Arqiva Ltd & Ors v Everything Everywhere Ltd & Ors

This judgment is concerned with an expedited trial of certain aspects of agreements between the claimants (“Arqiva”) and the first defendant, Everything Everywhere Limited (“EE”), formerly T-Mobile (UK) Limited, the second defendant (“OPCS”) and/or third defendant (“OH”), the fourth defendant (“MBNL”) and the fifth defendant (“H3G”).

Originally Arqiva sought interim injunctions against all the Defendants but the parties were able to come to an agreement by which they sought an expedited trial of certain issues with certain undertakings in the meantime.

These agreements in issue in these proceedings reflect arrangements between mobile phone network operators (“MNOs”) under which MNOs install and operate their telecommunications networks by using antennae and other equipment at sites around the United Kingdom. Some 8700 sites in the United Kingdom are owned, leased, provided and/or managed by Arqiva.

The central issues concern the ability of EE and OPCS to carry out the terms of a joint venture under which they are seeking to combine their previous separate networks so that T-Mobile and Orange brand customers can roam, as appropriate, on both the EE and OPCS networks.

The third defendant, OH, is named as a party to certain agreements but contends that this is an error and the relevant party should be OPCS. At some future date I may have to determine whether that is correct. For convenience I generally refer to the relevant Orange party as Orange or OPCS, without deciding whether, in some circumstances, the relevant party may be OH.

The fifth defendant, H3G, was originally involved in the expedited trial but Arqiva and H3G were able to agree terms set out in an order of 17 May 2011 which brought that involvement in the expedited trial to an end on the basis that no finding in this judgment should be binding as between Arqiva and H3G.

For convenience, I refer to the first, second and fourth defendants (EE, OPCS and MBNL) together as the Defendants.

It is necessary to set out some background both as to mobile phone technology and also to the arrangements between the parties and the disputes which have arisen between them.

MNOs hold spectrum licences granted by the Office of Communications (“OFCOM”) under the provisions of the Wireless Telegraphy Act 2006. Such a licence entitles an MNO to operate on a particular frequency, but not on any other frequency. There is an issue in these proceedings whether OPCS is still an MNO but there are four other MNOs in the United Kingdom, EE, O2, Vodafone and H3G. In addition there are other mobile phone companies, such as Virgin, who do not hold spectrum licences or have their own networks, but operate by agreement with the MNOs and are known as a mobile phone virtual network operators (“MVNOs”).

The physical elements of an electronic telecommunications network consist of a Radio Access Network (“RAN”) made up of the antennae and other equipment located at sites and the Core Network which makes up the remainder of the network and is not located on those sites. The circuits between the RAN and the Core Network are referred to as the “Backhaul” and these are used to carry data so that it can be distributed over a mobile communications network.

There are a number of different generations of mobile communication technology, second (2G), third (3G) and fourth (4G) which provide ever faster data speeds and which allow more sophisticated applications. The 2G or GSM system was developed in the 1990s. The 3G systems which include WCDMA and UMTS systems were the next generation and there was an auction of 3G licences by the UK Government in 2003. The 4G system has been based on the UMTS standard and there will be an auction for 4G spectrum licences in 2012.

In order for MNOs to be able to provide those services they need a network of sites from which they can transmit and receive mobile phone signals. This led to agreements with landowners and also with providers, such as Arqiva, who had agreements with landowners and then made available their sites to one or more MNOs.

When granting rights to MNOs in relation to their sites, both landowners and providers sought to limit the rights by including restrictions on assignment, sub-letting, licensing, or sharing the rights, by requiring certain alterations to be the subject of consent, imposing additional charges for such things as the installation of additional equipment and limiting the extent to which sites could be de-commissioned.

One of the large costs for MNOs is the cost of the network of individual sites required to send and receive signals which provide the required area coverage and the required amount of voice and data traffic. This has led to MNOs seeking agreements with other MNOs under which there was some degree of joint use of equipment or networks by those MNOs.

In these proceedings there are three relevant Orange agreements relating to the rights which Orange had in relation to Arqiva sites. First there was an agreement for site-sharing facilities dated 26 January 1995 originally between the BBC, now the second Arqiva claimant and OPCS (“the Orange MSSA”). It is effective until 31 March 2018, with a break clause which would allow OPCS to terminate its rights over all but not some of the Arqiva sites in 2013.

Secondly, there was a National Enabling Agreement dated 20 September 1995 originally between National Transcommunications Limited (“NTL”) and Hutchison Telecommunications (UK) Limited (“the Orange NEA”). NTL is now the first Arqiva claimant but there is a dispute as to whether the other party (“Hutchison”) is properly now the third defendant (“OH”). The Orange NEA was originally effective until 30 December 2009 but after that was renewed until 30 November 2010. There is a dispute as to what the position is after 30 November 2010.

Thirdly, there is a Site Sharing Licence dated 20 September 1995 originally between NTL and Hutchison (“the Orange SSL”). The first claimant is now the relevant Arqiva party but there is a dispute as to whether OH is now properly the other party. There was a supplemental agreement on 31 July 2000 which made an amendment to the Orange SSL. The arrangements under the Orange SSL were originally effective and were continued on the same basis as the Orange NEA and there is a similar dispute as to the position after 30 November 2010.

In addition to the arrangements set out above, there are also agreements with the landowners in respect of each of the sites (“Landowner Agreements”). Those agreements have, for present purposes, been divided into two categories. First, there are Category 1 agreements which are made between an Arqiva party and a third-party landowner. Secondly, there are Category 2 agreements between Arqiva and an MNO or between an MNO and a landowner. Those Landowner Agreements contain various obligations relating to the individual sites.

In the mid 2000s EE and H3G sought ways to reduce their operating costs by sharing equipment for their respective 3G networks on Arqiva and other sites, whilst maintaining separate and distinct networks.

Under the joint venture arrangements, known as the Godiva Agreements EE and H3G agreed to operate a consolidated RAN to be used by each of them to provide services to their respective end-users. They formed the fourth defendant (“MBNL”) who they appointed as their agent and manager for the procurement and management of goods and services in connection with the consolidated network and they agreed to pool their existing 3G RAN sites, assets and infrastructure to establish the consolidated network, to be used by them and be managed on their behalf by MBNL.

They approached Arqiva to seek to negotiate new commercial arrangements to allow the joint venture to operate their networks through the use of Multi-Operator Radio Access Network (“MORAN”) equipment which gave them the ability to share the RAN at the relevant Arqiva sites whilst retaining their separate electronic communications networks and the use of their own separate frequencies.

On 10 December 2008 EE, H3G, MBNL and the first Arqiva claimant completed the negotiation and entered into a Suite of Agreements which included a Framework Agreement (“the FA”) and a Master Site Share Agreement (“the MSSA”). Under those agreements EE and H3G were to retain, install and separately use “Unconsolidated Equipment” and install and jointly use “Consolidated Equipment” on Arqiva sites to serve their respective separate and distinct mobile telecommunications businesses.

Under the FA and MSSA Arqiva agreed to these arrangements on terms which, in addition to payment, included the transfer of, or opportunity to acquire, additional sites then owned, leased by or licensed to EE. In addition, EE’s 2G network would continue to be operated on separate equipment as H3G did not have a 2G system. These arrangements between EE, H3G and Arqiva last, in relation to certain sites, until 31 December 2018, and in relation to others, until 31 December 2024.

In 2009, two sets of negotiations commenced concurrently. First, there were negotiations between Arqiva and MBNL, on behalf of EE and H3G, for rights additional to those granted pursuant to the Suite of Agreements, which would permit RAN sharing by another unnamed MNO on the networks of EE and H3G. The second set of negotiations took place between Arqiva and Orange to extend the term of an existing agreement (“the Orange NEA”) but which also included a request by Orange for the right to permit RAN Sharing and roaming by other MNOs on the Orange network.

These negotiations did not in the end lead to any concluded agreements. The negotiations between Arqiva and MBNL came to an end in September 2009 and those between Arqiva and Orange concluded in March 2010.

In September 2009 there was a public announcement by Deutsche Telekom, the parent company of T-Mobile (UK) Limited, now EE and France Telecom, the parent company of OPCS of a joint venture between EE and OPCS. In January 2010 a request for clearance for this joint venture was submitted under the EU merger regulation and in March 2010 clearance was given. There was then some initial contact between Arqiva and EE/OPCS.

On 1 July 2010 an agreement (“the July Deed”) was entered into between OPCS and EE under which there would be integration of the operations of EE and OPCS. On the same date T-Mobile was renamed as EE.

There were discussions between EE, OPCS and Arqiva from about August 2010 as to the arrangements at the Arqiva sites arising from this integration in the light of the existing agreements. The parties were unable to agree on the position, in particular the rights of EE and OPCS to introduce roaming under those existing arrangements. However in December 2010 they agreed to the terms of a Standstill Agreement whilst they carried out without prejudice negotiations. In March 2011 they held a mediation but could not resolve matters.

In early 2010 EE and OPCS had started the testing of a facility and in about September/October 2010 EE and OPCS commenced the provision to their customers of an “inactive” or “non-seamless” roaming facility over their respective 2G networks which involves the sending and receipt by EE of signals on the OPCS frequency and vice versa but the call does not continue. The next stage of the integration was then to be “active” or “seamless” 2G and 3G national roaming over those networks which involves the sending, receipt and automatic changeover of signals by EE and OPCS on each other’s frequencies and equipment throughout the duration of a call.

On 18 March 2011 Arqiva commenced these proceedings by which they sought interlocutory injunctions and other relief against the Defendants. The parties were able to agree on temporary undertakings on the basis that there should be an expedited trial of certain issues in relation to the construction of agreements between Arqiva and the Defendants, some factual disputes and certain allegations of breach, which Arqiva contend will allow the court to grant injunctions and make declarations. This judgment deals with those issues and some principles concerned with the availability of relief. The form of any relief will be the subject of further submissions.

The evidence given by Mr Davidson on behalf of Arqiva and by Mr Smith and Mr Bennett on behalf of the Defendants shows that the Mobile Communications Network has a number of features. The Network can be divided into two component networks, the Radio Access Network (RAN) and the Core Network. The RAN consists of a Base Transceiver Station (“BTS”) for the 2G system and a Node B for the 3G system. Those are located at the site of a mast with a connection to the mast antenna and controlled by Base Station Controller (“BSC”) for the 2G system and Radio Network Controller (“RNC”) for the 3G system. Together the BTS and the BSC/RNC are described as the Base Station Subsystem (“BSS”).

Within the Core Network there is a series of nodes, including the Home Location Register (“HLR”) and the Visitor Location Register. The HLR contains details of all customers permitted to use the network and every SIM card on the network. It enables the network to identify where a customer is and to send signals to that customer. There is also a Gateway Mobile Switching Centre (“GMSC”) and a Mobile Switching Centre (“MSC”). The GMSC forms the link between separate networks and permits calls to be made by a customer on one network to a customer on another network. The MSC performs the same “exchange” function within the network. The Signal Transfer Point (“STP”) is used to route voice and data traffic between the MSCs and GMSCs within the same network and between networks.

