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EE Limited and Hutchison 3G UK Limited v John Stewart Duncan: An existing agreement dispute

Published: 27 May 2021
Time to read: 3 mins

In the case of EE Limited and Hutchison 3G UK Limited v John Stewart Duncan telecoms operators have successfully appealed a Lands Tribunal decision. The Inner House of the Court of Session hearing the appeal determined the operators were entitled to apply to the Lands Tribunal for an order giving effect to a proposed new draft lease without the requirement to show that the previous agreement was unduly onerous and restrictive.

Telecoms operators, EE and Hutchison, have successfully appealed the Lands Tribunal decision to disregard an application to terminate an existing agreement and replace it with a new agreement drafted in accordance with the minimum provisions in the new Electronic Communications Code (Schedule 3A Communications Act 2003, as amended by the Digital Economy Act 2017). It was determined by the Inner House that the operators were entitled to apply to the Lands Tribunal for an order implementing a proposed new draft lease, which the site owner did not agree to, without the requirement to show that the previous agreement was unduly onerous and restrictive.

The site owner, John Duncan, entered into an agreement with EE in 2003. The agreement expired in 2012, but the lease continued each year by way of tacit relocation. In 2018, EE and Hutchison sought agreement of a new lease. Notice was given to Mr Duncan to terminate the existing agreement and replace it with a new agreement. Mr Duncan refused under preference of the existing agreement under the old code. EE and Hutchison then applied to the Tribunal for an order to terminate the existing agreement and replace it with the new draft agreement.

Paragraph 34(13) of the Code required the Tribunal to have regard to “the operator’s business and technical needs”. The Tribunal set a “high bar” for the applicants in relation to this and determined that it had to be demonstrated that the existing agreement was operating in an unduly or onerous way which would make it unfit for purpose. Only then would the order to impose a new lease be made. The Inner House disagreed with this approach commenting “The tribunal’s analysis would severely curtail the legislative intention to create the opportunity to bring old agreements into line with new code arrangements”. It further commented that “The tribunal was not being asked to cancel a contract, but rather to replace it with one in tune with the provisions of the new code. None of this implies a presumption in favour of the site provider’s interests which has to be overcome by reference to a specific need or justification.”

The case has been remitted back to the tribunal to determine further procedure.

If you have any questions on the issues raised above or would like to discuss your own circumstances, please get in touch.



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