Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023

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Court confirmation of adjudication

109. (1) Where a person does not appeal to the Court against an adjudication within the period provided for in section 106 (1) the Commission shall, subject to subsection (11), as soon as practicable after the expiration of the period allowed for such an appeal, make an application to the Court for the confirmation of that adjudication.

(2) An application by the Commission under subsection (1) shall include a copy of the adjudication together with the documents and evidence that were before the adjudicator which are referred to in that adjudication, and may include any other documents and evidence which were before the adjudicator.

(3) Notice of an application under subsection (1) shall be served by the Commission on the person the subject of the adjudication within 7 days of the Commission lodging the application in Court.

(4) The notice referred to in subsection (3) shall, where possible, specify the time fixed by the Court for the hearing of the application, and shall enclose copies of all the papers lodged in Court in relation to the application under subsection (1).

(5) The Court shall, on the hearing of an application under subsection (1), confirm the adjudication the subject of the application unless the Court, on the basis of the findings of fact in the adjudication (which are to be accepted as final by the Court), determines that—

(a) the adjudication contains an error of law which is—

(i) manifest from the record of the adjudication, and

(ii) fundamental so as to deprive the adjudication of its basis,

or

(b) the administrative sanction imposed was manifestly—

(i) disproportionate,

(ii) in excess of the sanction required to be dissuasive,

(iii) in excess of the sanction required to be effective, or

(iv) in excess of the sanction required to be appropriate.

(6) The Court—

(a) where it makes a determination referred to in subsection (5)(a), or both a determination referred to in subsection (5)(a) and a determination referred to in subsection (5)(b), in relation to an application under subsection (1), shall remit the matter for reconsideration by an adjudicator, subject to such directions as the Court considers appropriate including, as the Court sees fit, directions as to whether or not—

(i) the adjudicator should be limited to reconsidering a specific aspect of an adjudication, and

(ii) the matter should be reconsidered by another adjudicator,

and

(b) where it makes a determination referred to in subsection (5)(b), but does not make a determination referred to in subsection (5)(a), in relation to an application under subsection (1) may—

(i) order either or both that a lesser amount be substituted for the amount of the financial penalty, compensation or refund, and that any suspension or withdrawal of authorisation or rights of use specified in the adjudication be reduced or removed, and confirm the adjudication subject to such substitution, and

(ii) where the Court does not make an order referred to in subparagraph (i) and considers that the interests of justice so require, remit the matter for reconsideration by an adjudicator, subject to such directions as the Court considers appropriate including, as the Court sees fit, directions as to whether or not—

(I) the adjudicator should be limited to reconsidering a specific aspect of an adjudication, and

(II) the matter should be reconsidered by another adjudicator.

(7) The Court shall hear the application under subsection (1) on the evidence before the adjudicator.

(8) The Court shall, in determining an application under subsection (1), act as expeditiously as possible consistent with the administration of justice.

(9) The Court may in its discretion award the costs of an application under this section as if section 88 applied to such an award.

(10) Where the Court confirms or substitutes its own decision for the decision of an adjudicator imposing a requirement to cease a regulatory breach, a requirement to take specified measures to remedy the breach, a financial penalty or a requirement to pay compensation or a refund, the Court may set a time limit for the requirement to be carried out or the payment of the financial penalty or compensation or refund concerned.

(11) The Commission shall, prior to making an application under subsection (1), seek the consent in writing of the person to the confirmation of the adjudication of the adjudicator.

(12) Where a person consents in writing to the adjudication, the application under subsection (1) (and any remaining steps in such application) may be made ex parte.