When a call is made on a particular network, the antenna on a mast receives electromagnetic energy in the form of radio waves on licensed frequencies known as “spectrum”. The signal passes through the BTS to the BSC and then through circuits known as Backhaul to the Core Network. The Core Network then transfers the call or data to the Destination Network where the call is connected to the ultimate user.

Each mobile phone handset has a SIM card which contains customer subscriber data, the customer’s International Mobile Subscriber Identity (“IMSI” – a unique identifier of a customer) and, amongst other data, roaming preferences. Each network broadcasts a unique identifier code, the Public Land Mobile Network Code (“PLMN”) which the handset will search for to connect to the network. The first five digits of the IMSI correspond to the PLMN code of the network.

This is a case where there are limited disputes of fact and where there has been agreement between the experts on any expert issues which have arisen and they have produced a joint statement and not been called. I have, though, heard evidence from ten factual witnesses.

Arqiva called Mr Alastair Davidson, Mr Thomas Bennie, Mr Christopher Rose, and Mr Jeremy Phillips. The Defendants called evidence from Mr Colin Caldwell, Mr Huw Edwards, Mr Matthew Redding, Mr Glen Sinclair, Mr Tim Smith and Mr Tom Bennett.

Arqiva and the Defendants each instructed experts. Arqiva instructed Mr Anthony Gray and the Defendants instructed Prof. Simon Saunders. They were able to come to certain agreements on the technical aspects of 2G and 3G roaming and, on analysis of the issues, there were no further technical issues raised by those issues and neither party called their expert to give evidence.

The underlying dispute between the parties concerns the rights which EE acquired under the MSSA and FA and the rights which OPCS acquired under the Orange MSSA and which OH or OPCS acquired under the Orange NEA and Orange SSL and whether the way in which EE and OPCS are or intend to operate certain aspects of their networks is covered by those rights.

There are two particular issues which lie at the heart of the dispute between the parties. The first relates to the nature of the familiar mobile phone process known as “roaming”. As pleaded in the Particulars of Claim this forms the central allegation, it being alleged that the “roaming” which has been or will be permitted by EE to OPCS or by OPCS to EE will breach various provisions of the MSSA or FA or of the Orange MSSA, Orange NEA or Orange SSL. It is necessary to be clear as to what roaming involves.

The second issue relates to the status of OPCS in terms of whether it holds a spectrum licence. Various provisions of the agreements refer to rights and obligations which, in this case, depend on whether OPCS holds a spectrum licence. EE and OPCS submit that EE is now and has been since 2 March 2011 the holder of the licences which were formerly in the name of OPCS. Arqiva contend that the purported transfer of the licences from OPCS to EE does not comply with section 30 of the Wireless Telegraphy Act 2006 and the licence issued by OFCOM on 2 March 2011 is void.

The process of roaming involves a customer of one MNO accessing the network and frequency of another MNO of which it is not a customer.

This process has been adopted by MNOs to deal with a number of situations. First, when a customer goes abroad then to make calls he has to use the network of another MNO in that country and roaming agreements have developed between MNOs to allow this “international roaming” to happen. Secondly, to allow customers to make emergency 999 or 112 calls in areas where they do not have access to their MNO’s network, they are able to roam onto other MNO’s networks to make such calls. Thirdly, when granting H3G’s 3G spectrum licence in 2003 OFCOM mandated roaming to be provided to H3G by Orange, O2, and Vodafone. Fourthly, MVNOs who do not hold spectrum licences or have their own networks, operate by agreement with the MNOs and are roaming.

As set out above there are different types of roaming in terms of “seamless” and “non-seamless” and there are different situations in which roaming takes place.

On the basis of the evidence given by Mr Timothy Smith, I am satisfied that on a technical level there is no material difference between the 2G non-seamless roaming which is being carried out and the other forms of roaming which were in place with wholesale suppliers, MVNOs and international mobile operators prior to 1 July 2010. The experts have confirmed in their joint statement that this is “technically plausible”.

Therefore, for the purpose of the issues I have to determine, there is no distinction on a technical basis between different forms of roaming and I base my consideration of the issues by considering whether the agreements permit or preclude a process of roaming by which a customer of one MNO accesses the network and frequency of another MNO of which it is not a customer.

The experts were able to agree certain issues concerning 2G and 3G roaming. On the basis set out above, the implementation of 2G non-seamless roaming involved:

For seamless 2G roaming it was agreed that:

For 3G roaming it was agreed that:

Finally, it was agreed that in relation to the use of spectrum for roaming, neither the non-seamless 2G roaming currently in operation nor the seamless 2G or 3G roaming planned involves the reception and carriage by EE’s radio network of signals within the radio spectrum used by the OPCS network or vice versa. In all cases, it is a customer’s handset that changes radio frequencies when switching between the two networks, to match the transceiver frequencies of the BTS (2G) or node B (3G) to which they are connected.

There is also reference in the documents to future plans of the EE/OPCS joint venture to have network consolidation. It is not clear what form this might take beyond non-seamless roaming, from a technical point of view. When necessary I have assumed that it might involve some form of RAN Sharing, such as the MORAN system.

In order to decide certain issues it is necessary to consider whether OPCS is an MNO and holds spectrum licences.

Prior to July 2010 OPCS held two Public Wireless Network Licences under the Wireless Telegraphy Act 2006. The first, Licence number 249673, was first issued on 14 February 1994. From the documents it is evident that the licence has been in the name of OPCS since 2 August 2005 and revision 13 of this licence in the name of OPCS was issued on 6 January 2011. The second licence was a third generation mobile licence, licence number 207129 which was first issued to Orange 3G Limited on 1 September 2000 and then was issued as revision 1 to OPCS on 3 June 2003. Both those licences were replaced by licences issued on 2 March 2011 in the name of EE.

Arqiva contend that OPCS is still the holder of those spectrum licences because, for the licences to be re-issued in the name of EE, it would require a transfer. Arqiva refer to Section 30 (4) and (5) of the Wireless Telegraphy Act 2006 which provide, in relation to the transfer of a spectrum licence:

“(4)

The transfer of rights and obligations under a wireless telegraphy licence or grant of recognised spectrum access is void except to the extent that it is made -

(a)

in accordance with regulations under this section; or

(b)

in accordance with a provision falling within subsection (5).

(5)

The provision is one which -

(a)

is contained in a wireless telegraphy licence granted before 29^th December 2003 or in the first or any subsequent renewal on or after that date of a licence so granted; and

(b)

allows the holder of the licence to confer the benefit of the licence on another in respect of any station or apparatus to which the licence relates.”

It is common ground that there are currently no relevant regulations for the purpose of section 30(4)(a). Arqiva also submit and that the OPCS spectrum licences were granted after 29 December 2003 and/or do not “allow the holder .. to confer the benefit of the licence on another”. As a result Arqiva contends that there has not been a valid transfer under section 30(4) and (5) of the Wireless Telegraphy Act 2006.

Arqiva accepts, however, that OFCOM has purported to transfer the OPCS spectrum licence to EE, but submits that this is not permitted under the Wireless Telegraphy Act 2006 and therefore that the purported transfer is void and does not effect a transfer as a matter of law.

The Defendants submit that the issue of whether the action of OFCOM in transferring the spectrum licence to EE is valid is not a matter which can be determined in these proceedings between Arqiva and the Defendants and it is an abuse of process for Arqiva to raise this issue here rather than in judicial review proceedings. They say that on 2 March 2011 the licences were re-issued to EE and so, on the face of the licences, OPCS has not held a spectrum licence from that date.

There was some evidence on the position of OFCOM. The solicitors for Arqiva wrote to OFCOM on 11 March 2011 seeking an explanation for the transfer of the licences for OPCS to EE. On 25 March 2011 OFCOM responded indicating that they had not transferred the licences as that term is understood under either the licence or the Wireless Telegraphy Act 2006. They said:

“We consider that what we have done is to effect an administrative change of name intra-group. Everything Everywhere has provided evidence to Ofcom certifying that Orange Personal Communications Services Limited is a wholly owned subsidiary of Everything Everywhere Limited. Following receipt of that evidence and at the request of Everything Everywhere, on 2 March 2011 Ofcom changed the name on the licences numbered 207129 and 249673 from Orange Personal Communications Services Limited to Everything Everywhere Limited and accordingly issued revised Licences to Everything Everywhere on the same date.”

The relevant evidence appears to be a letter of 1 July 2010 from Mr Colin Caldwell, the Company Secretary of OPCS to Mr Emin Gurdenli, the Vice President Networks of EE. In that letter the following is stated:

As Mr Caldwell explained in his evidence the relevant provision of Clause 8, which he referred to in that letter, provided as follows:

“The Licences shall ensure that the Radio Equipment is operated in compliance with the terms of this Licence and is used only by persons who have been authorised in writing by the Licensee to do so and that such persons are made aware of, and of the requirement to comply with the terms of this Licence.”

He said that, on this basis, it was considered that OPCS could authorise EE, and other legal persons, to operate the radio equipment.

There was no further evidence at this expedited trial relating to the way in which the administrative change of name had taken place. In a letter date 21 April 2011 Arqiva’s solicitors sent OFCOM copies of the pleadings saying that they anticipated that the issue of whether the purported transfers of the licences to EE were valid would be raised at the expedited hearing and “the Court may therefore invite you to make submissions in this regard”. No application has been made to join OFCOM and the matter was not taken further at the expedited trial.

Mr Alex Charlton QC, who appears with Mr Matthew Lavy on behalf of the Defendants, submitted that Arqiva had taken the point that the licences issued by OFCOM on 2 March 2011 were void on the basis of section 30 of the Wireless Telegraphy Act 2006 and it was up to Arqiva to establish that point. He referred me to the provisions of section 9 (1), 9 (7) and 10 of that Act and to section 10 of and schedule 1 to that Act which sets out the procedure for Wireless Telegraphy Licences. I was, in particular, referred to paragraph 6 of Schedule 1 which provides as follows:

“OFCOM may revoke a wireless telegraphy licence or vary its terms, provisions or limitations-

(a)

by a notice in writing given to the holder of the licence; or

(b)

by a general notice applicable to licences of the class to which the licence belongs, published in such a way as may be specified in the licence.”

Mr Charlton QC also referred me to the Communications Act 2003 which conferred functions on OFCOM. He referred me to sections 1(3), 3 and 4 and submitted that this gave OFCOM wide duties and wide powers to perform them.

In relation to section 30 Mr Charlton QC referred to the various sub sections of that section and submitted that it was only concerned with spectrum trading by licence holders rather than actions by OFCOM giving effect to “an administrative change of name intra-group”. He therefore submitted that Arqiva’s submission that there had been an invalid transfer under section 30 was misplaced.

