Victory in Court of Appeal for GSM Gateways
On the application of VIP Communications Limited (in Liquidation) -v- The Secretary of State for the Home Department  EWCA Civ 1564
Judgment in the above matter was handed down today. Another round in the nearly 18 year struggle of a group of telecoms operators who want redress for their businesses being destroyed unlawfully having been denied access to a technology that would have been open to them.
Although the appeal may seem as if it is on an esoteric point relating to the licencing of GSM Gateways in fact it is about whether or not national security trumps everything. The case for the Secretary of State for the Home Department was that a statutory provision which had a clear and obvious meaning should nevertheless be read and could only be read in a way which gave effect to the Home Secretary’s view concerning national security.
The decision is a resounding success for VIP and other companies of a similar nature whose businesses were squashed and refused redress in respect of anti-competitive behaviour by reason of the failure of the authorities to recognise they are obliged by the UK implementation of EU law to allow people to make use of the apparatus without the need for a licence.
It is of course true that the Home Secretary may now apply for leave to appeal to the Supreme Court. But in terms of Judges who have looked at the issues so far in this matter the score is 7:1 up as it were to the Claimant and an appeal may be unlikely though leave may be sought.
It is difficult to see how a situation has arisen or been allowed to arise. Ofcom have been under a duty to liberalise the apparatus since 2003 as they must have known about it when they first consulted about the licencing of Gateways in 2002.
But who have been the main beneficiaries of this situation? They are the Mobile Network Operators who have been spared competition from Gateways. The losers? The British public who otherwise have had access to cheaper mobile calls.
The case is also evidence of the effectiveness of lawyers immersed in the industry about which the litigation takes place. The solicitors and counsel in this matter have had a great deal of experience of varied aspects of the communications industry in relation to apparatus and how it works. It is, however, that kind of long term experience that enables them to be able to take on the Government Legal machine and from time to time even win.
The Claimant was represented by James Segan QC of Blackstone Chambers and Ted Mercer and Abigail Houghton of Maddox Legal.
Ted Mercer, Partner