QB-2022-001364 - [2025] EWHC 2758 (KB)

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

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

“17.

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

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

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

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

“(4)

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

(a)

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

(b)

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

(c)

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

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

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

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

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

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

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