Court of Appeal confirms that fresh evidence is admissible in the Competition Appeal Tribunal: BT v Ofcom

10/03/11

Ofcom has failed to establish that appellants against Ofcom's decisions under section 192 of the Communications Act 2003 are precluded from relying on evidence that was not before Ofcom at the time it took its decision.

The argument took place in the context of an appeal to the Competition Appeal Tribunal brought by BT against a decision of Ofcom to resolve a dispute between BT and various mobile network operators concerning charges for telephone calls to freephone (0800) numbers.  Ofcom objected to some of BT's evidence in the Tribunal, arguing that an appellant should not be entitled, save in exceptional circumstances, to rely on fresh evidence before the Tribunal.

The Court of Appeal upheld the Tribunal's judgment rejecting Ofcom's argument, holding that since section 192 of the Communications Act provides for an appeal on the merits, parties in the Tribunal are not restricted to evidence that was before Ofcom.  The position is therefore the same under the Communications Act as under the Competition Act 1998.

The judgment is here.