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You are here: BAILII >> Databases >> United Kingdom Competition Appeals Tribunal >> Vodafone Limited & Ors v Office of Communications [2008] CAT 39 (18 December 2008) URL: https://www.bailii.org/uk/cases/CAT/2008/39.html Cite as: [2008] CAT 39 |
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Neutral citation [2008] CAT 39
IN THE COMPETITION APPEAL TRIBUNAL |
Case Number: 1094/3/3/08 | |
Victoria House Bloomsbury Place London WC1A 2EB |
18 December 2008 |
18 December 2008 |
BETWEEN:
Appellant
Interveners
Respondent
Intervener
Background
The Tribunal's jurisdiction on costs
"(1) For the purposes of these rules "costs" means costs and expenses recoverable before the Supreme Court of England and Wales, the Court of Session or the Supreme Court of Northern Ireland.
(2) The Tribunal may at its discretion, subject to paragraph (3), at any stage of the proceedings make any order it thinks fit in relation to the payment of costs by one party to another in respect of the whole or part of the proceedings and in determining how much the party is required to pay, the Tribunal may take account of the conduct of all parties in relation to the proceedings.
…"
Vodafone's application and OFCOM's response
i. Vodafone's appeal was "overwhelmingly successful";
ii. The appeal cannot be described as merely part of a regulatory dialogue between OFCOM and the industry, but rather it concerned the adequacy of OFCOM's factual analysis in adopting the Decision and was decided mainly on the facts;
iii. Vodafone's case remained substantially unchanged throughout the consultation process and the course of the appeal; and
iv. The appeal raised no novel points of law.
"…the principle for which OFCOM contends [is] that some exceptional factor such as unreasonable conduct is a basis for a costs award, not merely the lack of success in upholding a regulatory decision arrived at in good faith"
Orange's and O2's intervener costs applications
i. their request to intervene was reasonable and limited to the issue of recipient-led two hour porting;
ii. they needed to be separately represented in these proceedings due to issues of commercial interest and confidentiality; and
iii. their intervention was of assistance to the Tribunal in forming its decision.
The Tribunal's analysis
"There is no specific rule that costs should follow the event, but 'in determining how much the party is required to pay, the Tribunal may take account of the conduct of all parties in relation to the proceedings' (Rule 55(2))."
"the correct approach in this case is not to proceed by way of analogy with other cases, but to apply the clearly established principle that costs have to be determined on a case by basis, relying on authorities for principles where appropriate."
"Where a complainant has successfully challenged before justices an administrative decision made by a police or regulatory authority acting honestly, reasonably, properly and on grounds that reasonably appeared to be sound, in exercise of its public duty, the court should consider, in addition to any other relevant fact or circumstances, both (i) the financial prejudice to the particular complainant in the particular circumstances if an order for costs is not made in his favour; and (ii) the need to encourage public authorities to make and stand by honest, reasonable and apparently sound administrative decisions made in the public interest without fear of exposure to undue financial prejudice if the decision is successfully challenged."
"Although as a matter of strict law the power of the court in such circumstances to award costs is not confined to cases where the Local Authority acted unreasonably and in bad faith, the fact that the Local Authority has acted reasonably and in good faith in the discharge of its public function is plainly a most important factor."
"The costs of maintaining specialised regulatory and compliance departments, and taking specialised advice, will not ordinarily be recoverable prior to proceedings. We accept that the situation changes once proceedings before the Tribunal are on foot, by virtue of Rule 55 of the Tribunal's Rules. However, the question whether costs orders should be made in any particular case, or whether the costs should lie where they fall, arises against a background in which [the Appellants] and the interveners are, in their own interests, routinely incurring regulatory costs which are not recoverable."
"In the specific case of a sector such as telecommunications, where there may be interveners who are likely to be regularly appearing before the Tribunal, we think the general practice is likely to be to allow the costs of the intervention to lie where they fall."
There is a strong public benefit in not discouraging legitimate interventions, either in support of or in opposition to regulatory decisions. Equally, the Tribunal recognises the public interest in not unduly encouraging interventions, as to do so may have implications for the expeditious conduct of proceedings to the detriment of the main parties. For those reasons, the Tribunal's general approach to interveners' costs has been neutral. The judgment of the Tribunal in Independent Media Support Ltd v Office of Communications [2008] CAT 27 confirms this approach.
Conclusion
ORDERS THAT:
(1) Each party bears its own costs.
(2) There be liberty to apply.
Lord Carlile of Berriew |
Dr Arthur Pryor CB |
Professor Paul Stoneman |
Charles Dhanowa Registrar |
18 December 2008 |
Note 1 The Guide to Proceedings is available from the Tribunal’s website: www.catribunal.org.uk. The requirements of the Guide to Proceedings constitute a Practice Direction issued by the President pursuant to Rule 68(2) of the Tribunal Rules.
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