LC-2023-000734 - [2025] UKUT 00058 (LC)

In their closing submissions, the Respondents’ counsel made five preliminary points relating to the policy objectives behind the Code and the need to interpret the provisions of the Code in such a way as to give effect to those policy objectives. These preliminary points were general points, made at a high level. We have kept these points in mind, in our analysis and determination of the Preliminary Issues. We add two points of our own.

First, we do not think that these general points, in and of themselves, supply the answers to any of the issues we have to decide. Second, a certain amount of the argument in the case engaged what, for want of a better expression, we refer to as the legitimacy of the Respondents being able to achieve a result where, if the 2003 Agreement was terminated without renewal, Vodafone could effectively be compelled to migrate to the Orange Site paying, we assume, a rent more favourable to Icon than would be the case if Vodafone was able to renew the 2003 Agreement and continue to make use of the Vodafone Site. For their part the Respondents were anxious to stress that, if the 2003 Agreement was renewed, the benefit of the renewed agreement would immediately be assigned to CTIL, by virtue of the ability which now exists to make such an assignment pursuant to Paragraph 16. We did not find general arguments as to the merits, of this kind, to be particularly helpful. Our task is to resolve the particular issues which arise within each of the Preliminary Issues.

So far as the Code is concerned, our task is to apply the provisions of the Code, where relevant and engaged, in accordance with the terms of the Code and, subject to respecting those terms and again where relevant, in such a way as to give effect to the general policy objectives behind the Code. In this context, and where we are concerned with particular questions of interpretation of the Code we note and follow the approach identified by Lady Rose JSC in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2022] UKSC 18 [2022] 1 WLR 3360, at [106]:

“106 In light of Lord Nicholls’ and Lord Mustill’s comments, with which I respectfully agree, the starting point here is not to try to define the word “occupier” and then allow that definition to mandate how the regime established by the code works. The correct approach is to work out how the regime is intended to work and then consider what meaning should be given to the word “occupier” so as best to achieve that goal.”