did not “point in the direction of” allowing the new charges. It also expressly leaves open the ‘[d]ifficult questions’ which may arise ‘in a case where the Article 8 objectives neither preclude nor require a variation and the relevant party has no contractual right to require one’ (paragraph 41). The regulatory trinity does, however, survive for the time being. Lord Sumption was unconvinced by, but declined to determine, BT’s central and most heretical ground of appeal: that there is no “third regulatory restraint”, and that it is only on SMP grounds that Ofcom may disallow charges which a party has contractual power to impose (paragraphs 47 to 48).

BT is not the only victor emerging from the 08- numbers saga. The CAT can justifiably sport a Cheshire grin in light of Lord Sumption’s conclusion at paragraph 46 that the Court of Appeal had erred in “putting it back in its bag” (to use Emily Neill’s phrase). The CAT was hearing an appeal by way of rehearing on the merits, and as an expert tribunal with substantial evidence before it had been entitled to conclude and to take into account (as Ofcom had not) that preventing BT from introducing innovative charging structures was itself anticompetitive; it was not open to the Court of Appeal on an appeal on a point of law to reject these findings (paragraph 46). Having taken a few kicks recently (in Pay TV as well as 08- numbers), the CAT must find these welcome words. They are doubtless words of which the CAT – and indeed the Court of Appeal – will often be reminded by litigants seeking to challenge Ofcom’s, and other regulators’, decisions.

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Avoiding the clinch: judicial respect for the rules inherent to sport

In a recent bout in the High Court, the specificity of sporting disputes once again came to the fore. In Bruce Baker v British Boxing Board of Control [2014] EWHC 2074 (QB), 25 June 2014, Sir David Eady was faced with the old chestnut of a request for a court to interfere with a national sporting body’s decision to sanction one of its participants. One interim application later, and the BBBC was still standing.

Bruce Baker is a longstanding manager of boxers and previously held a licence to that effect granted by the British Boxing Board of Control (“BBBC”). Following his participation in two promotions in Bethnal Green, which had not been sanctioned by the BBBC in April and October 2013, the BBBC instituted disciplinary proceedings and found him guilty of misconduct. His licence was withdrawn on 11 February 2014. The events had been sanctioned by a German body known as the GBA, a rival to the German association represented in the European Boxing Union (the BDB).

Mr Baker challenged the withdrawal before an internal appeal body – the “Stewards” – but also applied to the High Court for interim relief requiring the BBBC to restore his licence. The manager alleged that the BBBC had disciplined him because he participated in an event sanctioned by a German boxing body that it did not recognise, contrary to free movement and competition law and procedural unfairness.  The BBBC sought a stay of the action under section 9 of the Arbitration Act 1996.

The Court rejected Mr Baker’s application.

The application failed, first, because it was premature.  An appeal was pending before the independent Stewards of Appeal, due to be heard in July.  Without it being necessary to decide whether the Stewards constituted an arbitral or a domestic body under the principles set out in England and Wales Cricket Board Limited v Kaneria [2013] EWHC 1074 (Comm) (as to which see Nick de Marco’s post here), the Court decided that the complaint ought to have been brought before them, “so that any such attack can be made on the procedure taken as a whole”, on Calvin v Carr [1980] AC 574 and Modahl v British Athletic Federation [2002] 1 WLR 1192 principles (at [38]).

Second, as to the competition law challenge, the Judge placed an emphasis on the European model of sport, i.e. “[t]here is no legal prohibition on the organisation of any sports under the umbrella of a national governing body” (at [15]), and such a body is “free to stipulate that its members should comply with its rules” (at [18]). He pointed to the “detailed methodology available as to how the [European] Commission will apply competition rules in the sporting context” – i.e. the test in C-519/04 P Meca-Medina and Majcen v European Commission [2006] ECR I-6991 at paras. [42]-[45]. The Court considered it entirely lawful for a sport governing body to have a rule that allowed a party to be disciplined for actions assessed to be inimical to the sport, indeed such a rule was “inherent in the organisation of the sport“ (at [20]). This broad approach is interesting given that Meca-Medina was initially identified as a watershed for the CJEU’s so-called dilution of the ‘sporting exception’ from EU law: “the mere fact that a rule is purely sporting in nature does not have the effect of removing from the scope of the Treaty the person engaging in the activity governed by that rule or the body which has laid it down” (at [27]).

