T-Mobile, BT, H3G and the 1092 Appellants (as defined in the Core Issues Judgment of 20 May 2008) applied for orders that OFCOM should pay their costs in full or, in the alternative, pay a substantial proportion of their costs. OFCOM resisted those applications submitting in essence that the Tribunal should not make any order as to costs. The Tribunal considered that it is appropriate to exercise its discretion to make a costs order against OFCOM in favour of BT, H3G and the 1092 Appellants for part of the costs reasonably incurred by those parties.
BT’s challenge to the BT Disputes Determinations was entirely successful in that the Tribunal accepted virtually all of its arguments in support of its appeal. This was not a case where, in the course of an “on the merits” appeal, the Tribunal came to a different conclusion from a conclusion reasonably arrived at by the regulator. The Tribunal also considered that it was right to take account of the fact that all of the arguments raised by BT in its appeal were points which it had asked OFCOM to consider during the consultation process. The Tribunal therefore agreed with BT that this is one of the cases where the interests of justice lie in favour of awarding costs against OFCOM.
The Tribunal also concluded that OFCOM should pay a proportion of the costs claimed by H3G. H3G was successful in appealing against both the BT Disputes Determinations and in its challenge to the H3G Disputes Determinations. Although it was, in a sense, the beneficiary of OFCOM’s decision generally to uphold the levels of charge that the MNOs set for BT, it adopted a principled stance in challenging OFCOM’s methodology in its challenge both to its disputes with O2 and Orange and to its dispute with BT.
The 1092 Appellants’ application succeeded largely on the same grounds as BT’s.
The Tribunal considered that fairness would be achieved by an order that OFCOM pay £100,000 in respect of the costs claimed by BT, and sums of £40,000 and £20,000 to the 1092 Appellants and H3G respectively.
As between T-Mobile and OFCOM, the Tribunal decided that each side should bear their own costs.
