Implied Terms in UK Law

That interpretation is strengthened since Article 6 of the Direction compelled Ofcom to revise annual licence fees so that they reflected full market value. In other words, the Secretary of State required Ofcom to achieve a specific outcome, reflecting full market value, and there was no scope for it to take into account considerations which might have resulted in its setting licence fees either below or above full market value.

Dictionary definitions of the word reflect in other contexts, or use of that word on other occasions and in other Ofcom documents are, in my view, of no assistance. On ordinary principles of interpretation, effect must be given to the word as it is used in Article 6.

Nothing elsewhere in domestic legislation leads, in my judgment, to a different conclusion. I accept Mr Saini's submission that the 2006 Act is the lex specialis in relation to Ofcom's duties as regards the radio spectrum. The limited powers for the Secretary of State to give directions to Ofcom contained in section 5 of the 2003 Act cannot hobble the wide power to give directions under section 5 of the 2006 Act.

Similarly, the obligation in Article 8(1) is on Member States. In this case it was the Secretary of State which determined the basis on which fees were to be set, the UK as the Member State having provided for that possibility in section 5 of the 2006 Act. In other words, Ofcom's discretion was lawfully constrained and it was left with the task of implementing the Secretary of State's policy decision.

Subsequently the use of telecommunications equipment became subject to EU regulation. The current EU regime is the Common Regulatory Framework (“CRF”), introduced in 2002 and which had to be implemented by 24 July 2003. The CRF includes Directive 2002/20/EC of 7 March 2002 of the European Parliament and of the Council on the authorisation of electronic communications networks and services (the “Authorisation Directive”).

I do not accept that the principles and objectives of the CRF required Ofcom, in considering whether BT was in breach of Condition H3.1, to take into account the lower charges for the terminating sections of PPCs sold by BT. On the contrary, that would undermine the regulatory regime imposed in 2004 by way of ex-ante regulation.

When parties stipulate in their contract the circumstances that must occur in order to impose a legal obligation on one party to pay, they necessarily exclude any obligation to pay in the absence of those circumstances; both any obligation to pay under the contract and any obligation to pay to avoid an enrichment they have received from the counterparty from being unjust.