Finally, the judge considered that there was no triable issue. The decision in relation to Mr Baker was plainly based on an assessment of the facts in the case, which a Court “should be slow indeed to substitute its own opinion for” (at [28]). He also concluded that any damage to Mr Baker in the absence of interim relief would not be removed by the temporary restoration of his licence.  Damage flowed from his being found guilty and the concern that if he failed in his appeal in July, he would not have a licence at that point (at [31]).  Moreover, if there were any damage to Mr Baker it was compensable in damages, in contrast to the potential damage to the BBBC’s interests as a sport’s governing body.  The Court also noted that Mr Baker had delayed in seeking this remedy and “remains unrepentant” – the balance of convenience therefore lay against the granting of the relief (at [33]-[34]).

The Court’s approach is a classic illustration of the respect given to sporting rules, and internal processes within a sport to enable national authorities to pursue objectives such as “ensur[ing] that the sport is conducted fairly, including the need to safeguard equal chances for the boxers, boxers’ health, the integrity and objectivity of the sport and the ethical values in the sport” (at [20]). It also reflects the EU position that something more than the inherent organisation of sport in the European model is needed for breaches of EU law to be found.

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The English law of causation and the passing-on defence

One of the big questions of English competition law is whether there is such a thing as a “passing-on defence” – – i.e. whether the damages suffered by a purchaser of a cartelized product are reduced or mitigated if he “passes on” some of the overcharge to his own customers. Two follow-on damages actions were due to be heard this term, arising out of the synthetic rubber cartel and the gas insulated switchgear cartel, both of which raised the question of passing-on but both of which have now settled.

I should perhaps declare an interest: I was junior counsel in the rubber case (Cooper Tire v Dow). Whilst preparing for that case, I was struck by the fact that, whilst there is a mass of published material discussing the policy considerations for and against the passing-on defence, there is very little published analysis of what the English law of damages has to say about the issue. The existence of a passing-on defence has on several occasions been conceded, assumed or endorsed in obiter comments (see, for example, Emerald, Newson and Devenish). But it has never been fully argued.

After some initial skirmishing, the parties in Cooper Tire (which had a few weeks in court before settling) agreed that the availability of the defence should depend on normal English principles of causation and mitigation. It is worth pausing to emphasize the significance of that agreement. If correct, as I explain below, it means that the question of whether damages should be reduced to reflect passing-on depends on the facts of the case. No party was arguing that passing-on is always or never a valid defence.

The question is therefore: in what circumstances do steps taken after the infliction of damage serve to reduce the damage? As it happens, that question was explored in great detail in a shipping case handed down shortly after Cooper Tire settled, namely Fulton Shipping Inc v Globalia Business Travel SAU [2014] EWHC 1547 (Comm). Mr Justice Popplewell noted the uncontroversial starting point that damages are intended to place the innocent party in the same financial position as if the breach had not occurred. But he said at paragraph 17:

“The principle does not, however, mean that a claimant always recovers for the amount of the losses which arise from the breach. Principles of causation mean that his losses may be factually too remote from the breach to be recoverable despite the fact that they would not have been suffered but for the breach. His losses may be too remote in law. Conversely, he may end up better off as a result of the breach than he would otherwise have been, without having to give credit for such benefit against his recoverable loss.”

Popplewell J’s judgment is something of a tour de force, and it repays close reading. He reaches the conclusion, which will surprise no-one who has ever had to consider this issue, that there is no single general rule to determine whether a wrongdoer obtains credit for a benefit received following his breach of duty. However, there are certain general principles.

Of most relevance, the Judge explained that:

“In order for a benefit to be taken into account in reducing the loss recoverable by the innocent party for a breach of contract, it is generally speaking a necessary condition that the benefit is caused by the breach […] The test is whether the breach has caused the benefit; it is not sufficient if the breach has merely provided the occasion or context for the innocent party to obtain the benefit, or merely triggered his doing so […] Nor is it sufficient merely that the benefit would not have been obtained but for the breach.”

Applying that test to passing on, the question would be whether the increase in the direct purchaser’s own prices was caused by the cartel. It would not be sufficient for the cartelist to show that the cartel “provided the occasion or context” for the direct purchaser to increase its prices, or that those prices would not have been increased but for the cartel.

