Edge Telecommunications Limited v Ofcom

In these proceedings, the Claimant (“Edge”) claims damages for breach of statutory duty – section 8(4) of the Wireless Telegraphy Act 2006 – by Ofcom, the United Kingdom regulator for, amongst other things, telecommunications. The breaches alleged are that Ofcom failed to make regulations which would permit the commercial use of telecommunications apparatus known as GSM Gateways without, first, obtaining a licence. Edge alleges that at all material times it was a commercial operator of GSM Gateways and that the fact that this type of equipment was not exempted from the requirement for a licence has caused it loss and damage.

On 11 June 2024 a trial of the following preliminary issues was ordered by consent, and I heard argument on 15 and 16 October 2025:

I did not hear any evidence for the purposes of determining these issues. However, I was provided with a Schedule of Agreed Facts and there was also a statement of Mr Edward Mercer dated 13 May 2025. He is a solicitor who acts for Edge and he provided background information and his views on various matters. Neither party specifically referred to his statement and, with respect to him, it was of limited assistance in relation to the preliminary issues.

GSM Gateways are items of telecommunications equipment which incorporate one or more SIM cards issued by a Mobile Network Operator (“MNO”). They allow the device on which the SIM card is installed to originate calls and texts on the MNO’s network. As a result, calls from fixed lines to mobile networks are treated by the recipient’s network as if they were made by a mobile phone, rather than from the fixed line phone. This means that the charges for the call are lower than they would have been had the call been treated as having been made from a fixed line. A GSM Gateway can therefore save money for a user who makes calls from a fixed line to mobile phones and for this reason they have been widely used by businesses and public bodies to reduce their phone bills.

GSM Gateways may be “self-use gateways”, which are used by the user itself, or “commercial use gateways”, which are provided by a business as part of a service to a customer. There are two types of commercial use gateway: commercial single user gateways, or “COSUGs”, have a single end user from which all the calls diverted through the gateway originate; commercial multi-user gateways, or “COMUGs”, have multiple end users so that the calls diverted through the gateway originate from more than one user. The business using the GSM Gateway to provide electronic telecommunications services seeks to make a profit by charging its customers rates for use of the Gateway which mean the customer pays less for their calls from fixed lines than they would otherwise have had to pay to a MNO.

At all material times the position in law has been that the establishing or use of any station, or the installation or use of apparatus, for wireless telegraphy requires a licence unless an exemption applies. This was the effect of section 1(1) of the Wireless Telegraphy Act 1949 (“WTA 1949”), which also enacted a general power of the Secretary of State to provide, by regulations, for exemptions of such classes or descriptions of stations or apparatus as may be specified in such regulations. It was common ground before me that a GSM Gateway falls and fell within the definition of “apparatus” for these purposes at all material times.

The use of telecommunications equipment was, however, regulated by Council of the European Union Directives which were transposed into United Kingdom law by primary and secondary legislation. The most relevant of these Directives for present purposes is the Authorisation Directive (2002/20/EC) which formed part of the Common Regulatory Framework and was required to be implemented by Member States by 24 July 2003. When the Authorisation Directive was first adopted in 2002, Article 5 provided, so far as material, as follows:

“Rights of use for radio frequencies and numbers

1.

Member States shall, where possible, in particular where the risk of harmful interference is negligible, not make the use of radio frequencies subject to the grant of individual rights of use but shall include the conditions for usage of such radio frequencies in the general authorisation.” (emphasis added)

Article 5(2) then dealt with the procedure for obtaining a licence where such was necessary. In very broad summary it required that such procedures be open, transparent and non-discriminatory.

The Common Regulatory Framework was implemented in the United Kingdom primarily through the Communications Act 2003 (“CA 2003”) which contained many of the required provisions and which also made amendments to the WTA 1949. The CA 2003 designated Ofcom as the national regulatory authority which had responsibility for many of the functions set out in the relevant Directives and transferred to Ofcom the powers of the Secretary of State to grant licences and make regulations under section 1 of the WTA 1949. However, section 5 of the CA 2003 provided that the Secretary of State had a power to give directions for specified purposes including in the interests of national security and, under section 5(2), that it was the duty of Ofcom to carry out its relevant functions in accordance which such general or specific directions as were given to them by the Secretary of State.

By way of implementation of Article 5 of the Authorisation Directive, section 166 of the CA 2003 also inserted a new section 1AA of the WTA 1949. This enacted a requirement that Ofcom make regulations exempting the installation and use of specified descriptions of stations or apparatus if it was satisfied that their use was not likely to involve undue interference with wireless telegraphy.

With effect from 7 February 2007, however, the WTA 1949 was repealed and replaced by the Wireless Telegraphy Act 2006 (“WTA 2006”). The position under sections 1 and 1AA of the WTA 1949 was reproduced under section 8 of the WTA 2006 which provided, so far as material, as follows:

“8 Licences and exemptions

In 2009, the Authorisation Directive was then amended, with a deadline for implementation of the amendments of 25 May 2011. Following these amendments, Article 5(1) now provided as follows:

“Rights of use for radio frequencies and numbers

1.

