First-tier Tribunal Orders £5,000 for Respondent's Costs

Case Reference : BIR/00CN/EIA/2025/0715

Property

: [NAME] [POSTCODE]

Claimant

: [redacted] ([NAME]) [APPELLANT] : [COUNSEL] LLP

Respondent

: [redacted] ([NAME])

c/o Management Committee of the [NAME] : [COMPANY]

: Electronic Communications Code Paragraph 26 (MSV)

Date of Order : 23 January 2026

DECISION ON COSTS

© CROWN COPYRIGHT 2026 FIRST - TIER TRIBUNAL [NAME] ([NAME])

Introduction 1 On 11 August 2025 the Claimant made a Reference to the First-tier Tribunal, including an application to undertake a multi-skilled visit (‘MSV’) to the Property (involving both intrusive and non-intrusive rights) pursuant to paragraph 26(1) of the Electronic Communications Code (Schedule 3A to the Communications Act 2003 (‘the Code’)). 2 On 6 November 2025 the Tribunal issued a Consent Order pursuant to paragraph 26 of the Code, imposing a MSV agreement (involving both intrusive and non-intrusive rights) on the parties. 3 The Tribunal ordered that, if the parties were unable to agree the Respondent’s costs, the parties were to file and exchange written costs submissions by 12 January 2026; and the Tribunal would determine the reasonable costs on the basis of those submissions 4 The Tribunal has considered the submissions dated 12 January 2026 prepared by [RESPONDENT] on behalf of the Respondent and the submissions dated 12 January 2026 prepared by [APPELLANT] on behalf of the Claimant. 5 The Respondent claims transactional costs in the sum of £5,857.50 (plus VAT), agent’s fees in the sum of £2,700.00 (plus VAT) and litigation costs in the sum of £13,396.00 (plus VAT). 6 The Claimant submits that the Tribunal should order the payment of £2,000.00 (plus VAT) in respect of legal transactional costs and £4,500.00 (plus VAT) in respect of litigation costs (including costs submissions). The Claimant disputes the recoverability of the agent’s fees. 7 The regimes for transactional costs and litigation costs differ and the Respondent’s claims are considered separately. Transactional costs 8 Paragraph 25 of the Code provides (so far as material) - (1) If the court makes an order under paragraph 20 the court may also order the [NAME] to pay compensation to the relevant person for any loss or damage that has been sustained or will be sustained by that person as a result of the exercise of the code right to which the order relates. (2) Paragraph 84 makes further provision about compensation in the case of an order under section 20. 9 Paragraph 84(2)(a) provides - Depending on the circumstances, the power of the court to order the payment of compensation for loss or damage includes power to order payment for— (a) expenses (including reasonable legal and valuation expenses, subject to the provisions of any enactment about the powers of the court by whom the order for compensation is made to award costs or, in Scotland, expenses) 10 Paragraphs 26(4)(e) and (f) provide that the provisions of paragraphs 25 and 84 apply in relation to an order under paragraph 26 and an agreement imposed by it as they apply in relation to an order under paragraph 20 and an agreement imposed by it.

