1261/3/3/16 Cityfibre v Office of Communications (BCMR)

Summary of appeal published on 7 July 2016. On 22 July 2016 the President made an order extending the deadline for Ofcom to serve its defence until further order.

Mr Justice Snowden chaired a Case Management Conference (“CMC”) for Cases 1259/3/3/16 (“TalkTalk’s Appeal”), 1260/3/3/16 (“BT’s Appeal”) and 1261/3/3/16 (“CityFibre’s Appeal”) on 29 September 2016. At the CMC Mr Justice Snowden made an Order setting down further directions for the three appeals including that the main hearing of CityFibre’s Appeal should provisionally listed to take place, together with BT’s Appeal, in a window commencing in April 2017. Mr Justice Snowden also made two further Orders establishing a confidentiality ring for TalkTalk’s Appeal (the “Case 1259 Confidentiality Ring”) and a separate confidentiality ring for BT and CityFibre’s Appeals (the “Cases 1260-1261 Confidentiality Ring”). At the CMC Mr Justice Snowden also gave a ruling refusing Vtesse Harlow Limited permission to intervene in TalkTalk’s Appeal ([2016] CAT 17) and a further ruling on the terms of the confidentiality rings in all three appeals ([2016] CAT 18).

On 17 November 2016 Mr Justice Snowden made an Order referring grounds 3 and 4(b) of CityFibre’s Appeal as a specified price control matter for determination by the Competition and Markets Authority (“CMA”) on or before 31 March 2017.

A second CMC for BT and CityFibre’s Appeals took place on 23 January 2017 at which the Chairman made an Order setting down further directions to the hearing.

On 10 March 2017 Mr Justice Snowden made an Order extending the deadline for the CMA to determine the specified price control matter by one week (i.e. on or before 7 April 2017).

A pre-trial review took place on 29 March 2017. Mr Justice Snowden made an Order granting various applications to adduce further evidence.

The CMA notified the Tribunal and the parties of its final determination of the referred matters on 6 April 2017. A non-confidential version of the CMA’s final determination was published on 10 April 2017. Following the CMA’s final determination CityFibre applied to the Tribunal to amend its Notice of Appeal so as to remove those aspects of its appeal concerning market definition and to amend the corresponding portions of its Statement of Intervention in BT’s Appeal. CityFibre therefore did not take part in the hearing which ultimately took place during 10 April until 24 May 2017.

On 29 June 2017 Mr Justice Snowden made an order disposing of grounds 3 and 4(b) of CityFibre’s Appeal.

On 6 September 2017 Mr Justice Snowden made a reasoned order granting CityFibre’s application to remove the market definition aspects of its Notice of Appeal (and corresponding portions of its Statement of Intervention in BT’s Appeal) and dismissing an application made by the CP Group interveners that CityFibre pay certain of their costs arising from the amendment.

On 4 December 2017 the Tribunal heard argument concerning costs in this appeal and BT’s Appeal. On 25 January 2018 the Tribunal issued its ruling on costs ([2018] CAT 1).