Case No. UKUT-0130-(LC)-UTLC-Case-Number:-LC-2022-142

11.There are four difficulties with the claimant’s application.12.The first is that the respondent appears to know nothing about it.13.Ms Chorfi argues that the respondent has been correctly served both with the notice and the proceedings, pursuant to paragraph 91 of the Code and section 394 of the Communications Act 2003 which states that the respondent’s registered office is its proper address. I accept that, but am not inclined to exercise my discretion in the claimant’s favour when there is no evidence that the respondent received the claimant’s letters, or the paragraph 26 notice, or the notice of reference, nor any evidence that the claimant has made a real effort to contact the respondent.14.The claimant’s efforts appear to have been restricted to checking the register of title held by HM Land Registry and the Luxembourg register of companies and then relying upon the registered address. There is no evidence before the Tribunal that the claimant has visited the property or made any enquiries of those who occupy its six floors as to how they communicate with their landlord. There is no suggestion that any representative of the respondent has walked past the property and looked upwards to ascertain whether there is any other telecommunications apparatus on its roof, which might enable the claimant to make contact through another operator. As a matter of common sense all this should have been done once the respondent failed to answer correspondence.15.Second, the paragraph 26 notice served by the claimant was mis-addressed. Mr Chorfi argues that this does not invalidate the notice, since the information required to be conveyed by paragraph 20(2) of the Code was given, and an explanation was provided in the covering letter so that the notice would not have misled the respondent: Townsend Carriers Ltd v Pfizer Ltd (1977) 33 P & CR 361 and Mannai Investment Co Ltd v Eagle Star Life Assurance Ltd [1977] AC749. But I see no reason why an overseas respondent would not have been misled by a notice that was clearly not addressed to it. True, the annexed agreement named the respondent as a party, but a representative of the respondent who had seen that the notice was not addressed to the respondent might easily have concluded that the notice was simply a copy sent to it for information, and might not have read as far as the notice itself.16.Third, it is not known whether the claimant has identified the correct respondent. Ms Chorfi in her skeleton argument states that the rooftop is not let. No evidence has been adduced to prove this, save for the registered title which indicates that the premises is the subject of numerous leases. Ms Chorfi states that the claimant has checked the lease of the sixth floor and ascertained that it does not include the roof.; but there are two leases of the sixth floor on the register yet it seems only one has been checked. There is no evidence as to whether any of the other leases includes part of the roof or indeed any easements over the roof. So it is not known that the respondent is the only person in occupation of the roof or indeed whether it is in occupation of the roof at all. Nor has the claimant any idea who is in occupation of the stairs or lift inside the premises, by which – I assume, but there is no evidence that any thought has been given to this – the claimant would gain access to the roof.17.Fourth, there is no evidence as to what the claimant is going to do on the roof by way of “intrusive survey”. Ms Chorfi indicated that the claimant is going to penetrate the roof. I am not aware of any reference in which the Tribunal has made an order for an intrusive survey to a building where that has been opposed by the respondent, let alone in a case where the respondent is unaware of the application, or one where the claimant cannot say what it is going to do. But more fundamentally, the Tribunal cannot perform the balancing exercise set out in paragraph 21 of the Code, even on a “good arguable case” basis, where it does not know what the claimant wants to do and does not know anything about the respondent or about possible prejudice to it.18.I indicated at the hearing that I was minded to refuse the application for those reasons. Ms Chorfi asked if I would instead adjourn the matter and direct that proper enquiries be made. I refused to do so on the basis that it is now too late to cure the defect in the paragraph 26 notice. In any event, even had that notice been correctly addressed I would have refused the application for the reasons set out above because there is no indication that the notice actually came to the respondent’s attention, and because of the claimant’s failure to investigate the premises and make real efforts to contact the respondent once the respondent failed to reply to correspondence. 19.Accordingly the claimant’s application for interim rights is refused.Judge Elizabeth Cooke 13 May 2022