Representations of the parties Representations of the Respondent 11 The Respondent argues that the transactional work carried out by [COMPANY] (‘[NAME]’) was typical - consideration of title documents, taking instructions from the Respondent (including site specific concerns), liaising with the Respondent’s agent, reviewing and amending multiple versions of the draft MSV agreement and advising on a specialist area of law as to the nature and effect of the Code and the imposition of a MSV agreement involving both intrusive and non-intrusive rights. 12 In response to arguments made by the Claimant that costs claimed in respect of liaising with the Respondent and its agent are not costs incurred in negotiating and finalising the agreement with reference to paragraph 84(2) of the Code, the Respondent argues (i) that the Respondent, which has no in- house expertise on the Code, is entitled to seek advice on a specialist agreement affecting land which it occupies and (ii) that it is standard practice for a solicitor to take instructions from a client and to advise throughout on the nature and effect of the agreement and proposed amendments thereto. 13 The Respondent included in its claim for transaction costs the fees of [COUNSEL] of [NAME]. 14 Mr [COUNSEL] was instructed by the freeholder of the MSV site in September 2022 and, although only instructed by the Respondent in September 2024, provided advice to the freeholder and the Respondent on the Code and the nature of a MSV. Most of the costs claimed by [NAME] relate to the period before the Respondent instructed [NAME]. 15 The Respondent relies on [RESPONDENT] v [NAME] and Burgesses of the London Borough of Merton and [COMPANY] (LC-2023-000668), where the First-tier Tribunal awarded agent’s costs in the sum of £3,000.00. As in the present case, the [NAME] had no in-house expertise on Code agreements and the agent was engaged at an early stage to provide specialist advice and negotiate the MSV agreement. 16 The Respondent seeks to distinguish [RESPONDENT] v (1) The [NAME] 2 [COMPANY] and (2) The [NAME] 2 [COMPANY] (LC-2024-000533) (‘[NAME]’), where the First-tier Tribunal refused to award an agent’s costs because the agent duplicated work carried out by the Respondent’s solicitor. 17 The Respondent has provided detailed timesheets setting out both [NAME]’ work and that of Mr [APPELLANT]. Representations of the Claimant 18 The Claimant argues that the case was a straightforward matter that settled on the basis of a number of emails adapting a template MSV agreement before the parties had to prepare for a contested hearing. It argues that the costs claimed far exceed the Respondent’s own initial estimate of costs (£2,500.00 plus disbursements) and are unreasonable given the level of work required. 19 The Claimant accepts that it is liable to pay the Respondent’s reasonable legal expenses, pursuant to paragraph 84(2) of the Code.

20 However, the Claimant refers to the decision of the First-tier Tribunal in [NAME], where the [NAME] [NAME] Judge stated – 30 At the risk of oversimplification, the principle that emerges from the jurisprudence of the Upper Tribunal is that the [NAME] is entitled to recover its reasonable transaction costs in full. 31 However, that principle requires the Tribunal (i) to identify what constitutes transaction costs and (ii) to determine whether those transaction costs are reasonable. 21 The Claimant submits that – (i) that the MSV agreement proposed by the Claimant had been negotiated between the parties’ solicitors previously; (ii) that the two main matters in dispute were the extent of the MSV site and the fees claimed for the provision of documentation; (iii) that there appears to be duplication of time and costs between the work undertaken on documents for the transactional costs and litigation costs for the MSV agreement; (iv) that the time spent on the MSV agreement and on attendances on the Respondent is excessive; (v) that the hourly rates claimed exceed the appropriate guideline hourly rates for [NAME]. 22 In relation to the fees of Mr [APPELLANT], the Claimant disputed their recoverability, relying on [NAME] and largely on the assumption that the Mr [NAME] work duplicated that of [NAME], although it would appear that the Claimant had not seen Mr [APPELLANT] timesheet. Discussion 23 In [COMPANY] v [COMPANY] (‘St Martins’) the [NAME] Chamber President made the following observations (at paragraphs [32]-[35]) – [32] In this case the respondent has instructed a substantial firm of [NAME] who, as you would expect of any solicitor, have done their best to negotiate favourable terms for their client. The claimant objects to paying those solicitor’s fees which comes to a little over £11,000 for the transactional work of advising on and negotiating the agreement (not the costs of litigation). The claimant says that sum is manifestly excessive. In addition, the respondent seeks £875 for advice which it has obtained from a telecom’s agent about the form of the agreement. Mr [NAME] has suggested that the reasonable costs of negotiating an agreement of this sort ought to be no more than £750. Nevertheless, the claimant has offered a contribution of £1,500. [33] Section 84(2) of the Code entitles the respondent to receive as compensation its reasonable and legal valuation expenses. There has been no need for valuation in this case and as it is not clear what involvement the respondent’s telecommunications agent has had I will leave the cost of their advice to one side and focus on the solicitor’s fees. I am not in a position to say that the respondent’s reasonable legal expenses are £1,500 or anything like it. I have no reason to doubt that the figure of £11,000 is the sum which has been incurred and I have no reason to doubt that the efforts made by [NAME] have been reasonable. The fact that they may have eventually agreed some matters which they initially resisted does not mean their work was undertaken unreasonably. The claimant has put forward a relatively complex form of agreement, including many detailed provisions