Member States shall facilitate the use of radio frequencies under general authorisations. Where necessary, Member States may grant individual rights of use in order to:

— avoid harmful interference;

— ensure technical quality of service,

— safeguard efficient use of spectrum, or

— fulfil other objectives of general interest as defined by Member States in conformity with Community law.

These amendments were transposed by the United Kingdom through the Electronic Communications and Wireless Telegraphy Regulations 2011. Section 8 of the WTA 2006 was amended by the 2011 Regulations so that the conditions of which Ofcom had to be satisfied under section 8(5) were now as follows:

“(5)

The conditions are that the use of stations or apparatus of that description is not likely to—

(a)

involve undue interference with wireless telegraphy;

(b)

have an adverse effect on technical quality of service;

(c)

lead to inefficient use of the part of the electromagnetic spectrum available for wireless telegraphy;

(d)

endanger safety of life;

(e)

prejudice the promotion of social, regional or territorial cohesion; or

(f)

prejudice the promotion of cultural and linguistic diversity and media pluralism.’”

(Subsection (5) has since been further amended by the Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 but the amendment is not material for present purposes given that it post-dates the period in respect of which the claims are made.)

As far as regulations providing for exemptions are concerned, the relevant ones for present purposes are the Wireless Telegraphy (Exemption) Regulations 2003, regulation 4(1) and (2) of which provided, at all material times prior to 28 April 2016, that:

“(1)

…the establishment, installation and use of the relevant apparatus are hereby exempted from the provisions of section 1(1) of the 1949 Act.

(2)

...the exemption shall not apply to relevant apparatus which is established, installed or used to provide or to be capable of providing a wireless telegraphy link between electronic communications apparatus or an electronic communications network and other such apparatus or system, by means of which an electronic communications service is provided by way of business to another person.”

In July 2003, following a consultation exercise, the Secretary of State decided that no change would be made to the 2003 Exemption Regulations: GSM Gateways therefore continued to be exempted from the requirement to obtain a licence only to the extent set out in Regulation 4. This meant that if a company (for example) acquired a GSM Gateway for use in its own business there was an exemption from the requirement for a licence. But the exemption did not apply if the company provided the GSM Gateway to another person as part of a service provided under a commercial arrangement with that person. The effect of regulation 4(2) - that this type of commercial use of GSM Gateways was not exempted from the requirement for a licence - has been described in the caselaw as “the Commercial Use Restriction”.

In Recall Support Services v Secretary of State for Culture Media and Sport [2013] EWHC 3091 (Ch); [2014] 2 CMLR 2 Rose J (as she then was) considered a claim for damages for breach of Article 5 of the Authorisation Directive which had been brought pursuant to the principles in Francovich v Italian Republic (c-6/90) [1991] ECR I-5357 by claimants who included Edge. The claimants’ argument was that the Commercial Use Restriction was a failure by the United Kingdom to implement Article 5 because this Article required that providers of the services of GSM Gateways to others should not be required to obtain a licence to do so unless the conditions specified in the Article were satisfied, which they were not. The Secretary of State for Culture Media and Sport (“DCMS”) argued that the Commercial Use Restriction was justified in relation to GSM Gateways on the basis of: (a) the need to avoid harmful interference; (b) the need to ensure the efficient use of spectrum (which were grounds identified in Article 5); and (c) national security (which was said to be implicitly a potential ground under Article 5).

Rose J held that:

Rose J’s decision was upheld by the Court of Appeal on 28 October 2014: see [2014] EWCA Civ 1370, [2015] 1 CMLR 38. Permission to appeal was then refused by the Supreme Court on 25 February 2015.

Ofcom then began the process, under section 122 of the WTA 2006, of exempting COSUGs from the Commercial Use Restriction. From 6 November to 7 December 2015, it consulted on its proposal to make amending regulations and, on 6 April 2016, it made the Wireless Telegraphy (Exemption) (Amendment) Regulations 2016 (“the 2016 Amendment Regulations”). That decision was announced on 8 April 2016, and the 2016 Amendment Regulations came into force with effect from 28 April 2016. They amended Article 4 of the 2003 Exemption Regulations so that it now provided that the Article 4(1) exemption from the licensing requirement under section 8(1) applies to COSUGs whether or not they form part of a service provided to another as part of a business.

On 6 July 2017, again pursuant to section 122 of the WTA 2006, Ofcom announced its proposal to make amending regulations to exempt COMUGs under the 2003 Exemption Regulations, and it published a Notice of its proposed regulations (“the COMUG Notice”). The basis for that decision was that, in its view, whilst there was the potential for COMUGs to have an adverse effect on the technical quality of service in certain circumstances, this was not of a sufficient degree to warrant the maintenance of the Commercial Use Restriction. Ofcom also considered that the other conditions under section 8(5) were satisfied.

