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.
Hi Rob – do you think it will actually streamline the review processes or lead to further bites of the procedural cherry by appellants? There is a similar process under Bahraini civil procedure rules which may even go further than this: any party can introduce new grounds (and thus supporting evidence) up to the hearing. It creates a lot of uncertainty.
I’ve only glanced at the case to see that the court note that the CAT as “a specialist appeal tribunal is different, for example, from trying to introduce fresh evidence from a bystander on appeal from a trial of a personal injury claim” (para 74) such that the tests for introducing fresh evidence are different for the CAT. Nevertheless, as a lawyer for a regulator I have sympathy for the Ofcom position.
Eamon
I don’t think it will prolong the process, although it remains to be seen whether it will lead to any shortening of first instance proceedings.
There is a distinction to be drawn between whether issues not raised at first instance can be raised at appeal, and the appeal process itself. In practical terms both the grounds of appeal and the evidence relied upon need to be settled relatively early in CAT proceedings.
Another side to this is that a appeal to the CAT is an appeal ‘on the merits’ (stemming from the underlying European rules), and that the merits review takes place at the time of the appeal, not by reference to the time of the original regulatory decision. The meaning of that concept is still not definitely settled, but it is definitely wider than a narrow judicial review type approach.
(Hope you are not personally impacted by current events).
Rob