He submitted that, in any event, if Arqiva sought to challenge the spectrum licence issued in the name of EE they should do so by way of Judicial review and that to seek to have the issue decided in these proceedings was an abuse of process. In this respect Mr Charlton QC referred me to the decision of the Court of Appeal in Ford-Camber Limited v Deanminster Limited [2007] EWCA Civ 458. In that case there was an issue between the parties as to the basis on which the claimant should be compensated for the forced diversion of its right of way to an alternative route by the second defendant. The second defendant contended that the claimant’s rights were affected because the land had in the past been acquired by the Land Authority for Wales. The claimant sought to say that the transaction was not properly authorised by the Land Authority for Wales. The court considered the issue of whether, because of the public law aspect relating to the acts of a public body, it would be an abuse of process to raise the point in those proceedings. Lloyd LJ said this at paragraph 38:

“I will address that point in relation to each of the Claimant's arguments to which it is relevant in turn, but I would note at this stage that in both Clark and the Rhonda Cynon Taff Council case the authority whose acts were impugned was a party to the action. It is a very different matter to raise, in a property dispute between A and B, a claim or defence based on public law matters alleged to have vitiated some act of A's predecessor in title, C, where C was a public body whose act had not been challenged by direct judicial review.”

Mr Charlton QC submitted that this was, similarly, a case where there was a collateral attack being made on the decision of a statutory body that was not a party to the proceedings and where the question is not whether an act has happened but it is an allegation that a transfer has been made improperly under statute and it was sought that, in accordance with the statute, it should be rendered void.

Mr Blunt QC, who appeared with Ms Juliette Levy on behalf of Arqiva, submitted that there was no provision for OFCOM to transfer a licence from OPCS to a different legal entity, EE. He submitted that the only way in which spectrum licences could be transferred was under section 30 of the Wireless Telegraphy Act 2006 and on the basis of section 30(4) where the transfer was not made in accordance with subsection 30(5)(a) because there were no regulations and did not fall within subsection 30(5)(b), the transfer of rights and obligations under the licences was void. He also referred to a policy document from OFCOM.

He submitted that this was not a case where there was an abuse of process and he referred me to the decision of Mr Justice Lewison in Bunney v Burns Anderson Plc [2008] Lloyd’s Law Rep 198 where parties sought to enforce rights under orders made by the Financial Ombudsman Service which required the court to consider whether the Ombudsman had exceeded his powers. In dealing with the question of whether a party could, in those proceedings, raise a defence based on jurisdiction of the Ombudsman, he held that where a defendant would wish to challenge a public law decision as part of his defence the court did not have any discretion to refuse to allow him to do so unless either the raising of the defence was an abuse of process or it had no reasonable prospect of success. Mr Blunt QC therefore submits that in this case the court should review the decision of OFCOM and determine, as between Arqiva and the Defendants, whether the spectrum licences issued on 2 March 2011 in the name of EE have properly been transferred from OPCS to EE.

I consider that the question of whether the spectrum licenses originally issued in the name of OPCS and subsequently re-issued in the name of EE were properly re-issued is a question which can be determined by the court in these proceedings in appropriate circumstances without the need for judicial review. There will be circumstances in which that question will arise as a collateral issue as indicated by Lord Diplock in O’Reilly v Mackman [1983] 2 AC 237 at 285F and by Lord Bridge in Cocks v Thanet BC [ 1984] 2 AC 286 at 298H to 296A. Such cases are not limited to a party having to rely on the collateral challenge as a defence but may be raised by way of a claim: see Lord Bridge in Roy v Kensington [1992] 1 AC 624 at 628H to 692D. However as set out in Ford-Camber the Court will be reluctant to decide an issue where the party whose decision is challenged is not a party to the proceedings. It is to be noted that in Bunney v Burns the Ombudsman was represented at the hearing.

In the present case the ability of EE or other parties to use a licence issued by OFCOM is capable of giving rise to repercussions outside the scope of these present proceedings between two major participants in the mobile communications industry. I have been referred to the fact that similar transfers appear to have been made from Orange 3G Limited to OPCS and a transfer within the O2 Group. I consider that I should not decide the question without giving OFCOM a proper opportunity to make submissions as to the basis for their jurisdiction to make the relevant name change when dealing with two separate legal entities within the same group.

Pending such further steps as may be necessary for that purpose, I would indicate the preliminary view that I do see merit in the submissions put forward by Arqiva that what occurred on 2 March 2011 is a transfer of the relevant licence from OPCS to a separate legal entity, EE, which has not been made in accordance with section 30, in particular section 30(4)(a) or (b) of the Wireless Telegraphy Act 2006 and would therefore be void. However that view is a preliminary one and, although I have not been referred to any provision which I consider would entitle OFCOM to make a change which affected a transfer between two legal entities, I am conscious that something may exist to justify the decision taken by OFCOM in their letter of 25 March 2011. I should add that I do not find the concept of an “undertaking” in European law, raised by the Defendants, of assistance in interpreting the ability of OFCOM to re-issue the licence to EE on the facts of this case.

On that basis I have to approach each of the issues on the basis that EE and not OPCS has held the relevant licences since 2 March 2011, alternatively on the basis that OPCS is still the holder of those licences because the transfer was void under section 30(4) of the Wireless Telegraphy Act 2006.

In approaching the question of construction of the various agreements I have taken account of the well known principles set out by Lord Hoffmann in Investors Compensation Scheme v. West Bromwich Building Society [1998] 1 WLR 896, at page 912 and in BCCI v. Ali [2002] 1 AC 251. In this case evidence of pre-contractual negotiations was put before me to establish, the party who proffered a clause in case it became necessary to consider the contra proferentem rule. In the event I have not needed to consider either aspect of this rule and such pre-contractual negotiation were, of course, inadmissible for the purpose of construction: see Chartbrook Ltd v. Persimmon Homes Ltd [2009] 1 AC 1101 per Lord Hoffman at paragraph 41.

I have found it convenient, when considering the provisions of the agreements to consider how far they permitted roaming. That forms the basis of my findings of breach which, in turn, are relied upon by Arqiva in seeking injunctive relief.

The relevant parties to the Suite of Agreements, apart from Arqiva, are EE, H3G and MBNL.

The admissible factual background known to both parties at the time of entering into the Suite of Agreements can be summarised as follows:

Arqiva rely on Clause 20.14 which provides as follows:

“20.14

The grant of the Rights pursuant to the MSSA in respect of the Group A Sites, the Group B Sites and the Group D Sites shall not enable the Operator to enter into any arrangement for the carriage (using the licensed frequencies of either T-Mobile or H3G) of voice or data traffic of any Other Licensed Operator for whom the Arqiva Provider provides network infrastructure services to the extent that there is a significant and material risk that such arrangement will:

(a)

result in that Other Licensed Operator de-commissioning sites owned or managed by the Arqiva Providers and occupied by the Other Licensed Operator at that time; [or]

(b)

be used by an Other Licensed Operator that is deploying the same or similar New Technology as the Operator where by so doing the Other Licensed Operator will be able to use that New Technology or offer it to its customers in areas where it would otherwise have been likely to deploy communications related Equipment... at any sites of any Arqiva Provider or any third party,

provided that nothing in this clause 20.14 (subject to clause 28.2 of the MSSA) shall prevent the Operator from permitting Hand Down Usage or emergency 999/112 services by a third party.

As set out in the FA, there was the word “and” between sub-clauses (a) and (b). In paragraph 20 of the Particulars of Claim Arqiva sought Rectification so as to substitute “or” for that “and”. The claim was originally denied by the Defendants but on 19 May 2011 the Defendants amended to accept the claim. Accordingly Clause 20.14, as rectified, is set out above.

Mr Blunt QC submits that this clause does not enable EE to enter into any arrangements for the carriage of voice or data traffic of any Other Licensed Operator, which would include OPCS, for which Arqiva provides network infrastructure services to the extent that there is a significant and material risk that such arrangement will result in OPCS de-commissioning sites owned or managed by Arqiva and occupied by OPCS at that time. He submits that the arrangement between EE and OPCS by which OPCS roams on EE’s network is an arrangement for the carriage of voice or data traffic, that OPCS has been an “Other Licensed Operator” and that is sufficient but, in any event, he contends that OPCS is still an “Other Licensed Operator” because the licences have not been properly transferred. He also submits that, by reference to the documents produced by the Defendants, this arrangement gave rise to a significant and material risk that OPCS would de-commission Arqiva sites which they currently occupied.

Mr Charlton QC submits that Clause 20.14 assumes and is predicated on the basis that roaming is permitted and is within the rights granted under Clause 3.1 of the MSSA. He says that unless it falls within Clause 20.14 roaming is permitted. He submits that, in this case, Arqiva must prove all the necessary elements in order to bring themselves within the exception under Clause 20.14. He submits, correctly in my judgment, that Clause 20.14 has to be construed against the background of the rights granted under the MSSA.

In that connection, I consider that he is correct in characterising the rights as being rights to use and occupy the sites and facilities, to carry out activities, to access the sites, to use licensed frequencies by means of the equipment and to use licensed technology. I also accept that there is nothing within the rights granted under the MSSA which seeks to give rights relating to the entering into of any arrangement. It follows that, when construing Clause 20.14, whilst it refers to entering into “any arrangement for the carriage... of voice or data traffic” I consider that it should be construed as meaning that EE is prevented from making use of the sites, facilities, equipment, licensed frequencies or licensed technology under any arrangement for the carriage of voice or data traffic.

In my judgment the arrangement under which the Orange brand customers are permitted to roam on the EE network is an arrangement for the carriage of voice or data traffic using the licensed frequencies of EE. Indeed, I consider that that is the essence of the roaming arrangement. On the facts it was September/October 2010 when EE introduced 2G non-seamless roaming for Orange brand customers which was use under an arrangement for the carriage of voice or data traffic. I do not consider that testing to see whether or how it would work would be such use but there are various phases of testing and I would not preclude some testing being use under an arrangement for the carriage of voice or data traffic.

The next question is whether OPCS is an “Other Licensed Operator”. OPCS was, on any view, an “Other Licensed Operator” until 2 March 2011 because it had the relevant spectrum licences. To the extent that the licence was not validly transferred to or re-issued in the name of EE, then OPCS would remain an “Other Licensed Operator”, being a provider other than T Mobile and H3G licensed under the Wireless Telegraphy Act 2006. I cannot come to a conclusion as to the position after 2 March 2011.

The third issue, on the basis of Clause 20.14, as rectified, is the need for Arqiva to establish that the use under an arrangement for roaming with OPCS would give rise to a significant and material risk of OPCS de-commissioning Arqiva sites.

Arqiva relies on the following evidence to establish that risk:

I consider that based on that evidence and leaving aside the July 2009 references relating to Project Polo, it is evident that even with 2G non seamless roaming and more so with the introduction of seamless 2G and 3G roaming there was a significant and material risk that OPCS Arqiva sites would be decommissioned.

Therefore, in summary, I do not consider that, to the extent that OPCS is and remains a Licensed Operator, Clause 20.14 permits EE to use the Arqiva sites for roaming under an arrangement with OPCS by which Orange brand customers roam on the EE network.

