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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Inquam Telecom (Holdings) Ltd v Primus Telecommunications Ltd [2007] EWHC 181 (Comm) (07 February 2007)
URL: http://www.bailii.org/ew/cases/EWHC/Comm/2007/181.html
Cite as: [2007] EWHC 181 (Comm)

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Neutral Citation Number: [2007] EWHC 181 (Comm)
Case No: 2006/462

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
07/02/2007

B e f o r e :

THE HONOURABLE MR JUSTICE AIKENS
____________________

Between:
INQUAM TELECOM (HOLDINGS) LTD
Claimant
- and -

PRIMUS TELECOMMUNICATIONS LTD
Defendant

____________________

Mr Timothy Dutton QC and Mr Stephen Brown (instructed by Mayer Brown Rowe & Maw, Solicitors, London) for the Claimant
Mr Philip Roberts (instructed by Bird & Bird, Solicitors, London) for the Defendants

Hearing dates: 16th, 17th and 18th January 2007

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Aikens :

    I. The parties and the background to the dispute

  1. This dispute is between two companies in the mobile phone network sector of the telecommunications industry. It arises out of a "Service Agreement" ("the Agreement") which was concluded between the parties on 12 May 2005. In essence the issue is: how much should the defendant ("Primus") be paid for the products or services provided by Primus to the Claimant ("ITHL") in respect of calls from mobile phones that are routed via ITHL to Primus' international telecommunications network? To resolve this question it will be necessary to construe the Agreement, consider the effect of a further, more informal agreement between the parties made after the Agreement, in the latter half of 2005 and also the conduct of the parties in early 2006. Primus also has a counterclaim for damages said to have been suffered because ITHL was too slow in providing certain connection facilities under the Agreement and for breach of a "non – assignment" provision in the Agreement.
  2. The trial took place between 16 -18 January 2007. I heard oral evidence from two witnesses for the claimant, Mr Tony Greaves and Mr Richard Pullin. I also heard evidence from two witnesses for the defendant, Mr Kishor Patel and Mr Oliver Mackereth. All of them were satisfactory witnesses, although it is debatable how useful or even admissible much of their evidence was for the purpose of deciding the issues in dispute. But it would have taken longer to sort out what parts of their witness statements were relevant than to allow them all to go in, on the understanding that I would disregard those parts of both their written (and oral) evidence that was inadmissible or irrelevant.
  3. The Claimant, ITHL, was formed in July 2001. In October 2004 ITHL was bought by Mr Tony Greaves, who is now its Chief Executive Officer. His co-purchaser was Mr Richard Pullin, who is now the Business Development Director of ITHL. ITHL had been allocated 1.2 million mobile telephone numbers by OFCOM. All of these numbers have a prefix 07744 or 07755.
  4. ITHL's business is to operate a telecommunications switch (i.e. an exchange) and a number provisioning service which it provides to other telecommunications service providers, known as "Mobile Network Operators" or "MNOs", such as Orange and T-Mobile. This service is all part of the chain of telecommunications services which enable a caller using a mobile phone to make national or international calls. I will explain how these work further below.
  5. Another relevant company which is associated with ITHL (through its shareholders) is Core Communications Services Limited ("Core"). It was incorporated in May 2005. Mr Greaves is the CEO of Core and Mr Pullin is its Business Development Director. They are the two shareholders of that company.
  6. The defendant, Primus, is a telecommunications service provider. It provides services to retail end- user customers. These services include domestic and international long distance services, international toll- free services, calling cards and prepaid long distance services. Primus is a UK subsidiary of a large US telecoms company, Primus Telecommunications Group Inc. which has worldwide connections. However, in May 2005, Primus did not have a Mobile Licence in the UK. Primus provides further links in the chain whereby a caller using a mobile phone can make international calls. In all cases the object of Primus' services is to enable the caller to make international calls at a lower cost than the usual cost of a direct call.
  7. In early 2005, ITHL and Primus both appreciated that there could be mutual advantage in linking the services that the two companies could provide. The plan was to provide a service as follows: first it was known that many retail customers of MNOs (such as Orange and T-Mobile) have contracts with their MNO which enable the customer to use a certain number of minutes of call time per month in return for a monthly fee. This call time is known as "free cross network minutes" or "bundled minutes". Such a contract enables the mobile phone user to telephone other mobile phone numbers (on the same or other mobile networks) at no additional cost up to the monthly limit of call time. MNOs, such as Orange and T-Mobile can have agreements with other MNOs. These are known as "interconnect agreements". In early 2005, ITHL had only one interconnect agreement with another interconnect provider, which was BT.
  8. The second element in the plan was that ITHL would enter into a contract with Primus and sub - allocate to it certain of the telephone numbers which OFCOM had allocated to ITHL. The object of this was to enable the mobile phone caller to use these ITHL numbers that were allocated to Primus to call up Primus, thereby gaining access to its international network.
  9. The third element in the plan was to utilise the resources and telecommunications connections that Primus has worldwide to enable a mobile phone caller in the UK to connect to a receiver in destinations all over the world. Thus a caller in the UK could dial an ITHL number that had been s ub - allocated to Primus, wait for a short pause, then dial the international number required. That number would be connected through the Primus network.
  10. The route was helpfully put in a diagrammatic form in the Outline Argument of Mr Philip Roberts, who appeared for the defendants. This diagram assumes that the call would come to ITHL via the BT interconnection, which was the only possibility at the time the Agreement was concluded.
  11. diagram

  12. This arrangement would, potentially at least, have advantages for three parties. First, the mobile telephone user can use the connection via ITHL and Primus to make international calls more cheaply than calling the number directly. There is an even greater advantage to the mobile phone user if the ITHL number is one that the caller's MNO permits to be included in the "bundled minutes" as part of the contract between the mobile phone user and the MNO. However, there can be savings to the customer even if the international call via ITHL and Primus, is outside the "bundled minutes".
  13. Secondly, the arrangement is of advantage to ITHL. If it has a service agreement with Primus, then ITHL will be able to route calls from mobile telephone users through an ITHL number that has been sub - allocated to Primus. This will mean that ITHL will obtain a fee for taking the call from an MNO (such as Orange), which is known variously as an "interconnect fee" or "rebate". Obviously, the more calls that are routed through ITHL and Primus, the more interconnect fees that ITHL will obtain from MNOs through whom the mobile phone user has to route a call to utilise the Primus connection to an international destination.
  14. Lastly, the scheme is of advantage to Primus. It will obtain a fee from ITHL for permitting the connection (via the ITHL number) to its network. This payment is variously called a "royalty payment" or a "rebate". Once again, the more calls that are routed through the MNO to ITHL and then Primus and on to the international destination, the more royalty payments Primus will get. However, Primus has to pay the international mobile and land line connectors out of its revenue. Primus is also responsible for the marketing of this facility in the retail mobile phone users' market.
  15. In early 2005, ITHL had an interconnect agreement with BT only. At that stage, Mr Greaves and Mr Pullin, in their capacity as officers of Core, were negotiating an interconnect agreement between Orange and Core. The plan was to route calls originating from Orange through Core and then, via ITHL, which had the physical connections, to the Primus network. Subsequently in 2006, as I will relate, ITHL entered into a further interconnect agreement with T-Mobile.
  16. It is obvious that if ITHL and Primus wished to operate this proposed scheme profitably, then there would be a number of factors to consider. First, it is in the interests of ITHL and Primus that ITHL obtains the highest possible interconnect rate from all MNOs that connect to ITHL. This is because the higher the rate that ITHL obtains then the more flexibility there is for ITHL to pass on a good royalty rate to Primus. Secondly, it was known in the mobile phone business that interconnect rates tend to reduce over time. If interconnect rates as between MNOs and ITHL reduce, then that would "squeeze" ITHL unless it could pass on the reduction in the royalty rate that it paid to Primus. Thirdly, Primus was responsible for paying interconnect rates to international telecommunications carriers to the various destinations that Primus offered. Some of these rates were very high and others were low. If the interconnect rate paid by ITHL to Primus was lowered, then it might make some of the international destinations offered by Primus unprofitable for it. Primus could, of course, refuse to offer particular destinations if they became unprofitable. However, if it did so, then that would reduce its "customer base" for international calls, thus reducing the opportunity for ITHL to obtain interconnect fees from MNOs and for Primus to obtain royalties from ITHL.
  17. The parties entered into negotiations in February 2005. The contract which gives rise to the present proceedings was concluded between them on 12th May 2005. It is accepted that the Agreement was signed against the following factual background.
  18. First, Primus understood that, at that stage, ITHL had an interconnect agreement with BT only. Howeve r, ITHL told Primus that it was the intention of ITHL (not Core) to enter into an interconnect agreement with Orange. It was hoped that this could be done before the Agreement was executed, although this did not happen in fact. Secondly, ITHL and Primus both appreciated that ITHL's interconnect rates (with BT or an MNO such as Orange with whom ITHL made an agreement in the future) were expected to reduce. Both parties also appreciated that if this happened, then the royalty rate paid by ITHL to Primus would also have to be reduced in some way. Thirdly, both parties knew that BT's interconnect rates were published because this was (and is) a regulatory requirement of OFCOM. However, other MNOs, such as Orange, were not obliged to publish their interconnect rates with others, such as ITHL. Indeed, these rates were usually the subject of a "non disclosure agreement" between the MNO and another party, such as ITHL. Primus was aware of this fact. It also knew, at the time of the Agreement, that if ITHL secured an interconnect agreement with Orange, Orange would require the interconnect rates between Orange and ITHL to be less than those currently paid by BT to ITHL. This was stated expressly in an email sent on 28 April 2005 (at 9.30 am) by Mr Greaves to Mr Kishor Patel, a sales consultant retained by Primus. The email said:
  19. "You understand that we are in negotiations with Orange and that reduced royalty payments may soon apply to calls originating from the Orange network."
  20. I have deliberately not described the negotiations between Mr Greaves and Mr Pullin on behalf of ITHL and Mr Patel on behalf of Primus. Both parties accept that was what was written or said in the course of negotiations are irrelevant to the issues that have to be decided in this case.
  21. II. The Agreement

  22. In the Agreement, ITHL is described as "ITHL" and Primus is described as "the Customer". The recitals of the Agreement state:
  23. "A. ITHL operates a telecommunications switch and number provisioning service as more particularly defined in Schedule 1("the Service")
    B. The Customer wishes to utilise the Service to allow connectivity by third parties to certain Products (as defined below)
    C. ITHL has agreed to allow the Customer to make use of the Service on the terms set out below."

