Sure and JT v GCRA: Bedell Cristin act in landmark regulatory appeal in Guernsey

Bedell Cristin partner Jon Barclay has acted for JT in its landmark case overturning a GCRA regulatory sanction over the roll-out of 5G technology across the Bailiwick of Guernsey.

The long-awaited judgment in Sure and JT v Guernsey Competition and Regulatory Authority (GCRA) will have implications beyond competition law sanctions – in the judgment the Royal Court has reinforced the requirement for Guernsey regulators to conduct all investigations and proceedings with transparency, consistency, and procedural integrity.

The judgment set aside in its entirety the 2021 decision by the GCRA to fine JT and Sure a combined £3.4m for anti-competitive conduct in connection with the roll-out of 5G technology (£2.9m for Sure, and c. £440,000 for JT).

While the appeal, which took place before a four-day hearing in November 2022, was allowed on the ground of procedural irregularity, the judgment makes it clear that the regulator’s findings would also have been set aside on the facts, reinforcing the importance of both procedural fairness and substantive robustness in regulatory decision-making.

Advocate Barclay appeared for JT, leading a team including associate Cassie Wade, supported by external counsel George Peretz KC.

In the judgment, the Royal Court confirmed that:

• a Guernsey authority cannot attempt to introduce new arguments beyond those explicitly set out on the face of the decision under appeal: even if additional justifications may have been available at the time, they cannot be deployed retrospectively.
• a regulator must not base its final decision on grounds different from those which were notified during the course of the investigation.
• where allegations of anti-competitive conduct are made, the findings must be expressed with precision and supported by a rigorous analysis of the evidence

Separate appeals by JT and Sure over the penalties issued will now not go ahead, given the setting aside by the Court of the GCRA's findings.

Advocate Jon Barclay – a partner in Bedell Cristin's Guernsey Litigation and Dispute Resolution practice group since 2015 – said: "This judgment has wide implications across all regulated sectors, strengthening the expectation that regulators adhere to high standards of reasoning and decision-making.

"This case provides a timely reminder of the importance of procedural safeguards in regulatory enforcement.

"It also confirms that the Royal Court will readily engage both with procedural challenges and scrutiny of the underlying facts, reinforcing its intended function as a crucial check on regulatory over-reach."