Your flexible friend? Interim code rights (University of London v Cornerstone) 29 November 2019
University of London v Cornerstone Telecommunications Infrastructure Ltd  EWCA Civ 2075
What are the practical implications of this case?
This case has important ramifications in the electronic communications sector. It settles a narrow but important point—if an operator thinks a site is suitable but is not sure, can it survey the site and gain access for that purpose? The Court of Appeal determined that such a right was part and parcel of Code right 3(d), which grants a right to undertake ‘works’ which are ‘in connection with’ installation and other specified matters. The Court of Appeal held that an inspection (called a multi-skilled visit, or MSV, in the jargon) constituted ‘works’, and that it was ‘in connection with’ installation where its purpose was to determine finally whether installation should occur. Of wider importance is the fact that the Court of Appeal rejected the suggestion that a claim for rights on an interim basis under para 26 had to be accompanied by a claim for rights on a final basis under para 20. Unlike para 27, which links temporary rights with final rights, there is no such linkage in para 26. This frees up parties to make para 26 agreements and seek tribunal approval if they wish to enter into short-term agreements without automatic security of tenure under Part V of the Code, an option which is of great advantage to both operators and site providers.
What was the background?
Cornerstone, an infrastructure provider, required a replacement site. It identified the appellant university’s property as suitable on a desktop basis, but needed access to be sure. This was refused by the university, so the right was sought on an interim basis under para 26, on the grounds that, once exercised, it was spent. The university argued that the right to carry out an MSV was not a Code right, and that it could not be claimed without a claim for final rights.
What did the court decide?
The Court of Appeal decided that (1) conducting an MSV is a Code right under para 3(d)—and (2) that para 26 applications can be made on a free-standing basis and are not parasitic on para 20:
- in this case, the MSV was non-invasive, but the Court of Appeal agreed that this constituted ‘works’ given that this was a broad term in the context of the Code, and that an MSV to see whether a site that had been the subject of a desktop survey fitted the bill was ‘in connection with’ installation of apparatus
- paragraph 26 claims are available on their own. This is very welcome as there are cases in which neither operator nor site provider would want the full range of Part 5 protections to be imposed (short term uses such as festivals or temporary sites), which would otherwise happen automatically under a ‘normal’ agreement for Code rights. It will be remembered that Part 5 cannot be contracted out of, but it is disapplied by para 26. This is therefore a flexible tool
- paragraph 26 applies to a site whether or not there is already electronic communications apparatus on it
- this is all subject to the oversight of the Upper Tribunal, which decides on the terms of the agreement to impose
- Court: Court of Appeal, Civil Division
- Judge: Sir Terence Etherton MR, Lewison and Arnold LJJ
- Date of judgment: 26 November 2019
This article was first published by Lexis®PSL on 28/11/2019.
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