    There is, in fact, no definition of "the Service" in either Schedule 1 of the Agreement or any other clause of the contract.

  24. Clause 1 of the Agreement sets out various "Definitions". The only relevant one for present purposes is that given to "telephone number(s)". This phrase is defined as:
  25. "means the telephone number(s) allocated by ITHL to the Customer for use in relation to a Product."
  26. Clause 2.1 of the Agreement provides that it will start on 12th May 2005 and will continue for a minimum period of 36 months and:
  27. "……. thereafter until terminated by either party giving to the other not less than twelve months prior written notice of termination, such termination to become effective no earlier than the end of the minimum period."
  28. Clause 3 is headed "Use of the Service". Clause 3.1 is relevant to one of the issues raised in these proceedings. It provides:
  29. "3.1 ITHL undertakes that it shall at all times during this Agreement use all reasonable endeavours to provide the Service:
    3.1.1 to a high level of quality and reliability as compared to the provision in the UK of the same or similar Service and
    3.1.2 in accordance with the Service Level Agreement (SLA) set out in Schedule 1 to this Agreement: and
    3.1.3 which is not in contravention of the Acts, any applicable legislation, Relevant Regulation, licence or third party rights.
    3.2 ITHL will upon this Agreement being effective and upon receipt from the Customer of the number allocation fee, if any, set out in Schedule 1, allocate to the Customer the Telephone Number(s)."
  30. Clause 4 of the Agreement stipulates that ITHL will charge Primus for the telephone number(s) at a monthly rate, which is set out in Schedule 1. Clause 4.2 allows ITHL to increase the monthly rate for this charge, but by no more than the percentage increase in the Retail Prices Index during the same period and on the provision of three months prior written notice to Primus.
  31. Clause 5, which is headed "Royalties", is at the centre of the current dispute. The relevant provisions state:
  32. "5.1 Subject to the provisions of this Clause 5, ITHL will pay to the Customer royalties in respect of call traffic to the Telephone Number(s) "Royalty Payments".
    5.2 The amount of any Royalty Payment shall be calculated according to the tariff ("the Tariff") as set out in Schedule 1 as amended from time to time in the following circumstances:
    5.2.1 If ITHL are subject to changes in the interconnect rates received or ITHL are obliged to make changes to the interconnect rates by the regulatory body, on provision of one month's notice to the Customer, save that where material changes to the interconnect rates are made or imposed by the regulatory body without sufficient notice to ITHL, ITHL will notify the Customer forthwith and amend the Tariff with effect from the date of notification to the Customer or the date that the change to ITHL's interconnect rate is effective which ever is the later.
    5.3 Any amendment to the Tariff under clause 5.2. will be limited to being in proportion to the changes applied to ITHL and the calculation will be subject to full disclosure to the Customer, and where evidence of the change is subject to non-disclosure agreement, then ITHL shall provide a satisfactory written assurance by an independent third party that the change is reflected correctly.
    5.4 No more than once in any twelve month period ITHL reserve the right to amend tariffs by no more than the increase in Retail Prices Index during the period since any prior adjustment to the Tariff, on provision of three month's notice to the Customer.
    …….
    5.7 From the date of the commencement of this Agreement
    to the end of the third calendar month following commencement, Royalty Payments will be calculated using actual total of duration of calls made to the Telephone Number(s) in accordance with the Tariff. Thereafter no Royalty Payments will be payable by ITHL in respect of any calendar month, if the total gross Royalty Payment calculated before deduction of any costs in that calendar month is less than the minimum threshold, if any, set out in Schedule 1 to this Agreement."
  33. Schedule I deals with several matters. It defines the Product(s). The Schedule states that there are three authorised products to be used with the Servic e. The first is an "SMS Calling Card". Schedule 1 describes this as being a card which "allows the customer to purchase and receive a virtual calling card and PIN via SMS". The second product is described as a "Calling Card". The Schedule says that this "allows the customer to call internationally after purchasing a card from a retail outlet. Each card has a unique PIN which gives the customer access to call credit of the value of the card they purchased". The third product is described as "instant dial". That is further described as follows:
  34. " …….. an instant dial service using 07744 (ITHL) mobile numbers instead of NGNs. A customer selects the destination they [sic] would like to call and dials the relevant 07744 number, at the prompt the customer dials their [sic] destination number in full and the customer is then connected to their [sic] destination. The customer is charged for the [call] by their [sic] service provider the rate for calling a mobile number (cross network mobile number), the duty to check the rate with their service provider will lie with the customer although we will advise as much as possible and provide contact details for relevant providers.
    There are no rates for the destinations but there are time periods when the destination will be available to call.
    3 time ranges:
    Any time = any time of day, weekday, weekend, evening.
    Weekday = 8am – 6pm Mon. – Fri.
    Weekday and Evening = 8am Monday to 6pm Friday".
  35. Schedule 1 also describes "The Tariff". This is set out in a table in the following form:
  36. "MONTHLY ROYALTY PAYMENT BANDS FOR BT INTERCONNECT

    Minutes per month
    U.K. Domestic
    originated
    PEAK
    8AM to 6PM
    PENCE PER
    MINUTE
    OFF-PEAK
    6PM – 8AM
    PENCE PER
    MINUTE
    WEEKEND
    SAT 00:00 to MON
    00:00
    PENCE PER
    MINUTE
    All Note* 7.9000 6.7000 2.4500
           
    Minutes per month
    international
    originated
    PEAK
    8AM to 6PM
    PENCE PER
    MINUTE
    OFF-PEAK
    6PM – 8AM
    PENCE PER
    MINUTE
    WEEKEND
    SAT 00:00 to MON
    00:00
    PENCE PER
    MINUTE
    All 6.9600 4.8550 2.1100
           

    All the above charges are exclusive of Value Added Tax which will be charged in accordance with current legislation at the time of invoicing.
    'CALCULATION BASIS
    During the first 3 calendar months of the agreement Royalty will be paid based on the actual per minute rate for each minute of usage recorded. Thereafter if usage is below the minimum call threshold no payment will be made.
    Minimum Threshold:
    £6,000 in Royalties as calculated in accordance with the Agreement."
  37. The parties rely on various other terms in the Agreement. In particular, clause 13 which deals with assignment, Clause 15 which deals with notices and clause 16, all of which are set out below insofar as are relevant.
  38. "13. Assignment
    13.1 Neither party shall assign, transfer, delegate or otherwise deal with its rights and obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
    ……
    15. Notices
    15.1 Any notice given under this Agreement shall be deemed to have been duly served on the third working day after posting if posted by recorded first class post to the address shown above or such other address as the parties may notify in writing to each other from time to time as th e appropriate address for service of notices. A notice delivered by hand shall be deemed delivered on the date of delivery provided such delivery is before 4pm on any working day (being Monday to Friday inclusive but exclusive of Bank and statutory holidays), and if delivered after 4pm or on a non working day, shall be deemed delivered on the next working day.
    16.1 This Agreement represents the entire agreement between the parties in relation to the subject matter herein and supersedes all prior agreements, representations or understandings relating to the subject matter whether oral or written. The parties agree that, save as expressly set out herein, neither party will have any liability for any untrue statement or representation made by it (whether innocently or negligently) upon which the other party relied in entering into this Agreement, unless such untrue statement or representation was made fraudulently. This Agreement shall prevail over any inconsistent terms and conditions in any other agreement between the parties or referred to in correspondence or elsewhere and any conditions or stipulations to the contrary are hereby excluded and extinguished.
    16.2 In the event of any conflict or inconsistency between the terms of this Agreement and the schedules then the schedules shall prevail, and in the event of any conflict or inconsistency between the schedules then they shall have priority in the following order: 3, 2,1,4
    16.4 This Agreement may only be modified if such modification is in writing and signed by a duly authorised representative of each party.
    ……."
  39. Clause 18.1 of the Agreement stipulates that it shall be governed and construed in accordance with the laws of England and Wales. It also provides that the parties will submit "to the exclusive jurisdiction of the English Courts".
  40. III. Events after the Agreement until early 2006

