Neutral citation [2014]
CAT 18
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IN THE COMPETITION
APPEAL TRIBUNAL
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Case Number:
1152/8/3/10 (IR)
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Victoria House
Bloomsbury Place
London WC1A 2EB
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12 November 2014
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Before:
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THE HONOURABLE MR
JUSTICE ROTH
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(President)
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Sitting as a Tribunal
in England and Wales
B E T W E E N :
BRITISH SKY
BROADCASTING LIMITED
Applicant / Respondent in the Interim Application
-v-
OFFICE OF
COMMUNICATIONS
Respondent
- and -
BRITISH
TELECOMMUNICATIONS PLC
Intervener / Applicant in the Interim Application
VIRGIN MEDIA, INC.
THE FOOTBALL
ASSOCIATION PREMIER LEAGUE LIMITED
TOP-UP TV EUROPE
LIMITED
Interveners
EE LIMITED
Intervener in the Interim Application
_____________________________________________________________________
RULING
(COSTS)
_____________________________________________________________________
APPEARANCES
Mr.
Meredith Pickford (instructed by Herbert Smith Freehills LLP) appeared for
British Sky Broadcasting Limited.
Miss Sarah
Ford and Mr. Gerry Facenna (instructed by BT Legal) appeared for
British Telecommunications PLC.
Mr. Simon
Leathley (of the Office of Communications) appeared for the Respondent.
THE PRESIDENT:
1.
There has been a short hearing this morning to finalise the terms of the
order to be made by the Tribunal following the judgment in this application
that was handed down on 5th November ([2014] CAT 17) (the “Judgment”).
I appreciate the efforts made by the parties that resulted, I think just this
morning, in agreement being reached between British Telecommunications Plc
(“BT”) and British Sky Broadcasting Limited (“Sky”) as to material terms of the
order. That has meant that this hearing has been much shorter than it would
otherwise have been, although it does appear that it was necessary to arrange
such a hearing in order to achieve rapid agreement.
2.
The only remaining issue is the application by the Office of
Communications (“Ofcom”) for the costs of its attendance at the hearing. Those
costs are set out in a statement of costs served by its general counsel, and
amount to some £8,000 plus VAT. They are therefore a metaphorical drop in the
ocean of what I imagine are the total costs of the underlying application to
vary the Interim Relief Order.
3.
Ofcom attended the hearing not to take any position either for or
against the application, but in order to assist the Tribunal. That assistance
was indeed helpful since Ofcom was able, through counsel, to explain the
position under two current investigations or proceedings which it is
undertaking relating, first, to a review of the WMO remedy and, second, to the
complaint submitted by BT under the Competition Act 1998 (see paragraphs [36]
to [42] of the Judgment).
4.
I therefore think it was entirely appropriate for Ofcom to be
represented at the hearing. That being the case, I do not think it is right
that the regulator should have to bear its own costs. Mr. Pickford,
appearing for Sky, suggested that the starting point for Ofcom’s costs should
be analogous to a respondent who appears on a permission application in the
Court of Appeal, where such attendance is not required. I do not accept that
analogy. Ofcom is appearing as the regulator pursuant to its public role and
is there to assist the Tribunal on an application which, as the judgment makes
clear, had to be determined in the public interest and not simply as a dispute
between the two private parties.
5.
The question, therefore, arises: who should bear Ofcom’s costs? If
this application had been agreed, no hearing would have been required. It was
not agreed. There was, therefore, a hearing. Sky has lost, and it follows, in
my judgment, that it is for Sky, rather than the successful party, to bear the
costs of Ofcom’s attendance.
6.
Those costs, as I have indicated, are modest, and Mr. Pickford very
properly does not take any issue with the amount. I shall, therefore, order
that Ofcom’s costs are paid by Sky, and I summarily assess those costs in the
amount asked for, namely £8,112.51 plus VAT if Ofcom is unable otherwise to
recover the VAT by way of deduction.
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The Honourable Mr Justice
Roth
President
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Charles Dhanowa
Registrar
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Date: 12 November
2014
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