CTIL v Timberyard Nominees: a reminder to keep legal costs for MSVs reasonable and proportionate

The Upper Tribunal’s recent decision in Cornerstone Telecommunications Infrastructure Limited v Timberyard Nominees provides a reminder to local authorities and housing providers of the appropriate approach to costs in relation to multi-skilled visits (MSV) under the Electronic Communications Code. While it remains established that operators bear a landowner’s (site provider’s) reasonable costs where access is required, the Tribunal has emphasised that those costs must be reasonable and proportionate.

For site providers who are asked to grant access for surveys or installations, this case highlights the importance of choosing cost-effective and professional legal advice when seeking expertise in a specialist and often contentious area of work. MSV requests should be carefully controlled and justified rather than treated as an open-ended exercise. In this insight, we look at the decision in more detail and the key takeaways for site providers.

Who covers the legal and professional costs of an MSV?

In EE Limited and Hutchison 3G UK Ltd v HSBC plc [2022] UKUT 174 (known as the Maybird decision), the Upper Tribunal decided that the costs of an MSV should fall on the operator. The MSV was required by the operator (EE Limited in this case), it resulted from the exercise of a “compulsory purchase”-style power by the operator and it was either imposed by the Tribunal or agreed by the parties under threat of being imposed.

It was therefore considered fair not only to allow the site provider to recover their reasonable transactional costs of reviewing the draft MSV and completing the agreement, which the site provider would have incurred even if it had been in broad agreement with the operator, but also their reasonable litigation costs. The litigation costs (also known as “the cost of the reference”) were the additional costs the site provider incurred in disputing various terms, including at Tribunal. This meant the operator would pay for both sides of the legal dispute. In Maybird itself, those costs were £12,500 and £15,000 respectively – generous sums for what amounts to an agreement to carry out a survey where it appears that the site provider had been willing to allow access from the start. Nevertheless, the site provider was awarded them.

When are legal costs considered disproportionate?

If Maybird created an opportunity for site providers to incur disproportionate expenses, then CTIL v Chilton Court Residents Association Limited started to limit it. In this case, the Tribunal undertook a review of all costs claimed (not unlike a detailed assessment). Given the site provider’s claim to be entitled to £61,449.47 in transaction costs, this review was not surprising. Instead of this requested amount, the site provider received £15,000. Similarly, in CTIL v GHS (GP) Limited and GHS (Nominee) Limited, the site provider claimed £40,977.18 and instead received £18,000 – and their litigation costs were reduced from £23,668.62 to £8,100 (despite having succeeded). The general principle – that a party does not gain from unnecessarily delaying matters and running up costs – was once again established.

CTIL v Timberyard Nominees: a reminder to keep costs reasonable

The principle has now been revisited in the recent decision in CTIL v Timberyard Nominees. Both parties agreed on the terms of an MSV agreement following a hearing, but they were unable to agree on costs due to the significant sums claimed by Timberyard for the negotiation of the MSV agreement. Timberyard claimed transactional costs in the sum of £23,925.50 and litigation costs in the sum of £40,833.53, which came to a total of £64,759.03.

Considering these costs as “unreasonable”, the Tribunal declined to award Timberyard the sums claimed and ordered reduced transactional costs of £4,000 (discounting entirely the fees of a surveyor who appeared to act as a second opinion on the legal drafting). It also reduced litigation costs from £40,833.53 to £10,000.

Conclusion

The Tribunal’s decision reinforces that while operators will usually bear a site provider’s costs for MSVs, those costs must remain reasonable and proportionate. Site providers should therefore approach MSV requests with a clear focus on efficiency, ensuring that professional input is justified by the scope and complexity of the task.

Capsticks’ view

These decisions under discussion above reflect an increasing willingness by the Tribunal to scrutinise and, where necessary, significantly reduce costs which appear out of step with the work required. For local authorities and housing providers, this underlines the importance of adopting a pragmatic approach when responding to MSV requests.

How Capsticks can help

We advise local authorities, housing providers and other site providers on all aspects of the Electronic Communications Code, including MSV requests and cost recovery. Our specialist team provides practical, proportionate advice at particularly competitive rates. If you have any queries around what’s discussed in this article, or your organisation is considering seeking legal support for an MSV, please contact Partner Abi Condry or Principal Associate James Burt.