  41. In July 2005 Mr Greaves contacted Mr Patel, asking him to discuss the possibility that calls originating from Orange might be routed into the ITHL/Primus connection. On 13th July 2005 there was a meeting between Mr Greaves and Mr Pullin on behalf of ITHL and Mr Patel and Mr Oliver Mackereth, the Product Manager of Primus. The meeting took place in the Cheshire Cheese pub, off Fleet Street. Mr Greaves told the Primus representatives that ITHL was about to do a deal with Orange which would mean that numbers allocated to ITHL (by OFCOM) would be included in the "free cross network minutes" or "bundled minutes" contracts sold to customers by Orange. This would mean that Orange customers would be able to use the ITHL/Primus connection to obtain cheap international calls. Mr Patel indicated that this was satisfactory, subject to working out a suitable arrangement on the royalty to be paid by ITHL to Primus, bearing in mind that both parties realised that Orange would pay a lower interconnect rate to ITHL compared to that paid by BT. Mr Patel stated that if there were reductions in the royalty rate paid by ITHL to Primus as a result of Orange customers using ITHL allocated numbers, then Primus would not be able to offer calls to certain destinations, because the cost of paying the international carrier, together with other running costs Primus would incur, would be greater than the royalty rate that Primus might receive from ITHL.
  42. The following day Mr Greaves sent an email to Mr Patel summarising the actions agreed at the meeting. The email stated:
  43. "Oliver [Mr Mackereth] to forward over a list of those destinations that either Primus cant [sic] offer today, or which they wont [sic] be able to offer with a 1.05/0.6/0.5p reduction in royalty which is anticipated as the cost of getting Orange back in the bundle.
    Rich [Mr Pullin] to develop a destination-specific pricing proposal which (a) allows Primus to continue to reach key destinations (or even extends reach to places like Congo) whilst preserving the current balance between Primus and ITHL. Kishor [Mr Patel] to explore Primus' current rates for terminating on UK Mobile Networks (Orange where ITHL will soon have a direct interconnect).
    Let's try to get the revised arrangements nailed in the next week or so that we can get planning for the uplift Orange will give."

    Mr Patel sent an email in reply, which stated " …….Yep – that's almost about it ….".

  44. On 15th August 2005 Orange Personal Communications Services Limited and Core entered into an Interconnect Agreement. The recital of this Agreement states that:
  45. "Core and Orange wish to interconnect their respective Systems for the purpose of enabling Messages to be conveyed from Orange Customers to the Core System subject to the terms and conditions contained herein."

    By Clause 3 of the Core/Orange Interconnect Agreement, Orange agreed to pay Core's charges in accordance with the provisions of that clause and Schedule 7. Schedule 7 is headed "Charges". It provides that "Core's charges for Calls Terminating on the Core System are as set out below". There is then a table which sets out the rate, in pence per minute, for calls made to two of the number ranges allocated to ITHL by OFCOM,[1] which Orange had agreed could be utilised by its customers as part of their "bundled calls". The rates were 9p per minute during the day; 7.4p per minute in the evening and 2.51p per minute at the weekend. Orange had insisted on these rates, which were approximately the anticipated rates that BT would pay to ITHL from April 2006. The Orange/Core Agreement took effect from 16th September 2005.

  46. At the time of this Agreement between Core and Orange, ITHL did not tell Primus of Core's involvement. In evidence Mr Greaves said that this was "simply because we did not feel it was relevant". (Statement para. 31). Mr Greaves said that the reason for interposing Core was that ITHL had inherited debts from the time before he and Mr Pullin had bought the company. Core was expressly set up to enable Mr Greaves and Mr Pullin to contract with parties who might otherwise have been concerned about ITHL's financial stability because of its poor credit history. Mr Greaves stated, and I accept, that the arrangement was that the interconnect rate paid by Orange to Core was then passed on to ITHL, less a fee that Core charged ITHL. However, the royalty that ITHL paid to Primus in respect of calls routed from Orange through Core and ITHL to Primus, was intended to be based on the sum received by Core from Orange, not the sum received by ITHL from Core and that is what happened in practice.[2]
  47. On 26th August 2005, Mr Greaves sent an email to Mr Patel indicating that Orange would stop charging its customers premium rates to call ITHL numbers as from 1 September 2005 and it would treat calls to ITHL numbers in the same way as calls to all other MNO numbers as from that date. The email then referred to a "new rates/structure" (as between ITHL and Primus) which Mr Greaves said would be implemented from 1st October 2005. The email continued:
  48. "I would like to have all the details finalised with you, and a revised Annex to the contract by mid September latest".

    The email proposed that the parties should meet to discuss the matter.

  49. In fact there was a series of meetings between the parties which culminated in agreement on rates on 19th and 22nd September 2005. Primus' concern was to be able to maintain services to all major destinations worldwide and to do so profitably. In order to achieve this, the parties agreed a method of calculating the royalty rates due to Primus for calls originating from both Orange and BT that was different (at least in presentation) to that used for the royalties paid to Primus in relation to calls originating from BT as set out in the Tariff in Schedule 1 of the Agreement. The parties agreed that two lists of destinations should be drawn up. The more expensive destinations were designated "A" destinations. The cheaper destinations were designated "B" destinations. ITHL agreed, in principle, to pay higher royalty rates to Primus for calls that were routed to the "A" destinations and commensurately lower royalty rates for calls routed to cheaper "B" destinations.
  50. Primus supplied ITHL with a list of "A" destinations and "B" destinations. Primus also suggested (in an email of 9th September 2005) that approximately 30% of the traffic was to the expensive destinations and 70% was to the cheaper destinations. From this information Mr Pullin produced a spreadsheet, although this was never passed to Primus. On 19th September 2005 Mr Pullin sent an email to Mr Patel, setting out the proposed rates for the "A" and "B" destinations. Mr Patel replied in an email the same day stating:
  51. "Rich [i.e. Mr Pullin] that's correct but for the 5.3p weekend rebate till end of October 16th 2005. Also the approx 30% cap is simply for the Aug/Sept traffic profile not a rebate cap of any sort. It's understood that if the profile mix changes significantly we will review collectively the rebates."

    The reference in the email to "rebates" is a reference to the royalty rate to be paid by ITHL to Primus. There is a reference to "the approx 30% cap" because in his email to Mr Patel, Mr Pullin had indicated that further "A" destinations could be added to the existing list if supplied by Primus, but they would be subject to a cap of 30% of total traffic being in "A" destinations and supported by actual data for August and forecast for September.

  52. On 21st and 22nd September there wa s further email traffic about the proposed new rates. On 21st September, Mr Mackereth sent an email to Mr Pullin, indicating that the "A" destinations made up 21% of Primus' traffic volume "at the moment". The following morning (i.e. 22nd September) Mr Pullin responded to Mr Mackereth, saying that it might be possible to rework the rates for the two types of destination subject to agreement about the category in which certain, specific destinations should be put. That was agreed, with the consequence that Mr Mackereth stated in an email timed at 10.12 on 22nd September 2005 to Mr Pullin that: "the percentage of our traffic is now under 20%, please can you reply with your new offer on the rebates for these destinations". It is accepted that the reference to "our traffic" being "under 20%" means that the traffic to the "A" destinations was under 20%. At 10.55 on 22nd September 2005 Mr Pullin sent a further email to Mr Patel, saying that on the basis of the information, (which tallied with ITHL's data), Mr Pullin could increase the "B" rates to those set out in that email. He asked Mr Patel to confirm that these rates were acceptable. At 12.19 on the same day, Mr Patel replied to Mr Pullin, sending copies to Mr Mackereth and Primus' lawyer, Mr Nick Whiteley, stating:
  53. "Accepted.
    Nick [Mr Whiteley] please can you draft up a contact [sic] amendment and send on to Rich [Mr Pullin] for signature. Oli [Mr Mackereth] please supply Nick with a sheet of the final commercials to include the temporary weekend rebate."

    No draft contract amendment was ever produced.

