The recent case of Everything Everywhere Limited v Competition Commission and Others [2013] EWCA Civ 154 is a robust statement from the Court of Appeal as to the deference which the courts will show to expert decision makers in difficult technical or policy matters. The Court of Appeal emphasised three key points: 

  • It is "quite probable" that the decision of an expert tribunal in a specialised area of law will be correct.
  • It is an "almost insuperable" task to persuade a review court that an expert tribunal's assessment is an unreasonable conclusion where the assessment relates to matters within its expertise
  • It is not enough to identify an error in reasoning; an appeal can only succeed if the decision cannot stand in light of that reasoning.

Background

Ofcom is responsible for setting price controls in respect of wholesale mobile voice call termination charges. These are the charges for the service provided by an intended recipient's mobile communications provider to the originating communications provider, which is necessary for a call to take place. Operators have significant market power in the UK so the charges are subject to regulatory control.

There are, in particular, two means of setting price control: long run incremental cost ("LRIC") and LRIC plus (the precise meanings of which were not relevant to the appeal). In March 2007, Ofcom set the price control based on LRIC plus, but in March 2011, following market review and three consultations, it set the price control using the LRIC cost standard. This was on the basis that LRIC would more accurately reflect marginal costs and would reduce the rate of mobile termination charges by half. This decision was in line with Ofcom's statutory objective under the Communications Act 2003 (the "2003 Act") to consider the effects that regulatory price control would have on efficiency and competition and to confer the greatest possible benefits on end-users of public electronic communication services.

Appeal to the Competition Commission alleging wrong decision

Two of the affected national mobile communication providers appealed to the Competition Commission (the "Commission") under s.193 of the 2003 Act (which required the Commission to make a determination on the merits of the appeal), alleging that Ofcom was wrong to set the price control according to LRIC rather than LRIC plus. The Commission commented, given that consumer responses to price increases was an important issue in Ofcom's determination, that there was a concerning lack of robust survey evidence demonstrating the customer loss that would flow from the price changes Ofcom predicted. The Commission added that it would normally consider this important evidence for a regulator to rely on. The Commission also agreed with the appellant and Vodafone that Ofcom was wrong to predict that the burden of the price rises, which would follow the move from LRIC plus to LRIC, would be borne principally by post-pay customers; instead the burden would more likely be borne by pre-pay customers. However, the Commission stated that the likely effects of that burden were not significant enough to mean that the price control should instead be based on LRIC plus, and dismissed the appeal.

The two companies appealed against the Commission's decision to the Competition Appeal Tribunal ("CAT") in a legislative context where the CAT is required to determine the appeal in accordance with judicial review principles, but the decision was held to be lawful. The appellant then appealed to the Court of Appeal.

Before the CAT and the Court of Appeal, the appellant contended that the Commission had made a judicially reviewable error, in view of the lack of survey evidence, by directing itself that it was bound to choose between LRIC and LRIC plus. Instead, the appellant alleged, the Commission should have acknowledged that it was unable to make a choice and then referred the decision back to Ofcom so that Ofcom could obtain the necessary evidence.

Insufficient to show that the reasons for the decision were wrong

The Court of Appeal dismissed the appeal. It was not enough for the appellant to identify an error in Ofcom's reasoning; the appeal could only succeed if Ofcom's decision could not stand in light of that reasoning.

In the instant case, the Court found that although the Commission did not agree with all aspects of Ofcom's reasoning when examining the choice of cost standard, the lack of robust survey evidence on consumer responses to price increases did not mean that the Commission was unable to assess the consequential consumer loss. Furthermore, the Commission had determined that consumer responses to price rises was a key issue, but this was one of many factors and was not determinative. Therefore, the Commission was not wrong in its decision to adopt the LRIC cost standard.

