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

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

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

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

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