  54. On 2nd November 2005 Primus sent an invoice to ITHL for royalties for the period to the end of October 2005. Mr Pullin examined this and realised that the percentage of traffic going to "A" destinations was about 40% of the total, rather than the 20% which Primus had estimated during the negotiations the previous month. This meant that ITHL was, overall, paying more royalties to Primus than had been anticipated. On 7th November 2005, Mr Pullin emailed Mr Patel proposing a change in the "B" destination rate to take account of the change in the split between "A" and "B" destinations and also to claim some of the "lost margin" in respect of October 2005. After further discussion on 8th November, Mr Pullin sent an email proposing that the rate should be based on a traffic mix of 39% to "A" destinations and 61% to "B" destinations. On that basis he proposed peak, off-peak and weekend rates for the "B" destinations of 6.2p per minute, 6p per minute and 2.45p per minute respectively. Mr Patel replied on the same day agreeing to those changes for the "B" destinations, with effect from 1st November 2005. From 1st December 2005 the interconnect rate received by ITHL from BT for weekend traffic was due to reduce significantly, from 5.3p per minute to 2.51p per minute. Mr Pullin reminded Mr Patel that there would have to be a consequent reduction in the royalty rate paid to Primus in respect of such traffic. Mr Pullin said it would be reduced to about 1.25p per minute. That rate took effect from 1st December.
  55. The parties then became involved in negotiation because of an anticipated reduction in the peak and off-peak interconnect rates payable by BT to ITHL as from April 2006. At the same time, once ITHL had Primus' November invoice for royalties, it was clear that the ratio between "A" and "B" destination calls was not 39/61% as anticipated, but nearer 56/44%. In an email of 5th December 2005, Mr Pullin said to Mr Patel that this methodology based on different rates for different destinations was not going to work "so we need to find an alternative". Mr Greaves sent a further email later that day, in which he stated that the figures seemed to be even worse. He called for further negotiations.
  56. The parties met on 7th December 2005, but did not reach any agreement. There were further discussions by email during December, but they were inconclusive. On 22nd January 2006 Mr Pullin sent a long email to Mr Patel, setting out the history of events since the Agreement. The email said: "Unfortunately the introduction of "A" and "B" rates has led to a torturous [sic] process of monthly discussions that both sides are keen to end." The email proposed two options for future pricing structures. It stated that ITHL's preferred option was to return to "a flat rate as per the original contract". However the rates proposed were those that had been used to pay the December 2005 invoice, i.e. 6.95p per minute/6.09p per minute/1.15p per minute for the peak/off-peak/weekend rates respectively.
  57. On 30th January 2006 Mr Patel emailed Mr Pullin and Mr Greaves, stating that he had "done my analysis and find that what has happened over the last few months to Primus margins is unacceptable. We need to discuss this ASAP...". A series of meetings and other discussions between ITHL and Primus followed, but the parties were unable to resolve their differences. At a meeting on 1st February 2006, attended by Mr Greaves and Mr Pullin and Mr Patel and Mr Whiteley, Mr Patel announced that the A/B methodology was "dead and not coming back". Mr Greaves understood that this method of calculating royalties due to Primus had therefore been abandoned.
  58. The parties agreed that, for the month of January 2006, a "blended royalty rate" should be applied to peak, off-peak and weekend traffic. The "blended rate" agreed was 6.95p p.m., 6.09p p.m. and 1.25p p.m. respectively for peak, off-peak and weekend traffic. These rates were used by Primus to calculate its invoices for January, February and March 2006 traffic.
  59. On 6th April 2006, Mr Whiteley of Primus wrote to Mr Greaves stating:
  60. "Primus does not agree with your statement as to the rates which ITHL considers are the rates for the March payment. Therefore Primus is only billing ITHL for the March 2006 payment (using the same rates as used for February 2006) in order to allow billing to take place and so mitigate the loss Primus is suffering by reason of ITHL's acts."

    Mr Greaves responded on 11th April 2006, reiterating that the proper rates, in accordance with the contract terms, were 5.89p p.m./5.44p p.m./1.16p p.m. for peak, off-peak and weekend calls respectively. Mr Greaves said those rates would be used to pay Primus' invoice and that is what was done. On 5th May 2006 Mr Whiteley wrote to Mr Greaves stating that Primus did not agree with the rates that had been notified to it by ITHL and insisting that Primus should be paid the Tariffs agreed in January 2006.

  61. On 24th May 2006, Mr Greaves sent a letter to Primus, headed: "immediate royalty change". The letter notified Primus that, pursuant to clause 5 of the Agreement, the proportion of Orange traffic to the Primus numbers had exceeded 70%. Therefore ITHL proposed to pay royalties to Primus based on the source of the traffic at different rates which reflected the interconnect revenue which ITHL received from each source.
  62. At the same time Mr Greaves notified Primus that ITHL had reached an interconnect agreement with T-Mobile. The letter indicated the royalty payments to be made by ITHL to Primus in respect of traffic from T-Mobile. Primus responded by sending a letter of 26th May 2006 to ITHL's solicitors Mayer Brown, Rowe & Maw LLP. The letter stated that Primus "does not agree with the royalty rates" or the method of calculation of those rates for both Orange and T-Mobile traffic. Primus has continued to send invoices for traffic from all sources on the basis of the BT interconnect rates.
  63. On 24th May 2006 ITHL issued a claim form in the current proceedings, seeking various declarations. These related to the correct construction of the Agreement and the sums that had been paid by ITHL to Primus as royalty payments between January and March 2006. The Particulars of Claim were served on 29 June 2006.
  64. During the currency of the Agreement, the volume of traffic passing through ITHL to the Primus network has increased very significantly. In order to pass calls on to Primus there has to be a physical connection, which is known as an "E1 connector". This can convey up to 30 calls simultaneously. On 31 May 2006 Mr Mackereth emailed Mr Pullin and said that Primus wished to set up two further E1 connections as Primus had reached capacity on the existing connections. Primus was responsible for procuring the E1 connections, but they had to be tested by ITHL's staff before they could be brought into service. Originally the testing date fixed was 14 June 2006, but ITHL did not do the testing on that date because all its staff were too busy on other jobs. Eventually the testing took place on 27 June. Primus alleges that this delay was the fault of ITHL. Primus alleges that ITHL is therefore in breach of its obligations under clause 3.1.1 of the Agreement to use "reasonable endeavours to provide the Service…to a high standard of quality and reliability". Alternatively, Primus alleges that ITHL is in breach of an implied term of the Agreement to use all reasonable endeavours to ensure that all circuits procured by Primus can be available within a reasonable time to deal with ITHL – Primus traffic under the Agreement.
  65. On 9 June 2006 a "Virtual Interconnect Agreement" was concluded between ITHL and T-Mobile. It is a "virtual" interconnect agreement because calls from the T-Mobile system passing into the ITHL system would be routed through BT as the "transit carrier". ITHL and T-Mobile agreed that although T-Mobile had to pay BT an interconnect rate and BT had to pay one to ITHL in accordance with their own separate agreements, there would be a direct agreement between ITHL and T-Mobile, which would give T-Mobile a rebate of part of the interconnect fees received by ITHL from BT. The effect of this is that the net cost to T-Mobile of allowing calls from its network to use the ITHL numbers (that can connect up to the Primus network) is significantly reduced. This arrangement was agreed in return for T-Mobile agreeing to permit the ITHL numbers (which were used for the connection to the Primus network) to be included in the "bundled numbers" offered to T-Mobile subscribers.[3] It was agreed in anticipation of further reductions in the rates that BT charged for interconnection to its system, which rates were reflected in the interconnect rate that BT was charged by ITHL.
  66. IV. The Arguments of the parties and the Issues to be decided.

  67. The primary argument of ITHL concerns the method of calculating the royalty to be paid by ITHL to Primus, when ITHL has made an agreement with an MNO interconnect provider (such as Orange) to permit that MNO to route calls to ITHL allocated numbers leading into the Primus network. Mr Timothy Dutton QC's submission, on behalf of ITHL, is that the parties had drafted clause 5 of the Agreement "generically" so as to deal with any subsequent agreement between ITHL and a new MNO interconnect provider to route calls through ITHL to the Primus network. He submits that, upon the correct construction of clause 5.2.1 of the Agreement, ITHL is entitled to give Primus notice that another interconnect provider will be routed through ITHL to the Primus network.
  68. Further, when this happens, clause 5.3 and the Tariff set out in Schedule 1 of the Agreement provide the mechanism for calculating what royalty rate ITHL has to pay to Primus in respect of the calls that are routed from the new MNO connection via ITHL to Primus. Mr Dutton submits that this new royalty rate payable is not the rate payable for BT calls, as set out in the Tariff in Schedule 1 of the Agreement. Instead, the royalty rate payable to Primus will be calculated by reference to two factors: first, the interconnect fee that the new MNO interconnect provider has to pay to ITHL. Secondly, the ratio that the royalty rates paid to Primus in respect of calls originating from BT (as set out in the Tariff in Schedule 1 of the Agreement) bear to the interconnect fee that BT pays to ITHL. The royalty rates payable to Primus, as set out in the Tariff in Schedule 1 of the Agreement, in fact constitute 50.58%, 62.15% and 46.23% of ITHL's interconnect rates paid by BT to ITHL for peak, off-peak and weekend calls respectively. Mr Dutton submits that those ratios constitute the parties' agreed percentages of "revenue sharing" of the interconnect fees paid by BT to ITHL. He submits that the parties intended and agreed, by clause 5.3 of the Agreement and Schedule 1, that if another MNO interconnect provider was introduced, then the royalty fee payable to Primus would be in the same ratios to the interconnect fees paid by the new MNO to ITHL. Mr Dutton submits that this rate is only subject to an overall cap on the royalty payable to Primus, which is fixed at 53% of the interconnect fee paid by the MNO to ITHL.
  69. Mr Dutton submits that ITHL gave notice of the arrival of Orange as a new MNO interconnect provider at the meeting in the Cheshire Cheese on 13 July 2005 and in the email that Mr Greaves sent to Mr Patel the following day. Moreover, by its subsequent actions, Primus accepted the introduction of Orange and also accepted that the interconnect rates Orange would pay ITHL would be lower than those paid by BT.
  70. Mr Philip Roberts, for Primus, submits that clause 5 will not bear the interpretation that ITHL wishes to put upon it. He accepts that the parties appreciated that after the Agreement had been concluded, it was likely that ITHL would wish to route calls to Primus from new MNO interconnect providers other than BT – such as Orange. But Mr Roberts submits that clause 5.2.1 cannot be construed so as to give ITHL the right to give notice to Primus of the introduction of a wholly new MNO interconnect provider which will be paying new interconnect rates to ITHL about which Primus knows nothing. Similarly, clause 5.3 is not apt to fix the royalty rate to be paid by ITHL to Primus for calls routed to Primus via ITHL which originate from a completely new MNO interconnect provider. That clause is, on its true construction, only dealing with changes to the royalty fee (ie. "The Tariff") payable to Primus in respect of calls routed to Primus from BT via ITHL.
  71. Mr Roberts submits that the parties agreed the rates of royalty fees that were to be paid to Primus by ITHL for calls originating from Orange by virtue of the agreements reached on 19 and 22 September 2005. These agreements for fees for the "A" and "B" destinations were outside the terms of the original Agreement. Moreover they were modified, by agreement between the parties, in November 2005. Primus' first case is that the rates agreed then (called by Primus "the Revised A/B Split Tariff") were intended by the parties to remain the royalty rates payable to Primus by ITHL in respect of calls originating from Orange. Mr Roberts submits that the arrangements made for December 2005 and January 2006 were temporary and not intended to be a further, long – term revision of the A/B Split Tariff.
  72. Primus' secondary case originally was that if the Revised A/B Split Tariff is not applicable, then ITHL is contractually obliged to pay to Primus royalty rates for calls originating from Orange as set out in the Tariff in Schedule 1 of the Agreement. However, as I understood his final submissions, Mr Roberts did not press that argument. Instead he argued (as he had originally argued in the further alternative) that Primus is entitled to be paid a quantum meruit sum as the royalty for calls originating from Orange. The proper quantum meruit rate should, however, be those set out in the Tariff in Schedule 1 to the Agreement.
  73. There are two subsidiary claims that Primus pursues. The first is that ITHL is in breach of clause 13.1 of the Agreement by the interposition of Core between Orange and ITHL. Mr Roberts accepts that even if this is so, it has not resulted in any financial loss to Primus. But he submits that Primus is entitled to a declaration to the effect that the actions of ITHL, by interposing Core between it and Orange, have put ITHL in breach of clause 13.1.
  74. Lastly, there is Primus' claim for breach of clause 3.1.1 or an implied term in the Agreement, in relation to the alleged late provision of testing for the additional E1 connection. Once again, the present claim is for declaratory relief only, as there has been no attempt to quantify what revenue, if any, was lost to Primus as a result of the late testing and therefore the inability to connect calls from ITHL.
  75. The issues for decision are, therefore:
  76. (1) Does clause 5 of the Agreement apply at all to interconnections with new MNO interconnect providers other than BT?
    (2) If it does, then did ITHL give Primus proper notice in relation to the introduction of: (a) Orange and (b) T-Mobile?
    (3) Further, if it does, how does clause 5.3 (in the light of the other terms of the Agreement) operate so as to calculate the rates of royalty fees payable to Primus in relation to: (a) calls originating from Orange (via Core); and (b) calls originating from T-Mobile (via BT)?
    (4) If clause 5 is applicable to calls from Orange and/or T-Mobile, or even if it is not, did the parties agree a "variation" to the method of calculating the royalty rates payable by ITHL to Primus in relation to calls originating from Orange by virtue of the arrangements made in September 2005 and then November 2005 – ie. the "Revised A/B Split Tariff".
    (5) If so, does the Revised A/B Split Tariff continue to govern the calculation of the royalty rates payable by ITHL to Primus for calls originating from BT, Orange and T-Mobile?
    (6) If not, what royalty rates are now to be paid by ITHL to Primus in respect of calls originating from Orange, (a) under the terms of the Agreement, or, if that is not applicable (b) on a quantum meruit basis?
    (7) What royalty rates are now to be paid by ITHL to Primus in respect of calls originating from T-Mobile, which are routed through BT to ITHL and then Primus, under the Virtual Interconnect Agreement dated 9 June 2006?
    (8) Is ITHL in breach of clause 13.1 of the Agreement as a result of the interposition of Core between Orange and ITHL following the Interconnect Agreement between Orange and Core dated 15 August 2005?
    (9) Is ITHL in breach of clause 3.1.1 of the Agreement by virtue of the delay to testing of the new E1 connectors in June 2006?