On 25 September 2017, however, on national security grounds the Secretary of State for Security directed Ofcom, pursuant to section 5 of the CA 2003, not to exempt COMUGs from the requirement to apply for a WTA licence for the commercial use of COMUGs (“the Direction”). The Direction also provided that Ofcom should not issue a WTA licence for such purposes unless certain conditions specified in the Direction were met. In light of the Direction, Ofcom did not make the exemption regulations contained in the COMUG Notice.

In December 2017, VIP Communications Ltd (in liquidation) brought a judicial review challenge to the Direction which was ultimately rejected by the Supreme Court in R (VIP Communications Ltd (In Liquidation)) v Secretary of State for the Home Department [2023] UKSC 10.

Edge’s pleaded case is that it suffered loss as a result of the Commercial Use Restriction because it was required to apply for a licence in respect of COSUGs and COMUGs. It does not allege that it applied to Ofcom for a licence and that its application was refused but, rather, that there ought to have been an exemption in place which meant that no licence was required and it could operate under the general exemption under Article 4(1) of the 2003 Exemption Regulations. Ofcom’s failure to make regulations which provided for such an exemption is alleged to have been in breach of section 8(4) of the WTA 2006. In a response to an application by Ofcom for security for costs at an earlier stage in the proceedings, on 13 June 2024 Edge’s solicitors described this as “a plain old-fashioned breach of statutory duty which has given rise to liability in tort for many years” and disclaimed any reliance on Francovich principles.

Mr Strickland explained, further, that his position as to breach of section 8(4) is that where, on an objective assessment, Ofcom could not reasonably be other than satisfied that the conditions in section 8(5) were met, the obligation to make regulations arose, and failure on the part of Ofcom to make them amounted to a breach. In the case of both COSUGs and COMUGs, at all material times Ofcom could not reasonably be other than of the view that section 8(5) was satisfied and Ofcom was therefore in breach of section 8(4). As far as COSUGs are concerned, that breach continued until 28 April 2016 when the 2016 Exemptions Regulations came into effect and COSUGs were exempted.

As far as COMUGs are concerned, Mr Strickland’s case varied. On one reading of the Amended Particulars of Claim, the breach was said to have come to an end on 6 July 2017 when Ofcom decided to make regulations which included COMUGs in the general exemption under regulation 4(1) of the 2003 Exemption Regulations. In his skeleton argument, Mr Strickland said that the breach continued until “at least” 25 September 2017 and that time started to run on that date, which appeared contradictory. His position at the beginning of his submissions was that time started to run on 25 September 2017 but his position at the end was that the breach continues until this day, notwithstanding the Direction.

Edge’s claim for damages is unparticularised, but the period of loss alleged is the six years prior to each of its claims being brought, as to which see further below.

I will deal with this issue first as the bulk of the hearing was taken up with the arguments in relation to it.

Mr Strickland submitted on two alternative bases that Parliament intended that there be a private law remedy in damages for breach of section 8(4) of the WTA 2006:

On behalf of Ofcom, Mr Holmes submitted that:

As for the first submission, Mr Strickland began by reminding me of the conditions for a Member State of the EU to be liable under Francovich principles for breach of EU law, as summarised by Sir Andrew Morrit V-C in Phonographic Performance Limited v Department for Trade and Industry [2004] 1 WLR 2893 at [11], a passage which was cited with approval by the Supreme Court in Energy Solutions EU Limited v Nuclear Decommissioning Authority [2017] UKSC 34, [2017] 1 WLR 1373. These are:

“that (1) the rule of Community law infringed is intended to confer rights on individuals; (2) the breach is sufficiently serious, and in particular that there was a manifest and grave disregard by the member state of its discretion; and (3) there is a direct causal link between the breach of the obligation resting on the member state and the damage sustained by the injured party.”

Mr Strickland pointed out that there is no dispute that before Brexit a Francovich claim was in principle available to Edge. Indeed, that is the nature of the claim which it and others brought in the Recall case, albeit the claim ultimately failed because the second Francovich condition was not satisfied. Such a claim was and is a private law claim in damages. In the Phonographic Performance case (supra) at [12] Sir Andrew Morrit V-C noted that, in R v Secretary of State for Transport ex parte Factortame Ltd (No 5) [1998] CMLR 1353, Hobhouse LJ (as he then was) said that Francovich liability was best understood as a breach of statutory duty imposed by the relevant EU law provision and section 2(1) of the European Communities Act 1972.