on which a reasonable building owner would expect to be advised, and other provisions (such as the circular definition of investigative works) which the claimant knows have met with resistance in the past. It cannot be surprised that the resulting negotiation is not completely straightforward. [34] The notion that an [NAME] should be required only to make a contribution towards the legal expenses incurred by a [NAME], and that the [NAME] should thereby be left out of pocket, is flawed. The [NAME] is entitled to recoup its reasonable legal expenses – all of them – and in this case, on the material before the Tribunal, those reasonable legal expenses are £11,000. [35] I appreciate that that is a substantial sum, but this case concerns a particularly valuable building where it was reasonable for the respondent to engage these solicitors and to take the points which it has taken. The sum is not significantly different from compensation ordered by the Tribunal in other cases. In the case referred to colloquially as [ADDRESS] (admittedly a paragraph 20 case in which transactional costs may be expected to be higher) the Tribunal awarded £8,000 for negotiating the agreement. Neither that figure nor the figure that I award in this case should be regarded as setting a norm; they are simply the figures produced by the application of the proper principle to the circumstances of a particular case. They could no doubt be reduced if the claimant chose to use a simpler form of agreement. 24 In [COMPANY] v [NAME] and Burgesses of the London Borough of Hackney [2022] UKUT 210 (LC) Judge Cooke said (at paragraph [94]) – Finally we come to transaction costs. The MSV, and the process of negotiation leading up to it, should not leave the Respondent out of pocket; it is well-established that it can expect the Claimant to reimburse the legal and professional fees that it has occurred in the negotiation of the agreement. 25 Transaction costs in that reference (£29,580 less litigation costs to be stripped out) were ‘higher than normally seen for an MSV, because this has been an unusually fraught and indeed hostile negotiation’. 20 In [COMPANY] and [COMPANY] v [COMPANY] [2022] UKUT 8 (LC) the [NAME] Chamber President reiterated that – A [NAME] is entitled to seek advice on the lease and recover the reasonable cost of doing so. 21 In that case legal expenses were reduced from £7,449 to £6,000, ‘allowing for some duplication’. 22 In [COMPANY] v AP Wireless II (UK) [COMPANY] [2022] UKUT 152 (LC) Judge Cooke allowed transaction costs in respect of two properties in the sums of £6,276 and £6,472, observing at paragraph [261] – These were never going to be inexpensive transactions, in view of the number of terms that the parties had to negotiate and of the fact that both parties regarded the health and safety terms as issues of principle. As is pointed out for APW the complexity is seen by the number of colours on the travelling drafts; these were not three matching leases and none of them was simple. We accept the transaction costs as claimed, and we point out that there is no reason for them to be matched in less complex deals where the parties are able to reach agreement. 23 At the risk of oversimplification, the principle that emerges from the jurisprudence of the Upper Tribunal is that the [NAME] is entitled to recover its reasonable transaction costs in full. However, that principle requires the Tribunal (i) to identify what constitutes transaction costs and (ii) to determine whether those transaction costs are reasonable.