    V. Issue One. Does clause 5 of the Agreement apply at all to interconnections with new MNO interconnect providers other than BT?

  77. The legal principles on the construction of commercial contracts were not in issue between the parties. In Absalom v TCRU Ltd, I attempted to summarise the principles to be derived from the House of Lords cases of Investors Compensation Scheme Ltd v West Bromwich Building Society,[4] Bank of Credit and Commerce International SA v Ali,[5] Sirius General Insurance Co v FAI General Insurance Ltd,[6] and Antaios Compania Naviera SA v Salen Rederierna AB.[7] This summary was approved by the Court of Appeal in the Absolom case,[8] so I set it out here.
  78. "……
    The key principles can be summarised as follows:
    (i) the aim of the exercise is to ascertain the meaning of the relevant contractual language in the context of the document and against the background to the document. The object of the enquiry is not necessarily to probe the "real" intention of the parties, but to ascertain what the language they used in the document would signify to a properly informed observer.
    (ii) The interpretive exercise must not be done in a vacuum, but in the milieu of the admissible background material. That comprises anything that a reasonable man would have regarded as relevant in order to comprehend how the document should be understood, provided that the material was reasonably available to both parties at the time (ie up to the time of the creation of the document).
    (iii) However, evidence of negotiations and subjective intent are not admissible for the purposes of this exercise.
    (iv) A commercial document must be interpreted so as to make business common sense in its context. But if a "detailed semantic and syntactical analysis of a word in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense", see Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191, 201 per Lord Diplock".
  79. I accept that at the time the Agreement was concluded in May 2005, the factual background known and appreciated by both sides can be summarised as follows: (i) they knew that ITHL's only interconnect agreement at the time was with BT. (ii) BT was required to publish its interconnect rates, including any future known reductions in those rates. However, other interconnect providers (such as Orange) were entitled to keep their rates confidential and might well do so. (iii) BT's interconnect rate was going to reduce over time. (iv) ITHL anticipated entering into a new interconnect agreement with Orange and that that the interconnect rates between Orange and ITHL would be lower than those of BT. (v) ITHL anticipated reducing its royalty payments to Primus if there were lower interconnect rates from either BT or Orange. (vi) There might be further interconnect agreements between MNO interconnect providers and ITHL at rates to be agreed in the future.
  80. The parties intended that this Agreement should be "generic", in the sense that its terms could be applicable to calls that originated from interconnect providers other than BT. That is clear from the reference to "the relevant interconnect operators" in clause 6.1.3, which deals with the procedure to be adopted when ITHL has not received an interconnect payment from one or more "relevant interconnect operators". But that does not advance the debate much. The fact that the parties contemplated the addition of new interconnect providers does not solve the question of how the parties intended to calculate the royalty payable to Primus in respect of calls originating from the new interconnect provider. There is nothing express in the Agreement which provides a mechanism for "adding" new interconnect providers through whom calls come to ITHL and then on to the Primus network.
  81. I have concluded that the parties did not agree any mechanism by which to calculate royalty rates payable by ITHL to Primus in respect of calls that came to ITHL from interconnect providers other than BT. There are several reasons for this conclusion. First, the subject of the calculation of royalty payments is dealt with exclusively in clause 5 and the "Tariff" set out in Schedule 1 to the Agreement. There is nothing in either clause 5 or Schedule 1 which expressly states what procedure is to be adopted for the calculation of royalties payable to Primus when a new interconnect provider is introduced. In particular there is nothing that states expressly that ITHL will be obliged to pay Primus a royalty rate for calls from the new interconnect provider in the same percentage share of the new interconnect provider's fee to ITHL as ITHL pays in respect of the calls coming through the BT interconnection.
  82. Secondly, therefore, ITHL has to argue that this intention of the parties is implicit in the wording of clause 5, in particular in clause 5.2.1 and 5.3 and the Tariff in Schedule One. ITHL's argument is that the phrase in clause 5.2.1: "If ITHL are subject to changes in the interconnect rate received or ITHL are obliged to make changes to the interconnect rates by the regulatory body…" demonstrates that the parties intended by those words to cover the case of a new interconnect agreement between ITHL and another MNO interconnect provider. I cannot accept that argument. The reference to "interconnect rates" in the plural is explained by the fact that MNOs will pay ITHL different rates for the interconnection depending on when the call is made. There will be one rate for peak calls; another for off – peak calls and a third for weekend calls. Those different rates are reflected in the royalty rates paid to Primus, as set out in the Tariff. The phrase "If ITHL are subject to changes in the interconnect rates received…" is much more apt to cover the case of change s in interconnect rates from the existing interconnect provider identified in the Agreement, ie. BT. This construction is, I think, reinforced by a similar reference in the next phrase in the clause to "…material changes to the interconnect rates…without sufficient notice to ITHL…". If the parties to the Agreement had intended to deal with the situation of the addition of a further interconnect provider, then I would have expected there to be a specific clause dealing with that situation.
  83. Thirdly, clause 5.2 stipulates that the amount of any Royalty payment "shall be calculated according to the tariff ("the Tariff") as set out in Schedule 1, as amended from time to time in the following circumstances". In Schedule 1, under the heading "The Tariff", the heading is "Monthly Royalty Payment Bands for BT Interconnect". The tariff of royalty rates is therefore specifically directed to the BT Interconnection. There is nothing to indicate that the same royalty rates will apply to a new interconnect provider. Nor is there anything to suggest that the royalty rates to a new interconnect provider will be calculated as the same percentage of interconnect rates as in the case with BT.
  84. Fourthly, in my view it is not implicit in the wo rding of clause 5.3 that if ITHL reaches agreement with a new interconnect provider, then the royalty rates payable to Primus in respect of calls from that new provider must be the same percentage of the interconnect rate paid to ITHL as in the case of calls originating from BT. Clause 5.3 states that "Any amendment to the Tariff under clause 5.2 will be limited to being in proportion to the changes applied to ITHL….". The reference to "the Tariff" must be to the Tariff as set out in Schedule 1. There is only one Tariff set out there, which is identified as "The monthly royalty payment bands for BT Interconnect". The parties intended by the wording of clause 5.3 to ensure that any changes to the Tariff as set out in Schedule 1 were limited to being in proportion to the changes in the interconnect rate applied by the interconnect provider to ITHL. But, as a matter of construction of this wording, this can only refer to the Tariff that is identified in Schedule 1, which applies only to the BT Interconnect. There is nothing to indicate that the parties agreed that the mechanism in clause 5.3 would be the means of calculating royalty rates payable to Primus if ITHL made an agreement with a new interconnect provider.
  85. In my view it is clear from the structure of the Agreement that the parties intended that if ITHL did reach an agreement with a new interconnect provider, then they would have to negotiate new royalty rates for Primus in respect of calls coming from that provider. The new royalty rates would then be set out in a further Tariff in a revised Schedule 1. If, subsequently, there were changes to the interconnect rates as between the new interconnect provider and ITHL, then clauses 5.2.1 and 5.3 would determine the calculation of any adjustment to the royalty rates payable by ITHL to the new interconnect provider.
  86. Therefore, I answer the question in Issue One: "no".
  87. VI. If it does, then did ITHL give Primus proper notice in relation to the introduction of: (a) Orange; and (b) T-Mobile.