Mr Strickland also accepted that before Brexit the presumption in the present case would have been that Parliament did not intend that damages would be available unless the Francovich conditions were satisfied. Indeed, he said that the effect of the decision of the Supreme Court in the Energy Solutions case (supra) was that the only basis on which damages for breach of section 8(4) of the WTA 2006 could be claimed was by satisfying these conditions. In Energy Solutions, the issue was as to the circumstances in which damages could be recovered for alleged breaches of the Public Procurement Directive (2004/18/EC) read with the Remedies Directive (89/665/EC) and/or for breach of the Public Contracts Regulations 2006 which had implemented them. Mr Strickland referred to [39] of the judgment of Lord Mance JSC where, having found that the Francovich conditions applied to a claim under the Remedies Directive (see [25] of the judgment) he said, in relation to the Public Contracts Regulations 2006, that:

“Although there is no Marleasing imperative to construe the scheme so far as possible consistently with the Francovich conditions, it is I think a natural assumption that the UK legislator will not go further than required by EU law when implementing such a scheme, without considering this and making it clear.”

Overruling the Court of Appeal, in Energy Solutions the Supreme Court held that recovery of damages under the Remedies Directive required a claimant to satisfy the Francovich conditions, and there was no evidence that Parliament had intended that damages were available on a wider basis under the 2006 Regulations. It was therefore necessary for a claimant to show a “sufficiently serious breach” of the Remedies Directive and/or the 2006 Regulations. Mr Strickland referred to [37] where Lord Mance said this:

“37.

Where the Court of Appeal in the present case went in my opinion clearly wrong was in its assumption that any claim for damages under the 2006 Regulations was no more than a private law claim for breach of a domestically-based statutory duty, and for that reason subject to ordinary English law rules which include no requirement that a breach must be shown to be “sufficiently serious” before damages are awarded... The Court of Appeal appears to have assumed that the categorisation in domestic law of a claim based on EU law as being for breach of statutory duty freed it automatically from any conditions which would otherwise apply under EU law. That this is not so is clear if one takes the simple case of a domestic claim against the state for failure correctly to transpose EU law. Such a claim is subject to the Francovich and Brasserie du Pêcheur principles and conditions.”

Mr Strickland also referred me to the judgment of the Court of Appeal in Energy Solutions at [2015] EWCA Civ 1262, [2016] PTSR 689 at [66]-[68], to which Lord Mance was referring in the passage cited above. In the Court of Appeal, Vos LJ agreed that in theory the claimant had two separate rights – under the Directive and under the 2006 Regulations - but said that this did not make a difference to the damages which might be claimed in an English court. English law principles applied to a claim for damages for breach of the Public Contracts Regulations 2006. Such a claim was a claim for breach of statutory duty and there was no requirement under English law for a breach of statutory duty to be “sufficiently serious” before damages could be awarded.

Mr Stickland also referred to the following provisions of the European Union Withdrawal Act 2018 as amended by the Retained EU Law (Revocation and Reform) Act 2023 (“the EUWA 2018”):

Mr Strickland argued that these provisions removed the availability of what he termed “pure” Francovich claims i.e. complaints that the United Kingdom had failed to implement EU Directives into domestic law. Such complaints were now obsolete as there was no longer any obligation to implement EU law. However, these provisions were not directed at what he termed “secondary Francovich-style claims”, i.e. claims which concerned “an individual’s right to sue a public body domestically for their failure to adhere to faithfully transcribed EU-derived domestic legislation”. His position was that “secondary” Francovich claims are caught by sections 1 and 5 of the EUWA 2018.

Mr Strickland described the claim in the Energy Solutions case as a “secondary” Francovich claim in that the complaint was that the Nuclear Decommissioning Authority had breached the Public Procurement Directive and the Public Contracts Regulations 2006 in conducting a tender process, rather than that it had failed to implement EU law. His position was that Edge’s claim in these proceedings is also a secondary Francovich claim. He relied on the decision of the EFTA Court in Fosen-Linjen AS v AtB AS (Case E-16/16) at [59] and [64] as recognising his distinction between pure and secondary Francovich claims and he submitted that a rule that a secondary claim could only succeed if the Francovich conditions were satisfied “is incorrect as a matter of EEA law (and probably EU law)”. He reasoned from this that it would be a perverse result if such claims could succeed on a wider basis in EU and EEA countries than in the United Kingdom because, despite Brexit, the Francovich conditions continued to apply.

Mr Strickland’s contention was that the decision of the Supreme Court in Energy Solutions had therefore been superseded by the EUWA 2018 and is inconsistent with EU/EFTA law. The removal, by the EUWA 2018, of the right to claim damages under Francovich and the EU law underpinning the WTA 2006 meant that the rationale for the decision of the Supreme Court in Energy Solutions, as expressed at [37] and [39] of the judgment of Lord Mance, had also been removed. The “only logical conclusion” was that the consequence of this was that the pre Brexit ability to claim damages in the present case remained, post Brexit, but that the reasoning and approach of the Court of Appeal to such a claim in Energy Solutions was restored. There was therefore a right to bring a private law claim in damages in the present case but that right would be governed by English law and would not be subject to the limitations which would have applied before Brexit. In particular, there is no need, under the English law of tort, for Edge to prove that there was a “sufficiently serious” breach which was the reason why its COSUGs claim based on essentially the same facts had failed in the Recall case.