Arqiva rely on clause 3.1 which deals with the grant of Rights and provides as follows:

“Without Prejudice to the rights of whatsoever nature of which the Operator has the benefit under any Existing Facilities Chart, each Arqiva Provider grants to the Operator the Rights in respect of each... Site,… in accordance with and subject to the terms of this Agreement.”

Arqiva rely on Clause 3.2.7 which provides:

“Notwithstanding anything to the contrary in this Agreement, the operator shall not exercise the Rights or use the Facilities at any Group A Site or Group B Site other than for the Permitted Use.”

Arqiva say that by Clause 3.2.7 EE and H3G are, in effect, prohibited from exercising the Rights at any Group A or Group B sites except for the Permitted Use.

The “Rights” granted are defined in clause 1.1 as: the “Consolidated Network Rights”, the “Frequency Rights”, the “Technology Rights” and the “Unconsolidated Network Rights”. Clause 1.1 of the MSSA contains definitions of each of the Rights. It is convenient to deal with each of the Rights in turn.

These are defined as:

There are also these definitions:

The Defendants say that the Rights granted permits EE and H3G to use of a single set of 3G network equipment hardware for the purpose of maintaining their separate and distinct services and operating their separate and distinct networks. They submit that there is nothing in the definition of “Consolidated Network Right” and “Permitted Use” to suggest the carriage of voice or data traffic of an Other Licensed Operator was outside the Rights granted. They submit that the carriage by EE of voice or data traffic belonging to customers of an Other Licensed Operator involves use of its separate and distinct network. An arrangement with an Other Licensed Operator whereby EE offers roaming services to the customers of the Other Licensed Operator is the offer of a separate and distinct service.

These are defined as:

“the right to use subject to the terms of this Agreement any frequency (including those currently used by 2G, 3G and any future technology) for which Operator Permits are held by the Operator, by means of the Equipment”.

“Operator Permits” are defined as follows: “in respect of each Site, all consents, permits and licences of a public nature (whether or not statutory) issued by a competent government or regulatory authority required to operate the Equipment and other regulatory rules authorisations and requirements of any governmental and other competent authorities relating to the provision of Mobile Electronic Communications Services or on a Mobile Electronic Communications Network by the Operator in accordance with the terms of this Agreement (and without prejudice to the generality of the foregoing to use any frequency or technology in accordance with this Agreement),..”

The Defendants say that it is for EE to obtain and maintain the consents, permits and licences that it needs for the Equipment and Spectrum it wishes to deploy. It is not a matter that lies between EE and Arqiva, but between EE and the relevant licensing or regulatory body. There is nothing in the clause that suggests that Arqiva are to be involved in any capacity in the obtaining and maintaining of those consents.

The Defendants say that the definition of “Equipment” is broad and covers all EE’s equipment on each site as listed in the Facilities Chart for that site. They say that, subject to the terms of the MSSA, EE’s Frequency Right is unqualified and although there is no reference to the phrase “Permitted Use” in the definition of “Frequency Rights”, clause 3.2.7 stipulates that the Rights shall not be exercised other than for the “Permitted Use”, i.e. for the purpose of providing EE’s and H3G’s separate and distinct services and operating their separate and distinct networks. Should, for example, EE acquire additional spectrum frequency, as it has done from OPCS, the use of that frequency falls squarely within the “Frequency Rights”.

These are defined as:

“the right to use in accordance with and subject to the terms of this Agreement any technology (including 2G, 3G, and any future mobile telecommunications technology) for which Operator permits are held by the Operator, by means of the Equipment.”

The Defendants say that, subject to the terms of the MSSA, EE’s Technology Rights are unqualified and there is no provision that the “Technology Rights” are limited so that the deployment of technology for roaming, if it be required, is outside what has been granted.

These are defined as:

“Unconsolidated Equipment” means “Equipment that uses a single set of equipment hardware to provide mobile network services to either T Mobile or H3G but not both of them.”

The Defendants say that, as set out above, “Permitted Use” denotes that the Right to install, use and maintain “Unconsolidated Equipment” on and to exercise the Facilities in respect of the Sites is for the purpose of providing EE’s and H3G’s separate and distinct services and operating their separate and distinct networks.

The main provision of the MSSA on which Arqiva rely is Clause 28.1 which states:

“28.1

Nothing in this Agreement shall entitle the Operator to consolidate further than as contemplated under this Agreement its Mobile Electronic Communications Network with that of any Other Mobile Licensed Operator both at the date of this Agreement and thereafter.”

The word “Mobile” in Clause 28.1 is defined to mean “in connection with Electronic Communications Services or Electronic Communications Networks, electronic communications services or electronic communications networks that enables and End-user of a Public Electronic Communications Service to access that public service independently of the End-user’s location by means of Wireless Telegraphy.”

“Other Mobile Licensed Operator” means any communications provider other than T-Mobile or H3G that is licensed under the Wireless Telegraphy Act 2006 and which operates a 2G or 3G network …”

“Electronic Communications Network” is defined by reference to the meaning attributed to that term in Chapter 1 of Part 1 of the Communications Act 2003, which provides at section 32:-

“32 Meaning of electronic communications networks and services

(1)

In this Act “electronic communications network” means -

(a)

a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description; and

(b)

such of the following as are used, by the person providing the system and in association with it, for the conveyance of the signals -

(i)

apparatus comprised in the system;

(ii)

apparatus used for the switching or routing of the signals; and

(iii)

software and stored data.

(2)

In this Act “electronic communications service” means a service consisting in, or having as its principal feature, the conveyance by means of an electronic communications network of signals, except in so far as it is a content service.”

Mr Blunt QC submits that OPCS is still a Mobile Licensed Operator (“MLO”) and hence is an “Other Mobile Licensed Operator” and so EE cannot, because of Clause 28.1, “consolidate further than as contemplated under [the MSSA] its Mobile Electronic Communications Network with that of [OPCS]”.

He also says that, even if that is not the case, OPCS was an MLO when the MSSA was entered into and hence falls within Clause 28.1 because the phrase “both at the date of this Agreement and thereafter” applies to the “Other Mobile Licensed Operator”. He relies on the fact that when the parties entered into the MSSA there were only three other MLOs operating 2G and 3G networks: OPCS, O2 and Vodafone. He says that they would be and obviously were concerned to prevent any sharing with any one of them. He says that the phrase cannot apply solely to “consolidate” because of the mischief which, he submits, the clause was designed to address. He also says that since any consolidation by EE and H3G under the terms of the MSSA was necessarily to be after the date of the MSSA, it would be meaningless to refer to consolidation at that date, and surplus to make any reference to “thereafter”.

He accepts that the word “consolidate” is not defined in the MSSA, but says that it is plain from the context or background to the negotiation of the entire Suite of Agreements and from the terms of those Agreements, as a whole, that consolidation occurs where there is any sharing or bringing-together of two networks or any parts of them.

Mr Blunt QC submits that, although Clause 28.1 is expressed in terms circumscribing the rights granted by Arqiva under the MSSA to EE and H3G, the effect of that clause is to prohibit EE and H3G and either of them from consolidating further than as contemplated under the MSSA either with each other or with any of the three other MNOs, OPCS, Vodafone, and O2 existing at the time of the MSSA or with any other MNO which might enter the market after the MSSA.

Mr Charlton QC referred to the fact that Clause 28.1 is a limitation clause providing for an exception to the rights which are granted under Clause 3.1. He submits that the consolidation contemplated by the parties at the time of MSSA was RAN Share which is the sharing of RAN equipment by 2 or more MNOs acting at arm’s length who otherwise have separate and distinct networks and businesses. He therefore submits that the RAN Share is the consolidation contemplated by the MSSA and refers to the definition of consolidated equipment and network consolidation in support of that proposition. He says that although MORAN technology is not referred to in the MSSA, it was the technology used to effect consolidation and was a form of RAN Share.

He therefore says the word “consolidate” should be construed as RAN Share. He says that this is also a matter of commercial reality. The equipment on the Arqiva sites is RAN equipment and it makes sense for that to be the subject of the consolidation rather than the Core Network which is situated away from the Arqiva sites. He submits that it is untenable for Clause 28.1 to prevent EE from carrying out any consolidation of any part of its network, such as its Core Network, with any Other Mobile Licensed Operator. He submits that the wish of Arqiva to protect their commercial position in relation to site rentals would relate directly to consolidation by RAN Share rather than consolidation of the Core Network. He submits that Clause 28.1 therefore meant that neither EE nor H3G were entitled to include any Other Mobile Licensed Operator in the RAN Sharing scheme or to repeat their RAN Share with any Other Mobile Licensed Operator. He submits that the word “further” as used in relation to consolidation does not refer to some system of further consolidation between EE and H3G but rather refers to the number of Other Mobile Licensed Operators involved.

In relation to the phrase “at the date of the Agreement and thereafter” Mr Charlton QC submits that this refers to the phrase “to consolidate further”. He submits that the focus of the clause as a whole is the verb “to consolidate” and, in the absence of any indication to the contrary, that would be the natural reading of the clause. He said that it may be expressed inelegantly and was probably the result of overcautions drafting, but the phrase was introduced to make it clear that a third MNO could not be included in the envisaged roll out of the MORAN equipment to be used by EE and H3G and nor could a third MNO be added later. He submits that Arqiva’s contention that the words prohibit any further consolidation, either with a Mobile Licensed Operator then existing at the date of the MSSA or with any other Mobile Licensed Operator who came into existence after the date of the MSSA is not a possible view of the clauses. He says that to achieve that meaning would require the insertion of words such as “in existence” to appear before the phrase “both at the date of this Agreement and thereafter”.

Mr Charlton QC submits that the phrase “any Other Mobile Licensed Operator” envisages, first, that it must be a “communications provider” other than EE and H3G and, secondly, that it must be an entity that operates, in the present tense, a 2G or 3G licence.

In my judgment given the background to the Suite of Agreements the concern was that EE and H3G should not be permitted to consolidate their mobile electronic communications networks with that of another Licensed Operator and that concern was based on the fact that EE and H3G were consolidating their mobile electronic communications network by using the MORAN system of RAN Share. The focus of the consolidated and unconsolidated network rights concerned the installation, use and maintenance of equipment and facilities at site and the rights to occupy and access each site. I consider that the phrase Unconsolidated Equipment which means Equipment that uses a single set of equipment hardware to provide mobile network services to either EE or H3G “but not both of them”, strongly supports a construction that the concern was use of the equipment by another Licensed Operator. It therefore envisages the use of equipment by that other Licensed Operator.

In this case the voice or data traffic of a customer of OPCS would pass through the RAN equipment on its way to the Core Network. In passing through EE’s equipment I consider that the ability of the customer of OPCS to use the Unconsolidated Equipment of EE would amount to consolidation of the network of EE with the network of OPCS. I do not consider that it is necessary for there to be the introduction of new equipment or other physical changes to the RAN. Rather I consider that there is consolidation whenever there is a sharing or combination of networks or any part of them in relation to the equipment which forms part of the RAN. In the case of roaming EE uses its equipment on Arqiva sites to receive and send voice and data traffic to Orange brand customers on the OPCS network. I consider that, in doing so, EE is sharing the EE RAN part of the network.

