Ruling that Independent Media Support Limited (“IMS”) pay OFCOM’s costs in respect of its appeal. The Tribunal also ruled that IMS should pay 35% of the costs of an intervener BBC Broadcast Limited. Another intervener, the BBC had to bear its own costs.
The Tribunal noted that it had accepted most of OFCOM’s arguments in support of its defence; that OFCOM was required to make a number of detailed responses to points raised in IMS's appeal; and that there was nothing in OFCOM’s conduct which would make it unfair for them to be awarded costs. OFCOM’s submissions were germane to the issues and did not involve unnecessary prolixity or duplication. The Tribunal did not consider that the appellant was entitled to any special protection from a cost order in favour of the successful respondent. The fact that it was in IMS's commercial interests to seek to have OFCOM’s decisions overturned did not give rise to a basis for reducing its liability to pay costs for its unsuccessful appeal. Further, there were no policy reasons for not requiring IMS to pay OFCOM’s costs.
As regards BBCB’s and the BBC’s applications for costs, the Tribunal recognised that there is a public benefit in not discouraging legitimate intervention as well as in not unduly encouraging intervention. The Tribunal noted that the BBC had played a limited role in the proceedings and saw no reason to depart from the general principle that the interveners costs should fall where they lie. The position was different in relation to BBCB, who had been the subject of OFCOM’s investigation and was particularly and directly affected by IMS's challenge to OFCOM’s findings. Further, BBCB’s submissions had not duplicated those of OFCOM and had been helpful to the Tribunal, particularly in relation to the issue of dominance. Therefore, the Tribunal concluded that it was appropriate to exercise its discretion to order IMS to pay BBCB 35% of its costs.
