Oliver Radley-Gardner KC and James Tipler appeared for the successful Respondent in Covent Garden IP Ltd v Cornerstone Telecommunications Infrastructure Ltd
The case was decided on procedural grounds, but the Upper Tribunal accepted that there was no rigid principle that MSV rights would attract a nominal consideration. Nonetheless, parties would be well-advised to think carefully about this. The Upper Tribunal stated:
35. Tribunals are not party to the negotiations which lead litigants to reach agreements, but it is not difficult to think of reasons why nominal consideration should routinely be agreed for MSV rights. The rights themselves are insubstantial and permit a small number of vetted surveyors or other technical experts to have access to a rooftop or service areas of a building for a few hours at a time on what, in practice, are usually two or three occasions. Destructive investigations are not normally permitted (where provision is sometimes made for them it is on the basis that full reinstatement will be achieved). The rights are exercisable during a limited period, usually of six months. Building owners are entitled to compensation for any loss or damage caused by the exercise of the rights. Where a substantial building is involved, agreements will typically include the payment of fees to the building owner to cover the cost of approving risk assessments and the credentials of contractors, attendance during the surveys, providing an escort round the building, and providing plans or other documents or information required. When it is additionally remembered that the no-network assumption removes the commercial value of the rights to the operator as a relevant factor in the assessment of consideration, it is unsurprising that a nominal sum is routinely agreed. The alternative would be an expensive piece of litigation the costs of which would be likely to dwarf any sum awarded. Taking this case as an example, the Building Owner is said to have incurred costs of more than £50,000, excluding VAT, in the FTT proceedings in pursuit of consideration which its own advisers now put no higher than £10,000.
[…]
52. This Tribunal's usual practice where an operator seeks interim rights (which cannot be conferred other than by the Tribunal) is that the site provider should be entitled to its costs of participation in the proceedings and in connection with the transaction (receiving advice, negotiating the form of the agreement and its execution) but that the additional costs of resolving any dispute should be allocated on the usual principle that the unsuccessful party should pay the costs of the successful party unless there is some good reason to make a different order (see EE Ltd v Hutchison 3G UK Ltd v HSBC Bank plc [2022] UKUT 174 (LC), at [8]-[10], and CTIL v Central Saint Giles GP Ltd [2019] UKUT 183 (LC) at [28]-[30]). I understand the same approach is taken by the FTT.
The full judgment is here.
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