New Judgment: British Telecommunication plc v Telefonica O2 Ltd & Ors  UKSC 42
09 Wednesday Jul 2014
On appeal from:  EWCA Civ 1002
BT brought an appeal against the decision that their introduction of charges to four mobile networks for putting calls through to BT fixed lines was not fair and reasonable. Ofcom had decided the new charging scheme was not fair and reasonable, the CAT overturned this decision and the CA restored Ofcom’s original decision.
The Supreme Court unanimously allowed BT’s appeal and restored the order of the CAT.
Where the terms of the agreement between BT and the networks allowed variation, Ofcom should give effect to such variation unless it went against regulatory objectives. Here, Ofcom had not found that BT had exceeded the contractual terms inconsistent with regulatory objectives. Furthermore, the CA held that the CAT was wrong to consider whether restricting BT’s discretion to vary the charges would affect competition. The Supreme Court found that the CAT was right to consider the effect this would have on competition. Moreover, as the impact on competition was a factual finding, the CA could not consider this point as they could only deliberate on points of law.