Fresh evidence may be introduced in telecoms appeals

Yesterday the Court of Appeal confirmed (in British Telecommunications Plc v Office of Communications [2011] EWCA Civ 245 , judgment of 10 March 2011) that there was no basis for restricting the introduction of fresh evidence into an appeal against a decision of Ofcom made pursuant to the Communications Act 2003. The procedural point arose in one of the ‘Ladder Pricing’ appeals relating to non-geographic number termination rates (080) – see prior blog post for more detail on the substantive issue – when Ofcom objected to BT’s introduction of fresh expert economic evidence into the appeal. BT’s evidence in question had not been submitted to Ofcom by BT in the course of Ofcom’s first instance dispute resolution process, and Ofcom argued that either: (i) as a matter of statutory construction of the Communications Act; or (ii) as a general principle of common law, the fresh evidence should be excluded. The CAT decided that BT could introduce fresh evidence at the CAT and Ofcom appealed that decision to the Court of Appeal. The Court of Appeal rejected Ofcom’s submissions, although it noted that there was not an unfettered right to introduce evidence, and that admissibility was at the CAT’s discretion. The question for the CAT was whether in all the circumstances that it considered that it would be in the interest of justice for new evidence to be admitted. Against the increasing trend for Ofcom decisions to be appealed, this ruling may help to streamline Ofcom’s dispute resolution process as the parties will no longer feel compelled to argue every conceivable point before Ofcom to preserve their position on appeal, but instead will focus on the core issues for Ofcom to consider in what is (at least in theory) meant to be a swift process.