The costs of intervening

There is an interesting little point on costs buried away in last week’s decision in the “Ethernet” disputes in the Competition Appeal Tribunal (see BT plc v Cable & Wireless Worldwide Plc and others [2014] CAT 20).

Parties which intervene in CAT proceedings generally know that they are unlikely to recover their costs, even if they intervene in support of the party which is ultimately successful. There are, however, various exceptions to that principle – – and, indeed, in the Ethernet case itself some of the intervenors recovered some of their costs from the unsuccessful party.

But what is particularly unusual about the Ethernet decision is that an order was made requiring an intervenor to pay some of the successful party’s costs. As far as I am aware, that is the first time the CAT has made such an order.

The Ethernet disputes involved several appeals. BT intervened in Ofcom’s favour in the appeals brought by communications providers (Cable & Wireless and various others). Relatively early on in the proceedings, Ofcom effectively abandoned its defence on one of the issues in the appeals. BT, however, continued to defend Ofcom’s initial decision. The Tribunal said, at para 25:

“If and to the extent that Ofcom does not seek to resist an appeal but leaves the issue to be contested between the parties to the underlying dispute, we consider that the party in whose favour Ofcom determined the dispute and then intervenes in support of Ofcom’s decision will in practice perform the role of respondent in the appeal. In those circumstances, it may well be just for that intervener to be treated as regards costs in the same way as a private party to an appeal.”

BT was ordered to pay 75% of the appellants’ costs after the date on which Ofcom made it clear it was not defending the reasoning in its decision.

These are relatively unusual facts, but they do raise a further note of caution for intervening parties.

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