Tossing the establishment a curveball: Covent Garden IP gets slapped with a "shockingly late" fee ruling
Telecom Companies' One Pound Remuneration for Survey Responses Upholds Court Decision
In a shocking turn of events, published on the 1st of May 2025, the Upper Tribunal (Lands Chamber) rejected Covent Garden IP's appeal against Cornerstone Telecommunications Infrastructure (CTIL). The dispute revolved around the payment for temporary rights to survey a building owned by Covent Garden IP under the Electronic Communications Code. The court ruled against Covent Garden IP, finding no procedural errors or injustice in the proceedings, even when they attempted to present expert evidence to support a higher payment.
The bone of contention
The controversy arose around Alder Castle, an office building in the City of London, identified by CTIL as a potential site for telecommunications apparatus. After securing Covent Garden IP's agreement for an initial inspection in November 2021, further access was needed for further surveys. However, the building owner became less cooperative, planning its own refurbishment, leading to CTIL formally requesting interim rights under paragraph 26 of the Electronic Communications Code in October 2023. Their request was ignored, prompting CTIL to refer the matter to the tribunal, which was transferred to the First-tier Tribunal (FTT).
In the First-tier Tribunal
The FTT directed the parties to exchange drafts of an interim rights agreement and scheduled a hearing. Covent Garden IP did not oppose the granting of interim rights but proposed a payment of £2,000 while CTIL suggested a nominal fee of £1. Covent Garden IP applied for permission to rely on expert valuation evidence, but the application was made less than four weeks before the hearing and was refused by the FTT. Consequently, the FTT determined the reference without expert evidence and imposed an agreement for interim rights with a nominal consideration of £1.
The Upper Tribunal judgment
Covent Garden IP appealed the FTT's decision, arguing that the refusal to consider expert evidence was wrong in law and that the decision to award nominal consideration was unsupported by evidence. However, the court found that the FTT's refusal to permit expert evidence was justified due to the late timing of the application and the lack of a draft report or proposed timetable. The court agreed that the FTT's standard directions in interim rights cases allow for expert evidence but require timely application and practical timetabling, which were not met in this case.
The court also focused on the FTT's substantive decision to award nominal consideration. The court stated that the FTT had discretion under paragraph 26(6)(b) of the Code to include terms for the payment of consideration if deemed appropriate, and the FTT was entitled to decide that nominal consideration was appropriate based on the material before it and the experience of previous agreements.
Nominal Consideration - worth the paper it's written on?
The court concluded that the FTT's decision to award nominal consideration was fair, as it aligns with the objectives of the Electronic Communications Code, which aims to facilitate the installation and maintenance of telecommunications apparatus by ensuring that operators can access sites without facing prohibitive costs. The court believed that nominal consideration of £1 was appropriate given the nature of the interim rights sought by CTIL, primarily limited to conducting a survey, causing minimal disruption to the building owner and warranting a nominal payment.
Additionally, the application for expert evidence was deemed late and impractical, and the FTT's determination of the terms of the new Code agreement without expert evidence was justified. The appeal was consequently dismissed, and the FTT's order for Covent Garden to contribute to CTIL's costs was upheld.
The Counsel's take
In the case named Covent Garden IP (applicant) v Cornerstone Telecommunications Infrastructure (respondent), the applicant was represented by David Holland KC of Concorde Solicitors. The respondent was represented by Oliver Radley-Gardner KC and James Tipler of Falcon Chambers.
- The Upper Tribunal (Lands Chamber) upheld the First-tier Tribunal's (FTT) decision to impose a nominal fee of £1 for the interim rights to survey Alder Castle, siding with the unsupported argument of Cornerstone Telecommunications Infrastructure (CTIL) and dismissing Covent Garden IP's appeal.
- The court found that Covent Garden IP's late application for expert valuation evidence to support a higher payment was unjustified, given the lack of a draft report or proposed timetable, ultimately resulting in the FTT's determination of the agreement without expert evidence.
- In the final judgment, the tribunal upheld the FTT's order for Covent Garden to contribute to CTIL's costs, emphasizing that the nominal consideration of £1 aligns with the objectives of the Electronic Communications Code, which encourages telecommunications installation by avoiding prohibitive costs.