Mr Strickland also pointed out that in the present case the COSUGs claim was “ostensibly” brought within the 2 year window provided by [39(7)] of Schedule 8 to the 2018 Act. However, it was not clear how this made any difference to the analysis other than if it was addressing an anticipated argument which Mr Holmes was not in fact advancing.

With respect to Mr Strickland, his argument was not always easy to follow and it appeared, at times, to be addressing arguments which were not being advanced on behalf of Ofcom: “tilting at windmills”, as Mr Holmes put it. In particular, Mr Holmes’ position was simply that ordinary English law principles apply to the question whether there is a cause of action in damages for breach of section 8(4) of the WTA 2006 in this case. He was not alleging that Edge’s claim is a Francovich claim, whether “pure” or “secondary”, or that it is excluded by the decision of the Supreme Court in Energy Solutions or by the EUWA 2018 as amended. Indeed, he did not place any reliance on Energy Solutions or the 2018 Act. He was arguing that the only claim in damages which had ever been available to Edge was a Francovich claim but this was because, he contended, Parliament did not intend that any additional and/or wider claim for damages for breach of statutory duty would be available in relation to section 8(4).

For the following reasons I agree that Mr Strickland’s first submission is wrong. Starting from first principles, a Francovich claim is a claim against a Member State of the EU, or an emanation of the state, for damages for breach of EU law. The basis for the conclusion that Parliament intended that such a claim was available in an English court was section 2 of the European Communities Act 1972, which gave effect to EU law in this jurisdiction so that it was a source of UK law: see [11] and [12] of the Phonographic Performance judgment cited at [31] and [32], above. The claimants in the Recall case were therefore able to bring a claim for breach of Article 5 of the Authorisation Directive in the English courts. However, importantly, the intention of Parliament that such a claim was available was expressed through section 2 of the 1972 Act, and the scope of the claim which Parliament intended would be available depended on the relevant EU provisions and the conditions which would apply, under EU law, to a claim for damages for breach of them. The Recall case was therefore concerned with a very different domestic law provision to the present claim (section 2 of the 1972 Act) and with the direct enforcement of EU law. There was therefore no consideration, in the Recall case, of whether a claim for damages for breach of section 8(4) of the WTA 2006 was available and, if so, on what basis.

I therefore do not agree that the availability (in principle) of a private law claim for Francovich damages for breach of EU law, as illustrated by the Recall case, means that one can infer that there was or is also a right to bring a domestic law claim for damages for breach of section 8(4) of the WTA 2006 which was or is somehow embedded in the relevant statutory provisions, and which remains embedded there. The question which requires to be addressed is whether, given the availability of a Francovich claim for breach of the Authorisation Directive, Parliament intended that the enactment of section 8(4) would provide an additional claim for breach of statutory duty which has survived the EUWA 2018. Mr Strickland’s argument begs this question rather than answers it. I also agree with Mr Holmes that this question turns on the application of well-established principles of our law of tort to the terms of the WTA 2006 in their proper context: compare the approach in The Claimants in the Royal Mail Group Litigation v Royal Mail Group Limited [2021] EWCA Civ 1173 at [89] et seq. Moreover, as noted above, Mr Holmes’ argument is that no such additional claim was ever available rather than that one was available but it has since been removed by the EUWA 2018.

Mr Strickland’s reliance on Energy Solutions was also misplaced. The key point for present purposes is that in that case there was no doubt that the claimant had an actionable claim in damages for breach of the Public Contacts Regulations 2006: regulation 47J(2)(c) made express provision for such an award. The issue was as to what needed to be established for that claim to succeed. The reasoning of the Court of Appeal in Energy Solutions was based on there being two potential claims for damages available – for breach of the Remedies Directive and for breach of the 2006 Regulations – but in the present case the availability of a claim for damages for breach of the domestic legislation is in issue. No express provision for a claim in damages is made in relation to section 8(4) of the WTA 2006. Thus, even if I accepted (which I do not) that the effect of the EUWA 2018 was that the reasoning of the Court of Appeal in Energy Solutions was restored, that reasoning would not apply in the present case. The question would remain as to whether there is any domestic law right to claim damages for breach of section 8(4). Mr Strickland’s argument therefore assumes what needs to be proved.

Mr Strickland also appeared to seek to derive more from Energy Solutions than is warranted. For example, he appeared to be suggesting that it is authority for the proposition that the only claim which could have been brought in the Recall case was a Francovich claim, and to be relying on this proposition as the foundation for his argument that the EUWA 2018 reversed the position arrived at by the Supreme Court and to explain why no common law claim was brought in the Recall litigation. As I read Energy Solutions, however, the Supreme Court’s decision that the Francovich criteria applied to a claim under the 2006 Regulations was essentially the result of an application, in the particular EU and domestic statutory context, of the broader principle that where Parliament implemented EU law there was a rebuttable presumption that it did not intend to go further, under the implementing legislation, than it was required to under EU law. Energy Solutions itself, which was decided after the Recall litigation, has no particular implications for the present case.

