Mercury Communications Ltd v Director General of Telecommunications
| Jurisdiction | England & Wales |
| Judge | Dillon,Hoffmann,Saville L JJ. |
| Judgment Date | 22 July 1994 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 July 1994 |
Court of Appeal
Before Lord Justice Dillon, Lord Justice Hoffmann and Lord Justice Saville
Practice - declaratory relief - while issue with decision maker
Where the parties to a dispute had appointed a decision maker in relation to the matter in issue, one party could not pre-empt his decision by an application to the court for declaratory relief.
The Court of Appeal so held by a majority (Lord Justice Hoffmann dissenting) in a reserved judgment in allowing appeals by the Director General of Telecommunications and British Telecommunications plc from the refusal by Mr Justice Longmore in the Commercial Court of their applications to strike out proceedings instituted by Mercury Communications Ltd by the issue of an originating summons. Mercury was granted leave to appeal to the House of Lords.
Mr William Charles and Mr Paul Lasok, QC (who took silk after the commencement of the proceedings) for the director; Mr Alan Moses, QC and Mr Colin Edelman for BT; Mr Sydney Kentridge, QC and Mr Nicholas Green for Mercury.
LORD JUSTICE DILLON said that in June 1984 the Secretary of State for Trade and Industry granted BT a licence to run telecommunications systems pursuant to section 7 of the Telecommunications Act 1984.
Under condition 13(1) of the licence BT was required to conclude an agreement with an operator, a person authorised by the licence to run a relevant connectable system, whereby the system of the operator might be connected to that of BT in such a way as to enable messages to be conveyed between systems of both parties.
In the absence of agreement between BT and the operator either or both could apply under condition 13(5) for a determination by the director as to the permitted terms and conditions to be included in the agreement. In November 1984 the secretary of state granted to Mercury a licence to run telecommunications systems. Mercury was also an operator for the purposes of condition 13(5) of BT's licence.
Pursuant to a determination of the director, Mercury and BT concluded in 1986 an interconnection agreement. In June 1992 Mercury and BT jointly referred the issue of pricing to the director for his determination under clause 29 of the 1986 interconnection agreement. The director made his determination in December 1993.
The reference to the director had been a reference in respect of the amounts to be charged...
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