UT/2024/000002 - [2025] UKUT 00188 (TCC)

Both parties’ submissions engaged with the question of who was the typical consumer (although this issue was not specifically raised in the pleadings). Mr Hitchmough argued the FTT had lost sight of the typical consumer: this was an affiliate company who obtained a bespoke combination of services from CBNA according to its needs. Mr Beal disagreed. He argued the typical consumer was SPLC and pointed out there was no evidence before the FTT about what other entities in the group did. In reply Mr Hitchmough said that ignored the reference to “typical” in the test and was not also reconcilable with Mesto Zamberk. SPLC was not the only contractual counterparty. There was also the FTT’s finding that individual business areas did not buy systems they did not need and the FTT had made wider findings explaining the group structure and hierarchy.

It is not clear from the submissions made to us what evidence was put before the FTT to enable it to identify a typical affiliate. We are not persuaded however that even if the Appellant’s view were correct this would assist their case. The fact an affiliate was able to pick and choose elements of service would not necessarily be inconsistent with there being a composite supply of support (i.e. customisable back and mid office functions) which were provided depending on what the affiliate needed and where the affiliate paid for what it got. Also, as already discussed, there is a question as to whether it is right to describe the picking of services as being a matter of choice. The findings were to the effect that services were chosen because they were required in order to carry out the business. Once they were required they then had to be provided by CBNA. The question of what was necessary might vary from affiliate to affiliate but that would not necessarily mean that separate services are being provided, just that the particular content of the support functions might vary depending on the particular affiliate’s business needs.