December 21st, 2017 by James Goudie KC

In R (Hutchison 3G UK Ltd) v Telefonica UK Ltd (2017) EWHC 3376 (Admin) Green J said:-

“238.   In my judgment the Sedley criteria are not hard and fast rules that can be mechanistically applied so as to lead to a rigid and certain result. They are lodestars guiding the overall assessment that must be made of the facts to see whether addressees of a consultation had, in a real and practical sense, been accorded a fair opportunity to express their views and opinions. The Sedley criteria, by their nature, are not capable of serving as definitive rules; they amount to four broad tests to be applied to the facts of each case. They concern: (i) the point in time at which the consultation must occur; (ii) the sufficiency of the reasons enabling the addressee to understand how to respond; (iii) the sufficiency of the time granted to enable proper responses; and (iv), the taking into account of the facts and matters submitted by consultees. The ultimate litmus test is simply fairness; so how the application of the criteria play out in a particular case will depend upon all of the surrounding circumstances.

  1. And importantly the criteria do not do away with the requirement of materiality which indicates that for a breach of the criteria to be dispositive that breach must make an actual difference to fairness. If the consultation is fair notwithstanding non-observance with one or more of the criteria, then it will be non-material and the consultation will remain fair.”

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