When can the tribunal deal with claims for compensation?

The Upper Tribunal has struck out the first reference filed with it under the new Electronic Communications Code 2017. Elite Embroidery Limited v Virgin Media Limited [2018] UKUT 364 (LC) concerned a building constructed on land in Newcastle-upon-Tyne. The claimant had acquired the site for redevelopment and discovered that a fibre optic cable lay buried below part of the land. Further investigations revealed that the cable had probably been laid by Telewest sometime in the mid-1990s. It had been intended that the cable would be laid under the pavement adjoining the development site, but it was wrongly laid in the position in which the claimant found it. The claimant had made all the usual inquiries about the presence of utilities and service conducting media before purchasing the site. Unfortunately, however, the existence of the cable did not come to light. Its presence forced the claimant to divert some of its drainage runs so that the cable could remain in situ, which cost the claimant £60,000. And this had delayed the project, resulting in the loss of a government grant in the sum of £186,000. The claimant sought to recover these losses from Virgin (which had acquired the business of Telewest) through proceedings in the Upper Tribunal. The Electronic Communications Code (Jurisdiction) Regulations 2017 provide for dispute resolution functions conferred on the court by the new Code to be exercisable in relation to England and Wales by the First-tier and Upper Tribunals. But all of the events giving rise to the claim had occurred before the new Code was enacted. The cable had been laid in the 1990s, when the old Code conferred the relevant rights. And the old Code was still in force when the land was sold to the claimant, and when the claimant had had to modify its works and had sustained the loss of the government grant. The claimant was not arguing that Virgin or Telewest had exercised any rights under the new Code and the tribunal was not being asked to make an order imposing an agreement on the claimant, or requiring the removal of the equipment. So the compensation provisions in the new Code were not applicable. Furthermore, the old Code contained provisions for compensation for injurious affection in paragraph 16. And the transitional provisions in paragraph 14 of schedule 2 to the Digital Economy Act 2017, which deal with the cessation of the old Code and the introduction of the new Code, state: “The repeal of the existing code does not affect paragraph 16 of that code, or any other right to compensation, as it applies in relation to the exercise of a right before the new code comes into force”. Consequently, any claim for damages for trespass or nuisance, or for compensation, needed to be brought under the previous Code – and the Tribunal had no jurisdiction to deal with such claims. Allyson Colby is a property law consultant