8.1 Rule 104(2), which covers all proceedings before the Tribunal, provides that the Tribunal has discretion, at any stage of the proceedings, to make any order it thinks fit in relation to the payment of costs by one party to another in respect of the whole or part of the proceedings. In the normal course, costs orders are made shortly after the delivery of the decision.
8.2 ‘Costs’ means costs and expenses recoverable in civil proceedings before the Senior Courts of England and Wales, the Court of Session in Scotland or the Court of Judicature of Northern Ireland. It also includes payments in respect of the representation of a party to proceedings under section 47A or 47B of the 1998 Act, where the representation by a legal representative was provided free of charge. 8.3 The Tribunal will encourage the parties to agree costs, but if no agreement can be
reached the Tribunal may either assess the sum to be paid pursuant to any costs order itself, or direct that it be assessed by the President, a Chairman or the Registrar, or that it be dealt with by way of the detailed assessment of a costs officer of the Senior Courts of England and Wales or a taxing officer of the Court of Judicature of Northern Ireland or by the Auditor of the Court of Session, as appropriate: Rule 104(5).
8.4 Rule 104(4) sets out the factors that the Tribunal may take into account in making a costs order, including: the conduct of all the parties; any schedule of incurred or estimated costs filed by the parties; whether a party has succeeded in part of its case, even if that party was not wholly successful; whether costs were proportionately and reasonably incurred; and whether costs are proportionate and reasonable in amount. 8.5 A costs order may also include directions to a party to pay to the Tribunal an
appropriate sum in reimbursement of any costs incurred by the Tribunal in connection with the summoning or citation of witnesses or the instruction of experts on the Tribunal’s behalf: Rule 104(6).
8.6 The following cases provide a useful overview of the Tribunal’s approach to costs applications in different contexts; note, however, that these decisions were made under the 2003 Rules: Tesco v Competition Commission [2009] CAT 26; Stagecoach
v Competition Commission [2010] CAT 20; Skyscanner Ltd v CMA [2014] CAT 19;
and Federation of Independent Practitioner Organisations v CMA [2015] CAT 10. Costs orders of the Tribunal were considered by the Court of Appeal in Quarmby
Construction Co Limited v OFT [2012] EWCA Civ 1552.
8.7 Costs in respect of proceedings under the 2003 Act, again under the 2003 Rules, were considered, for example, in: BT v OFCOM (CPS save activity) [2005] CAT 21; The
Number (UK) Ltd v OFCOM [2009] CAT 5; T-Mobile (UK) Ltd v OFCOM [2009]
CAT 8; Sky and others v OFCOM (Pay TV) [2013] CAT 9; and BT and others v
OFCOM (Ethernet Determinations) [2014] CAT 20.
8.8 For the cost implications of Rule 45 Offers and specific rules relating to costs in the context of collective proceedings, see Sections 5 and 6 of this Guide.
8.9 The Tribunal considered costs in relation to interim relief applications in: Genzyme v
Interveners’ costs
8.10 The general position is that interveners are neither liable for other parties’ costs, nor able to recover their own costs: see, for example, Ryanair Holding plc v Competition
Commission [2012] CAT 29 at [7]. However, the matter remains in the discretion of
the Tribunal and that approach may be departed from in appropriate circumstances:
National Grid v GEMA [2009] CAT 24. For an example of a case where an intervener
recovered part of its costs see: Independent Media Support v OFCOM [2008] CAT 27. For an example of a case where an intervener was ordered to pay another party’s costs see: BT v OFCOM (Ethernet Determinations) [2014] CAT 20; note, however, that this concerned an appeal in the context of OFCOM’s dispute resolution role under the 2003 Act.
Interest
8.11 Rule 105(1) provides that if the Tribunal imposes, confirms or varies any penalty under Part 1 of the 1998 Act, the Tribunal may, in addition, order that interest is to be payable on the amount of any such penalty from such date, not being a date earlier than the date of the notice of appeal, and at such rate as the Tribunal considers appropriate.
8.12 Unless the Tribunal otherwise directs, the rate of interest shall not exceed the rate specified in any order made under section 44 of the Administration of Justice Act 1970. Such interest is to form part of the penalty and be recoverable as a civil debt in addition to the amount recoverable under section 36 of the 1998 Act.
