- Removing the high bar (EE Ltd and Hutchison 3G UK Ltd v Stephenson and AP Wireless II (UK) Ltd)
- What are the practical implications of this case?
- What was the background?
- What did the Upper Tribunal decide?
- Case details
Property Disputes analysis: In the latest decision under the new(ish) Electronic Communications Code (‘the Code’) contained within Schedule 3A to the Communications Act 2003, Mr Justice Fancourt considered two points which arose as preliminary issues to an application under paragraph 33(5) of the Code. He held that it is not open to a paragraph 33(5) applicant to seek an order changing a code agreement on terms which are different from those which were annexed to the paragraph 33 notice, or to apply for a type of order which was not specified in the notice. However, there is jurisdiction to make any order on the ‘menu’ in paragraph 34; in any event, a respondent may waive non-compliance; and (of course) the applicant may nonetheless engage with the respondent’s suggestions as to what order should be made instead. Where the applicant operator seeks a new Code-compliant agreement in place of an expired subsisting agreement, it is not necessary for the operator to establish (or plead) a site-specific reason as to why a new agreement is needed. Written by Imogen Dodds, barrister at Falcon Chambers.
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