24 The Tribunal considered those two issues in relation to (i) [NAME]’ transactional costs claimed and (ii) the fees of Mr [NAME]. [NAME]’ transactional costs 25 In relation to the first issue, there appears to be nothing in the solicitors’ transactional time sheet which is obviously outside the normal range of transactional costs. The Tribunal is not persuaded that there is any duplication of time and costs between the work undertaken on documents for transactional costs and for litigation costs in respect of the MSV agreement. 26 However, turning to the second issue, the Tribunal finds that some of the preliminary work had already been undertaken by Mr [NAME]: see paragraphs 28-29 below. 27 More generally, the Tribunal finds that this was a straightforward case and determines that the time claimed and the hourly rates charged in excess of [NAME] are unreasonable. Fees of Mr [NAME] 28 As noted above, it appears from Mr [NAME] timesheet that some preliminary work was undertaken by him before the Respondent instructed him or [NAME]. 29 Moreover, it appears that some of the work undertaken by [NAME] both before and after [NAME] were instructed duplicated work that [NAME] have included in their own transactional costs claim. Summary assessment 30 On summary assessment the Tribunal determines that the Respondent’s reasonable legal transactional costs are £5,000.00 (£1,500.00 for Mr [NAME] fees and £3,500.00 for [NAME]’ costs) (plus VAT); and the Tribunal determines that those costs are recoverable in full from the Claimant as expenses under paragraph 84(2)(a) of the Code. Litigation costs 31 Paragraph 96 of the Code provides (so far as material) – (1) Where in any proceedings a tribunal exercises functions by virtue of regulations under paragraph 95(1), it may make such order as it thinks fit as to costs …. (2) The matters a tribunal must have regard to in making such an order include in particular – (a) the extent to which any party is successful in the proceedings, and (b) any unreasonable refusal to engage in alternative dispute resolution. Representations of the parties Representations of the Respondent 32 The Respondent argues that it was necessary to consider the Claimant’s application for Code rights and advise the Respondent as to its position and the appropriate response to proceedings; and that the costs claimed are proportionate and reasonable. 33 The Respondent states that, although both parties made compromises throughout the negotiations on the draft MSV agreement, the agreement

imposed by the Tribunal was not the agreement initially proposed by the Claimant. 34 The Respondent argues that it took steps to try to mitigate the litigation costs. It provided detailed time sheets and made an offer on costs with a view to avoiding further costs being incurred but that the parties were unable to reach agreement on costs without the need for a Statement of Costs and written costs submissions. 35 The Respondent argues that the Tribunal should award the full costs claimed. Representations of the Claimant 36 The Claimant accepts the statement of principle in [APPELLANT] and [COMPANY] v [COMPANY] [2022] UKUT 0262 (LC) that the usual order on a reference seeking interim Code rights is that the [NAME] pays the [NAME]’s litigation costs. 37 However, the Claimant refers to [COMPANY] v [NAME] [COMPANY] [2021] UKUT 0262 (‘St Martins’), where the [NAME] Chamber President made a number of observations in respect of costs – [42] The Tribunal has in the past made it clear that it does not regard applications for access as justifying the sort of expenditure which it sees yet again in this case. [COMPANY] v [COMPANY] [2019] UKUT 183 (LC) three parties incurred more than £100,000 in aggregate in a dispute (eventually resolved by agreement) over access to the roof a residential building. The Tribunal said this, at [4], about the objects of the Code: ‘The new Code regime is intended to facilitate the provision of telecommunications services without delay and at [COMPANY] cost. The preparatory stages of the installation of new equipment (at least if the site itself is a new one) will almost always require a survey, conducted over a period of a few weeks and involving a small number of visits by a [COMPANY] group of individuals, before a decision can be taken about the suitability of the site. If those preparatory stages are allowed to become the occasion for preliminary trials of strength involving legal firepower on the scale deployed in this reference there is a serious risk of the objectives of the Code being frustrated.’ The Tribunal awarded the site providers a small fraction of the costs they had incurred and added this warning, at [30] – ‘The Tribunal wishes it to be known by other parties who refuse access to their land or buildings for surveys that, whatever the outcome, they cannot expect to recover costs on the scale incurred by the parties in these proceedings.’ [43] I take this opportunity to reiterate that warning. 38 The Claimant notes that the Upper Tribunal reduced the recoverable litigation costs to £12,500.00, including the costs of a ‘heavily contested hearing’. 39 The Claimant refers to [COMPANY] v [COMPANY] and [COMPANY] [2019] UKUT 183 (LC), where the Upper Tribunal determined that the reasonable contribution to the Respondent’s litigation costs was £5,000.00. 40 The Claimant refers to [APPELLANT] v [COMPANY] and [COMPANY] (BIR/00CN/EIA/2025/0665), where the First-tier Tribunal awarded litigation costs of £4,500 as against a claim of £12,930.60.

