Key Points

  • The Court of Appeal's decision in T-Mobile (UK) Ltd and Telefonica O2 UK Ltd v Office of Communications [2008] EWCA 1373 demonstrates the importance of considering whether the route of challenge to a public authority's decision is a statutory route of challenge on the one hand such as an appeal to the Competition Appeal Tribunal (CAT) or judicial review on the other.
  • The intensity of the standard of review in judicial review can be adapted where that is necessary so as to mould itself to any requirement imposed by other rules of law. Accordingly, judicial review is an "effective appeal mechanism" within the meaning of Article 4 of the EC's common regulatory framework for electronic communications networks and services (Framework Directive 2002/21/EC).

Background

In T-Mobile (UK) Ltd and Telefonica O2 UK Ltd v Office of Communications [2008] EWCA 1373 the two appellant mobile phone operators appealed to the Court of Appeal against a decision of the Competition Appeal Tribunal (CAT) that it did not have jurisdiction to hear their appeals against a decision of Ofcom in respect of the award of wireless telegraphy licences. The appellants objected to Ofcom's proposed auction on the basis that they already held licences for other parts of the spectrum and so there was a possibility that they might lose some of the licences they already had pursuant to a decision to be made by Ofcom in the future (a process known as "refarming"). Therefore, they submitted, it would be unfair to make the appellants bid now for further licences when they would not know what further spectrum they would need until the refarming decision had been made.

The appellants subsequently appealed to the CAT, citing their entitlement to do so under section 192 of the Communications Act 2003. The specific point at issue before the Court of Appeal was whether the appellants' objections should be heard by way of an appeal to the CAT (as the appellants alleged) or should proceed by way of judicial review in the Administrative Court (as Ofcom alleged). Generally, if there is a statutory route of challenge then that route should be pursued rather than judicial review.

The arguments put forward by the appellants fell into two categories: EU law arguments and arguments regarding the construction of domestic legislation, namely the 2003 Act.

EU Law Arguments

The Court of Appeal considered the requirement under Article 4(1) of the Framework Directive that Member States have in place "effective mechanisms" under which any user or undertaking providing electronic communications networks and/or services has a right of appeal against the decision of the national regulatory authority to an appeal body that is independent of the parties involved. The Court held that if the proposed appeals of Ofcom's decision were made by judicial review rather than an appeal to the CAT, this would satisfy the requirements of Article 4(1).

Article 4 expressly requires the relevant appeal body to take account of the merits of the case before it. The Court of Appeal concluded that this requirement was satisfied by the availability of judicial review, which "can and does mould itself to any requirement imposed by other rules of law": all that is required is an appeal body which can examine whether the regulator has got something materially wrong.

The Court of Appeal cited with approval authorities where the courts have held that the principles of judicial review are sufficiently flexible to be adapted to the particular statutory context (e.g. IBA Healthcare v OFT [2004] ICR 1364), including human rights cases where it was held necessary to explore the merits on a judicial review application (e.g. Wilkinson v Broadmoor Special Authority [2002] 1 WLR 419).

Construction of the domestic legislation

The key issue for the Court was whether Ofcom's decision, or any part of it, was a decision given effect to by regulations under section 14 of the Wireless Telegraphy Act 2006 (which sets out Ofcom's power to make regulations specifying a procedure for licence bidding), on the basis that Schedule 8 of the 2003 Act stipulates that such a decision cannot trigger an appeal to the CAT under section 192 of the 2003 Act.

The Court accepted that no regulations had yet been made but considered that it would be "unrealistic" and "absurd" if regulations cannot be challenged by appeal to the CAT but the decision to make them can be. Parliament must have intended that the exclusion from the CAT's jurisdiction covered both regulations made under section 14 of the 2006 Act and the decision to make such regulations.

The Court therefore held that the proposed challenge should be made via judicial review and so the appeal was dismissed.

Commentary

It is a key principle of judicial review that any alternative remedies should be exhausted before commencing judicial review proceedings in cases where the alternative remedy is adequate to resolve the complaint (e.g. R v Sandwell MBC ex parte Wilkinson (1998) 31 HLR 22). Thus the Courts have indicated that judicial review is to be regarded as a remedy of last resort.

The Court of Appeal's decision in T-Mobile (UK) Ltd and Telefonica O2 UK Ltd v Office of Communications does not alter this general principle. Rather, the judgment emphasises that there will be circumstances where the alternative remedy – in this case, the statutory right of appeal to the CAT – is not triggered because the nature of the challenge makes it suitable to be resolved by a High Court Judge rather than a specialist tribunal. In this case the Court followed the specific wording of Schedule 8 of the 2003 Act and its view that Parliament did not intend legislative and quasi-legislative decisions to be appealed to the CAT.

It is important for prospective claimants to select the correct route of challenge, otherwise there is a real risk that they could miss the short timeframe for commencing proceedings by selecting the wrong route. One option to avoid this risk would be for the claimant to commence proceedings by way of both routes i.e. the statutory appeal route and judicial review, as a precaution.

From a claimant's perspective there are certain advantages to, if possible, challenging a public authority's decision by way of a statutory appeal route such as that of the CAT which generally permits a merits-based review of the public authority's decision, rather than judicial review where the Courts tend to adopt a more restricted, supervisory role in respect of reviewing the relevant decision. This distinction in approach has been emphasised in a number of judicial review cases (e.g. R v Director General of Telecommunications ex parte Cellcom Ltd [1999] COD 105; R (London and Continental Stations and Property Ltd) v Rail Regulator [2003] EWHC 2607), where the Administrative Court has adopted a deferential approach to the relevant public body's decision.