Judgment of the Tribunal on a deemed application by OFCOM and some of the interveners to exclude certain of the evidence relied upon by BT in support of its notice of appeal.
In OFCOM’s submission, the following evidence should not have been admissible in a section 192 appeal to the Tribunal: (i) evidence which could have been, but was not, submitted by the appellant to OFCOM; and (ii) evidence which was in fact submitted to OFCOM, but too late to enable OFCOM to take that material into account when reaching its decision. The Tribunal rejected the application to exclude the evidence, and held that the Communications Act 2003 did not contain the limits of the sort contended for by OFCOM.
The Tribunal also rejected the submission that appeals under section 195 of the 2003 Act constituted de novo hearings; it held that the Tribunal’s role was not to make a fresh determination, but to indicate to OFCOM what (if any) was the appropriate action for OFCOM to take and then remit the matter back to OFCOM.
The Tribunal also decided that, nevertheless, the test of “exceptional circumstances” was met on the facts of this case, which entitled BT to adduce new evidence.
Finally, in response to objections raised by T-Mobile and Orange, the Tribunal considered that the Notice of Appeal was sufficiently clear such that further clarification was unnecessary.
