Graham Read QC successful in major Court of Appeal decision
British Telecommunications PLC and OFCOM and Hutchinson 3G UK Limited [2011] EWCA Civ 245
Graham Read QC, acting for BT, comprehensively defeated an appeal by Ofcom (represented by Dinah Rose QC) from the Competition Appeal Tribunal in a major ruling on the Tribunal’s jurisdiction. The Court of Appeal agreed with BT’s submissions on all the main points and rejected the various challenges made by Ofcom to the Tribunal’s judgment.
The principal effect of the Judgment is that:
(a) The Tribunal, when considering an appeal on the merits under ss. 192-5 of the Communications Act 2003, is not confined to material before the Regulator at the time at which the Regulator made its decision and the Tribunal is not prevented from coming to an independent decision on the merits of the case. The 2003 Act adopted the same position as that under the Competition Act 1998.
(b) This principle applies to all appeals under ss. 192-5, including appeals from decisions under the dispute resolution process contained in ss. 185-191.
(c) There was no requirement, similar to the Ladd v Marshall principle under the CPR, restricting fresh evidence.
(d) In any event the Competition Appeal Tribunal had correctly exercised its discretion in the circumstances of the case given Ofcom’s conduct, in particular, in misstating the scope of the dispute it was considering under ss.185-191.
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