Graham Read QC and Ben Lynch act for BT in major Competition Appeal Tribunal hearing

Graham Read QC and Ben Lynch appeared for BT in an appeal against a regulatory decision by Ofcom that BT had been overcharging in respect of Private Partial Circuits (“PPCs”) and must repay some £50 million. In addition to the Respondent, Ofcom, the other parties included Cable & Wireless, Colt, Thus , Global Crossing, Virgin Media, Colt and Verizon.

The appeal is particularly important for a number of reasons.  It concerned the fundamental issue of how alleged overcharging, when a cost orientation SMP obligation had been imposed, should be assessed: for example the application of contestable market theory, the use of a test such as Distributed Stand Alone Costs as presumptive test, or whether an effects based enquiry into economic harm should be the key test. Other major issues in the case include (1) the proper exercise of Ofcom’s remedial powers under s.190(2) Communications Act 2003, (2) the nature of an appeal to the CAT and the extent to which (if at all) it is more limited than the usual nature of an appeal on the merits under s. 195(2) of the Act and (3) whether it was appropriate and correct for Ofcom to use its dispute resolution powers in ss.185-190 of the Act for the purpose of determining BT’s historical compliance with its cost orientation obligations.

The decision is awaited.

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