  88. Strictly speaking, this point does not arise, given my conclusion on Issue One. So I will deal with it shortly. The assumption must be that clauses 5.2.1 and 5.3 would govern the calculation of the royalty rate payable to Primus by ITHL in respect of calls that originate from another interconnect provider other than BT. But the mechanism will only operate if ITHL has given notice of the "change" to Primus, as set out in clause 5.2.1. If possible, ITHL has to give "one month's notice to the Customer [viz. Primus]…". If ITHL has not itself had sufficient notice to give Primus one month's notice, then ITHL has to:
  89. "…notify the Customer forthwith and amend the Tariff with effect from the date of notification to the Customer or the date that the change to ITHL's interconnect rate is effective whichever is the later".
  90. The first question to consider is whether a notice that has to be given by ITHL under clause 5.2.1 has to be in a particular form. Clause 5 does not expressly say so. Clause 15, which is headed "Notices", is slightly elliptical. It sets out when written notices that have been posted or hand delivered will be "deemed" to have been served on the other party to the Agreement. Clause 15 does not say expressly that if a notice has to be given under any clause of the Agreement, then it must be in writing or in some particular form. However, I would be prepared to conclude that, by necessary implication, the parties had intended and agreed that all notices to be given under this Agreement, including those under clause 5.2.1, should be in writing.
  91. The next question is whether ITHL did give Primus written notice of a "change in the interconnect rate" by virtue of the proposed addition of interconnections from Orange (via Core) and from T-Mobile? In the case of Orange, Mr Greaves of ITHL gave Primus notice by email on 14 July 2005 [9] that Orange was to be an interconnector with ITHL and that its rates were to be lower than those of BT. Furthermore, on 26 August 2005, Mr Greaves of ITHL sent Mr Patel of Primus another email stating that with regard to the Orange interconnection, the new rates/structure would be implemented on 1 October 2005, although the rates themselves were yet to be finalised. In my view, those email notices were enough to satisfy the provisions of clause 5.2.1 in the circumstances of the proposed link up with Orange.
  92. In the case of T-Mobile, the new interconnection was due to take effect as from 26 June 2006. On 24 May 2006 Mr Greaves wrote to Mr Whiteley of Primus and gave notice of this fact. The letter also set out the proposed royalty rates for calls originating from T-Mobile. That letter was sent by hand, so in accordance with clause 15.1 of the Agreement, it is to be deemed delivered to Primus on the following day, Thursday 25 May 2006, at the latest. So one month's notice was given.
  93. Therefore if Issue Two had to be decided, I would answer it "yes".
  94. VII. Issue Three: How does clause 5.3 operate so as to calculate the rates of royalty fees payable to Primus in relation to (a) calls originating from Orange (via Core) and (b) calls originating from T-Mobile (via BT)?

  95. In the light of my conclusion on Issue One, this question does not arise.
  96. VIII. Issue Four: Did the parties agree a variation in the method of calculating the royalty rates payable by ITHL to Primus in relation to calls originating from BT and Orange by virtue of the arrangements made in September 2005 and then November 2005 – ie. by the "Revised A/B Split Tariff".

  97. Given my conclusion on Issue One, it is probably not strictly correct to refer to a "variation" in the method of calculating the royalty rates payable by ITHL to Primus; rather the question is whether the parties made a new binding agreement as to the way the royalties were to be calculated after the introduction of the Orange traffic. It was not really in dispute that the parties had reached an agreement in September 2005 on the method of calculating the royalties payable to Primus in respect of calls originating from BT and Orange. In summary, it was agreed that the possible destinations offered by Primus to callers originating from both BT and Orange would be divided into two classes, A and B. Within each class there were three royalty rates; one each for peak, off peak and weekend calls. Initially, in September 2005 the rates were calculated on the basis that the A destinations would account for 20% of all traffic originating from both BT and Orange. But the rates were altered to the "Revised A/B Split Tariff" in November 2005 after it became clear that the A/B split of traffic was 39/61%. The email of 8 November 2005 from Mr Patel to Mr Pullin makes it clear that the revised rates were to apply as from 1 November 2005. I have no doubt that this was a contractually binding agreement.
  98. It is obvious that this method of calculating the royalty rate payable by ITHL to Primus is not contemplated anywhere in the Agreement. There was no mechanism in its terms for making the royalty rate "destination specific". Moreover, I am satisfied, on the evidence of the witnesses that in both the September 2005 and November 2005 negotiations there was no express discussion between the parties, let alone agreement, that the royalty rates agreed were to be calculated by reference to either a particular percentage split of the interconnect fee received by ITHL from Orange via Core, or the Orange/BT split of calls.[10] The first mention in the emails of an assumption about the BT/Orange split of traffic is in Mr Pullin's email to Mr Patel at 14.51 hours on 12 December 2005. At no stage until the email of 22 January 2006 from Mr Pullin to Mr Patel (timed at 21.04 hours) did ITHL state in writing to Primus that the royalty rates agreed in the Tariff in the Agreement represented certain percentages of the interconnect rates obtained by ITHL from BT and that those percentages should be applied to calculate the royalty rates to be paid to Primus in respect of calls originating from Orange. There is no evidence that Primus ever agreed that this was the proper basis of calculation for the royalty rates payable in respect of calls originating from Orange.
  99. My answer to the question posed in Issue Four is "yes". But that leads onto the next and vital question, which is whether the parties intended that this agreement should remain in force (unless a further variation was agreed) for the remainder of the period of the Agreement.
  100. IX. Issue Five: Does the Revised A/B Split Tariff continue to govern the calculation of the royalty rates payable by ITHL to Primus for calls originating from both BT and Orange?

  101. When the parties were negotiating a change to the royalty rates on 7 and 8 November 2005, (to reflect the fact that the split in the calls to the A and B destinations was nearer 39/61% as opposed to the anticipated 20/80%), Mr Pullin sent an email to Mr Patel at 13.20 hours on 7 November 2005. This makes it clear that ITHL contemplated there might need to be further revisions to the royalty rates if there were further "material" swings in the A/B split during November. The following day there was a meeting between the two men. At that meeting Mr Pullin put forward new suggested royalty rates. I have concluded, on the evidence about that meeting, that the parties conducted the negotiations on the implicit understanding that the rates proposed by Mr Pullin may have to be reassessed in the future, particularly if the A/B split altered in subsequent months. It is also clear that the parties agreed that there should be no "claw back" if, at the end of one month, the figures showed that the A/B split was not as anticipated. After the meeting Mr Patel and Mr Mackereth did some calculations and then Mr Patel sent the email timed at 17.33 on 8 November agreeing to the rates proposed by Mr Pullin the previous day. Mr Patel's email simply said: "- so the rates below will be effective for B destinations from 1st November 2005".
  102. I find that it is implicit in the exchanges that had taken place on 7/8 November that the parties would reconsider the royalty rates applicable if the A/B destination split was subject to a further "material" swing. In the email exchanges between Mr Greaves and Mr Patel on 5 December 2005 both sides accepted that there had to be further negotiations on how the royalty rates were to be calculated because of substantial changes in the A/B destination split. There was a further exchange between Mr Pullin and Mr Patel on 12 December in which Mr Pullin put forward further proposals, which were rejected by Mr Patel. It is clear, especially from the email of 14.51 hours on 12 December 2005, that both parties appreciated that the former (albeit "revised") A/B split rates were not necessarily binding for the future.
  103. A further temporary arrangement was concluded between Mr Greaves and Mr Patel in the two emails of 16.36 (from Mr Patel) and 16.58 hours (from Mr Greaves) on 12 December 2005. The parties agreed that the rates for the A destinations would be untouched for December 2005. Mr Patel's email said this arrangement would apply to "…the first couple of days in Jan 06 only. And in Jan 06 Orange should be switched off and we revert to our original rates across all destinations….". Mr Greaves agreed, adding "… We will see if between now and Jan can come up with alternatives".
  104. It is common ground that the parties never did agree on alternatives. Discussions produced no permanent agreements and relations between the parties deteriorated. Royalty rates were agreed for January 2006. After that Primus billed ITHL on the basis of the January 2006 rates, but always reserving its right to contest the amount paid by ITHL. (See eg. the email of 15.12 hours on 13 February 2006 from Mr Whiteley to Mr Pullin).
  105. My answer to the question posed in Issue Five is, therefore, that the Revised A/B Split Tariff does not continue to govern the calculation of the royalty rates paid by ITHL to Primus for calls originating from BT and Orange.
  106. X. Issue Six: If not, what rates are now to be paid by ITHL to Primus in respect of calls originating from Orange: (a) under the terms of the Agreement, or (b) if that is not applicable, on a quantum meruit basis?