The Court affirmed previous dicta in TalkTalk Telecom Group plc v Office of Communications [2012] CAT 1 that it is not enough to show that there is a "real risk" that Ofcom's decision was wrong; rather, the appellant must show that the decision was wrong. In addition, the appellant must also take responsibility for adducing all evidence to show that the decision is wrong, and, if seeking to argue that an alternative solution should be adopted, should also adduce evidence and material to support this. The appellant failed to provide sufficient evidence to show that LRIC plus, not LRIC, was the correct price control standard.

The Court added that there may be circumstances where the appellant succeeds in so undermining the basis of the decision that it cannot stand, but without establishing what the alternative should be. In these circumstances, if there was no other basis for upholding the decision, the Commission/CAT could conclude that the decision was wrong, but could then remit the matter to Ofcom to make good any deficit in evidence so as to reach a fresh decision. However, Moses LJ commented that such cases are likely to be rare and these circumstances did not exist in the present case.

"Quite probable" that decisions of an expert tribunal in a specialised area of law are correct

In relation to whether the Commission had made a judicially reviewable error by considering itself bound to choose between LRIC and LRIC plus, the Court of Appeal set out as a starting point the fact that there was no statutory duty under the 2003 Act which required the Commission to reach a conclusion as to the appropriate measure of price control (i.e. LRIC or LRIC plus); the Commission could have simply decided that Ofcom's decision could not be maintained.

The Court then stated that the appellant in the case at hand could only impugn the Commission's assessment of the adequacies of the evidence before it if it could prove that the assessment was "outwith the range of reasonable conclusions". The Court commented that this was an "almost insuperable" task, adding that if a tribunal has a particular expertise in a specialised area of law, as here, the tribunal's decision is likely to be correct and review courts such as the CAT should "not be astute to finding errors of law".

Recognising this "almost insuperable" task, rather than arguing that the Commission had made an incorrect assessment of the evidence, the appellant asserted that the Commission itself considered the evidence insufficient to make a choice consistent with its statutory objectives, but made a choice between LRIC and LRIC plus because it erroneously believed itself bound to do so. However, the Court of Appeal could not find that the Commission, whether explicitly or implicitly, considered itself obliged to make such a choice. Therefore, given the Court of Appeal's finding that the Commission was not prevented by a lack of robust survey evidence from assessing the LRIC and LRIC plus cost standards, the appeal was dismissed.

Comment

This case contains some comments about what an appellant needs to do to succeed in an appeal "on the merits" and also to overturn a determination of the Commission or CAT on judicial review grounds. The Court of Appeal set a high threshold in relation to both areas but there is a much stiffer test for a claimant to succeed in a judicial review.

When looking at the merits test the Court of Appeal put the emphasis on the appellant, in most cases, to show not only that the Commission's decision – rather than the reasons for the decision - is wrong but also that the alternative option that it proposes is the correct one to adopt. Of course, the judgment was set in the specific context of communications appeals under the Act. It is not clear how far regulators and Courts will adopt a similar test in merits appeals set in other contexts but, where appropriate, they might choose to derive some guidance from Everything Everywhere.

The point made by the Court of Appeal in relation to judicial review cases clearly has wider application than just the Commission and the CAT: Courts may well generally adopt an approach which suggests that it is "quite probable" that decisions made by expert tribunals in technical areas of law are correct and that it will be an "almost insuperable" task for an appellant to persuade a review court that the decision of a specialist tribunal is unreasonable where that decision relates to matters within the tribunal's expertise. Indeed, this confirms the general principle that judicial review courts will be cautious to overrule decisions made by specialist tribunals where they have particular expertise in that area.

It should be stressed, however, that this approach generally only applies where courts are reviewing exercises of discretion by regulators on the basis of rationality / reasonableness or broadly framed statutory objectives. Courts are much more willing to adopt a closer scrutiny of "hard edged" legal questions such as the correct interpretation of primary legislation or matters of procedural fairness where the courts have expertise and see such issues to be the province of the courts rather than largely to be left to the regulators.