Essay G

Neutral citation [2013] CAT 1
Case No: [unallocated]

IN THE COMPETITION
APPEAL TRIBUNAL

21 January 2013

Before:
THE HONOURABLE MR JUSTICE BARLING
(President)
Sitting as a Tribunal in England and Wales

BETWEEN:
BRITISH TELECOMMUNICATIONS PLC
Potential Appellant

- and -

OFFICE OF COMMUNICATIONS
Potential Respondent

_____________________________________________________________________
RULING (EXTENSION OF TIME)
_____________________________________________________________________

1.

British Telecommunications plc (“BT”) has applied for an extension of time to lodge an appeal against determinations by the Office of Communications
(“Ofcom”) of certain disputes between BT and other communications providers
(“the Disputing CPs”) concerning BT’s charges for Ethernet services (“the
Ethernet Determinations”). The Ethernet Determinations were published on 21
December 2012. BT’s application was made on 9 January 2013.

2.

By virtue of rule 8(1) of the Competition Appeal Tribunal Rules 2003 (S.I.
2003, No. 1372) (“the Rules”) an appeal to the Tribunal must be made by sending a notice of appeal to the Registrar so that it is received within two months of the date on which the appellant was notified of the disputed decision or the date of publication of the decision, whichever is the earlier.

3.

Rule 8(2) of the Rules provides that the Tribunal may not extend that time limit
“unless it is satisfied that the circumstances are exceptional”.

4.

Respect for the time limit for commencing proceedings has been described by the Tribunal previously as “the keystone of the whole procedure” (Hasbro UK
Limited v Director General of Fair Trading [2003] CAT 1, at page 5).

5.

BT calculates that without an extension a notice of appeal must be lodged by
5pm on 21 February 2013.

BT’s application
6.

BT’s application seeks an extension of time in two alternative ways. First an extension of indefinite length is sought until a date two months after the date on which Ofcom publishes its determinations of separate disputes regarding BT’s charges for partial private circuits (“the PPC Determinations”). Ofcom has indicated to BT that it is unlikely to publish its PPC Determinations before the first week of February 2013. BT submits that the interrelationship between the
Ethernet Determinations and the PPC Determinations, together with the particular circumstances of these investigations and their practical implications for BT, constitute exceptional circumstances justifying an extension of time so as to bring the deadlines for lodging appeals against the two sets of determinations into alignment. In the alternative, BT seeks an extension of two
1

weeks until 7 March 2013 to file its appeal against the Ethernet Determinations to reflect the circumstances outlined in its application.
7.

As far as the interrelationship between the Ethernet Determinations and the PPC
Determinations is concerned, BT makes the following submissions:
(1)

First, although there are a number of differences between the factual and legal issues relating to the PPC and Ethernet markets (and the sums involved in the PPC disputes are very much smaller), there are nevertheless overlapping legal and factual issues. BT notes that one of the factors taken into account by Ofcom when considering whether cost methodology adjustments are appropriate in the Ethernet Determinations is the possible effect on approaches to cost accounting previously taken in other markets, including the PPC market.

(2)

Second, BT will need to consider and respond to the legal and factual implications of the Court of Appeal’s judgment in BT v Ofcom (Partial
Private Circuits) [2012] EWCA Civ 1051 (“the PPC Judgment”) in both cases, including the Court of Appeal’s finding that Ofcom has a public law discretion governed by EU law.

(3)

Third, the interrelationship between the Ethernet Determinations and

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