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  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. Continue reading
‘“But I don’t want to go among mad people,” Alice remarked.
“Oh, you can’t help that,” said the Cat: “we’re all mad here”.’
Where an appeal to the Tribunal under section 192 of the Communications Act 2003 gives rise to specified ‘price control matters’, the CAT must hive them off for determination by the Competition Commission: see section 193(1) and SI 2004/2068. The CAT is then bound by section 193(6) to follow the Commission’s determination, except ‘to the extent that the Tribunal decides, applying the principles applicable on an application for judicial review, that the determination of the Competition Commission is a determination that would fall to be set aside on such an application’: section 193(7).
This “quasi-judicial review within an appeal” jurisdiction under section 193(7) is tribute in itself to the complexity of the legal imagination. In British Telecommunications Plc v Office of Communications  CAT 30 the Tribunal takes us deeper still into wonderland with this question: can the Competition Commission, when it participates in a section 193(7) review before the Tribunal, recover its costs of so doing? Continue reading