The Upper Tribunal has rejected an application by the targets of an FSD to strike out parts of the Regulator's case before it reaches the tribunal. The applicants argued that the Regulator had moved the goalposts and was seeking to bring a different case to the tribunal from that which it had brought before the Regulator's determination panel.

The case is part of the Box Clever litigation which arose out of the collapse of the joint venture between Granada and Thorn in 2003. In December 2011 the Regulator's determinations panel ordered an FSD against five Granada companies. Those Companies subsequently filed a reference to the tribunal.

The tribunal refused to strike out parts of the Regulator's case in advance of hearing the substantive reference. In reaching its conclusion the tribunal noted that, on a reference from the determinations panel, the tribunal considered the matters "as new" and not as an appeal. It acknowledged that its jurisdiction was limited to considering the facts and circumstances before the determinations panel and recorded in the decision notice. However, if a party wished to rely on facts and circumstances beyond this limit, it could seek permission from the tribunal and the tribunal should grant permission "where appropriate". 

The case will be of interest to those who have an interest in the procedure of the Regulator and its appeals process.