The phrase “both at the date of this Agreement and thereafter” does not sit easily at the end of Clause 28.1. I consider that the submission by Mr Blunt QC that it was intended to refer to a Mobile Licensed Operator in existence at the date of the MSSA and thereafter puts a strained meaning on the phrase. The important matter would be that whenever there was a consolidation it should not be with another Mobile Licensed Operator. In principle it should not matter whether that Mobile Licensed Operator was in existence at the date of the MSSA or came into existence after that date of the MSSA. What is of importance is that the relevant party is a Mobile Licensed Operator at the date when the consolidation occurs. In context, therefore, I consider that the phrase in Clause 28.1 was saying that, both at the date of the agreement and thereafter, there was no entitlement to consolidate further. Such a provision may not be necessary but there was concern that the MSSA was dealing with the rights of EE and H3G at the date of the agreement and that they should be prevented from further consolidation either then or at any future date.

It follows that the 2G roaming which has been carried out by OPCS on EE’s network has been a further consolidation by EE of its Mobile Electronic Communications Network. Whether this engages Clause 28.1 depends, again, on whether OPCS was a Mobile Licensed Operator after 2 March 2011. It is evident that up to that date it was and therefore the roaming carried out up to that date was not something which EE was entitled to do under Clause 28.1. Whether that position continued depends on the validity of the re-issue to or transfer to EE of the original OPCS licence.

Arqiva also relies on Clause 28.2 which provides:

“This Agreement, the exercise of the rights granted under this Agreement and the use of the Facilities at a Site is personal to the Operator and the Operator shall not assign, sub-license, sub-let, share, or hold on trust, with, to or for any third party any of its rights of benefits granted hereunder in respect of any Site or any of the Facilities including, without limitation, the use or exercise of the Rights or the use of the Mast and Accommodation or jointly deploying the Equipment.”

In relation to Clause 28.2 Mr Blunt QC submits that when EE allowed OPCS’s Orange brand customers to roam on EE’s network they were sharing the rights and benefits under the MSSA.

Mr Charlton QC says that Clause 28.2 is concerned with the exercise of the rights which are assumed to be the Rights granted at Clause 3.1 and the use of the Facilities at the Arqiva sites. He says that the clause states that the exercise of the Rights and the use of the sites is personal to EE and H3G and they shall not share the rights and benefits with any third party.

He says that EE’s business is in providing communication services to individual customers, wholesale customers, MVNOs and international roamers and, in one sense, they are all third parties. However, he submits that the MSSA and this clause and Clause 28.3 in particular must be read in the context of the commercial purpose for which the Rights were granted. EE’s legitimate commercial expectation under the MSSA was that it was entitled to exercise the Rights for commercial gain by providing communications services. Providing those services to its customers for reward plainly does not contravene the stipulation for personal use or fall foul of the restrictions.

As I have stated above, in allowing roaming, EE is using its equipment on Arqiva sites to receive and send voice and data traffic to Orange brand customers on the OPCS network and, in doing so, EE is sharing the EE RAN part of the network. In that way I consider that EE is sharing the Unconsolidated Network Rights under which EE could use the Unconsolidated Equipment to provide network services to either T Mobile or H3G but not both of them and was limited to do so in terms of Permitted Use defined as “for the purpose of providing separate and distinct Mobile Electronic Communications Services and operating separate and distinct Mobile Electronic Communications Networks”. By providing network services to the Orange brand customers of OPCS, EE was sharing the Unconsolidated Network Rights outside that Permitted Use and was in breach of Clause 28.2.

Arqiva also relies on Clause 28.3 which provides:

“Without prejudice to clauses 28.1 and 28.2 and 28.4 to 28.11 (in each case inclusive), none of the Parties may assign, transfer, subcontract, charge or otherwise deal with any of its rights and/or obligations under this Agreement, nor grant, declare, create or dispose of any right, interest or obligation in it, without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed). ...”

In relation to Clause 28.3 Mr Blunt QC submits that when EE allowed OPCS’s Orange brand customers to roam on EE’s network they were dealing with the rights and/or obligations under the MSSA.

Mr Charlton QC submits that this clause has no application to the matters in dispute and Arqiva’s reliance upon it is misplaced. He says that the only relevant clause referred to in Clause 28.3 is Clause 28.8 which states that it will be reasonable to refuse consent to assign under clause 28.3 where the proposed assignee is a competitor of the party from whom consent is requested.

EE have entered into an arrangement with OPCS by which EE has allowed OPCS’s Orange brand customers to roam on EE’s network. In doing so, then as set out above, they are dealing with the rights which they were granted under the MSSA. EE was granted Unconsolidated Network Rights under which it could use the Unconsolidated Equipment to provide network services to either T Mobile or H3G but not both of them. The Permitted Use was for “for the purpose of the purpose of providing separate and distinct Mobile Electronic Communications Services and operating separate and distinct Mobile Electronic Communications Networks”. By providing network services to the Orange brand customers of OPCS, EE was dealing with the Unconsolidated Network Rights outside the Permitted Use and was in breach of Clause 28.3.

Arqiva also rely on Clause 6.1 which provides:

“MBNL shall be entitled to exercise the Rights granted to the Operator pursuant to this Agreement solely as agent of the Operator to the extent that any services provided by MBNL as agent are for the benefit of T Mobile and/or H3G and not any Other Licensed Operator.”

Arqiva say that by Clause 6.1 MBNL was, in effect, prohibited from providing any services for the benefit of any Licensed Operator other than T-Mobile or H3G. Other Licensed Operator is defined relevantly as meaning “any communications provider other than T Mobile or H3G that is licensed under Wireless Telegraphy Act 2006...”

The Defendants say that Clause 6.1 confers on MBNL the entitlement to exercise the Rights granted to EE and H3G solely as their agent and for their benefit. They accept that the clause means that if EE is in breach, MBNL is also in breach and vice-versa. In the light of that position I do not need to deal with this aspect.

Arqiva also relies on Clause 16.5 which provides as follows:

“Without prejudice to clauses 16.4, 16.7 and 16.8 the Operator may change the Operating Frequency and/or increase the Operating Power of the Equipment with the prior written consent of the Arqiva Provider and the Arqiva Provider shall not withhold its consent Provided That the change in the Operating Frequency and/or increase in the Operating Power does not or may reasonably be expected not to:

16.5.1

Result in a contravention of the Exposure Guidelines at the Site; or

Arqiva say that by Clause 16.5, T-Mobile and H3G are, in effect, prohibited from changing the Operating Frequency and/or the Operating Power of any Equipment situated on the Arqiva sites without the prior written consent of Arqiva.

The Defendants say that this relates to prospective breaches and if Arqiva are right in respect of Clauses 20.14 and 28.1, EE will not be seeking consent under clause 16 for purposes for which the Court has found it has no Right. On that basis I do not need to consider this further at this stage.

Arqiva also rely on Clause 27.4.12 which provides:

“The Operator may serve upon the Arqiva Provider a Site Termination Notice giving the Arqiva Provider not less than three (3) months’ written notice of termination of the Operator’s use of a Site for the purposes of Decommissioning for Network Consolidation and Operator’s use of such Site and the relevant Licence Period shall terminate following the expiry of such notice period (“Decommissioning Termination”).”

Arqiva say that this permits EE and H3G to decommission and terminate the use and occupation of an Arqiva site only for the purpose of “Network Consolidation” which “means the process by which the 3G networks operated by T Mobile and H3G are consolidated so that they use Consolidated Equipment for the Permitted Use pursuant to the terms of this Agreement”. Arqiva also rely on Clause 27.4.13, EE and H3G may only terminate their use and occupation of an Arqiva site within permitted “churn” limits.

The Defendants say that Clause 27.4.12 deals with Decommissioning Rights and is relied upon solely as a prospective breach. They say that irrespective of whether Arqiva succeed in their case or fail, EE accepts that it has no rights to decommission sites other than provided for under the MSSA. If and to the extent that EE wishes to reduce the number of its sites, it must do so in accordance with its contractual obligations. No further finding is needed at this stage.

The Orange MSSA contained the following relevant provision at Clauses 2.1.1(a) and (d) as to permitted use between Arqiva (as successors to the BBC) and OPCS (as the Client):

“2.

THE FACILITIES

2.1.

Permitted use

2.1.1

Subject to any Special Conditions the BBC shall during the

subsistence of the Term:-

(a)

permit the Client, its employees and Nominated Contractor(s) to install, inspect, maintain, repair, renew and remove as necessary (and at the Client’s expense) the Client’s Equipment located in the Equipment Housing and in under or over such other part or parts of the Station(s) as the BBC shall from time to time approve (such approval not to be unreasonably withheld or delayed); ...

(d)

permit the Client to share use of such part or parts of the Station(s) and such of the BBC’s accommodation and equipment therein in common with others including the BBC, as the BBC may from time to time approve (such approval not to be unreasonably withheld or delayed);

such permission being granted by the BBC to the Client to facilitate the provision by the Client of Telecommunications Services via the Client’s Equipment or to facilitate any other purpose that may from time to time be approved by the BBC;”

The relevant definitions at clause 1 were:

Arqiva submit that the 2G non-seamless roaming, 2G and 3G seamless roaming and the creation of a shared RAN or joint network are breaches of Clause 2 of the Orange MSSA because they amount to OPCS sharing its equipment in circumstances where it has not obtained the approval of the second Arqiva claimant.

The Defendants say that under Clause 2.1.1(d) OPCS has the right to use, but not to have exclusive use of, Arqiva’s Stations, its accommodation and its equipment, and to share use of Arqiva’s Stations, accommodation and equipment with others, subject to consent which must not be unreasonably withheld. They say that OPCS is permitted to exercise that right to facilitate the provision of Telecommunication Services which is defined widely as “any system of telecommunications associated with wireless telegraphy...”, via its equipment.

They say that, even if OPCS were still an MNO, permitting EE’s customers to roam on the OPCS network would not fall outside the scope of the wide permission granted by that clause. It is assumed that the allegation intended is that roaming is sharing without consent. However, whilst roaming by EE’s customers may involve use of OPCS’s network, it would not involve sharing of Arqiva’s facilities, accommodation or equipment; it is OPCS alone that would be using those facilities, to offer the roaming service. If roaming by EE’s customers fell foul of clause 2.1.1(d), it is impossible to see any basis for differentiating international roaming, which would also therefore be impermissible, as indeed would use of the network by OPCS’s own customers.