There is no obvious dividing line between causing an increase in prices and providing the occasion or context for such an increase. It follows that, if those are the principles applicable to passing-on, cartel damages claims are likely to require a close factual analysis of how the claimant’s prices were affected by the cartel. It would also follow that, unless and until there is EU intervention, these cases will remain highly uncertain: there will be no judgment deciding once and for all that damages “should” or “should not” be reduced due to passing-on. Instead, all will depend on the judge’s view of the facts of the particular case.

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Competition law and covenants restrictive of land use

Covenants restricting use of land to particular commercial purposes are commonplace. Until recently, the potential for competition law to regulate them was limited, because “land agreements” were excluded from the reach of the Chapter I Prohibition under the Competition Act 1998. The exclusion has, however, been revoked by the Competition Act 1998 (Land Agreements Exclusion Revocation Order) 2010. The OFT has also provided guidance on the application of competition law in this field.

Accordingly, practitioners can increasingly expect competition law to provide a basis for challenging commercial arrangements restrictive of land use. Martin Retail Group Limited v Crawley Borough Council – a County Court case decided in December last year but which BAILII has just made available at our request – well-illustrates the point. It is (so far as we are aware) the first reported decision considering the application of the Competition Act 1998 to “land agreements” following the 2010 Order (although see Humber Oil Terminals Trustee Limited and Associated British Ports for a Chapter II land use case).

In Martin, the relevant arrangement was a “letting scheme” operated by a Council in respect of various parades of shops of which it was freehold owner. Under the scheme, the Council imposed on lessees covenants restricting use of each shop to specific retail purposes. In Martin’s case, the old lease contained covenants restricting use to (essentially) the business of a newsagent; upon its expiry, Martin applied under Part II of the Landlord and Tenant Act 1957 to renew the lease, seeking incorporation of clauses permitting broader use, including (essentially) the business of a convenience store. The Council refused, proposing instead clauses which would have prevented such business. Martin responded contending that the proposal was unlawful, being contrary to the Competition Act 1998.

The Court directed that competition law point be tried as a preliminary issue. By the hearing, the Council had accepted that its proposal would be contrary to the Chapter I Prohibition unless it constituted an “exempt agreement” for the purposes of section 9 of the 1998 Act, i.e. that the arrangement was one that:

(a) contributes to—

(i) improving production or distribution, or

(ii) promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit; and

(b) does not—

(i) impose on the undertakings concerned restrictions which are not indispensable to the attainment of those objectives; or

(ii) afford the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the products in question.

HHJ Dight found that the burden lay on the Council to establish that section 9 applied (see at paragraph 31), and that the Council had not discharged it (see at paragraphs 32-39). Two general points may be emphasised in the light of the judge’s analysis:

First, neither party had adduced independent expert evidence on the competition law issues before the Court. Rather, each had provided statements of their employees explaining (broadly speaking) the reasons for and against expanding trade at the relevant premises, and referring to hearsay evidence of the local community. The Judge considered such material to be of limited use (see at paragraph 32). His approach is yet further encouragement to parties faced with competition law issues to rely on expert evidence. Indeed, it is difficult to imagine a case for “exemption” being made without reference to such evidence.

Second, the Judge placed significant weight on the OFT guidance, structuring his analysis by reference to the four cumulative criteria set out at paragraph 5.3. Those criteria are that, in order to qualify as “exempt”:

• The agreement must contribute to improving production or distribution, or to promoting technical or economic progress.

• It must allow consumers a fair share of the resulting benefits.

• It must not impose restrictions beyond those indispensable to achieving those objectives.

• It must not afford the parties the possibility of eliminating competition in respect of a substantial part of the products in question.

The Judge found that the Council had adduced no evidence sufficient to establish its case on any of these criteria: see at paragraphs 35-39.

Martin should serve as an important reminder that land agreements are no longer beyond the reach of competition law. Restrictions on use are of course a widespread feature of leases, and there is plainly scope for them now to be subject to far more rigorous judicial scrutiny.

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Non-Appealing Cartelists Beware

Tucked away at the back of last week’s Supreme Court decision on time-limits for follow-on claims is a very important development for private competition actions.