I therefore also agree with Mr Holmes that if a broader common law claim for breach of statutory duty in the (different) statutory context of section 8(4) of the WTA 2006 is available it could have been advanced in the Recall litigation, albeit Edge would have been required to show that Parliament intended the implementing legislation to go further than was required by Article 5 of the Authorisation Directive and to permit the additional basis for a claim in damages which Edge now contends for. Insofar as Mr Strickland was suggesting that, effectively by a sidewind, the EUWA 2018 created a domestic law cause of action in the present case which was not previously available, I do not see how that can be the effect of the provisions relied on by him. I also see the force of Mr Holmes’ argument that if that were the effect of the EUWA 2018 it would have created, post Brexit, potential liability for damages for breach of statutory duty in a host of different contexts in which domestic legislation implemented EU law which, pre Brexit, was in principle susceptible to a claim for Francovich damages because it concerned individual rights. That cannot have been the intention of Parliament in enacting the EUWA 2018.

For all of these reasons, then, I reject Mr Strickland’s first submission. The question is whether Parliament intended that there should be something more than a Francovich claim in this case. That depends on whether it intended that there be a domestic claim for damages for breach of section 8(4) and that, in turn, depends on the interpretation of the WTA 2006 applying well established principles of our law of tort. Moreover, it does not seem to me that the analysis is affected by Mr Strickland’s arguments based on the alleged difference between primary and secondary Francovich claims (even here it seemed to me that the present case is in substance concerned with what Mr Strickland would classify as a pure Francovich claim given that it is a complaint about failure by Ofcom to make regulations which would have the status of a statutory instrument: see, further, below). Nor is the analysis affected by the fact that the COSUGs claim was brought within the 2 year window under [39(7)] of Schedule 8 of the EUWA 2018.

Mr Holmes began by taking me to X (minors) v Bedfordshire County Council [1995] 2 AC 633 at 731D-F, where Lord Browne-Wilkinson said this in relation to the principles which are applicable to determining whether a cause of action exists in relation to a breach of a statutory duty to carry out a particular function simpliciter i.e. a claim based on the fact of breach alone, regardless of any misfeasance, or carelessness of performance, or the existence of a duty of care at common law:

“The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty….”

Lord Browne-Wilkinson went on to say:

“…There is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action…: However, the mere existence of some other statutory remedy is not necessarily decisive... ”

He added, at 731H-732B, that:

“Although the question is one of statutory construction and therefore each case turns on the provisions in the relevant statute, it is significant that your Lordships were not referred to any case where it had been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general. Thus legislation regulating the conduct of betting or prisons did not give rise to a statutory right of action vested in those adversely affected by the breach of the statutory provisions, i.e. bookmakers and prisoners: see Cutler's case [1949] A.C. 398; Reg. v. Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 A.C. 58.…”

At 732B, Lord Browne-Wilkinson noted that:

“The cases where a private right of action for breach of statutory duty have been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions.”

Mr Holmes also relied on various passages from Clerk & Lindsell on Torts 16^th Edition, including the following at 8-12:

“The difficulty in applying the indicators is compounded by the fact that there is no explicit weighting of the indicators, though as a general proposition where the damage is physical, particularly personal injuries, the claimant is on stronger ground than where the damage is economic loss; and where the claim is against a public authority, especially in respect of the failure to perform some regulatory function, the claimant’s prospects of success are low.”

He also relied on De Smith “Judicial Review” 9^th Edition at 19-048 to 19-050 including the following passage at 19-049:

“Most statutory duties in the public law context are owed to the public at large rather than to private individuals. Where the legislation in question establishes an administrative system to promote the social welfare of the community, exceptionally clear statutory language will be needed to show a parliamentary intention to create a right to damages for breach of statutory duty.”

Mr Holmes took me to a series of authorities which illustrated or expanded on these principles and what was said by Lord Brown-Wilkinson in X v Bedfordshire. These included:

Mr Holmes also relied on T-Mobile (UK) Ltd v Office of Communications [2008] EWCA Civ 1373 as illustrating, by analogy, that judicial review is an appropriate remedy in this context. And he relied on section 104 CA 2003, which expressly provides a remedy in damages in relation to certain breaches of obligations under that Act subject to specified conditions. This, he suggested, illustrated that where Parliament intended such a remedy to be available it said so.

Overall, Mr Holmes’ submission was that section 8(4) of the WTA 2006 forms part of a complex regulatory scheme for the benefit of the public in general. Plainly, Parliament did not intend there to be a private law claim in damages available for failure to make regulations pursuant to its terms, particularly having regard to the fact that any such claim would be for pure economic loss and would subject Ofcom to potentially substantial claims by a wide range of potential claimants. The functions of Ofcom at issue in Edge’s claim were general administrative functions imposed on a public body which involved the exercise of administrative discretion and were therefore properly the subject of judicial review rather than a private law action.

