The case concerned a lease by Alloa FC of a telecoms mast site to EE which had been granted by Alloa FC over part of its Indodrill Stadium. EE had granted rights to share the use of the site to Hutchison. Hutchison had no direct relationship with club. The club served notice on both EE and Hutchison to terminate the lease under para 31 of the code. The notice referred to the lease as “with you, EE Limited & Hutchison 3G UK Limited”. That was incorrect, because the lease was an agreement only between EE and the club, to which Hutchison were not party.

Para 31 provides that a termination notice must comply with para 89 of the Code. Para 89(2) provides that “If OFCOM have prescribed the form of a notice … the notice must be in that form.” Para 89(3) provides that “A notice which does not comply with sub-paragraph (2) is not a valid notice for the purposes of this code.” In prescribing the wording for para 31 notices, OFCOM’s form for sets out the wording, which provides that the notice must identify the operator who is party to the agreement.

EE applied to the tribunal for a ruling that the notice was invalid, because it incorrectly identified the tenants as both EE and Hutchison, when only EE was the tenant.

The tribunal held that whether a notice is substantially in the required form must always be a matter of fact and degree. The OFCOM form required identification of the correct code operator with whom the site provider had an agreement, and for the operator to be given the notice. The purpose of the procedure was not prejudiced by the erroneous addition of reference to Hutchison. EE as the single correct operator subject to the agreement had still been identified and been given the notice, and the site had also been identified. The notice could not mislead in practical terms. EE was still be able to react if it wished to dispute the grounds of the notice, and to serve counter notice, as it had done.

So long as the correct operator was identified, the circumstances did not call for meticulous attention to detail: Hoe International v Anderson [2017] CSIH 9 at para 41. There was no fundamental difference in approach to conventional and statutory notices; in Balgray Ltd v Hodgson 2016 SLT 839 at para 25 and Hoe International at para 44 there appeared no difference in approach whether the relevant provisions were statutory or conventional.

The tribunal held under reference to Our Generation Limited v Aberdeen City Council [2019] CSIH 42 that two types of question could arise about the validity of a contractual notice: first, depending on how the contents of the notice are to be construed, are they sufficient to convey the necessary information to the recipient? Secondly has it been issued in accordance with the provisions governing such a notice? Looking at the matter in accordance with the second question, the view of the Inner House in Hoe International at para 35 was apt. It was vital that the notice was addressed to the party to the agreement and arrived in the hands of someone with authority to act on behalf of EE. That had occurred. The error in the notice, such as it was, was not important to its fundamentals and could not be said to have prejudiced EE in a practical sense. As the Inner House had observed, if there was in fact no prejudice, one should be slow to hold that failure to comply with a formal requirement was fatal. On a strict construction of the requirements, the notice was not capable of misleading since there was in fact no other agreement: Lord Hoffman, Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 at 776B-D. To insist on a notice free of peripheral error would serve no useful purpose.

The tribunal therefore concluded that the respondent’s notice was valid.

For the applicant: David Thomson KC, and Shepherd & Wedderburn LLP. For the respondent: Michael Upton, advocate, and Dallas McMillan.