  107. It follows from my conclusion to Issue One that no royalty rates have been agreed under the terms of the Agreement in respect of calls originating from Orange and there is no contractual mechanism for calculating them. Both parties accept, however, that if contractual royalty rates have not been agreed, then Primus is entitled to some remuneration for the services that it has provided and is providing in respect of calls originating from Orange and that this remuneration must be calculated on a quantum meruit basis. The parties disagree on the basis of the calculation.
  108. ITHL argues that the royalty rates should be based on 50.58%, 62.15% and 46.23% of (respectively) the peak, off peak and weekend interconnect rates that are paid by Orange to Core for the time being. If those Orange/Core interconnect rates vary, then so should the royalty rates paid to Primus by ITHL. This is fair, ITHL argues, because it means that Primus would be getting the same share of the interconnect revenue as it does for calls originating from BT pursuant to the Tariff set out in Schedule 1 of the Agreement. I also understand Mr Dutton to argue that the quantum meruit remuneration must take account of two further factors. First, the ratio of peak/off – peak/weekend calls; and, secondly the ratio of Orange originated calls to those from T-Mobile and BT. Mr Dutton submits that overall, the aim should be to ensure that ITHL pays Primus 53% of the total revenue that ITHL receives by way of interconnect fees from BT, Orange and T-Mobile.
  109. Primus argues that if royalty rates are based on a percentage of the interconnect fee paid by Orange to ITHL (via Core), it will inevitably lead Primus to suffer losses for those destinations where the cost of the international connection, which Primus has to pay, is high. Mr Roberts submits that, in fixing a quantum meruit, the court must take into account the running and marketing costs that Primus has to bear in order to provide the service of connecting the calls to the international destinations. In order that Primus should be reasonably remunerated, the quantum meruit royalty rates for calls originating from Orange should be the same as those payable for calls originating from BT as set out in the original Tariff rates, but with no further variation.
  110. Both sides accept that the quantum meruit rate or rates will be a rough and ready calculation. They agree that the court should not attempt to do any detailed calculations of what the profit or loss to either side would be if any particular rate or rates be chosen.
  111. In my view there are two fundamental factors that I must bear in mind in fixing the quantum meruit remuneration that Primus should receive for the service it provides in permitting calls originating from Orange to use its system. These are, first, that the remuneration must be reasonable in all the circumstances. Secondly, that the basis for calculation should be as simple as possible, so as to minimise the chances of future disputes over payments.
  112. In deciding the basis on which the quantum meruit royalty rates should be agreed, it seems to me that I have to consider three further questions. The first is whether the basis of the rates should be the interconnect rates that ITHL receives from its two current interconnect providers BT and Orange.[11] This basis can be contrasted to a rate or rates based on the split of ultimate destinations and the costs of making those connections. The second question is whether, even if the royalty rate is based on interconnect rates from Orange/BT, I should take account of the fact that Primus has to pay very high charges to connect to some international destinations and it has to pay for marketing the international services that are routed from Orange through ITHL to Primus and on to the international receiver. The third question is whether it is legitimate to consider the facts that calls originating from Orange now account for about 50% of the total call time passing through the ITHL and Primus network, whereas BT only accounts for about 10% and that the Orange interconnect rate paid to ITHL is tending to go down.
  113. I have concluded that the quantum meruit royalty rate payable to Primus for calls originating from Orange should be based on the interconnect fees paid by Orange to ITHL, via Core. That is analogous to the basis for the BT Tariff in Schedule 1 of the Agreement. I strongly suspect that if the parties had been negotiating a tariff for Orange calls at the time the Agreement was concluded then they would have agreed an Orange tariff based on the interconnect fees paid by Orange to Core/ITHL. In my view it would be too complicated to try and base a quantum meruit payment on an analysis of destinations and the ratio of peak/off peak/weekend calls. I also think that it will be too complicated to try and calculate each month the ratio of BT/Orange/T-Mobile originating calls in order to calculate the royalty rate paid to Primus. Therefore I have concluded that the royalty rate should be fixed at 50.58%, 62.15% and 46.23% respectively of the peak, off – peak and weekend interconnect rates paid by Orange to Core, without taking into account any subtractions from that fee that may be made by Core before the fee is passed onto ITHL. If calls originating from Orange continue to be routed to Primus and the Orange/Core/ITHL interconnect rate is altered, then, in my view, ITHL should give notice, by analogy with the notice provisions in clause 5.2.1 of the Agreement. The royalty fees payable to Primus should then be recalculated by analogy with the provisions set out in clause 5.3.
  114. Primus may say that this will mean that some destinations will produce a loss for them. If so then there is nothing in the Agreement to stop Primus from terminating the service for those destinations. There is nothing in the Agreement that expressly obliges Primus to continue to provide the services for Orange originated calls to specific destinations. But I would expect Primus to give ITHL reasonable notice of any discontinuation of the service to particular destinations.
  115. XI. Issue Seven: What royalty rates are now to be paid by ITHL to Primus in respect of calls originating from T-Mobile, which are routed through BT to ITHL and then Pri mus under the Virtual Interconnect Agreement dated 9 June 2006?

  116. Given my conclusion on Issue One, it must follow that there is no contractual mechanism for calculating a royalty fee due to Primus for the services provided in respect of T-Mobile originated calls. The parties agree that in these circumstances, I should fix a quantum meruit royalty rate for those services provided by Primus. In my view the same principles should apply in fixing the quantum meruit royalty rate to be paid to Primus in respect of calls originating from T-Mobile. Thus the rate will be 50.58%, 62.15% and 46.23% of the peak, off – peak and weekend interconnect rates that are paid by BT to ITHL, without any deduction for the rebate that ITHL pays back to T-Mobile under the terms of the Virtual Interconnect Agreement between T-Mobile and ITHL. That will make the position analogous to the situation between Orange, Core, ITHL and Primus.[12] If T-Mobile traffic continues to be passed to the Primus network and there are changes to the interconnect rate paid by BT to ITHL in respect of calls originating from T-Mobile, I would expect there to be consequent changes in the royalty rate paid by ITHL to Primus, by analogy with the terms of clause 5.3. ITHL should give reasonable notice of these changes, by analogy with the provisions in clause 5.2.1 of the Agreement.
  117. XII. Issue Eight: Is ITHL in breach of clause 13.1 of the Agreement as a result of the interposition of Core between Orange and ITHL following the Interconnect Agreement between Orange and Core dated 15 August 2005?

  118. It is agreed by the parties that Primus was not told about the arrangement between Orange, Core and ITHL at the time of the Interconnect Agreement between Orange and Core dated 15 August 2005, nor at the time of the agreements of the royalty rates for Orange traffic in September and November 2005. The arrangement between Orange and Core only came to light in April 2006, when ITHL provided Primus with a report by Philip Sayers Associates on the issue of the interconnect fees paid by Orange to ITHL, via Core.
  119. The argument of Primus is that clause 13.1 of the Agreement was fashioned by the parties so as to prevent ITHL "diverting" to another company the interconnect fees payable by an interconnect provider, so that the other company could then take a proportion of the interconnect fees before passing them on to ITHL. This is the fear expressed by Mr Patel in his witness statement.[13] The argument is that if there was this "diversion", then ITHL could invoke clause 5 of the Agreement and say that there had been a "change" to the interconnect fee received by ITHL (from Core), thus entitling ITHL to reduce the royalty fee payable to Primus, even if there had been no reduction in the fee paid by Orange to Core. Mr Patel says that such an arrangement would weaken the commercial position of Primus, because less funds would be coming into ITHL, which is the company responsible for paying Primus its royalty fees.
  120. Mr Roberts accepts that Primus has not suffered any losses as a result of the current Orange/Core/ITHL arrangement. However, he submits that Primus is entitled to a declaration that this arrangement is in breach of clause 13.1, so that ITHL will ensure that the arrangement does not continue and that there are no further similar arrangements between other interconnect providers, Core and ITHL.
  121. Clause 13.1 requires that:
  122. "Neither party shall assign, transfer, delegate or otherwise deal with its rights and obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed".

    The question, therefore, is whether ITHL has assigned, or transferred or delegated or otherwise dealt with "rights" or "obligations" that are "under this Agreement", by virtue of the arrangement between Orange, Core and ITHL?

