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Tuesday 26 November 2019

University of London v Cornerstone Telecommunications Infrastructure Limited [2019] EWCA Civ 2075

This case concerns interim and temporary rights under the new Electronic Communications Code in Schedule 3A to the Communications Act 2003, brought in by the Digital Economy Act 2017.

It has answered two massive questions that have been boring holes in the febrile minds of Code Geeks over recent months:

Question 1: Is an ‘MSV’ (multi-skilled visit) – basically a survey by an operator to see if a site is suitable for apparatus – a code right so that it can be sought as an interim right under paragraph 26 of the Code, thereby (i) involving only the lower ‘good arguable case’ test; and (ii) invoking code levels of consideration and compensation (including the ‘no-network assumption’), rather than ransom levels?

Question 2: Can a paragraph 26 interim right be sought alone or has it got to be ‘parasitic’ – on a full-blown paragraph 20 claim, as suggested in Cornerstone v Compton Beauchamp [2019] EWCA Civ 1755 at [68]?

The answers in the Judgment of the Court of Appeal (Etherton MR, Lewison LJ, Arnold LJ) is yes to both questions. It’s a green light to operators when it comes to MSV’s and interim rights.

The basis for the yes answer to the first question is paragraph 3(d) of the Code which creates a code right “to carry out any works on the land for or in connection with the installation of electronic communications apparatus on, under or over the land or elsewhere”.

It is true that surveys do not necessarily involve invasive banging and screwing and hammers and nails and the MSV in this case did not. But ‘works’ is a wide word and hammers and nails are not needed to create charitable ‘works’ nor the ‘works’ of Shakespeare.

Ultimately though, these code rights must be construed in light of the purpose of the code – to facilitate electronic communications apparatus in the public interest. On that basis, the Court of Appeal was satisfied that an MSV fell within 3(d).

The basis of the yes answer to the second question is the difference between the notice under paragraph 26(3) only having to be one which ‘complies’ with paragraph 20(2) (ticks the rather low-level requirements of 20(2)) and the express assumption of extant paragraph 20 proceedings in paragraph 27(3).

That was a difference which the Court of Appeal recognised was not referred to in Compton Beauchamp but it means that properly read the Code means that whilst a paragraph 27 claim for interim rights needs to be accompanied by paragraph 20 proceedings and can be made only when there is already electronic communications apparatus on the land, a paragraph 26 claim for interim rights can be made whether or not apparatus is already on site and without a supportive paragraph 20 claim.

Subject to the supervision of the Upper Tribunal, therefore, many opportunities open up to the operator in using paragraph 26 claims for interim rights. We can expect to see many more.

Jonathan Seitler QC acted for the successful respondent, Cornerstone Telecommunications Infrastructure Limited.

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