Fresh grounds and evidence before the CAT

On the face of it, BT was the main winner in this week’s ruling from the Competition Appeal Tribunal: see British Telecommunications plc v Office of Communications [2015] CAT 6. However, the decision, which makes interesting comments on the rights of parties to adduce new grounds and evidence on an appeal, raises important notes of caution to all parties which may wish to appeal or intervene in future cases.

The case is the latest stage in the disputes between BT and various mobile network operators (“MNOs”) over BT’s wholesale termination charges.

This particular dispute had been resolved by Ofcom in favour of the MNOs, pursuant to its dispute resolution powers in sections 185-191 of the Communications Act 2003. On BT’s appeal, however, Ofcom accepted that its determination was flawed in light of the Supreme Court’s subsequent decision in the related 08 numbers case (see our blog here). Ofcom also decided that, given that the matter was essentially a dispute between commercial parties, it was not going to take a particularly active role in the appeals. BT will therefore have to battle the appeal out against the MNOs, which have been given permission to intervene.

The principal question at this stage was what grounds and evidence the MNOs should be able to rely upon. Although the issue arose in the context of interveners, the CAT stressed that, whilst it would not lay down general rules about the rights of interveners to adduce new grounds or evidence (§51), in this particular case the MNOs are essentially in the same position as the appellant (§54). Just as any winning party in civil litigation would be able to ask the appeal court to uphold the lower court’s decision on different grounds, so too the interveners in this case must be able to ask the CAT to uphold Ofcom’s determination on grounds different to those relied on by Ofcom.

The CAT also held that, in deciding whether the interveners should be able to advance fresh grounds, it should apply “substantially the same test” as the test for fresh evidence established by the Court of Appeal in British Telecommunications plc v Office of Communications [2011] EWCA Civ 245.

Both of the above decisions – that interveners may be in the same position as appellants, and that the test for admitting new grounds is substantially the same as that for fresh evidence – establish important principles which are sure to be relied on in future cases.

Against that background, and applying the relevant principles to the facts of this case, the CAT took a rather stern approach to the question of which grounds and evidence the interveners should be able to advance. In broad summary.

  1. The first new ground was not allowed because it was not raised before Ofcom and was not within the published scope of the dispute.
  2. The second new ground was not allowed because, although it had been raised before Ofcom, it was not within the published scope of the dispute or in the provisional determination, and Ofcom could not be expected to “trawl through correspondence” to identify which points were in issue.
  3. The MNO’s third point was not allowed because, although the ground was live before Ofcom, their proposed intervention relied on fresh evidence and there was no good reason why that evidence had not been adduced before Ofcom.
  4. The MNO’s fourth point, which also relies on fresh evidence, was allowed. It is difficult to see how this decision could have gone any other way, given that the point had been live before Ofcom but further evidence was required to resolve it.

One final point of interest is that the CAT had to decide whether, given that Ofcom had admitted that the determination was legally flawed, the CAT should remit the outstanding issue for Ofcom to decide, or whether instead to decide it for itself. The CAT stated that ordinarily it would be predisposed to remit any outstanding issues to the primary decision-maker. On the facts of this case, however, given that the issue was relatively straightforward, the proceedings were well-advanced, and also that Ofcom had adopted a neutral stance, the Tribunal decided that it will resolve the outstanding issue itself at a future hearing.

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