Mr Strickland did not quarrel with Mr Holmes’ exposition of the applicable principles. His argument was that:

I agree with Mr Holmes’ argument, which I have summarised at [48]-[56] above and do not repeat.

I note that in R (VIP Communications Ltd (In Liquidation)) v Secretary of State for the Home Department (supra) at [17] Lord Richards said:

“17.

Section 5 of the 2003 Act and section 8 of the 2006 Act form part of a complex legislative scheme for the regulation of telecommunications, including the installation and use of wireless telegraphy equipment. They must be construed in the context of that scheme and in the light of their purpose within the scheme.”

Section 8 also has a strongly public law flavour, as does Edge’s allegation of breach. As far as the former is concerned, section 8 confers the responsibility on Ofcom to make decisions as to whether there should be exemptions and, if so, on what terms. It does not contemplate that the question whether the section 8(5) conditions are satisfied in a given case is a matter for the court to determine, nor that the court will determine the terms on which any exemption is granted. Those are matters for Ofcom to judge in its capacity as the statutory regulatory body with responsibility for, and expertise in, telecommunications.

Moreover, the conditions specified under section 8(5) are all, or at least largely, directed at the question whether it is in the public interest for there to be an exemption in respect of a particular description of station or apparatus. No doubt the section also contemplates that decisions as to the terms of any exemption will be made in the public interest and having regard to the conditions in subsection (5). And, of course, the VIP Communications decision confirms that Ofcom’s powers under section 8 are subject to decisions of the Secretary of State taken in the interests of national security and other public interest considerations such as “the interests of the safety of the public or of public health” pursuant to section 5 of the CA 2003.

If there is to be an exemption, section 8 then requires Ofcom to make regulations accordingly. For these purposes Ofcom acts as if it were a Minister of the Crown, and the regulations have the status of a statutory instrument: see section 122 of the WTA 2006. I also note that section 122 provides that:

“(4)

Before making any regulations or order under such a power, OFCOM must—

(a)

give a notice of their proposal to do so to such persons representative of the persons appearing to OFCOM to be likely to be affected by the implementation of the proposal as OFCOM think fit;

(b)

publish notice of their proposal in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it and are not given notice by virtue of paragraph (a); and

(c)

consider any representations that are made to OFCOM, before the time specified in the notice.”

All of these features illustrate the point that in the present context Ofcom is a public body exercising regulatory functions in the public interest even if the effect of its decisions under section 8 may enable people or businesses to install or use specified wireless telegraphy stations or apparatus without a licence, or restrict their ability to do so. Moreover, I do not consider that there is a conflict between this characterisation of section 8 and the decision of Rose J in the Recall case that Article 5 of the Authorisation Directive was intended to confer rights on would be users of spectrum (supra at [228](i)]). Both propositions are true, and Rose J’s conclusion about Article 5 does not undermine the proposition that, for the purposes of determining whether Parliament intended that Ofcom’s powers under section 8 would be governed by public or private law, those powers are regulatory and administrative in nature and exercised in the public interest. Any number of statutory decisions by public bodies may result in rights or benefits being conferred on individuals, but this does not mean that affected individuals necessarily have private law claims in damages under domestic law if they are not content with the exercise of the public body’s decision making powers.

As for the nature of Edge’s claim, as I have noted, the complaint is as to the reasonableness or otherwise of Ofcom’s decisions and the exercise of its powers under section 8. Again, this is the sort of complaint which one would expect to be adjudicated in the context of the Administrative Court’s power to review administrative and regulatory decisions, applying principles of public rather than private law. The fact that Parliament has conferred on Ofcom, as the statutory body with the requisite expertise, the power to regulate the sector, and to make law in the exercise of that power, supports the view that any interference by the courts with the exercise of those powers should be subject to the constraints of public law principles.

I cannot see any reason why judicial review would not be available in relation to section 8(4) of the WTA 2006 and, in the end, Mr Strickland appeared to accept this. He retreated to arguments that, in the circumstances of this case, Edge could not have been expected to bring a claim for judicial review before or alongside its claim in the Recall case. I should not be taken to accept that, but in any event the particular situation and decision making of Edge is nothing to the point given that the task of the court is one of interpreting section 8(4) on the basis that it is applicable to a range of different actors and factual circumstances. Mr Strickland’s reliance on Rose J’s statement in Recall that “as a matter of law [the claimants were] not required to pursue domestic judicial review remedies before claiming damages” [228(iii)] is also nothing to the point. She was doing no more that observing that, as was held in Metallgesellschaft Ltd v Inland Revenue (C-397/98) [2001] 2 CMLR 32, there was no requirement under EU law to exhaust domestic remedies before bringing a Francovich claim (see [220] of her judgment). That has no bearing on the question whether judicial review was or is available in relation to section 8(4) and/or whether Parliament intended that this would be the remedy for complaints about Ofcom’s exercise of its powers under that section.