Clause 2.1.1(d) sets out the use which OPCS is permitted to make of Arqiva’s Station, accommodation and equipment. It permits OPCS “to share use... in common with others including the BBC, as the BBC may from time to time approve (such approval not to be unreasonably withheld or delayed).” By allowing roaming OPCS are allowing the voice and data traffic of EE’s T-Mobile brand customers to use the OPCS equipment which is located at the Station. There is therefore shared use of the “Client’s Equipment” which is installed at the Station and is, in turn, making use of part of the Station, accommodation and equipment. This shared use of the “Client’s Equipment” is also shared use of the Station, accommodation and equipment. This means, in my judgment, that Arqiva’s approval is needed, such approval not to be unreasonably withheld or delayed. I do not, however, consider that roaming comes outside the purpose of such permission, in other words, roaming is included within the description of “the provision by the Client of Telecommunications Services via the Client’s Equipment” and is not “any other purpose” which would also have required approval.

I consider that, in this context, there is no difference between non-seamless and seamless roaming. Any further shared RAN or formation of a joint network with EE would also require Arqiva’s approval.

Arqiva also refer to Clause 9.3 which sets out the following other obligations of the Client: “The Client will...At its own expense retain throughout the Term the Client Licence,...”.

Arqiva also refer to the definition of Client Licence at Clause 1, as follows:

“Client Licence” means any statutory licences required by the Client (including inter alia that required from the Radiocommunications Agency of the Department of Trade and Industry or its statutory equivalent or successor for the time being in force for the country in question in respect of each of the Station)(s) thereby permitting the Client to transmit Telecommunications Services via the Client’s Equipment in accordance with the terms of the Agreement.

Arqiva say that if, contrary to Arqiva’s submissions, OPCS has in fact transferred its spectrum licence to EE, OPCS is in breach of this provision and that this may jeopardise the Arqiva’s position in relation to landowners. I do not understand it to be disputed that, if OPCS no longer holds a spectrum licence it would be in breach of this provision. I deal with the position under the Landowner Agreements below.

Arqiva also relies on the provisions of Clause 14 which relate to assignment and sub-contracting and provide:

“14.1

The Agreement is personal to the Client and the Client may not assign or sub-licence the Agreement or the rights granted under it.

....

14.3

Without prejudice to the generality of General Condition 14.1 above, and for the avoidance of doubt the prohibition on assignment shall include a prohibition on the Client assigning, subletting or sharing any of the Facilities, provided that where the Client is either:-

(i)

operating a single Telecommunications Service on its own behalf, or on behalf of its Sub-Clients, from the antenna system comprised in the Client’s Equipment; or

(ii)

operating more than one Telecommunications Service, on its own behalf, or on behalf of its Sub-Clients from the same antenna system comprised in the Client’s Equipment, but within a different frequency allocation;

then such use and such Sub-Clients’ services shall not be deemed a breach of General Condition 14.”

Arqiva also refers to the following definition of “Sub-Client” in Clause 1:

“Sub-Client” means any person for whom the Client directly provides Telecommunications Services via the Client’s Equipment.

Arqiva submits that OPCS is in breach of Clauses 14.1 and 14.3 because it has sub-licensed EE to make use, by means of non-seamless roaming, of OPCS’s frequency and equipment.

Arqiva says that seamless roaming will also be in contravention of these clauses and the intended shared RAN or joint network will also involve contravention of those provisions. They say that the exceptions do not apply because in allowing EE to roam now or in the future or use OPCS’s sites for the purpose of a joint RAN or single network:

Arqiva rely on the following clauses of the Orange NEA between Arqiva (as successor to NTL) and OPCS or OH (as successor to Hutchison):

Arqiva say that to date by permitting EE to make use by the provision of non-seamless roaming facilities of its equipment and frequency OPCS has acted in contravention of clause 13:

Arqiva also submits that seamless 2G and 3G roaming, the shared RAN and the joint network will also involve contraventions of these terms.

The Defendants say that, even if OPCS, as a separate MNO, had permitted EE’s customers to roam on the OPCS network, that plainly does not amount to any assignment, dealing or disposal of the Orange NEA or benefits under it.

The provisions of Clause 2 of the Orange NEA state that, on completion of that agreement, OPCS will enter into a site Licence. It is under the terms of the site Licence which is the Orange SSL that any rights and obligations relating to the use or occupation of a particular site arise. In such circumstances, I consider that the Defendants are correct when they say that the arrangement by which EE’s T-Mobile customers roam on the OPCS network does not amount to any assignment, dealing or disposal of the Orange NEA or benefits under it.

Arqiva relies on the following terms of the Orange SSL, as amended by the 31 July 2000 variation:

Arqiva submits that the intended shared RAN and joint network would involve changes in equipment which will require the consent of Arqiva.

The Defendants say that Clause 5(iv) is a prohibition on erecting structures, or installing, altering or adding equipment without authorisation and is concerned with physical use of the land. They submit that “altering” thus refers to physical alteration rather than, for example, software re-configuration. They say that the agreement is not concerned with and does not specify how software on installed equipment may be configured and therefore has no relevance to roaming.

It does not seem that Arqiva rely on any breach of this clause in relation to any form of roaming. In relation to any shared RAN or joint network which went beyond roaming and required an alteration or addition to any equipment then Arqiva would have to authorise that in writing, such authorisation not to be unreasonably withheld. So far as the scope of any alteration, I currently incline to the view that it would not include software configuration. However, I note that the equipment is described on a Facilities Chart and has to be of an approved “design and construction” and the scope and extent of the description on the Facilities Chart, which has not been dealt with at the expedited trial, would need to be considered before I could come to a concluded view on this.

Arqiva also rely on Clause 5(ix) which provides:

“The equipment shall be used by the Sharer for its purposes only and the Sharer shall not assign the benefit of this Licence or in any manner deal with or dispose of any of the rights hereby granted to it. DECLARING THAT notwithstanding the foregoing the Sharer shall have the right to allow Orange Personal Communication Limited Hutchinson Paging (UK) Limited and/or Orange 3G Limited to exercise all or any of the rights granted to the Sharer by this Agreement without the prior consent of NTL being required but in all other cases in which the Sharer wishes to allow other members of its group (as such term is defined in Section 53(1) of the Companies Act 1989) from time to time to exercise all or any of the rights granted to the Sharer by this Agreement the Sharer shall first obtain the prior written consent of NTL (such consent not to be unreasonably withheld or delayed).

Arqiva say that, even if OPCS and EE are now members of the same group of companies, Arqiva’s consent is required if OPCS wishes to assign, deal with or dispose of any of the rights granted under the Licence. They say that, to date, by permitting EE to make use of OPCS’s equipment and frequencies by the provision of non-seamless roaming, OPCS has acted in contravention of clause 5(ix).

The Defendants say that, if OPCS were an MNO, use of the equipment to facilitate roaming by EE’s customers would be for OPCS’s purposes in the same way as would the roaming which Arqiva accept is permitted, namely that by international roamers and customers of MVNOs.

It is to be noted that the rights granted to OPCS under the Orange SSL are set out in Clause 1, in particular under Clause 1(i) it is provided that OPCS has the right “To install inspect maintain operate repair...the equipment.” There is no limit on the ability of OPCS to operate the equipment except in clause 5(ix). That clause says that OPCS’s equipment shall be used by OPCS “for its purposes only” and OPCS “shall not assign the benefit of this Licence or in any manner deal with or dispose of any of the rights hereby granted to it.” The right of OPCS to operate the equipment is therefore limited because it may be used for OPCS’s purpose only.

Whilst, I consider that, as the Defendants contend, the phrase use of the equipment “for its purposes only” could, in principle, include the use of the equipment for the purpose of a roaming arrangement between OPCS and another MNO, such as EE, I do not consider that, read as a whole, Clause 5(ix) has that effect. There is a prohibition preventing OPCS “in any manner” dealing with or disposing of its rights. Thus under Clause 5(ix) OPCS is prohibited from dealing with its right to use the equipment for its purposes only. That I consider limits the right further and means that an arrangement to share that right would be dealing with that right. I therefore consider that Clause 5(ix) does prevent OPCS from using the equipment under a roaming arrangement unless OPCS has obtained the prior written consent of Arqiva, such consent not to be unreasonably withheld or delayed.

Arqiva also rely on Clause 6 which states:

“PROVIDED ALWAYS and it is hereby further agreed that if ...

the licence or frequency allocation referred to in Clause 5 sub-clause (ii) hereof shall be revoked or withdrawn then and in any such case the Rights hereby granted shall forthwith cease and determine as if the presents had not been made without prejudice to any action or remedy of NTL in respect of any antecedent breach of any of the agreements by the Sharer herein contained.”

Arqiva says that if OPCS’s spectrum Licence has actually been transferred to EE then OPCS no longer has any rights under the Orange SSL. On that premise, I do not understand that position to be disputed but it depends on whether OPCS still holds a spectrum licence. In addition EE says that it is now the party with rights in respect of the sites which were formerly regulated by the Orange NEA and Orange SSL.

It appears to be common ground that the Orange NEA and Orange SSL expired by effluxion of time on 30 November 2010 and there is an issue as to what happened from 1 December 2010. The Defendants assert that EE and not OPCS/OH occupied these Orange sites and that the terms of EE’s licences were not on the same terms as OPCS/OH’s previous licences.

The Orange NEA expired on 30 December 2009 and was renewed twice by deeds of variation on the same terms on 30 December 2009 and 8 April 2010 and then by letters of 30 September 2010 and 3 November 2010.

Arqiva say that by the time the licences expired, as shown by the notes of the commercial workstream meeting of 16 September 2010, the emails from Andrew Mason of Arqiva from 28 June to 5 July 2010 and the letters of 4 October 2010 it was clear that Arqiva was treating OPCS/OH as a separate entity from EE. Arqiva say, by 30 November 2010, they had made it clear that only OPCS/OH was entitled to occupy the sites and that occupation by EE would be a breach of contract. Arqiva say that they expressly reserved their rights in respect of any such breach of contract and continued to do so until issue of proceedings.

Therefore, Arqiva submit that EE’s ‘use’ of Orange sites is against a background of negotiations between Arqiva and EE/OPCS for a new licence in respect of continuing occupation of the sites by OPCS/OH and they rely on the letter of extension of 30 September 2010 and the letter of 6 October 2010. They say that they clearly objected to any use of the sites by EE and reserved their position in respect of any breach of the terms of the Licences if EE were to use the sites.

Arqiva say that on 30 November 2010 the contractual term of the Licences, as extended by agreement, expired and OPCS/OH continued in occupation of the sites but EE had by then also started using the sites without their permission. They say that they have treated OPCS/OH as having continued in occupation of the sites under the terms of the Licences; they have invoiced OPCS/OH for the use of the sites and they have accepted payment from the same bank account that OPCS/OH had previously used to pay the licence fees pursuant to the Licences. They accept that the name of the account holder for that bank account has changed from OPC/OH to OPCS/OH and EE.

EE submits that, since the expiry of the contractual term of the Licences on 30 November 2010 it has been in occupation of the Arqiva Orange sites and has been paying the licence fees to Arqiva for the occupation of the sites. The Defendants claim that, by reason of those matters, it is EE and not OPCS/OH that is the licensee of the sites, either expressly or by implication, and that EE is not bound by the terms of the Licences.

