[1]Introduction 1 Following a reference to the Upper Tribunal (subsequently transferred to the First-tier Tribunal), by Decision and Order dated 24 July 2024 the First-tier Tribunal imposed on the parties an agreement for interim MSV rights, pursuant to paragraph 26(1) of the Electronic Communications Code (Schedule 3A to the Communications Act 2003 (‘the Code’)). 2 Following the invitation of the Tribunal the parties made representations on the issue of litigation costs and this is the Decision of the Tribunal on that issue. 3 The Respondent seeks an order for its full litigation costs in the sum of £62,035.25 (including VAT). The Claimant resists the claim that it should be responsible for the Respondent’s costs and seeks an order for its own full litigation costs in the sum of £29,823.12 (including VAT). Representations of the parties Representations of the Respondent 4 The Respondent relies on the decision of the Upper Tribunal in EE Limited and Hutchison 3G UK Limited v HSBC Ban, t plc [2022] UKUT 174 (LC) that the costs incurred by a site provider in a reference made necessary because an operator wishes to have a Code right to undertake a survey ought not in principle to fall on the site provider. 5 Furthermore, the Respondent argues –(i) that, contrary to the assertion of the Claimant, the Respondent had sought to co-operate with the Claimant (i) in providing previous access to the subject premises and(ii) in engaging constructively in negotiating the terms of the Claimant’s proposed MSV agreement; (ii) that, by contrast, some of the Claimant’s correspondence was ‘threatening’;(iii) that both the Claimant and the Respondent made concessions on the terms of the MSV agreement but that some concessions by the Claimant were made very late in the day;(iv) that the Respondent’s solicitor’s costs claimed reflect the work undertaken by a specialist telecommunications-related litigator. Representations of the Claimant 6 The Claimant accepts the statement of principle in EE Limited and Hutchison 3G UK Limited v HSBC Bank plc that the usual order on a reference seeking interim Code rights is that the operator pays the site provider’s litigation costs. However, the Claimant submits – (i) that any costs order should reflect (a) the relative success of the parties on the substantive issues in the reference and (b) the conduct of the parties in the reference; and (ii) that the Tribunal should depart from the usual order where the relative success and the conduct of the parties justifies it so doing.[2]The Claimant relies on(i) paragraph 96 of the Electronic Communications Code,(ii) the decision the Upper Tribunal in Cornerstone Telecommunications Infrastructure Limited v (1) Central Saint Giles General Partner Limited (2) Clarion Housing Association Limited [2019] UKUT 183 (LC) and(iii) the decisions of the First-tier Tribunal in Cornerstone Telecommunications Infrastructure Limited v McCarthy & Stone Retirement Lifestyles Limited LC-2023-000626 and Cornerstone Telecommunications Infrastructure Limited v VMMC Estates LC-2023-000710. 7 First, the Claimant argues that the Claimant was successful on all issues in dispute at the hearing, namely the consideration payable by the Claimant to the Respondent, the extent of the MSV site and the owner fees payable by the Claimant to the Respondent. 8 Second, the Claimant argues that the conduct of the Respondent was unreasonable and drove up the costs in dealing with the reference. In particular, the Claimant referred to – (i) the Respondent’s late application for permission to rely on expert valuation evidence; (ii) the Respondent’s application for permission to appeal the First-tier Tribunal’s refusal to give permission; (iii) the Respondent’s pursuit of the issues in dispute at the hearing;(iv) the Respondent’s failure properly to engage with the Claimant prior to the issue of proceedings;(v) even after engagement, the Respondent’s raising and then dropping various points on the proposed MSV agreement;(vi) the Respondent’s last-minute concession that an MSV agreement should be imposed;(vii) the Respondent’s solicitor’s overly-lengthy and at times pedantic correspondence;(viii) the Respondent’s inclusion in its witness evidence of a 21-page expert’s report notwithstanding the refusal of the First-tier Tribunal to permit reliance on such evidence. 9 For these reasons the Claimant submits that the usual order is not appropriate in the present case; and that no order for litigation costs should be made in favour of the Respondent. 10 However, if the Tribunal is minded to award such costs, the Claimant argues – (i) that the costs claimed are entirely disproportionate; (ii) that the costs include the sum of £9,643.54 in relation to an expert valuation witness; (iii) that 20 hours of liaising with the client is disproportionate; (iv) that costs of almost £10,000 for work done on documents (including £3,445 on witness statements) are disproportionate; (v) that Counsel’s fees for advice/documents (£6,500) and the hearing (£9,000) are disproportionate.[3]11 In relation to the Claimant’s claim for its own litigation costs, the Claimant argues –(i) that, although in previous cases the Claimant had claimed Counsel’s fees only (see Cornerstone Telecommunications Infrastructure Limited v McCarthy & Stone Retirement Lifestyles Limited LC-2023-000626 and Cornerstone Telecommunications Infrastructure Limited v VMMC Estates LC-2023-000710), there is no reason for not claiming solicitor’s fees in appropriate cases such as the present case;(ii) that the costs claimed compare very favourably with the costs claimed by the Respondent(iii) that, in contrast to the Respondent, which claimed all work at the hourly rate of a Grade A fee earner, the Claimant’s costs included minimal charging at the hourly rate of a Grade A fee earner;(iv) that the Respondent’s lengthy correspondence and repeated failure to provide marked-up versions of the travelling draft of the MSV agreement drove up costs. Discussion 12 In determining the parties’ respective applications the Tribunal has given full consideration to their written representations. 13 Paragraph 96 of the Electronic Communications Code provides – (1) Where in any proceedings a tribunal exercises functions by virtue of regulations under paragraph 95(1), it may make such order as it thinks fit as to costs, or, in Scotland, expenses. (2) The matters a tribunal must have regard to in making such an order include in particular the extent to which any party is successful in the proceedings. 14 In determining the issue of liability for litigation costs, the starting point is the decision of the Upper Tribunal in EE Limited and Hutchison 3G UK Limited v HSBC Bank plc [2022] UKUT 174 (LC) where the Deputy Chamber President stated (at paragraphs 8-10) – 8 As for the costs of the reference itself, most references under paragraph 26 of the Code for the imposition of an agreement conferring interim Code rights to enable operators to conduct surveys of potential telecommunications sites are resolved by consensus, without the need for a hearing. Often parties file an agreed form of order which they invite the Tribunal to make, including in it an agreement that there shall be no order for the costs of the reference. 9 It should nevertheless be appreciated that the costs of references under paragraph 26 are in the discretion of the Tribunal. Where parties have not agreed that there should be no order for costs the Tribunal’s usual order in such cases is that the operator should pay the site provider’s costs which will then usually be summarily assessed … 10 The Tribunal's usual order reflects the principle that the costs of a reference are necessary because interim Code rights cannot be conferred by agreement but may only be imposed by order of the Tribunal. Statutory rights of compensation may also only be conferred by order of the Tribunal. The costs incurred by a site provider in a reference made necessary because an operator wishes to have a Code right to undertake a survey[4]9 September 2024 Professor Nigel P Gravells Deputy Regional Judge