CODE RENEWALS – PART 5 PRACTICE AND PROCEDURE POST-On Tower UK Ltd v AP Wireless II (UK) Ltd [2022] UKUT 152(LC) 09 August 2022
The Upper Tribunal is now routinely sending telecoms site renewals issued under Part 5 of the Code over to the First-tier Tribunal (“the FTT”) in Birmingham.
A high-volume of cases are being transferred in this way, prior to the first CMH.
What directions is the FTT likely to make at that CMH, particularly as regards expert valuation evidence? Will agreement between the parties necessarily be approved?
The authors were recently instructed for an operator and a site provider respectively for a CMH in an application under Part 5, in which District Judge Jackson declined to endorse the parties’ agreed order for directions – in essentially standard form, as previously approved by the Upper Tribunal in many like references – and provided the following helpful guidance:
- Given the high volume of renewal applications, their relatively low-value, and the high settlement rate, the FTT is anxious to find ways to ensure renewals are case-managed efficiently, at proportionate cost, and by a proportionate use of the FTT’s resources.
- Following the Upper Tribunal’s decision in On Tower v AP Wireless [2022] UKUT 152 (LC) (at [223]-[227] especially), the FTT will not routinely give permission for the parties to rely upon expert evidence.
- Instead, the parties may be invited to indicate where in the Affinity Water [2022] UKUT 8 (LC) “rate table” a given case is likely to lie; and, if valuation remains in dispute after a reasonable period for continuing negotiation and exchange of travelling draft agreement allows the issues to be narrowed, to apply to the Tribunal at a later date for permission to adduce expert evidence (any such application to be considered on the papers).
- Even where permission is then given, it should not be assumed that full directions for exchanges of reports, supplemental reports, and meetings between experts will be ordered: a more “FTT-friendly” approach may be simply for each party to file and serve its valuer’s report without more.
The Judge also queried the necessity for a Claimant’s statement of case in reply, and for disclosure, particularly in the context of a long-standing existing agreement.
Practitioners should therefore be aware that the usual form of directions – which routinely provide for expert evidence if valuation remains in dispute – will not be rubber-stamped at the outset, even where agreed, absent some justification (for example, where an important novel point of principle arises).
The Tribunals are continuing to develop de facto practice directions in their decisions; practitioners will be well-advised to keep abreast of each new decision (and of course to keep in touch with those of us at the coalface!).
James Tipler
Fern Schofield
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