Arqiva say that the fact that the equipment may be owned by EE does not affect OPCS/OH’s occupation anymore than it would do if the equipment was owned by a finance company and leased to OPCS/OH nor does the fact that any staff working on the equipment may now be employed by EE prevent OPCS/OH being the occupier any more than it would do it the work was outsourced or sub-contracted. They submit that the sites are occupied by OPCS/OH partly for its own purposes in providing services to 8 million Orange brand customers and partly wrongfully for the purposes of providing services to EE’s T-Mobile brand customers. They also submit that, even if the transfer of ownership in the equipment ‘transformed’ EE into occupiers of the sites, Arqiva were not aware of the asset transfer and, in any event, any occupation would be covered by Arqiva’s general reservation of rights.

Arqiva say that, as in the landlord and tenant context, following the expiry of the contractual term of a lease, if the tenant remains in occupation of the premises, he does so as a tenant on sufferance as set out in Woodfall, Landlord and Tenant, para 6.075 [Tab 1]; Megarry & Wade, The Law of Real Property (7^th ed 2008), para 17-079 [Tab 2]. They say that, if the landlord accepts rent from the tenant, then the tenant becomes a tenant at will or a periodic (yearly, quarterly, monthly, etc) tenant as set out in: Woodfall, para 6.040 & 6.064; Megarry & Wade, para 17-065 & 17-075 and Javad v Aqil [1991] 1 WLR 1007 [tab 3]. Further they say that, whether the tenant continues to occupy the premises as a tenant at will or as a periodic tenant, he will occupy the premises on the same terms as under his previous tenancy, except to the extent that those terms are inconsistent with a tenancy at will or periodic tenancy as set out in Woodfall, para 6.040 & 6.068 so that any covenants in the lease concerning, for example, permitted use or alienation would be carried forward into the tenancy at will or periodic tenancy.

They say that if the relevant Orange party (OPCS/OH) who had a lease of the sites remained in occupation paying the usual rent then this would result in that Orange party (OPCS/OH) holding the sites under a tenancy at will or a periodic tenancy which was on the same terms as the previous contractual tenancy.

Arqiva submit that if, prior to the expiry of the contractual term, OPCS/OH permitted a third party, EE, to occupy the sites in breach of the terms of the expired lease then that cannot result in a change to the terms under which OPCS/OH holds the site after the expiry of the term. A tenant cannot be entitled to rely on his own wrong in this way: it does not lie in OPCS/OH’s mouth to assert that the terms of the contractual tenancy as carried forward were changed because OPCS/OH was in breach of those terms.

Moreover, Arqiva say that their position in relation to occupation of the site by EE could not have been clearer and that, far from accepting, or acquiescing in, any occupation by EE, they made it clear from June 2010 that they treated EE as OPCS’s agent; they held OPCS to its contractual terms and they fully reserved their rights including the right to claim that by permitting EE to roam and consolidate or use and occupy the sites OPCS was in breach.

Arqiva also say that the fact that EE has been paying licence fees for OPCS in respect of its occupation and use is misconceived as the payments were made from the same bank account that OPCS had always previously made payments from and Arqiva never accepted licence payments from EE. Rather, the licence fee was always demanded from and paid by OPCS and, in any case, Arqiva say that they made it clear that they treated EE as the agent of OPCS. Further, Arqiva say that they clearly registered their objection to EE using the site and reserved their rights in relation to any such use so that any acceptance of rent from EE could not to acceptance of EE as Arqiva’s licensee. Finally, they say that, as in a landlord and tenant context, a landlord is entitled to accept rent due under a lease from a third party, and such payment discharges the tenant’s obligation where it is made by the third party as the tenant’s agent as set out in Woodfall, para 7.083. Arqiva say that all of their demands were made to OPCS, not EE and any payments of rent made by EE were made by EE as OPCS’s agent.

Accordingly, Arqiva submit that the only appropriate analysis, supported by landlord and tenant law, is that, from 30 November 2010, OPCS continued to hold the sites on the same terms as set out in the Licences.

The Defendants submit that Arqiva have known since March 2010 that the businesses of EE and OPCS were to be merged. They say that the Standstill Agreement envisaged that 2G non-seamless roaming would continue using the OPCS sites. They say that the equipment installed in the OPCS sites belongs to EE, because it was transferred under the Deed and, as a matter of fact, it is EE that has been using and continues to use the equipment, which forms part of EE’s OPCS network. They also say that it is EE’s employees who have been attending on sites where necessary to maintain the equipment. They say that EE has been paying and continues to pay the licence fees in relation to the use and occupation of the sites, a fact that is no less true and no less relevant if Arqiva treated the payments as being from OPCS as they suggest. As a result the Defendants say that, even though OPCS or OH may have been the contracting party to the agreements prior to their expiry, those parties have not in fact been occupying the sites and cannot in fact have been holding over.

Accordingly the Defendants submit that either EE holds the sites as contractual licensee on basic terms including a right to use the site for the purposes of keeping and operating the installed radio access equipment for the purposes of its OPCS network; an obligation to pay a reasonable licence fee and termination by either party on reasonable notice or there has been no meeting of minds at all in relation to use and occupation of the sites by EE, so that EE holds as bare licensee liable to pay mesne profits. In either case they submit that EE’s occupation is lawful, albeit terminable by Arqiva on reasonable notice.

OH submits that this is not a tenancy situation but a licence but that in the context of a tenancy, the question of holding over is one of fact as set out in Halsbury’s Laws vol 26(1) 2006, paragraph 212 and Woodfall Landlord and Tenant, paragraph 1.021.4. It submits that whilst there may be a possible factual issue as to which entity has been paying Arqiva after 1 December 2010 and also from 1 July 2010 there is no evidence that OPCS or OH have been in actual occupation or actually using the Orange NEA or Orange SSL sites. OH submits that “Holding over” is a legal construct arising from a continued factual state of affairs subsisting between landlord and tenant after the expiry of a particular tenancy and if there is no continued use or occupation by the former tenant/licensee, the conclusion of holding over on the same terms is impossible. OH submits that, on the facts, there is a contract between Arqiva and EE on terms as to the practical use of the site for EE’s business with a reasonable payment or payment of mesne profits to be made.

OH submits that there is no basis for saying that EE is bound by the continuing terms of the Orange NEA or Orange SSL, to which it was never party or that OPCS or OH are still bound by the continuing terms of the Orange NEA and Orange SSL, when neither of those parties is making any use of the Orange NEA or Orange SSL sites.

The first question which has to be considered is which party is in occupation of the Orange NEA and the Orange SSL sites. Following the Deed of 1 July 2011 OPCS did not cease to exist. It transferred certain assets to EE, its staff were transferred to EE under TUPE but, importantly some 8 million customers continue to have their Orange brand mobile phone contracts with OPCS although EE provides services on behalf of OPCS to those customers. Up until 2 March 2011 the spectrum licences continued to be in the name of OPCS. On analysis I consider that the party who occupied the Orange NEA and Orange SSL sites after 1 July 2010 was the same relevant Orange party OPCS/OH who occupied it before 1 July 2010 and not EE. EE may have owned all the equipment but it was being used to send and receive voice and data traffic for Orange brand customers (exclusively until 2G roaming commenced in September/October 2010) using the frequencies in the OPCS spectrum licences. EE may have serviced the equipment but the arrangements would indicate that they did so as OPCS’s agent to discharge OPCS’s obligations to their customers. I do not consider that, after the introduction of 2G roaming, the position of EE in relation to the occupation of Orange NEA or Orange SSL sites changed. The voice and data traffic of EE T-Mobile brand customers used the equipment of EE as did the Orange brand customers of OPCS. In doing so, I do not consider that such use by EE gave rise to EE being in occupation of the Orange NEA or Orange SSL sites. The voice and data traffic of EE’s T-Mobile brand customers was visiting the OPCS network and using the spectrum licensed to OPCS.

The party which occupied the Orange NEA and Orange SSL sites on 30 November 2010 and continued to occupy those sites on and after 1 December 2010 was therefore OPCS/OH. Whilst the evidence would suggest that it was in fact OPCS who occupied the sites, I accept that until I have determined which of OPCS or OH was the original contracting party to the Orange NEA and Orange SSL I should not make any finding as between OPCS and OH after this expedited trial.

So far as payment is concerned, after 1 December 2010 all payments were generally demanded in the same way as previously. I do not consider that the invoices from GVA exhibited by Mr Sinclair alter this general position. The fact that the bank account name from which payment was made had changed to include reference to EE does not affect the position. The demand was in the name of OPCS and payment was made in response to that demand. In such circumstances, I see nothing which would lead to the conclusion that EE would become a party to some agreement by its involvement in making payment. Payment was therefore made by OPCS and was in respect of the occupation by OPCS/OH.

In such circumstances, the same party remained in occupation on 1 December 2010 and payment for that occupation was demanded from the same party on the same basis as payment had been demanded under the pre-existing Orange NEA and Orange SSL. Previously the parties had expressly continued the terms of those agreements after they had expired. In these circumstances, I consider that the only credible and commercially realistic position was that by the conduct of the parties the Orange NEA and the Orange SSL continued on the same terms as to rights and obligations of OPCS/OH, except that instead of an expiry date the agreements would be terminable on reasonable notice. Where the same payment is made, the same rights and obligations would apply, except where they are inconsistent with the situation. This analysis is also supported by being consistent with the principles derived in the context of landlord and tenant cases.

Although, as set out above, Arqiva have referred to two categories of Landowner Agreements, the agreements in Category 2 are generally agreements between EE or OPCS and the individual landowners. For the purpose of this expedited trial the fact that EE or OPCS may have obligations to third parties which they may have breached cannot affect the question of whether they were in breach of the Suite of Agreements or the Orange Agreements. Arqiva referred to the fact that they had various management arrangements with the third party landowners under which they had to manage the rights and obligations of the parties under these Landowner Agreements. There has not been any detailed analysis of those obligations but they do not seem to provide any support for Arqiva’s case against EE or OPCS on questions of breach of the Suite of Agreements or the Orange Agreements or on the question of whether injunctive relief should be granted. I do not consider the Category 2 Landowner Agreements further and, to the extent that there are some particular Category 2 Landowner Agreements which are between Arqiva and either EE or OPCS I make no findings at present.

In relation to the Category 1 Landowner Agreements, Arqiva say that any breach of the Suite of Agreements or the Orange Agreements will place them in breach of the Category 2 Agreements and will give rise to liabilities to landowners which might include termination or forfeiture. I therefore consider the position in relation to five particular agreements which are put forward as examples of this type of agreement.

I shall deal with each of the categories of clause in the examples in turn by taking one of the examples from the condensed file of Agreements (File 11G) .

Clause 3.23.1 of a lease (“the First Lease”) dated 22 April 1994 in respect of Land at Chalfont St Giles provides that Arqiva is “Not to assign underlet or part with or share the possession or occupation of any part or parts of the Demised Premises as distinct from the whole.” Arqiva say that they are permitted to allow an MNO to use the site, subject to compliance with the covenants in this lease. They say that this clause would be breached by EE or OPCS sharing the site for the purposes of roaming or network consolidation.

