Progress catchup 2 - Analysis and reply

This is what we made of the Ofcom response posted in the previous entry.

Ofcom refutes the claim on two grounds. First, on the issue of 'standing' to bring a claim, and second, on the issue of whether the claim would be brought within the permitted time limit. Both of these considerations are very important, and would be sufficient in themselves to enable the Court to dismiss the claim if it agreed with these submissions. On the other hand these issues are arguable either way, and we had given a lot of thought to both. We would not have begun to consider a claim unless we were confident that our argument on these issues was far stronger than any counter argument. We'll return to these technical questions  in slightly more depth in the next blog entry. 

However, what is more striking about Ofcom's response is that it completely fails to address the substantive elements of the proposed claim. It merely dismisses it as without merit and recites a litany of the provisions of the Communications Act as if that was any sort of answer to the issues raised. We therefore considered it appropriate to reply briefly, putting the two black and white issues to them again. Ofcom would be forced to argue against these issues if they were to make a defence. Merely dismissing them as not worth responding to would hardly cut any mustard in Court and pre-action protocol requires that they respond.

We wrote in reply:

"With regard to the substance of the claim, your reply makes one reference to what is described as “...various proposed challenges to primary legislation as made by Parliament”. In fact the issues lie with secondary legislation, specifically the Audiovisual Media Services Regulations 2009 & 2010 (si. 2009/2979 & si. 2010/419). We contend that the regulations confer no power on ATVOD or Ofcom to make rules or requirements that might be breached. One cannot breach a requirement to employ “CAC systems”, for instance, unless one is bound to comply with such a requirement. Accordingly, we will claim, Ofcom had no power to direct that an alleged ‘service provider’ be sanctioned for failing to comply with any order, rule, regulation or subordinate instrument that ATVOD had no power to make. See paragraph 14 of the letter before action. 

Also we contend that the Regulations which became s.368NA, and s.368D(3)(za), which Ofcom found JP Media to have contravened in its notice of 23 September, are void and always were void. This is so, we will claim, because the Secretary of State did not have power to impose taxation as delegated legislation under the enabling Act. Fees required to be paid to Ofcom or the appropriate regulatory authority are taxation meeting those principles defined in Lower Mainland Dairy Products Sales Adjustment Committee v Crystal Dairy, Limited (British Columbia) [1932] UKPC 70; [1933] AC 168 . See paragraph 12 of the letter before action. 

It is the strength and simplicity of these arguments that have given us confidence to consider applying for judicial review, if however you are aware of something that we have overlooked. It would save everyone’s time and effort if we had a chance to consider any objection before we proceed. Time is now very close by our estimation at least, so your very prompt response indicating your position on these issues would be desirable. If you feel a purpose would be served by more time, we would be prepared to issue proceedings and apply for a stay for a period to allow further discussion."

Ofcom replied within two days:

"As stated in our response of 7 February 2014 to your letter before claim, Ofcom considers that you do not have standing to bring a claim, there is no merit in your proposed claim, and in any event, you are out of time to do so. As previously explained, we would seek to recover our costs in relation to any such claim, including the cost of acknowledging service."

Such a reply is not really very clever. It might give the writer some emotional satisfaction, but it would be likely to be viewed by the Court as contrary to the spirit of pre-action protocol and would most likely undermine any case they might wish to make about recovering their costs.  

Of course, what is much more damaging to their defence is that it is perfectly clear that they do not have an answer to the substantive case. And the effect of their refusal to comment is to advertise the fact. They are quite capable and willing to outline a defence on the issues of 'locus standi' and 'time limits', so why fail completely to address the 'ultra vires' issues? Now is the time that they need to indicate at least the basis of any defence they will rely on later.