8.13 The Tribunal considers that appeals under the 1998 Act should not be brought merely to delay payment: an undertaking upon which a penalty has been imposed in respect of an infringement of the 1998 Act and which obtains the automatic suspension of the obligation to pay the penalty by appealing to the Tribunal, should not obtain any benefit from the delay inherent in the appeal process.
8.14 The rate of interest should therefore reflect the benefit derived by the appellant from the suspension of the obligation to pay the penalty. The normal measure of that benefit will represent the cost saved by the appellant in not borrowing the amount of the penalty during the appeal period, and the Tribunal will calculate interest by reference to borrowing rather than deposit rates. The Tribunal will apply the rate at which appellants in general can borrow money and will not look at the special position of a particular appellant. The rate of interest which the Tribunal will normally apply is the Bank of England base rate plus 1%, although that presumption can be displaced in an appropriate case where evidence is adduced showing that such a rate would be unfair to one party or the other.
8.15 For cases where the Tribunal has considered the issue of interest see: Napp v DGFT [2002] CAT 3; Aberdeen Journals v DGFT [2003] CAT 13; Apex Asphalt and Paving
Co. Ltd v OFT [2005] CAT 11; Richard W. Price v OFT [2005] CAT 12; Genzyme v OFT, Order of the Tribunal of 29 September 2005; and National Grid v GEMA
[2009] CAT 14.
8.16 Rule 105(3) provides that if the Tribunal makes an award of damages following a claim under section 47A or 47B of the 1998 Act, it may include in any sum awarded interest on all or any part of the damages in respect of which the award is made. For examples see: 2 Travel Group plc (in liquidation) v Cardiff City Transport Services
Ltd [2012] CAT 19; and Albion Water Limited v Dŵr Cymru Cyfyngedig [2013] CAT
Enforcement of decisions
8.17 A decision of the Tribunal containing a direction or ordering the payment of damages or costs or expenses is enforceable in accordance with Part 1 of Schedule 4 to the 2002 Act.
8.18 Slightly different arrangements apply in respect of England and Wales and Scotland but essentially the process involves the registration of the decision with the High Court in England and Wales or, in the case of proceedings in Scotland, recording the decision in the Books of Council and Session. In Northern Ireland it will be necessary to seek the leave of the High Court.
8.19 Once registered or recorded or once leave is granted, the decision may be enforced using the procedures available in the relevant court.
8.20 In relation to the enforcement of a Tribunal direction, the enforcement procedure can be initiated by the Registrar or a party to the proceedings. In the case of an award of damages or costs or expenses the enforcement procedure will be initiated by the person in whose favour the award was made. In the case of collective proceedings, enforcement can be carried out by the class representative.
8.21 Where a person fails to comply with an injunction granted by the Tribunal in proceedings in England and Wales or Northern Ireland under section 47A or 47B of the 1998 Act, the Tribunal may certify the matter to the High Court which will then carry out its own inquiry before making any necessary contempt order.99 For more information concerning injunctions, see Section 5 of this Guide.
Appeals from the Tribunal
8.22 An appeal lies from the Tribunal to the appropriate court:100
- on a point of law arising from a decision on an appeal from a Regulator under section 46 or 47 of the 1998 Act (concerning the Chapter I or Chapter II prohibitions or Articles 101 or 102 TFEU: see paragraph 2.13 above);
- from a decision as to the amount of a penalty imposed in respect of such an infringement of the Chapter I or Chapter II prohibition or Articles 101 or 102 TFEU;
- on a point of law arising from a decision under section 47A of the 1998 Act or in collective proceedings (a) as to the award of damages or other sum (other than costs or expenses, or (b) as to the grant of an injunction;
- from a decision under section 47A of the 1998 Act or in collective proceedings as the amount of an award of damages or other sum (other than costs or expenses);
99
See paragraph 1A of Schedule 4 to the 2002 Act, Rule 70 and paragraph 5.138 above.