41 The Claimant also refers to [APPELLANT] and [COMPANY] v [COMPANY] [2022] UKUT 8 (LC), where the Upper Tribunal stated (at paragraph 89) – It should be appreciated that a claim for compensation does not prove itself and where there is no evidence of why an expense has been incurred a claim is likely to be [COMPANY] to the sum admitted by the paying party. 42 Against that background the Claimant submits – (i) that the Respondent has charged hourly rates in excess of the applicable guideline hourly rates for [NAME]; (ii) that the time spent and costs claimed for (i) attendances on the Respondent and attendances on others, (ii) drafting a response to the Claimant’s statement of case, (iii) drafting witness evidence, (iv) instructing Counsel and (v) preparing the statement of costs and (vi) preparing written costs submissions and considering and signing the statement of costs are unreasonable. Discussion 43 The Tribunal notes the observations of the [NAME] Chamber President in St Martins, quoted above at paragraph 37. 44 The [NAME] Chamber President continued (at paragraph [44]) – [44] I do not think the Tribunal’s view of how this sort of litigation should be conducted is unrealistic. The issues are usually quite narrow. They do not require extensive evidence. They do not require complicated statements of case which obscure the issues or elaborate bundles of documents. They ought to be capable of being conducted within a relatively restricted budget, proportionate to the matters in issue. The Tribunal knows from other cases that they are capable of being conducted in that way. This is the second paragraph 26 reference the Tribunal has dealt with today. In the first reference the site providers agreed in principle that Code rights should be imposed but the parties were in dispute over a number of the terms. The dispute had not gone on for as long as this one, but the bill of costs provided by the [NAME]’s solicitors came to a little over £6,500. I do not think I can regard this that case as setting a benchmark for cost in MSV cases because each case will involve a particular building and particular issues. In this case, for example, there was an important dispute over intrusive works. Nevertheless, I am influenced by the confirmation provided by that bill of costs that these proceedings can be sensibly conducted at really quite modest expense. It can be done; and since it can be done, it ought to be done. 45 In [COMPANY] and [COMPANY] v [COMPANY] [2022] UKUT 174 (LC) the [NAME] stated (at paragraphs [8]-[10]) – [8] As for the costs of the reference itself, most references under paragraph 26 of the Code for the imposition of an agreement conferring interim Code rights to enable operators to conduct surveys of potential telecommunications sites are resolved by consensus, without the need for a hearing. Often parties file an agreed form of order which they invite the Tribunal to make, including in it an agreement that there shall be no order for the costs of the reference. [9] It should nevertheless be appreciated that the costs of references under paragraph 26 are in the discretion of the Tribunal. Where parties have not agreed that there should be no order for costs the Tribunal’s usual order in such cases is that the [NAME] should pay the [NAME]’s costs which will then usually be summarily assessed …

