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

Clare Daniels has already been mentioned, as the person who made the witness statement required by the Directions Order. As explained above, Ms Daniels is employed by Vodafone as Lead Counsel. She has been employed by Vodafone, in its legal team, since 2012. Ms Daniels is a qualified solicitor, with some 20 years post-qualification experience. In addition to the witness statement mentioned above, Ms Daniels also provided an equivalent witness statement in the Pound Hill Site Proceedings, dated 12^th April 2024, addressing the relationship between Vodafone and CTIL in relation to the Pound Hill Site. Ms Daniels then made a third witness statement, dated 27^th August 2024, giving evidence in the Termination Proceedings and the Pound Hill Site Proceedings. In cross examination Ms Daniels ran into a certain amount of difficulty, in relation to her witness statement made in response to the Directions Order, both in defending the limited disclosure made by that witness statement and in defending the level of redactions which had been made to what was disclosed. This was because it was clear, with the benefit of seeing all the material which was disclosed pursuant to the Confidentiality Orders, both that the original disclosure was seriously inadequate and that the original level of redaction obscured relevant and material parts of the 2021 Contribution Agreement. In addition to this, a substantial part of Ms Daniels’ evidence comprised commentary on the relevant agreements. We did not consider however that this rendered Ms Daniels’ evidence of no value. As we shall explain later in this decision, Ms Daniels did have relevant evidence to give concerning the relationship between Vodafone and CTIL. So far as Ms Daniels’ difficulties with her original witness statement were concerned, we do not consider that these difficulties undermined the relevant evidence which she was able to give. The reality is that, by virtue of the arrangements contained in the Confidentiality Orders, as agreed between the parties, we have been able to examine all the relevant agreements between Vodafone and CTIL. We do not consider that Ms Daniels was being dishonest in her first witness statement. The difficulties which emerged with that first witness statement were, in our view, the result of Ms Daniels attempting to defend, on behalf of Vodafone, an initial position on disclosure which was unsustainable.

Andrew Yorston is General Counsel and Company Secretary for Vodafone. He has been employed by Vodafone since 2010. Mr Yorston is also a qualified solicitor, with over 20 years post-qualification experience. Mr Yorston made his first witness statement, dated 31^st May 2024, in the Termination Proceedings. This witness statement was made in response to Icon’s application for an unless order, in the dispute over disclosure which resulted in the First Confidentiality Order. Mr Yorston then made a second witness statement, dated 29^th August 2024, giving evidence in the Termination Proceedings and the Pound Hill Site Proceedings. Our assessment of Mr Yorston’s evidence is essentially the same as our assessment of Ms Daniel’s evidence. In common with Ms Daniels, Mr Yorston ran into a certain amount of difficulty, in cross examination, in relation to his witness statement made in response to Icon’s application for an unless order. In common with Ms Daniels, a substantial part of Mr Yorston’s evidence comprised commentary on the relevant agreements. We did not consider however that this rendered Ms Yorston’s evidence of no value. As we shall explain later in this decision, Mr Yorston also had relevant evidence to give concerning the relationship between Vodafone and CTIL. As with Ms Daniels, the difficulties which emerged with Mr Yorston’s first witness statement were, in our view, the result of Mr Yorston attempting to argue Vodafone’s case on disclosure, in circumstances where, in our view, that case was unsustainable.

Jonathan Page is employed by Vodafone as a Networks Authority. This is a job title which is used within the Networks Team at Vodafone. The Networks Team manage Vodafone’s fixed network and mobile network. Mr Page’s role relates to the mobile network. It includes planning and co-ordinating the allocation of financial and operational resources to achieve Vodafone’s upgrade demands at portfolio and site-specific levels. He has worked in the telecommunications industry since 2011, was promoted to a Networks Authority in 2019, and assumed his current role within Vodafone in 2020. We found Mr Page to be confident and knowledgeable in his area of work. His evidence on the management of ECA requirements at site level, in order to meet Vodafone’s assessed demand, was clear and straightforward.