The clause would not seem to allow Arqiva to share the possession or occupation of the Demised Premises and I am not satisfied that roaming or network consolidation would be any more a breach of the clause than occupation by EE or OPCS singly. I do not consider that this demonstrates a breach of this provision by Arqiva if there is a breach of the Suite of Agreements or the Orange Agreements.

Clause 3.10.1 of the First Lease:

“Not without the previous consent in writing of the Landlord not to be unreasonably withheld or delayed to construct any new building or structure on nor to alter the external appearance of the Demised Premises nor without the previous consent in writing of the Landlord (such consent not to be unreasonably withheld or delayed) to make or permit to be made any alteration or additions whatsoever in or to the Demised Premises or any part thereof or the plant or machinery therein or the sewers drains mains pipes wires cables watercourses unreasonably withheld or delayed unreasonably withheld or delayed and conduits serving the Demised Premises.”

The clause is more concerned with the Demised Premises being the land, building and structures. It does not appear that any alterations within the meaning of this clause would be needed for roaming, but if so then consent would be needed. I am not satisfied that there would be a breach of this clause by Arqiva if there is a breach of the Suite of Agreements or the Orange Agreements but, in any event, it is a matter for consent.

Clause 10.15 of the Master Operating Agreement (dated 17 July 2001) in respect of a number of sites:

“To ensure that the Telecommunications Apparatus complies with and is operated in accordance with the terms of any Operator’s Licences, the Telecommunications Act 1984 (or any re-enactment or modification thereof) all applicable statutes...”

I am not clear that roaming or network integration would breach this clause. If OPCS does not have a Spectrum Licence but is operating equipment there would be a breach but I cannot decide this issue at present. It has not therefore been shown that there would be a breach of this clause by Arqiva if there is a breach of the Suite of Agreements or the Orange Agreements.

Clause 5.5 of the Master Operating Agreement:

“[Arqiva] hereby undertakes to NGC to use reasonable endeavours promptly to enforce all of [Arqiva’s] rights against the Operator under any Operator Agreement.”

This is a clause which requires Arqiva to enforce its rights. It would not be in breach of this clause merely because there is a breach of the Suite of Agreements or the Orange Agreements.

Clause 2.6 of the agreement dated 12 February 1993 in respect of land at Walton-on-the-Hill:

“In the event that [Arqiva] allows a third party permitted by Clause 2.5 to erect Telecommunications Equipment on the Site the Accommodation Fee payable by [Arqiva] at the time shall be increased by 60%...”

This is a clause which requires payment to be made if there is further equipment. It would not seem to apply to roaming but in any case Arqiva would not be in breach because there is a breach of the Suite of Agreements or the Orange Agreements.

In this expedited trial it has not been possible or necessary to investigate all the Landowner Agreements and the effect on the obligations of any breach of of the Suite of Agreements or the Orange Agreements. For the purpose of this trial my overall conclusion is that in considering what relief to grant I should not take into account an argument that if there is a breach of the Suite of Agreements or the Orange Agreements that would give rise to a breach of the relevant Landowner Agreements.

Arqiva say that, at law, every act done by one party on another party’s land is a trespass and wrongful unless permitted by that other party and so, any act outside the terms of a permission given by that party is in effect prohibited by at law.

They refer to Clerk & Lindsell on Torts (20^th Edition) at paragraphs 19-02 and 17-131. At paragraph 19-02 the authors state the proposition that “one who has the right of entry upon another’s land and acts in excess of his right or after his right has expired, is a trespasser.” In support they cite the House of Lords decision in Hillen and Pettigrew v ICI (Alkali) Limited [1936] AC 65. At 69 Lord Atkin said in the context of a person invited to a house “so far as he sets foot on so much of the premises as lie outside the invitation he is not an invitee but a trespasser, and his rights must be determined accordingly.”

At 17-131 the authors refer to “Cyber-trespass” and say that “While the definition of corporeal personal property may normally be straightforward, questions may nevertheless arise in a number of borderline cases, in particular in respect of electronic technology. For example, it is hard to see why a deliberate attempt through the internet unlawfully to manipulate data on a computer should not amount to trespass to that computer.

It is evident that if either EE or OPCS is using a site and is not entitled to do because, for instance, there is no agreement for it to do, that will be capable of being a trespass. Where however there is an agreement then, generally, a breach of a term of the agreement will not, in itself, make that party a trespasser but it will retain the right to occupy the site. In such circumstances I do not gain assistance from invitee cases or from cases of computer hacking. I accept, though, that the question of whether a party is a trespasser will be relevant to determining what relief to grant.

Arqiva say that EE and OPCS have together cynically and deliberately engaged in conduct which involved and involves breaches of contract and trespass and have done precisely what they contracted not to do.

Further, Arqiva say that EE and OPCS will continue to undertake these activities, at the expense of Arqiva, unless they are restrained from doing so and that if Arqiva is not granted injunctive relief, they will suffer future loss and damage as a consequence of:

Arqiva accept that the head of damage for decommissioning of EE and OPCS sites will be quantifiable, but submit that the quantification of the other heads of damages will be either extremely difficult or impossible to quantify and certainly not straightforward. They say that the principle enshrined in the Wrotham Park Estates case is that compensation should be paid on the basis of the sums which the claimant might reasonably expect to receive in return for agreeing to waive or modify his rights. However, there are no clear yardsticks which can be applied to these circumstances. None of the existing rate cards applicable to the existing agreements with EE and OPCS provide for a fee for the usage envisaged under the EE/OPCS Joint Venture in terms of roaming and consolidation of networks, nor are there standard market rates for such usage. They say that the 2009 negotiations with EE were only concerned with RAN sharing, that is sharing for the purpose of distinct and separate network services, not full consolidation as envisaged by EE and OPCS and, in any event, those negotiations were not concluded.

Additionally Arqiva rely on the fact that the MSSA and FA include clauses both excluding and limiting liability. Whilst Arqiva submit that there is a strong case for arguing that these clauses would not be effective in the circumstances of this case, it is unlikely that this would be conceded. In those circumstances, Arqiva say that the application of these clauses could have the effect of preventing Arqiva from recovering any damages or preventing Arqiva from recovering those damages in full and they rely on this as being a further reason for granting injunctive relief and rely on Bath and North East Somerset DC v Mowlem Plc [2004] EWCA Civ 115.

Arqiva say that they are not asking the Court to require EE and OPCS to undo the inactive 2G roaming which they have already offered their customers and those customers will not therefore be affected by the order sought. Arqiva say that it seeks injunctions so that EE and OPCS do not implement their plans to permit 2G and 3G seamless roaming on their respective mobile networks, or undertake any steps or any further steps towards RAN consolidation.

The Defendants say that there are a number of factors to take into account in deciding on whether to grant injunctive relief and they challenge the matters on which Arqiva rely. They refer to section 37(1) of the Senior Courts Act 1981 which provides: “The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.” They submit that it is neither just nor convenient to grant the injunctions that Arqiva seek. They refer to Snell’s Equity, 32^nd Ed. Para 18-008 where it says that the “jurisdiction to grant an injunction is dependent upon the existence of a right, coupled with circumstances which make it equitable to make the order” and say that, if there is found to be a right, the court must consider whether the circumstances “make it equitable”.

They say that “The very first principle of injunction law is that prima facie you do not obtain injunctions to restrain actionable wrongs for which damages are the proper remedy”: London and Blackwall Ry v. Cross (1886) 31 Ch.D. 354 at 369 per Lindley LJ. They submit that this is a case where damages are plainly an adequate and the appropriate remedy for all breaches about which complaint is made.

They refer to Arqiva’s acknowledgement that money is at the root of the claim at paragraph 19.2.1 of the Particulars of Claim, where it is said that the rights which EE and OPCS now exercise are worth £103.9 million per annum. They say that, if Arqiva are correct in their interpretation of the MSSA and Framework Agreement, it is not clear why they would wish to restrain EE from exercising those rights.

They accept that a party to a contract has a right to its performance and not merely damages for breach, citing, for example, Doherty v. Allman (1878) 3 App. Cas. 709 per Lord Cairns. They emphasise that the jurisdiction of the Court to grant an injunction is discretionary and rely on the following:

As I indicated at the expedited trial I will hear submissions as to the appropriate way to proceed given the findings which I have made. However, subject to those submissions and without limiting the matters which may be taken into account, I have reached the following general conclusions on matters which may be of importance in deciding whether to grant injunctive relief in this case:

The Defendants seek relief in respect of Code Rights. EE submits that it has Code Rights in that it is an “operator” for the purposes of Schedule 2 of the Electronic Communications Code (“the Code”). They say that whilst the status of EE is not admitted by Arqiva in paragraph 8 of the Reply, EE appears on the publicly accessible “Register of persons with powers under the Electronic Communications Code” (“the Register”) maintained by OFCOM.

EE seeks to rely on Code Rights in the context of the OPCS sites if the Court concludes that EE has no contractual right to use those sites. In relation to sites licensed under the Orange MSSA, EE say they are relevant only if the Court concludes that EE has no contractual right and that Arqiva’s failure to consent to EE sharing the sites with OPCS is reasonable.

EE has issued an application for temporary relief pursuant to paragraph 6 of the Code in the Mayors and City of London County Court because the Code stipulates County Court proceedings. EE submits that it is desirable for the application to be heard by a High Court Judge and given that the application and the present litigation are deeply inter-twined, it is also appropriate that the application be heard in the context of the present litigation. If it is necessary to deal with the application, EE therefore request that the County Court proceedings should be transferred to the Technology and Construction Court and that I should sit as a County Court Judge to hear it pursuant to section 41(1) of the County Courts Act 1984.

Arqiva objects to this course. They say that under section 41 of the County Courts Act the criterion for transfer is that it is desirable and they say that it is not desirable because the pre-conditions have not been complied with; secondly, it is hopeless and thirdly, it should not be dealt with as part of the expedited trial. They raised a threshold question as to whether EE had Code Rights and referred me to the Register, as it appears on the OFCOM website. On that website the name “T-Mobile UK Limited” but “Everything Everywhere Limited” does not appear. A company search was produced which showed that EE is company 2382161 but there was, as at 21 May 2011, another company with the name “T-Mobile UK Limited”, company 4502436.

Following the hearing on 24 May 2011, EE submitted a third witness statement from Mr Redding. That explains the company position but Mr Redding concludes by saying that the OFCOM website is not up to date and that they are contacting OFCOM to ask that the information on the website is updated to reflect EE’s name change. At present, I do not have evidence which establishes that EE does have Code Rights.

In those circumstances, I do not propose to take EE’s application further but will deal with it as part of the orders consequential upon this judgment.

On the basis of the matters set out above I now invite submissions as to the appropriate form of relief and any consequential orders. To the extent that any issues raised at the expedited trial have not been dealt with in this judgment I reserve those matters to a further judgment.