The context is section 47A of the Competition Act 1998, a provision which has generated an extraordinary amount of litigation in view of the fact that it was intended to streamline private damages actions. The apparently dreary issue addressed in Deutsche Bahn AG and others v Morgan Advanced Materials Plc [2014] UKSC 24 related to the two-year time limit in which follow-on damages claims must be brought under section 47A. Anyone wanting more background might want to look here. The simple summary is that the law is now that:

  1. The start of the two-year limitation period will only be delayed by an appeal against liability – an appeal against penalty only does not suffice to delay the start of the limitation period. This was decided in BCL No.1.
  2. In a multi-party infringement, an appeal by one party will only delay the start of the two-year period for claims against that infringing party. It will not delay the start of the period in respect of claims against other parties. This was the Supreme Court’s decision last week in Deutsche Bahn.
  3. Once the two-year limitation period has expired, the CAT has no power to extend the time limit to allow claims to be brought late. This was decided in BCL No.2.

Now for the interesting bit.

One of the issues relevant to the argument in Deutsche Bahn was whether, if some cartelists (call them A and B) had successfully appealed against a decision that they had been party to a cartel, cartelist C, who chose not to appeal, would still be bound by the decision that A, B, and C had been members of a cartel. Could a claimant seek damages from C and contend that C is bound by the decision that it was in a cartel with A and B?

The Supreme Court held, in a single unanimous judgment, that the answer is yes. It held at paragraph 21 that as a matter of European law:

“a Commission Decision regarding the existence of a cartel constitutes a series of decisions addressed to its individual addressees, which remain binding or not according to the lodging and outcome of any individual appeals. A successful appeal by one addressee, establishing that there was no cartel, has no effect on the validity and effects of the Decision determining that there was such a cartel and levying a fine as against another addressee who has not appealed. This is so although article 81(1) (and now article 101(1)) applies to agreements and concerted practices (concepts which postulate the involvement of more than one party), and although a Commission Decision, such as that in question on this appeal, addresses in a single document all addressees by reference to one or more particular agreements or practices found to exist between all of them.”

In some ways, this is the mirror-image of the domestic law principle whereby non-appealing infringers are fixed with penalties even if other alleged infringers succeed in overturning the decision – a principle endorsed very recently by the Court of Appeal (see my blog). But the Supreme Court’s decision further raises the stakes: non-appealing parties may be stuck not only with penalties, but also with liability for all damages caused by the cartel, the existence and scope of which they cannot deny even if it has been disproved on appeal.

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Tobacco decision: the Court of Appeal emphasises finality

The Court of Appeal yesterday delivered a judgment that should finally draw a line under one of the Office of Fair Trading’s more troublesome cases – and which will presumably bring a great sigh of relief from the Competition and Markets Authority, the body that has now taken over the OFT’s functions.

The background is the OFT’s ill-fated decision on alleged pricing agreements between tobacco manufacturers and retailers. The OFT’s case collapsed on appeal to the Competition Appeal Tribunal (the “CAT”). That appeal, however, was not the end of the story. Two parties who had entered into early resolution agreements with the OFT, in which they admitted their participation in the alleged unlawful agreements, had decided not to appeal to the CAT. When the OFT’s case collapsed, those parties (Gallaher, a tobacco manufacturer, and Somerfield, a retailer) understandably felt that they had rather missed the boat, and so sought permission to appeal against the OFT’s decision out of time.

A year ago, I blogged on the CAT’s decision granting Gallaher and Somerfield an extension of time in which to appeal. The CAT’s judgment rested on the notion that, in entering into the early resolution agreements, Gallaher and Somerfield had a “legitimate expectation that the OFT would be able to defend (even if not successfully) its Decision on the merits” [93(6)]. Some observers have rather unkindly summarised the CAT’s decision as being that, whilst Gallaher and Somerfield must have known that there was a chance that the OFT would lose an appeal, nonetheless they had a legitimate expectation that the OFT would not completely cock it up.

The Court of Appeal records at paragraph 30 that no party sought to defend the CAT’s novel use of the legitimate expectations doctrine. However, Gallaher did continue to argue a similar point, namely that it was entitled to assume that, in entering into an early resolution agreement, the OFT had “some proper evidential basis” for its theory of harm. I said in my earlier blog that one oddity of the CAT’s reasoning was that it overlooked the fact that parties who enter into early resolution agreements make admissions about their own conduct, and that they presumably carry out their own investigations into what they have done rather than relying simply on an “expectation” that the OFT’s factual case is robust. The Court of Appeal put the point more forcefully at paragraph 51:

“To put the matter bluntly, the Respondents are grown-up commercial parties. They knew what evidence was relied upon in the Statement of Objections. They knew what evidence was available to them as to their own infringements. They could evaluate both when they concluded the ERAs. It would be quite impossible for the OFT to conduct such an investigation and bring it to a timely conclusion if it were to be taken as representing at the time of an early resolution agreement that it would in the future have a “proper evidential basis” for its decision. Of course, it would be expected to have such a basis, but litigation sometimes proves otherwise. In any event, it may be asked rhetorically: how could it be decided whether the OFT had such an evidential basis? No doubt it thought it did, even though it turned out it did not.”