Helen Main is Head of Delivery and Demand at CTIL. Her role includes setting the strategy, within CTIL, for NTQs (notices to quit served in respect of telecommunications sites, seeking to terminate existing rights at such sites) and New Site Delivery (the acquisition of new telecommunications sites). Mrs Main has been in her current role since May 2024. Prior to that, for a period of over five years, Mrs Main was Senior Acquisition Relationship Lead for CTIL. Mrs Main made two witness statements, in the Termination Proceedings and the Pound Hill Site Proceedings, dated 12^th August 2024 and 30^th August 2024. Mrs Main has worked in the telecommunications industry for some 30 years. Mrs Main was confident and forthright in her evidence. Her evidence was particularly useful because she was able to give an explanation, from the CTIL side, of the business relationship between Vodafone and CTIL in relation to Vodafone sites.

David Powell is employed by AP Wireless as a Regional Asset Manager at APW. He provides asset management support for over 350 sites in the APW portfolio. Mr Powell has been employed by AP Wireless or a group company of AP Wireless since 2018. Mr Powell qualified as a chartered surveyor in 2001. Mr Powell’s evidence in his witness statement dealt only with the Pound Hill Site but, in common with most of the witness statements of the witnesses, his evidence was adduced as evidence in the Termination Proceedings and in the Pound Hill Site Proceedings. Although directed to the Pound Hill Site, we found Mr Powell’s evidence to be of some assistance in terms of the relationship between Vodafone and CTIL in respect of the Vodafone Site.

Nicholas Ward is employed as a Regional Director of Asset Management by AP Wireless, which includes the management of APW’s portfolio in the UK. In 2013 Mr Ward was employed by Cell:cm, a specialist telecommunications surveying and management company, previously within the AP Wireless Group. Mr Ward moved in house (as he put it in his evidence) to AP Wireless in 2020. He qualified as a chartered surveyor in 2016. Mr Ward gave evidence of the review of the APW estate which was undertaken by the APW Asset Management team to identify sites with opportunities for providing better infrastructure and/or consolidation of sites in close proximity. His evidence also covered the review of all CTIL, Vodafone and Telefonica sites to ensure that all contractual site share money due was being received. However, Mr Ward’s involvement was at a high level, and not site specific, so his evidence served mainly to provide context for the actions taken by APW and Icon at the Steps Hill Sites.

Roger Kay is employed by AP Wireless as an Acquisition Director at Icon. Mr Kay has worked within the AP Wireless Group since 2020. He was previously employed by Cell:cm Ltd and, prior to that, worked for Mono Consultants Limited, a network infrastructure provider, for some 18 years. Mr Kay commenced his current position with Icon in January 2023 and had previously been involved in the review of sites described by Mr Ward. Mr Kay had been aware that proposals for the Steps Hill Sites were put to Icon’s Board at a meeting in November 2022. He had also been aware that in December 2022 instructions were given to the planning consultants, Entrust, to make the Prior Approval Application. However, he was not directly involved on behalf of Icon at that stage, so his evidence was limited to the background and rationale for the selection of sites in general. At a more general level, we did find Mr Kay’s evidence helpful in understanding Icon’s business model and commercial objectives.

Ralph Freemantle is Head of Structural Design for Icon. Prior to joining Icon Mr Freemantle worked for CTIL for nine years as a Design Engineering Manager. Mr Freemantle has worked in the telecommunications industry since 1997, and has extensive experience in the design and construction of towers, masts and other network infrastructure. Mr Freemantle’s experience and engineering expertise in relation to the design and construction of network infrastructure was apparent in his evidence, which was straightforward and clear. We found Mr Freemantle’s evidence to be of particular assistance in understanding what work has so far been done on the Orange Site and the purpose behind that work, and in understanding what further work remains or may remain to be done.