British Telecom Plc and Others v OFCOM and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Etherton |
| Judgment Date | 15 February 2012 |
| Neutral Citation | [2012] EWCA Civ 300 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 February 2012 |
| Docket Number | Case Nos: C3/2011/3121 (Y) C3/2011/3315 (Y) C3/2011/3316 (Y) |
[2012] EWCA Civ 300
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COMPETITION APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd
and
Lord Justice Etherton
Case Nos: C3/2011/3121 (Y)
C3/2011/3124 (Y)
C3/2011/3315 (Y)
C3/2011/3316 (Y)
Mr Jon Turner QC and Mr Philip Woolfe (instructed by Messrs Herbert Smith) appeared on behalf of the First, Second and Third Appellants.
Mr Jonathan Crow QC and Mr Robert O'Donoghue (instructed by S J Berwin LLP) appeared on behalf of the Fourth Appellant.
Mr Graham Read QC and Ms Sarah Lee (instructed by BT Legal) appeared on behalf of the Respondents.
Mr Mark Vinall (instructed by Ofcom) appeared on behalf of the Interested Party.
(As Approved)
We have before us applications for permission to appeal in four separate appeals brought from the Competition Appeal Tribunal. They can in practice treated as two, because three of the appellants, although bringing separate appeals, are represented by the same team, namely Everything Everywhere Ltd, Hutchinson 3G UK Ltd and Vodafone Ltd. The fourth appellant is Telefonica O2 UK Ltd, which is separately represented and whose appeal is to some extent differently propounded though from the same decision of the Tribunal.
The Tribunal heard appeals by British Telecommunications from three decisions on the part of Ofcom, the Office of Communications, under the dispute resolution provisions in section 185 of the Communications Act 2003. The Tribunal refused permission to appeal to the would-be appellants on the grounds on which it was applied for in a substantial recent decision which is [2011] CAT 24 and runs to some 37 pages itself.
But the Tribunal accepted that there was an important point of law arising from the decision on which permission to appeal could properly be given and, as it considered, should be given. It formulated the point itself in its decision on the permission application. I should say that that permission application was presented and responded to by way of written submissions without any oral hearing. The Tribunal therefore granted permission on that one ground which it had formulated and refused it on all other grounds. An appeal to this court lies from a decision of this kind of the Tribunal, but only on points of law whereas the appeal to the Tribunal was at large, a merits appeal on which the Tribunal had evidence.
The appellants, not content with the ground on which the Tribunal granted permission to appeal, apply to this court for the grant of permission to appeal on additional grounds under Rule 52.3(3) of the Civil Procedure Rules. Rule 52.3 deals with permission to appeal and in subrule (1) it prescribes the cases (including this one) in which permission is required. Sub-rule (2) provides for an application for permission to appeal to the lower court or to the appeal court, and sub-rule (3) says:
"Where the lower court refuses an application for permission to appeal, a further application for permission to appeal may be made to the appeal court."
It is a very common practice and experience, in this court at any rate, and I have no doubt of other courts which sit as appellate courts including judges in the High Court, that an appellant may get permission on one or more grounds but may be refused permission on another or other grounds and may wish to apply to the appeal court for permission on the grounds on which it was refused below. In my experience, appellate courts take it for granted that permission to appeal exists on the ground below and consider only whether it should also be given on the additional ground or any of the additional grounds.
However, Mr Read QC, appearing for British Telecom, the respondent to the appeal, raises as a preliminary point the proposition that it is not open to an appellant in that situation to take for granted that he has permission to appeal on the grounds on which it was granted below. What he may do, of course, there having been a refusal below, is apply to the appeal court. But he submits that, if that happens, then the question of permission to appeal at all, and if so on what basis, is at large so that it is open to the appeal court to refuse permission to appeal even on points on which the lower court has granted permission. He accepts that that might be a rare event and that in practice the appeal court would often and generally be strongly influenced by the fact that the lower court had given permission on one or more grounds. But he submits that, as a matter of construction, what has been understood to be the practice hitherto is not correctly based, although he does not of course say that any of the decisions that have been taken on that basis are necessarily wrong.
What leads to him making this submission is the decision of this court in the case of The Queen (o/a Medical Justice) v Secretary of State for the Home Department [2011] EWCA Civ 269, [2011] 1 WLR 2852. That was a case where the applicant, Medical Justice, sought judicial review of a particular aspect of the Home Secretary's policy and succeeded in its application. The judge granted to the Home Secretary permission to appeal but on terms that, whether the appeal was allowed or dismissed, the costs order already made should not be disturbed, and the Home Secretary should pay the claimant's costs of the appeal in any event. The Home Secretary applied to the Court of Appeal to vary the costs conditions on which the judge had granted permission to appeal. The Court of Appeal held that that application was one which it was not open for the Home Secretary to make. In essence, where permission was granted on conditions which the appellant was not willing to accept, the court held that it was open to the appellant to have recourse to the appeal court but only by treating the lower court's order as a refusal of permission to appeal and therefore by applying for permission to appeal to the appeal court under rule...
To continue reading
Request your trial
-
British Telecommunications Plc v Telefónica O2 UK Ltd and Others
...More extensive permission to appeal was given to the appellants by the Court of Appeal (myself and Etherton LJ) on 15 February 2012: [2012] EWCA Civ 300. BT served a Respondent's Notice and applied for permission to cross-appeal on a particular point. I granted that permission in relation ......
-
Chan Lap Kit T/a Ngan Fung Exchange Co Also T/a Reliable Rmb Remittance Co And Another v Yushun Technology Ltd
...of this construction, he relied in particular on the latter half of §12 of the judgment of Lloyd LJ in British Telecom Plc v Ofcom [2012] EWCA Civ 300, and the entire paragraph reads as “However, it seems to me that if on an application to the appeal court under rule 52.3(3) [of the Civil P......
-
Chan Lap Kit T/a Ngan Fung Exchange Co Also T/a Reliable Rmb Remittance Co And Another v Yushun Technology Ltd
...of this construction, he relied in particular on the latter half of §12 of the judgment of Lloyd LJ in British Telecom Plc v Ofcom [2012] EWCA Civ 300, and the entire paragraph reads as “However, it seems to me that if on an application to the appeal court under rule 52.3(3) [of the Civil P......
-
Chan Lap Kit T/a Ngan Fung Exchange Co Also T/a Reliable Rmb Remittance Co And Another v Yushun Technology Ltd
...of this construction, he relied in particular on the latter half of §12 of the judgment of Lloyd LJ in British Telecom Plc v Ofcom [2012] EWCA Civ 300, and the entire paragraph reads as “However, it seems to me that if on an application to the appeal court under rule 52.3(3) [of the Civil P......