Ruling of the Tribunal setting out it reasons for granting Telefónica O2 UK Limited, T-Mobile (UK) Limited, Vodafone Limited and Orange Personal Communications Services Limited permission to appeal from the Tribunal’s judgments judgment handed down on 22 January 2009 ([2009] CAT 1, “the Disposal Powers Judgment”) and/or the Tribunal’s judgment handed down on 2 April 2009 ([2009] CAT 11, “the Final Judgment”).
The Tribunal granted permission on all of the grounds proposed.
The requests for permission to appeal primarily related to the Tribunal’s decision that it has power to give a replacement price control direction and that such a direction would not constitute the exercise of a retrospective power. The Tribunal accepted that this was one of many difficult issues of construction raised by the unusual appeal regime under the Communications Act 2003. The Tribunal therefore granted permission to appeal on this ground on the basis both that the ground has a reasonable prospect of success and because it is of great importance to the outcome of this case and of future cases that the scope of the Tribunal’s powers are clarified.
In addition, Vodafone and T-Mobile requested permission to appeal from the Tribunal’s finding that assuming that the disputed power does exist, it was right to direct OFCOM in this case to adopt a replacement price control. The Tribunal considered that there are other compelling reasons for this ground of appeal also to be considered by the Court of Appeal, namely that the issues follow on from the primary issue of the scope of the Tribunal’s powers. Furthermore, it may be that a higher court would take a different view of the factors which are relevant to the exercise of the power by the Tribunal (or the Competition Commission), if that power is held to exist. It was therefore appropriate to grant permission to appeal on this point as well.
