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Upper Tribunal explains the procedure for double hatting

Electronic Communications Code: Double Hatting

City, University of London v Vodafone Limited (2020) Unreported, 31/1/2020 (Martin Rodger QC, Deputy President)

Very useful and important guidance has been provided by the Deputy President with respect to the Upper Tribunal’s approach to “double hatting” proceedings between the same parties. The Deputy President and any judge of the Upper Tribunal is treated as a judge of the County Court: section 5 (2) (n) and (o), County Courts Act 1984. It may happen that it is suitable for the Upper Tribunal to deal with matters between the same parties, where, for instance, there are proceedings under paragraph 20 of the Old Code for removal of the operator’s electronic communications apparatus, but there are also termination proceedings under the New Code (e.g. in reliance on paragraph 34 (1)(c) – redevelopment) proceeding in the Upper Tribunal. The Old Code proceedings will remain in the County Court. However, given that there is considerable overlap between the ground for removal and for termination, it is obviously sensible and convenient for both issues to be tried by the specialist Tribunal. The same process has from time to time been used in other contexts, such as in relation to restrictive covenants where (a) declarations (a matter for the Court) and (b) discharge or modification (a matter for the Upper Tribunal) are sought in the same proceedings.

In those circumstances it has been known that the County Court matter has been “transferred” to the Upper Tribunal. The Deputy President has made it clear that this is not the correct procedure. In the case of “double hatting”:

1) There is no “transfer” of the County Court matter to the Upper Tribunal. The proceedings in the County Court always remained County Court proceedings. If a matter is, whether by agreement, or by mistake of the County Court transferred to the Upper Tribunal, the matter will then have to be re-transferred back to the County Court in order for the latter to make the appropriate administrative order.

2) The parties should, at the earliest opportunity, make a request of the designated senior civil judge in the County Court to write to the Upper Tribunal so as to invite the Upper Tribunal to sit in its capacity as a County Court to hear the matter:

(i) This request should be made as soon as possible and ideally before any CMC in the County Court proceedings;

(ii) The parties should not assume that the County Court will be familiar with this administrative procedure, and may need to explain the process.

3) It is for the parties before the County Court to justify the request and any request made of the Upper Tribunal will not necessarily be acceded to by the Upper Tribunal.

4) Where a County Court matter is being heard by the Upper Tribunal at the same time as a reference before the Upper Tribunal:

(i) It is inappropriate to consolidate the proceedings because the County Court matter always remains a County Court matter;

(ii) This becomes evident when it is appreciated that the routes for appeal are different, with the County Court matter being appealed to the High Court and the Upper Tribunal matter being appealed to the Court of Appeal.

(iii) “double hatted” proceedings ought, therefore, to be directed to be heard together and tried at the same time, with directions being given in each action (albeit the directions may be identical).

(iv) Notwithstanding the fact that one of the two sets of proceedings will be governed by the CPR, the Tribunal will still express a preference for directions in the standard form familiar to Tribunal proceedings under the Code.

Wayne Clark appeared for City University and was instructed by Maples Teesdale. 

Oliver Radley Gardner appeared for Vodafone Limited and was instructed by Osborne Clarke. 

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