Mrs Lynn Brophy v Vodafone Ltd
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Stephen Davies |
| Judgment Date | 15 March 2017 |
| Neutral Citation | [2017] EWHC B9 TCC |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 15 March 2017 |
| Docket Number | Case No: C50MA035 |
[2017] EWHC B9 (TCC)
IN THE COUNTY COURT AT MANCHESTER
TECHONOLOGY AND CONSTRUCTION COURT
Manchester Civil Justice Centre,
1 Bridge Street West, Manchester M60 9DJ
His Honour Judge Stephen Davies
Case No: C50MA035
The claimant appeared in person
Stephanie Tozer (instructed by Osborne Clarke Solicitors, Bristol) for the Defendant
Hearing dates: 28 February, 1 March 2017
Draft judgment circulated 6 March 2017
JUDGMENT APPROVED
Introduction and Summary of Conclusions
In a cable running over land belonging to the claimant, Mrs Brophy, at Hallcat Farm, Lowca, Whitehaven, Cumbria there are 36 optical fibres. The defendant, Vodafone, the well-known provider of electronic communications services, makes use of some of these optical fibres as part of its public communications network. Mrs Brophy's case is that Vodafone has no right to make use of these optical fibres. Vodafone's case is that it is entitled to an order against Mrs Brophy under paragraph 5 of the Electrical Communications Code conferring upon it the right to use the optical fibres.
Paragraph 5 of the Code gives an operator such as Vodafone the right to seek a court order conferring rights upon it over third party land where it is not possible to reach agreement with the owner. The court shall make the order if:
" … it is satisfied that any prejudice caused by the order—
(a) Is capable of being adequately compensated for by money; or
(b) Is outweighed by the benefit accruing from the order to the persons whose access to an electronic communications network or to electronic communications services will be secured by the order;
and in determining the extent of the prejudice, and the weight of that benefit, the court shall have regard to all the circumstances and to the principle that no person should unreasonably be denied access to an electronic communications network or to electronic communications services"
By paragraph 7 of the Code any such order shall include:
"(a) Such terms with respect to the payment of consideration as it appears to the Court would have been fair and reasonable if the agreement had been given willingly; and
(b) Such terms as appear to the Court appropriate for ensuring that that person and persons from time to time bound by the rights are adequately compensated (whether by payment of such consideration or otherwise) for any loss or damage sustained by them in consequence of the exercise of those rights."
Vodafone accepts that it should pay consideration to Mrs Brophy for the rights which it seeks. In summary, it says that the appropriate consideration is £138.96 p.a., to be increased annually in accordance with the Retail Price Index, with each party being entitled to terminate the rights on 12 months' written notice. Vodafone says that there is no basis for any payment in relation to compensation.
Mrs Brophy's position as advanced at trial was that — whilst she did not accept that Vodafone was entitled to an order under paragraph 5 of the Code, which is a point which was not previously pleaded by her and to which I shall have to return — if an order was to be made it should be for an 80 year term for a one-off premium of £10,000 together with payment in relation to compensation.
The case was transferred into the Technology and Construction Court on the basis that although the relevant court for the purposes of paragraph 5 of the Code is the County Court, at an earlier stage in the proceedings it was believed that technical issues might arise as to the prejudice caused by the presence of the optical fibres compared with the benefit accruing from the use of the optical fibres. In the event, however, no such issues were raised at trial.
Mrs Brophy has represented herself throughout this litigation. She has presented her case with tenacity. Vodafone has been represented by solicitors and, at trial, by counsel, Ms Tozer, to whom I am indebted for her clear and helpful written and oral submissions.
I have heard oral evidence from Mr Price, employed by Vodafone as a "network expert" dealing with wayleave agreements of the type sought by Vodafone in this case. I accept Mr Price as an honest, knowledgeable and reliable witness.
I have also heard oral evidence from Mrs Brophy. Whilst this case does not turn on my assessment of her credibility, and whilst I accept her as an honest witness, I am satisfied that I am unable to place any real weight on her unsupported oral evidence. That is because I find that she is so determined to obtain substantial compensation, and has come to feel so strongly about this case, that as a result she is unable to give dispassionate or reliable evidence.