In addition to this I agree with Mr Holmes that it is inherently unlikely that Parliament intended that, in exercising its regulatory powers under section 8(4), Ofcom would be exposed to potentially very substantial claims for pure economic loss from a wide range of actors in the telecommunications sector and/or others who were affected by its decisions. This is particularly so where, as here, the claim is founded simply on the allegation of breach of the section rather than negligence or bad faith.

So for all of these reasons I consider that Parliament intended that any challenge to Ofcom’s exercise of, or failure to exercise, its powers under section 8(4) would be limited to a claim for judicial review. It did not intend that a private law claim in damages would be available.

But, in addition to this, I also agree with Mr Holmes that the alleged scope of the proposed right to claim damages is relevant in considering whether Parliament intended it should be available alongside a Francovich claim for breach of Article 5 of the Authorisation Directive. The whole point of the claim which Edge now says is available is that it is broader in scope than the Francovich claim which failed in the Recall case. However, it is inherently less likely that, when implementing EU law in the form of section 8(4), Parliament intended to create a cause of action which was more generous than was required by EU law: see e.g. [93] of the Royal Mail Group case (supra). That being so, one looks for evidence in the statute that this was nevertheless the intention of Parliament. In my view there is none.

In view of my conclusions on the first issue, the limitation question is academic but I will address it for completeness given that it was fully argued.

Section 2 of the Limitation Act 1980 provides that:

“An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

A claim is “brought” for the purposes of section 2 of the 1980 Act on the date when it is received in the relevant court office if this date is earlier than the date on which it was issued: see [6.1] of CPR Practice Direction 7A.

Edge’s claim was first brought on 27 April 2022, albeit without any Particulars of Claim. This Claim Form was not served on Ofcom. Subsequently, Edge filed an amended Claim Form, dated 22 August 2022, and served it on 25 August 2022. This amended Claim Form was accompanied by Particulars of Claim dated 22 August 2022.

The claim originally only related to COSUGs. On 24 August 2023, however, Edge filed and served Amended Particulars of Claim which added a claim relating to COMUGs. Edge had not sought the Court’s permission, or Ofcom’s agreement, to amend its Particulars of Claim. However, no point was taken on this for the purposes of the preliminary issues. At the same time, Edge sought Ofcom’s agreement to a stay pending the Supreme Court’s judgment in R (VIP Communications Limited (in liquidation)) v SSHD) (supra). In a letter of 30 August 2022, Ofcom agreed to the proposed stay, but stated that this agreement was without prejudice, amongst other things, to any defence based on limitation.

It was therefore common ground that, for the purposes of section 2 of the Limitation Act 1980, the claim in respect of COSUGs was brought on 27 April 2022 and the claim in respect of COMUGs was brought on 24 August 2023.

Mr Strickland did not rely on any of the statutory qualifications or exceptions to the rule in section 2 of the 1980 Act.

Mr Holmes argued that the allegation was of breach of the duty, under section 8(4) of the WTA 2006 to “make” regulations which exempted the relevant uses of GSM Gateways. This duty was discharged by Ofcom beginning the process, under section 122 of the WTA 2006, of making regulations. This had happened at the end of 2015, and therefore significantly more than 6 years before the COSUGs claim was brought. In the case of COMUGs, it had happened on 6 July 2017 and therefore around 7 weeks more than 6 years before this claim was brought. Both claims were therefore out of time.

Mr Holmes also argued, in the alternative, that section 8(4) required Ofcom to “make” regulations but did not in terms require them to be brought into force. The 2016 Exemption Regulations were made on 5 April 2016 and the fact that they did not come into force until 28 April 2016 was irrelevant. The COSUGs claim was therefore out of time in any event.

I agree with Mr Strickland that in this context “make” means “bring into effect”. The case against Ofcom is that section 8(4) required Ofcom, through the exercise of its power to make regulations, to ensure that Edge was exempt from the requirement to obtain a licence for the relevant purposes. That state of affairs could only be brought about by regulations being brought into effect, and it would only be at that point that the breach of duty came to an end. The word “make” in section 8(4) appears as part of the phrase “they must make regulations under subsection (3) exempting the establishment, installation and use of a station or apparatus of that description from subsection (1)” and I agree with Mr Strickland that, for the purposes of section 2 of the Limitation Act 1980, this duty was not discharged until any regulations which were made actually did exempt the relevant apparatus etc. I do not accept that Parliament can have intended that Ofcom could discharge its duty by making regulations under section 8(4) but not bringing them into effect.

On this basis, both claims are in my view in time.

Accordingly, I propose to dismiss Edge’s claims on the grounds that it does not have an actionable claim in damages for the breaches of section 8(4) of the WTA 2006 which it alleges.