100 In relation to proceedings under the 1998 Act, see section 49 of that Act. In relation to review
proceedings under the 2002 Act, see sections 120(6) to (8) and sections 179(6) to (8) of that Act. In relation to appeals against penalties under sections 114 or 176(1)(f) of the 2002 Act, see sub-sections 114(10) to (12) and section 176(1)(f) of that Act. In relation to proceedings under the 2003 Act, see section 196 of that Act.
- on a point of law arising from a decision on appeal or review under the 2002 Act;
- on a point of law arising from a decision on appeal or review under any other statute.
8.23 Any appeal requires the permission of either the Tribunal or the appropriate court. The appropriate court means the Court of Appeal in England and Wales or in the case of proceedings in Scotland the Court of Session, or in the case of proceedings in Northern Ireland the Court of Appeal of Northern Ireland.
8.24 A request to the Tribunal for permission to appeal from a decision of the Tribunal must be made in writing and sent to the Registrar, within three weeks of the notification of that decision: Rule 107(1).
8.25 The written request must be signed and dated by the party making the request, or its representative, and must set out:
- the name and address of the party and of any representative of the party; - the Tribunal decision to which the request relates;
- the grounds on which the party intends to rely in its appeal; and
- whether the party requests a hearing of its request and any special circumstances relied on.
8.26 On receipt of a request for permission to appeal, the Tribunal may invite observations from the other parties to the proceedings. The application may be decided without a hearing, unless there are special circumstances which mean that a hearing would be desirable: Rule 108(1). The Tribunal will give its decision in writing and notify the parties: Rule 108(2).
8.27 Where permission to appeal is sought on a point of law, it is important that the parties seeking permission identify where in the criticised judgment the error of law was made and why the Tribunal’s approach is erroneous; see Napp v DGFT [2002] EWCA Civ 796; T-Mobile & Ors v OFCOM [2008] CAT 17 and National Grid v
GEMA [2009] CAT 21. The Court of Appeal in Napp noted in particular (per Buxton
LJ) that an applicant should:
− identify in precise terms the rule of law said to have been infringed;
− demonstrate where in the jurisprudence (of the EU or UK courts or otherwise) that rule is to be found, by specific reference to the authorities; and
− demonstrate briefly from the Tribunal’s judgment the nature of the error, by reference to the Tribunal’s handling of the issue in question.
8.28 In considering whether to grant permission to appeal to the Court of Appeal in England and Wales, the Tribunal applies the test in CPR Rule 52.3(6). Permission to appeal may only be granted where: (a) the Tribunal considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason why the appeal should be heard; see for example Hutchison 3G and BT v OFCOM [2009] CAT 17.
8.29 Unless the Court of Appeal or the Tribunal orders otherwise, an appeal shall not operate as a stay of any order or decision of the Tribunal: CPR Rule 52.7.
8.30 For examples of decisions on permission to appeal see:
Napp v DGFT [2002] CAT 5
Argos and Littlewoods v OFT [2005] CAT 16 JJB Sports v OFT [2005] CAT 27
Floe Telecom v OFCOM [2005] CAT 28 Tesco v CC [2009] CAT 13
Enron v English Welsh & Scottish Railway [2010] CAT 4 BT and another v OFCOM [2011] CAT 39
Quarmby and another v OFT [2011] CAT 43 TalkTalk v OFCOM [2012] CAT 8
BT v OFCOM [2013] CAT 2
Ryanair Holdings plc v CMA [2014] CAT 6
Federation of Independent Practitioner Organisations v CMA [2015] CAT 11 Ryanair Holdings plc v CMA [2015] CAT 15
Renewed applications for permission to appeal
8.31 The procedures for appeal vary depending on the appellate court. In relation to proceedings in England and Wales, where the Tribunal refuses permission to appeal, a party may file a further application for permission directly with the Court of Appeal within 14 days after the date of receipt of the Tribunal’s decision on permission: paragraph 8.1(2)(b) of CPR Practice Direction 52D - Statutory appeals and appeals subject to special provision.
8.32 Parties are requested to inform the Registrar when they apply to an appellate court for permission to appeal a decision of the Tribunal and when any application for permission to appeal is refused or granted by the appellate court. The relevant appellate court case reference and case name should also be communicated to the Registrar.
SECTION 9: GENERAL INFORMATION