Ruling of the Tribunal on applications by Vodafone Limited, Orange Personal Communications Limited and Telefónica O2 UK Limited for their legal costs in respect of these proceedings following handing down of the Tribunal’s judgment on 18 September 2008 ([2008] CAT 22). The Tribunal ordered that all parties should bear their own costs.
In relation to Vodafone’s application, the Tribunal concluded that the present case provided a useful opportunity to clarify the scope of OFCOM’s responsibilities when undertaking policy decisions of the kind set down in the Decision, to the benefit of all industry participants, and in the wider public interest. It was also noted that, like any other court, the Tribunal in not a chamber designed for the hypothetical or superfluous hearing and, subject to the overriding objective shared by all civil courts to deal with cases justly, has an interest in cases before it being settled rather than contested unnecessarily. In appropriate cases a proper sanction against unnecessary contests is in costs and all parties before the Tribunal, including regulators, should be conscious of that risk. In the circumstances, while the Tribunal clearly found errors in the decision making procedure adopted by OFCOM, it did not find that the Decision had been arrived at in bad faith or in an unreasonable exercise of their public function.
In relation to Orange’s and O2’s applications, the Tribunal did not consider that they raised sufficient reasons to award costs for the following reasons: helpful as the interventions were, none was critical to the Tribunal’s understanding and analysis of the matters under consideration; in sectors such as telecommunications, interveners are likely to appear regularly before the Tribunal; and, absent special circumstances the Tribunal generally adopts a neutral approach to the question of interveners’ costs.
