Judgment of the Tribunal on the successful appellant’s (BT) application for costs.
This was the first judgment of the Tribunal on a costs application following an appeal under section 192 of the Communications Act 2003.
The Tribunal noted that the appeal followed a dispute between BT and Vodafone which OFCOM had resolved pursuant to a statutory procedure. Having resolved the dispute against BT, OFCOM was bound to appear before the Tribunal to defend its decision and would have been in the same position had it reached the opposite conclusion and had been facing an appeal by the intervener, Vodafone.
The appeal concerned complex technical issues and European legislation which had not previously been judicially considered. OFCOM’s submissions in support of its decision had been reasonable, albeit unsuccessful, and had taken into account what OFCOM believed to be wider benefits to the public interest. BT had succeeded in its appeal on legitimate but nonetheless narrow legal grounds.
In all these circumstances the Tribunal decided that the correct order was that each side should bear its own costs of the appeal.
