Ruling of the Tribunal on the Appellants’ applications for costs following the Tribunal’s judgment of 11 November 2017 ([2017] CAT ) (“Judgment”) in Case 1260 on market definition and the Tribunal’s ruling of 20 November 2017 ([2017] CAT 26) (the “Ruling”) on the form of order following the Judgment.
British Telecom plc (“BT”), the Appellant in Case 1260, argued that costs should follow the event and that it should recover its costs associated with the Judgment and Ruling as it had succeeded in its appeal. CityFibre Infrastructure Holdings plc (“CityFibre”), the Appellant in Case 1261, argued that it should recover its costs related to its grounds of appeal concerning remedy. CityFibre’s remedy challenge had not been determined by the Tribunal as the outcome of the Judgment on market definition had rendered this unnecessary. CityFibre also argued that the Tribunal should revisit a costs order that the Tribunal had made against it concerning its grounds of its appeal which had been referred to the Competition and Markets Authority for determination as a specified price control matter. The Respondent (“Ofcom”) argued that no costs award should be made against it where it acted reasonably and in good faith. In the alternative, i.e. if the Tribunal decided that costs should follow the event, Ofcom argued that the Tribunal should make significant deductions from BT’s costs and that it, Ofcom, should recover its costs associated with the Ruling as it had succeeded on that discrete issue. Ofcom also resisted CityFibre’s contentions.
The Tribunal ruled that the appropriate starting point was that costs should follow the event. The Tribunal awarded BT 50% of its costs related to the Judgment. The deduction reflected the fact that BT was not successful on all of its grounds of appeal and that the Tribunal had made certain criticisms of BT’s evidence in the Judgment. The Tribunal ruled that Ofcom should recover its costs relating to the Ruling. The Tribunal declined to award costs to CityFibre in respect of its remedy challenge or to revisit the specified price control matter costs order. Finally, the Tribunal ordered that Ofcom should make an interim payment of £500,000 to BT