[10] The Tribunal's usual order reflects the principle that the costs of a reference are necessary because interim Code rights cannot be conferred by agreement but may only be imposed by order of the Tribunal. Statutory rights of compensation may also only be conferred by order of the Tribunal. The costs incurred by a [NAME] in a reference made necessary because an [NAME] wishes to have a Code right to undertake a survey ought not in principle to fall on the [NAME]. 46 The Tribunal also notes the comments of the [NAME] Chamber President in [COMPANY] v [COMPANY] [2019] UKUT 183 (LC). At paragraph 2, he said – I also wish to emphasise the importance the Tribunal places on discouraging senseless disputes of this sort, and to put down a marker that the conduct which this case illustrates, over-reaching on one side and obstruction on the other, is disproportionate, inappropriate, and unacceptable. The Tribunal will do what it can to ensure such conduct is not allowed to become a recurring feature of Code disputes concerning new sites. There are legitimate matters to argue about in such cases, and nothing in this decision is intended to discourage those from being raised, but whether a small number of surveyors is permitted to go on a rooftop for a few hours on two or three occasions to establish whether it is even suitable for the installation of apparatus ought not to be one of them. 47 And at paragraph 4 – The new Code regime is intended to facilitate the provision of telecommunications services without delay and at [COMPANY] cost. The preparatory stages of the installation of new equipment (at least if the site itself is a new one) will almost always require a survey, conducted over a period of a few weeks and involving a small number of visits by a [COMPANY] group of individuals, before a decision can be taken about the suitability of the site. If those preparatory stages are allowed to become the occasion for preliminary trials of strength involving legal firepower on the scale deployed in this reference there is a serious risk of the objectives of the Code being frustrated. 48 And at paragraph 30 – The Tribunal wishes it to be known by other parties who refuse access to their land or buildings for surveys that, whatever the outcome, they cannot expect to recover costs on the scale incurred by the parties in these proceedings. Equally, the Tribunal wishes to make it clear to operators, as it has done in the past, that they cannot simply demand unquestioning cooperation from property owners. 49 The Tribunal is persuaded by the submissions of the Claimant (summarised at paragraph 42 above) that to a considerable extent the time claimed, the hourly rates charged and the resulting costs claimed by the Respondent are unreasonable. 50 Moreover, as paragraph 9 of decision in [COMPANY] and [COMPANY] v [COMPANY] makes clear, the usual order is not an order for the full costs claimed by the [NAME]: the costs will usually be summarily assessed. Summary assessment 51 On summary assessment the Tribunal determines that the appropriate order in this case is that the Claimant should pay £5,000 (plus VAT) towards the litigation costs of the Respondent (including the costs of the costs submission). That figure is less than the Respondent has incurred; but, in the view of the Tribunal, it reflects both the extent of the Respondent’s success

and the proportionate cost of achieving it. The Respondent need not have incurred as much as it has. Decision 52 Pursuant to paragraph 84(2)(a) of the Code the Tribunal orders the Claimant to pay to the Respondent the sum of £5,000.00 (plus VAT) being compensation in respect of transactional costs in relation to the MSV Agreement imposed upon the parties by Order of the Tribunal dated 6 November 2025. 53 Pursuant to paragraph 96(1) of the Code the Tribunal orders the Claimant to pay the Respondent’s costs of these proceedings summarily assessed in the sum of £5,000.00 (plus VAT). 54 Payment shall be made within 28 days of the date of this Decision. Appeal 55 If a party wishes to appeal this Decision, that appeal is to the Upper Tribunal (Lands Chamber). However, a party wishing to appeal must first make written application for permission to the First-tier Tribunal at the [NAME] office which has been dealing with the case. 56 The application for permission to appeal must be received by the [NAME] office within 28 days after the Tribunal sends written reasons for the decision to the person making the application. 57 If the application is not made within the 28-day time limit, such application must include a request for an extension of time and the reason(s) for not complying with the 28-day time limit. The Tribunal will then consider the reason(s) and decide whether to allow the application for permission to appeal to proceed despite not being within the time limit. 58 The application for permission to appeal must state the grounds of appeal and state the result the party making the application is seeking.

23 January 2026 [NAME] [NAME] [NAME] Judge