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EE Limited and Hutchison 3G UK Limited -vs- Aviva Investors Ground Rent Holdco Limited and Aviva Investors Ground Rent GP Limited [2021]

The Upper Tribunal has delivered a short but practically valuable costs judgment in the matter of EE and H3G v Aviva (and others), which raises two points of interest for those involved in Code litigation:

  1. The Upper Tribunal has set out in clear terms the approach it has been adopting to date in relation to paragraph 26 interim rights agreements. Following the decision of Cornerstone Telecommunications Infrastructure Ltd v University of London [2019] EWCA Civ 2075 it is possible in principle for operators to seek paragraph 26 interim rights in isolation without final rights being sought. In such a case the operator need only prove that the imposition test under paragraph 21 of the Code is satisfied on a “good arguable case” basis, that is, a lower threshold than proving it on the balance of probabilities as is required for final rights. Where the code rights sought (like tree lopping, or the carrying out of a survey) are inherently short-lived, that is something the Upper Tribunal can and will grant. However, where the rights are longer term, and sought only to secure code rights to permit a time-limited installation not securing security of tenure, then such an application will be considered much more carefully to avoid (a) avoidance of security of tenure and (b) avoidance of the need for the paragraph 21 test to be satisfied on a final basis. As a rule, the Tribunal will only sanction and impose interim rights where the parties have agreed that it should. Otherwise, the site provider will be entitled to require that a paragraph 20 application is made too to allow the paragraph 21 test to be applied on a “final” basis.
  2. No order as to costs was made on the basis that the parties had had to spend time and money exploring structural and other issues. Legitimate concerns by a site provider about such issues meriting investigation should not attract an adverse costs order in favour of the operator. The costs approach of the Upper Tribunal repays careful reading as to the standard approach that is likely to be taken on costs applications.

Oliver Radley-Gardner QC was instructed by James Rees and Sian Burns of Womble Bond Dickinson for the operator, and Fern Schofield was instructed by Michael Smith of Pinsent Masons for the site providers, Aviva.

Judgment can be viewed here

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