  123. The first obligation of ITHL under the Agreement is to use all reasonable endeavours to provide "the Service" during the period of the Agreement: see clause 3.1. Recital A of the Agreement states that "the Service" is more particularly defined in Schedule 1 of the Agreement. But in fact it is not defined there. It is possible to glean, from the terms of clause 3 of the Agreement, that "the Service" to be provided by ITHL is the provision of (i) the ITHL numbers which can be used by callers to dial into the Primus network; and (ii) the physical interconnection to enable this to be done, ie. the E 1 circuits.
  124. Clause 3 does not set out any restrictions on the origin of calls that can use the physical connection provided by ITHL to the Primus network. There is no evidence to suggest that it is Core that is providing either the numbers that can be used by callers to dial into the Primus network, nor the physical interconnection to enable that to be done. In fact, it is common ground that it is ITHL that provides the E 1 connectors and Primus accuses ITHL of failing to provide additional capacity quickly enough – see the next issue, below. Therefore I conclude that ITHL has not assigned, transferred or delegated that obligation to Core; nor has it "dealt with" that obligation so as to involve Core in some way.
  125. The second obligation of ITHL is to pay Primus the royalty fees in accordance with clause 5 and the Tariff in Schedule 1 of the Agreement. There is no suggestion that ITHL has assigned, transferred (etc.) that obligation to Core. So I fail to see what "obligation under this Agreement" ITHL can have assigned, transferred, delegated or otherwise dealt with by virtue of the arrangement between Orange, Core and ITHL.
  126. On the other side, the principal "rights" of ITHL under the Agreement must be the rights to route calls through designated ITHL numbers to the Primus network and the right to charge Primus for the designated telephone numbers in accordance with clause 4 of the Agreement. There is no suggestion that either of those rights have been transferred to Core.
  127. Accordingly, I have concluded that there has been no breach of the obligations set out in clause 13 by virtue of the arrangements between Orange, Core and ITHL. Therefore my answer to the question posed by Issue Eight is: "no".
  128. XIII. Issue Nine: Is ITHL in breach of clause 3.1.1 of the Agreement by virtue of the delay to testing of the new E 1 connectors in June 2006?

  129. Clause 3.1.1 stipulates that ITHL will provide "the Service" to "a high standard of quality and reliability, as compared to the provision in the UK of the same or similar Service". The only evidence I heard in relation to the standard and timing of providing new capacity for the physical connections between ITHL and Primus was that from Mr Pullin and Mr Mackereth. The evidence of Mr Pullin (at para 50 of his witness statement) is that, generally speaking, new capacity is provided between 25 and 45 working days after receipt of the relevant capacity order. He also notes (para 51) that the Interconnect Agreement between Orange and Core stipulates that new capacity will be provided within 75 working days.[14]
  130. Mr Mackereth's evidence (based on what he had been told by the relevant team in Primus) was that the time for providing new circuits depended wholly on the parties involved: (see para 19 of his witness statement). That is not very helpful.
  131. I accept the evidence of Mr Pullin on the industry standard. On the "worst case" of the dates, the period for setting up the new E 1 connectors is that between 22 May 2006, when Primus first informed ITHL that it wished to set up two new E 1 connectors and the date of the final testing on 27 June 2006. That is a period of 38 days. On the evidence available that is well within industry standards. So, ITHL has complied with the express terms of clause 3.1.1 of the Agreement.
  132. Therefore I answer the question posed in Issue Nine: "no".
  133. XIV. Conclusions

  134. Before I summarise my conclusions, I should mention two further matters. First, there was one further counterclaim that Primus had made on the pleadings. This was that, in relation to the interconnect rates paid by Orange to ITHL via Core, ITHL had failed to provide full disclosure, pursuant to clause 5.2 of the Agreement. It was asserted by Primus that the review by Phil Sayers Associates dated 10 April 2006 did not comply with clause 5.3, because: (a) it was not a written assurance by a qualified financial accountant; and (b) it did not give full details of the arrangements between Core and ITHL in relation to the interconnect fees paid to Core by Orange under the Interconnect Agreement dated 15 August 2005.
  135. As I understood the argument of Mr Roberts, he did not pursue these allegations on behalf of Primus. He accepted that Primus had not suffered any loss, even if there had been a lack of full disclosure. I will therefore say no more about the point.
  136. The second matter concerns the future conduct of the Agreement. I was not asked and I have not ruled on the issues of whether ITHL is obliged, under the terms of the Agreement, to route traffic from MNOs (such as Orange or T-Mobile) to Primus, or if it is obliged to continue to do so once it has started the exercise. Nor was I asked to rule on whether Primus is obliged to take calls from MNOs such as Orange or T-Mobile or, if it has started to do so, it must continue. Nothing in this judgment should be read as an implicit answer to those questions, should they arise in the future.
  137. My conclusions on the issues I have identified are:
  138. (1) Issue One: Clause 5 of the Agreement does not apply to interconnections with new MNO providers, such as Orange or T-Mobile.
    (2) Issue Two: As it does not then the question of whether ITHL gave Primus proper notice in relation to the introduction of: (a) Orange, and (b) T-Mobile does not arise for decision. However, if necessary, I would have concluded that notices had been properly given.
    (3) Issue Three: The question of how clause 5.3 operates so as to calculate the rates of royalty fees payable to Primus in relation to calls originating from Orange (via Core) and T-Mobile (via BT) does not arise, given my answer to Issue One.
    (4) Issue Four: the parties did agree a method of calculating the royalty rates payable by ITHL to Primus in relation to calls originating from both BT and Orange by virtue of the arrangements made in September and November 2005 – ie. by the "A/B Split Tariff" and the "Revised A/B Split Tariff". But this was not, strictly speaking, a "variation" of the terms of the Agreement.
    (5) Issue Five: The "Revised A/B Split Tariff" does not continue to govern the calculation of the royalty rates payable by ITHL to Primus for calls originating from both BT and Orange.
    (6) Issue Six: The royalty rates payable by ITHL to Primus in respect of calls originating from Orange have to be based on a quantum meruit. This should be fixed at 50.58%, 62.15% and 46.23% of the peak, off – peak and weekend interconnect rates paid by Orange to Core. If the Orange traffic continues and the interconnect rates are altered then ITHL should give notice, by analogy with the notice provisions in clause 5.2.1 of the Agreement and the royalty rates should be recalculated in a manner analogous to that set out in clause 5.3.
    (7) Issue Seven: The royalty rates payable by ITHL to Primus in respect of calls originating from T-Mobile (which are routed through BT to ITHL and then to Primus) will be 50.58%, 62.15% and 46.23% of the peak, off – peak and weekend interconnect rates paid by BT to ITHL, without any deduction for the rebate that ITHL pays to T-Mobile under the terms of the Virtual Interconnect Agreement. If the T-Mobile traffic continues and there are changes in the interconnect rate payable by BT to ITHL in respect of such calls, then the same process should be adopted as that set out under conclusion 6 above.
    (8) Issue Eight: ITHL is not in breach of clause 13.1 of the Agreement as a result of the interposition of Core between Orange and ITHL following the Interconnect Agreement between Core and Orange dated 15 August 2005.
    (9) Issue Nine: ITHL is not in breach of clause 3.1.1 of the Agreement by virtue of the time taken to test the new E 1 connectors in May/June 2006.

  139. I was not given detailed calculations of the effect of various possible conclusions on the correct construction of the agreement or quantum meruit conclusions. Both parties requested that I should not attempt to work out the numerical consequences of the conclusions I reached, so I have not attempted to do so. I hope that they can be agreed in the light of this judgment.
  140. In conclusion I feel compelled to say that it would seem most unfortunate that this case has come to court at all. On the face of things, both sides appear to have adopted unrealistic positions, with the result that there has been an expensive three day trial from which neither side emerges as the clear victor, at least in terms of the issues I have ruled on. I very much hope that the parties will now take more note of clauses 6.4 and 6.5 of the Agreement and so avoid the need to air further commercial differences in public in court.

Note 1   That is all those with the prefixes 077744 and 077755    [Back]

Note 2   See: Transcript: day 2 page 65 lines 12 – 23.    [Back]

Note 3   This is the effect of Recital C, clause 4.1 and 5.4 of the “Virtual Interconnection Agreement”.    [Back]

Note 4   [1998] 1WLR 896 at 912 – 3.    [Back]

Note 5   [2002] 1AC 251 at 269    [Back]

Note 6   [2004] 1 WLR 3251 at 3257    [Back]

Note 7   [1985] AC 191 at 201.    [Back]

Note 8   [2006] 2 Lloyd’s Rep 129 at para 7    [Back]

Note 9   That is the day after the Cheshire Cheese meeting.    [Back]

Note 10   In his witness statement (para 29) Mr Pullin states that at the meeting of 8 November 2005, he put forward proposed rates on the assumption of a 39/61% split between A/B destinations, an assumed BT/Orange split of calls of 75/25% and the prevailing mix of peak, off peak and weekend calls. But he does not say that those assumptions were discussed at the meeting. Mr Patel does not mention these assumptions in his evidence about the meeting: para 41. Mr Greaves says in his witness statement (para 58) that he deliberately did not raise the Orange/BT split. His oral evidence was more equivocal. He said that Primus must have been aware of it. I do not accept that. I also do not accept his evidence that Primus was “aware of” , or agreed, the assumption by ITHL that the calculation of the royalty rate paid to Primus was based on a percentage of the interconnect fee received from the relevant MNO.    [Back]

Note 11   I appreciate that in the case of T-Mobile, BT is interposed only because it carries T-Mobile traffic. I also appreciate that in the case of Orange, Core is interposed between Orange and ITHL. But in essence the interconnect providers and the rates that are paid to ITHL are, respectively those of BT and Orange.    [Back]

Note 12   Mr Greaves accepted in cross – examination that the royalty rate payable to Primus should be based on the gross interconnect rate paid by Orange to Core, not the net interconnect rate received by ITHL after Core had deducted a fee. See transcript Day 2 page 65 lines 12 – 23.    [Back]

Note 13   Paras59 – 61.    [Back]

Note 14   This is not quite accurate. Clause 2.9.1 of the Orange/Core Interconnect Agreement stipulates that capacity at a new Point of Connection is to be provided within 6 months of the order; and capacity to be provided at an existing Point of Connection is to be provided within 3 months from the date of order.    [Back]


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