I have also received expert valuation evidence in the form of written reports from Ms Jackson on behalf of Mrs Brophy and from Mr Salomon on behalf of Vodafone. Ms Jackson is a surveyor in practise in Cumbria, who does not claim nor appear to have a specialism in valuations of rights under paragraph 5 of the Code, although she does appear to have a particular specialism or interest in agricultural valuations, being a fellow of the Central Association of Agricultural Valuers. Mr Saloman is a qualified valuation surveyor in practice in Cheshire, who has a particular specialism in the utilities and renewables sector, and in relation to compulsory purchase and the acquisition of wayleaves and easements.
Ms Jackson does not contest the valuation of the annual payment offered by Vodafone, although she does challenge the valuation of the one off premium for an 80 year right. After exchange of expert reports Mrs Brophy advised the court and Osborne Clarke that she did not consider that it was necessary for the experts to give oral evidence and I acceded to that request, with the result that Ms Jackson and Mr Saloman did not attend trial, and I shall address the issues between them by reference to their written reports. In short, I conclude that the expert opinions expressed by Mr Saloman are to be preferred to those expressed by Ms Jackson. Mr Saloman has expressed his views cogently and in detail, and clearly has far greater experience of the matters in issue in this case than does Ms Jackson. I accept Ms Tozer's submission that Ms Jackson's reasoning as to how she arrives at her valuation of £10,000 is both lacking in detail and unconvincing.
In summary, I accept Vodafone's case on the important issues in dispute, and am satisfied that it has made out its case for an order under paragraph 5 on substantially the terms proposed in the draft order it has proffered.
Somewhat unusually, but for understandable reasons, both parties agreed that I should see all correspondence passing between them in relation to this matter, both open and without prejudice. In the circumstances I indicated and the parties agreed that in my draft judgment I should include my provisional view as to the incidence of costs, although it would be open to the parties to make further submissions as to costs if they wished on receipt of the draft judgment, which both parties have done. My provisional view as expressed in my draft judgment was that since Vodafone had succeeded in obtaining an order in substantially the terms it had sought it was the successful party, and Mrs Brophy ought to have accepted either the terms originally offered or those terms, so that she ought to pay Vodafone's costs of the action, to be the subject of a detailed assessment on the standard basis if not agreed. (I have already made a costs management order, in which I left over for detailed assessment the costs already incurred and the question of the appropriate hourly rate to be payable for Osborne Clarke, Vodafone's solicitors.) Having read the further submissions I am satisfied that this is the correct order to make, together with a further order allowing Vodafone to set off such costs against the monies payable to Mrs Brophy under the terms of the order made under paragraph 5. My reasons appear in paragraphs 70 – 73 below.
I begin by setting out the relevant events, continue by referring to the relevant legal principles as regards the assessment of consideration and compensation under the Code, and then address the competing arguments and give my decision.
Relevant events
The story begins in 1948, when the then owner of property including Hallcat Farm granted what was then the British Electricity Authority a right, in consideration of an annual payment, and determinable on 12 months' notice, to place 6 electrical conductors, 2 earth wires and 3 towers over the property. In common parlance, this was a reference to the electricity pylons and overhead cables which were indeed installed and which still run across Hallcat Farm. There was, of course, no reference in this grant to any of these items being used for the purposes of electronic communications services in that grant.
In 1997 Mrs Brophy purchased Hallcat Farm from a Mr Carhart. There is in existence a document known as a Telecommunications Wayleave Agreement dated 2 June 1997 and made between Mr Carhart and Norweb plc under which the former appeared to consent to Norweb installing and using a telecommunications cable carrying up to 36 optic fibres over the property, which Norweb might combine with the earth wire used in connection with the overhead electric line. This wayleave agreement also provided for an annual payment of £26.25 and was also determinable on 12 months' notice.
However it is Mrs Brophy's case that by the time this agreement was concluded she had already purchased and moved into Hallcat Farm, and knew nothing of the wayleave agreement let alone consent to it. Her case, therefore, is that it was not and never has been binding upon her. Although she...
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