[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Cityfibre Ltd, R (on the application of) v Advertising Standards Authority [2018] EWHC 1526 (Admin) (12 June 2018) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2018/1526.html Cite as: [2018] EWHC 1526 (Admin)

[New search] [Printable RTF version] [Help]

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

		Royal Courts of Justice
		12 June 2018

This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.

MR JUSTICE TURNER:

1. This is an application for permission to challenge the decision of the Advertising Standards Authority ("ASA") with respect to the advertisement of broadband facilities. The single judge on paper declined to give permission and this is an oral application in the same terms.
2. The basis of the challenge takes as its central point a complaint that there are some, indeed the majority of, broadband providers who advertise their products as being fibre products. There is a distinction to be drawn, which is not disputed, between those products which rely on fibre from the transmitting station into the individual home and can therefore properly be described as 'full fibre', and those which take the optical fibre transmission part way, but the last lap to the home of the consumer is provided in a different way, for example, copper, and each part fibre provider has its own variation in terms of the way in which the relevant signal eventually ends up in the home of the customer.
3. The claimant in this case is representative of an as yet relatively small group of companies occupying a relatively small percentage of the market for providing broadband services, who take issue with the way in which the larger providers, such as Virgin and others, advertise their products without distinguishing between full and part fibre means of delivering the signal.
4. The advantages of a full fibre system lie mainly, but not exclusively, in relation to the issues of speed and also a greater degree of symmetry between the amount of data that is capable of being downloaded, and the amount of data which is capable of being uploaded in an asymmetric system.
5. The decision of the ASA was based on an assessment that the companies who provided the part fibre product were not misleading customers, whether by omission or otherwise, by not going further and differentiating their product as to the label which is attached to it from the full fibre product. As part – and I stress 'part' – of their process of analysis prior to the making of the decision they had regard to the conclusions in, and body of, a report produced by an organisation called Define, who carried out research in relation to a number of participants with the object of informing the ASA as to the basis upon which they would, at least in part, base their conclusion in response to the complaint made by the complainant.
6. The criticisms made of the decision of the ASA are many and various and, since this is a permission appeal, I do not intend to cover them in any detail. Suffice it to say they include the contention that the bullet points (three in number) in the executive summary of the Define Report were strongly relied upon by the ASA in reaching its conclusion, and those bullet points are seriously misrepresentative of the findings in the actual body of the report to which it is alleged the ASA gave less and, in parts, low specific consideration.
7. It is also contended on behalf of the claimant that the report itself revealed that when participants were given instruction and information as to the difference between full and part fibre products they continued, at least for the most part, to be unable to distinguish between adverts as to who was advertising what product. The issue is also raised that the way in which the ASA took into account transactional contingents, in terms of the extent to which they would have made a different choice had the advertising been appropriate, was not adequately dealt with, if it were relevant, in the ASA's approach, to the extent that the participants were left with the clear and uncontradicted impression that, at least by and large, they thought the fibre product would cost them a significantly higher sum of money.
8. The response to that, it is said on behalf of the ASA that there are a number of perfectly proper bases upon which the ASA decision, and the reasoning behind it, could be fully supported. One of the strongest of these is that the concept of fibre should not be regarded as one of central significance here. Customers are interested in price, and interested in speed and reliability, and the concept of full fibre or part fibre is effectively subsumed within the parameters of those individual considerations, and that the focus on the concept of part fibre or full fibre misses the main point. That is merely one example of the responses given on behalf of the ASA and, as with the claimant in this case – because this is an application for permission rather than the full-blooded hearing – I am not going to take up a disproportionate amount of time as if I were determining the actual merits, in substantive form, of this application.
9. Standing back from all of this material I am satisfied that there is a sufficiently arguable case to pass the threshold laid down in the CPR for permission to judicially review the decision and, in those circumstances and for the reasons I have given, I will give such permission. I do not, however, give permission for the grounds to be amended to include matters relating to the statistical adequacy or robustness of the report provided by the ASA. I am entirely confident that the level of intensity of review which will be required on any substantive challenge would not be assisted by that form of exegesis, and therefore I refuse permission for that amendment to be made.

MR JUSTICE TURNER: Are there any other matters?

MISS ROSE: My Lord, I would suggest that the appropriate order be costs in the case.

MR JUSTICE TURNER: Unless you have any observations to make on that, I agree?

MISS CALLAGHAN: That must be right.

MR JUSTICE BAKER: Yes. What sort of estimated length of hearing would be met in this matter?

MISS CALLAGHAN: Well, I am instructed that most, if not all, full fibre broadband providers are going to want to intervene, but I just do not know at this stage whether all of them will, and whether they will want to be separately represented or not, but clearly this is not going to be just a one day hearing.

MR JUSTICE TURNER: No, well, perhaps the best way forward is to leave it to the parties to keep the court informed in terms of any estimate when, in particular, you find out how many people want to be involved in it.

I would make this observation that I would not expect the court to be populated by everybody who provides part fibre broadband services. I would expect that the arguments could easily be limited to the conceptual arguments relevant to a public law challenge, without the need for those who provide the part fibre services effectively to be descending into an unnecessary and disproportionate level of factual detail. I do not see why there could not be agreements between the parties so as to cover matters that would be uncontroversial insofar as they might be contributed to by interested parties.

MISS ROSE: My Lord, I would respectfully agree. Can I suggest that we have the normal directions – I do not think anybody is suggesting an abridged timetable?

MR JUSTICE TURNER: Yes.

MISS ROSE: The normal directions for detailed defence and evidence, and so on----

MR JUSTICE TURNER: Yes.

MISS ROSE: And that if we have a listing for a two-day hearing that would seem to be appropriate to both sides, I think, and I cannot see any reason why it should take longer.

MR JUSTICE TURNER: If we include within the order a requirement on both parties to contact the court forthwith in the event that the estimated length of hearing is inappropriate in whatever direction----

MISS ROSE: Yes.

MR JUSTICE TURNER: -- then I will be minded to go along with that.

MISS ROSE: I am grateful, my Lord.

MISS CALLAGHAN: I am grateful.

MR JUSTICE TURNER: Yes, well, I wonder, Miss Rose, if you could agree a form of order?

MISS ROSE: Yes.

MR JUSTICE TURNER: And once that is agreed you could email that through to me, then I will look at it straight away and we can progress from there.

MISS ROSE: I am grateful, my Lord.

MR JUSTICE TURNER: What I am going to do, I know it is somewhat unusual, rather than give you my clerk's email address is to give you mine so that it comes straight to me----

MISS ROSE: Yes.

MR JUSTICE TURNER: -- rather than it has to go through an extra bureaucratic layer. So, my email address is [email address given]. So, if you could send me that I would be very grateful.

MISS ROSE: I am grateful, my Lord.

MR JUSTICE TURNER: Yes, well, I notice that counsel have been very patiently waiting for this half hour application to finish, and I am not going to disappoint them by rising at this stage and taking a long time to come back. So it will be no discourtesy to me if all those who are involved in the sitting case were to pack up and go.

CERTIFICATE Opus 2 International Ltd. hereby certifies that the above is an accurate and complete record of the judgment or part thereof. Transcribed by Opus 2 International Ltd. (Incorporating Beverley F. Nunnery & Co.) Official Court Reporters and Audio Transcribers 5 New Street Square, London EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] This transcript has been approved by the Judge.