British Telecommunications plc v Office of Communications (Partial Private Circuits)

The Court of Appeal has upheld decisions of the CAT and Ofcom by which BT was ordered to repay a £41.688 million overcharge on wholesale Partial Private Circuits, due to BT’s breach of a cost orientation condition imposed by Ofcom under the EU’s common regulatory framework for telecommunications (“CRF”).

BT argued in the Court of Appeal (1) that Ofcom had not possessed jurisdiction under the Communications Act 2003 to resolve the underlying dispute, (2) that Ofcom’s approach to BT’s cost orientation obligation was contrary to the objectives of the CRF, and (3) that Ofcom’s order for repayment was contrary to English law principles of compensation and counter-restitution, as well as the CRF.

In dismissing the appeal, the Court of Appeal ruled (1) that it was not “seriously arguable” that Ofcom’s dispute resolution jurisdiction was limited to disputes which would take fewer than 4 months to resolve, (2) that Ofcom’s approach to BT’s cost orientation obligation was consistent with the CRF, and (3) that it was not “necessary or appropriate to align” Ofcom’s power to order repayment to “English common law causes of action and remedies”, an order for repayment being consistent with the CRF.

The Court of Appeal’s discussion and clarification of Ofcom’s power under section 190(2)(d) of the Communications Act 2003 to order repayment of an overcharge will be of significance for communications providers wishing to make use of Ofcom’s dispute resolution function.

Pushpinder Saini QC, James Segan and Hanif Mussa acted for Ofcom.  Dinah Rose QC and Tristan Jones acted for the Interveners.