Apart from the “evidential basis” point, the main argument before the Court of Appeal focused on the apparent disjuncture between the nature of the infringement which Gallaher and Somerfield admitted in their early resolution agreements and the nature of the agreement actually found in the decision. The Court held that, whilst there was a difference between the two, that did not amount to “exceptional circumstances” so as to justify extending time for an appeal, since Gallaher and Somerfield were free to read the decision; to realise that it was not quite what they had admitted; and to appeal in time if so advised. The key consideration was the desirability of finality and legal certainty.

The Court of Appeal recognised that the outcome in this case is somewhat “uncomfortable” – Gallaher and Somerfield are bound by a decision that they committed an infringement, even though that decision crumbled under appeal. But that is always the case when one party chooses not to appeal whereas another succeeds in its appeal. It is unlikely to make any difference to the position of the non-appealing party whether the successful appellant just about secures a victory even though the case could have gone either way, or whether he succeeds in comprehensively defeating the authority’s case.

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Pay TV: Court of Appeal sends message to the CAT

In its recent decision in British Sky Broadcasting Ltd v Office of Communications [2014] EWCA Civ 133 the Court of Appeal has sent a strong message to the CAT, criticising the Tribunal for its failure to properly consider the reasons underpinning Ofcom’s original decision to impose licence conditions on British Sky Broadcasting Ltd (“Sky”).

In March 2010, Ofcom published a “Pay TV statement” concerning Sky’s right to broadcast the content of major sporting events, including Premier League football. The statement contained two principal conclusions: first, that Sky had developed a “practice” which consisted of a “strong reluctance” to negotiate wholesale deals for core premium sports channels with retailers. Secondly, that to the limited extent that Sky would enter into any discussion on wholesale pricing, it would be on the basis of a “rate card price”, which was, in effect, a price that would not enable other retailers to compete with Sky’s rates to consumers. Ofcom took the view that this would be likely to reduce incentives to innovate and so be an impediment to competition.

As a consequence of these conclusions, Ofcom declared that it would, pursuant to its powers under section 316 of the Communications Act 2003, impose a number of licence conditions on Sky. That decision was appealed to the CAT.

In a lengthy judgment, the CAT concluded that Ofcom did have jurisdiction under s.316 to impose the licence conditions. However, it held that Ofcom’s primary concern was unfounded and that Sky did, on the whole, negotiate wholesale deals for core premium sports channels with retailers. In light of its findings on this issue the CAT took the view that it was unnecessary to go on to consider Ofcom’s second conclusion, regarding the “rate card price” and the extent to which this may be an impediment to competition.

There were two issues before the Court of Appeal. The first was whether Ofcom had power under section 316 to impose conditions in Sky’s broadcasting licences. The Court adopted a wide construction of the words “in the provision of” and held that it must encompass not only provision to other broadcasters, but also the public on both wholesale and retail bases (at [79]). Hence, section 316 was not concerned solely within competition between providers of content for TV services, but with fair and effective competition more generally.

The second issue related to the CAT’s failure to address, at all, the issue of whether Ofcom was right to conclude that Sky’s practice in relation to the “rate card price” itself constituted an impediment to fair and effective competition. This total failure of consideration was notwithstanding the fact that “[t]he CAT’s conclusion that Ofcom was wrong, on the facts, to find that Sky was not prepared to negotiate for the wholesale of the [core premium sports channels] left open the issue of the price at which these channels could or would be supplied wholesale to competitors” (at [95]). The Court of Appeal considered that “the CAT should have addressed each of Ofcom’s competition concerns in detail” (at [120]) and that the failure to do so constituted an error of law (at [100]-[101]).

The Court of Appeal has remitted the matter to the CAT for further consideration “in order that further findings and conclusions may be made in light of [the] judgment” (at [102]). In circumstances where the Tribunal made no findings on what is now the central issue in the case, it remains to be seen, as a matter of practice, how this will be achieved.

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