Why interim rights are proving a versatile tool for telecoms

The Court of Appeal has recently approved the approach of the Upper Tribunal to “interim rights” under paragraph 26 of the Electronic Communications Code (the Code) in Cornerstone Telecommunications Infrastructure Ltd v University of London [2019] EWCA Civ 2075; [2019] PLSCS 226 (University of London). The decision ought to be welcomed by both operators and site providers alike. It provides a flexible solution to some real practical problems. Issues raised There were two issues before the Upper Tribunal (Lands Chamber) ([2018] UKUT 356 (LC); [2018] PLSCS 188) and the Court of Appeal which are relevant for present purposes. The first was a narrow but important point of statutory interpretation, namely whether a right to survey (or to undertake a “multi-skilled visit”, or MSV) is a code right. The Court of Appeal agreed that this right was within paragraph 3(d). We are concerned with the second issue: can an operator elect to claim only an interim right, or can it only claim such a right if also claiming a final right under paragraph 20 of the Code? Do interim rights have a life of their own? One’s first reaction to the word “interim” may be that such a right ought eventually to blossom into a final order, just as an interim payment or injunction might. On that basis, paragraph 26 of the Code is a mere prelude to a claim for final rights, and the former cannot happen without the latter. In that regard, it is also true that, under paragraph 26, the test for imposing Code rights under paragraph 21 only had to be satisfied on a “good arguable case” basis, whereas a claim for full rights requires paragraph 21 to be met on the ordinary civil standard of proof. In University of London, the operator had served a paragraph 26(3) notice seeking interim rights to an MSV, but had not served a paragraph 20 notice seeking final rights pending the outcome of the MSV. On the basis of the argument set out above, that would have been an improperly constituted claim. For the following main reasons, the Court of Appeal did not consider that a paragraph 20 claim was a necessary adjunct to a claim under paragraph 26. First, paragraph 26(2) contains a special definition of “interim” for paragraph 26 purposes – it means a right “for the period specified” or “until the occurrence of an event specified” in the order. Given that fact, there was no basis for introducing an additional requirement that a paragraph 20 claim be made as well. Nor is there any requirement that all the rights being sought on an interim basis need to be replicated in the paragraph 20 application. Some rights would be spent once granted on an interim basis, with no need to seek them in final form: the MSV is an example. Secondly, as the drafting of paragraph 27 (temporary rights) shows, when the draftsperson wanted to link a claim for such rights to a claim for final rights, they did so. The absence of a linkage in paragraph 26 is therefore a telling contrast. Thirdly, the lower threshold of the “good arguable case” test did not compel the conclusion that the parties had to proceed to final relief thereafter on the ordinary civil standard. That test is based on the rules relating to proving service out of the jurisdiction. Once that test is applied in that context, it is never revisited. This shows that the “good arguable case” test need not be ultimately confirmed. The fact that paragraph 26 rights confer no security of tenure is the sanction under the Code for an operator failing to then go on to seek final rights. Fourthly, any suggestion that this interpretation created a risk of abuse was capable of being dealt with. The Upper Tribunal can naturally regulate abuse of its processes, but it can also impose conditions in paragraph 26 agreements or specify termination events under paragraph 26(2) to prevent abuse. Why is this a good outcome for both sides? Any Code agreement entered into outside paragraph 26 results in security of tenure under Part V as a default position. This is sometimes not what the parties want. Following University of London the parties can agree, or in default of agreement the operator can apply to impose, a short-term agreement which is outside the scope of the security of tenure provisions under Part V. This then requires the approval of the Upper Tribunal. Examples of cases where the parties can use paragraph 26 and obtain Code rights without security of tenure are agreements relating to one-off events (public events requiring enhanced network capacity and coverage for days or weeks), but also arrangements where equipment is moved for a period to facilitate development (that is, relocation to a temporary site). Additionally, it may offer a practical solution to landlords of office space when tenants request wayleaves for broadband near the end of their lease terms – if the tenant requests a new wayleave, and a development is in prospect, a carefully drafted date or event limitation under paragraph 26(2) means that the landlord can rest easy, knowing that it can move straight to removal at the end of the agreement and undertake its development. However, the be effective, such agreements must be approved by the Upper Tribunal. University of London has kept this avenue open. Oliver Radley-Gardner is a barrister at Falcon Chambers, and Luke Maidens is a partner and Paul Sagar an associate at DAC Beachcroft