Vodafone & ors v Ofcom

Ofcom sets the annual licence fees for spectrum by secondary legislation. The MNOs had been paying annual licence fees for the 900 MHz and 1800 MHz spectrum bands pursuant to 2011 Regulations. In 2015, Ofcom purported substantially to increase those annual licence fees by 2015 Regulations. The Court of Appeal subsequently held that the 2015 Regulations were unlawful, and so void ab initio.

The MNOs sought restitution of the difference between the fees that had been charged pursuant to the (unlawful) 2015 Regulations and the (lawful) 2011 Regulations.

Ofcom argued that the correct measure of restitution was the difference (if any) between the fees actually charged under the 2015 Regulations and the fees which would have been charged had Ofcom acted lawfully, in accordance with the judgment of the Court of Appeal.

The High Court found that where a lawful fee could and would have been charged, then a Woolwich restitution claim is likely to be for the net sum; but that in that exercise it was not permissible to hypothesise different secondary legislation.  It therefore rejected Ofcom’s position. Ofcom has been granted permission to appeal to the Court of Appeal.

The full judgment can be read here.

Michael Fordham QC, Emily Neill and Eesvan Krishnan acted on behalf of Vodafone Limited

Tom de la Mare QC and Tom Richards acted on behalf of Telefónica UK Limited

Brian Kennelly QC and Daniel Cashman acted on behalf of Hutchison 3G UK Limited

Pushpinder Saini QC, Ajay Ratan and Andrew Trotter acted on behalf of The Office of Communications