ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE MORGAN
Strand, London, WC2A 2LL
B e f o r e :
OF THE COURT OF APPEAL CIVIL DIVISION
LORD JUSTICE LLOYD
LORD JUSTICE GROSS
| (1) DIGICEL (ST. LUCIA) LIMITED
(2) DIGICEL (SVG) LIMITED
(3) DIGICEL GRANADA LIMITED
(4) DIGICEL (BARBADOS) LIMITED
(5) DIGICEL CAYMAN LIMITED
(6) DIGICEL (TRINIDAD & TOBAGO) LIMITED
(7) DIGICEL (TURKS & CAICOS) LIMITED
(8) DIGICEL LIMITED
|Claimants (not parties to the appeal)
Claimants (not parties to the appeal)
|- and –
|(1) CABLE & WIRELESS PLC
(2) CABLE & WIRELESS (WEST INDIES) LIMITED
(3) CABLE & WIRELESS GRANADA LIMITED
(4) CABLE & WIRELESS (BARBADOS) LIMITED
(5) CABLE & WIRELESS (CAYMAN ISLANDS) LIMITED
(6) TELECOMMUNICATIONS SERVICES OF TRINIDAD & TOBAGO LIMITED
Lord Grabiner QC and Edmund Nourse (instructed by Slaughter and May) for the Respondents
Hearing date: 9 May 2011
Crown Copyright ©
Lord Justice Lloyd:
The arbitration panel and its decision
"2.2 The urgency of the matter
Digicel's Complaint referred to delay as "extremely damaging to the people of Trinidad & Tobago and Digicel" (page 18). There are public policy concerns in ensuring that interconnection is established promptly. These are clear from the Act. However, it is difficult to see how a short delay of two or three weeks for a new mobile phone service would be "extremely damaging" to the population. There is no suggestion of ending the liberation process, closing the interconnection and abandoning competition.
Regarding damage to itself, Digicel has described in general terms that it has incurred and is incurring by the day substantial financing and operational costs, as set out in paragraph 16 of its Submissions on the Timing of Consideration of the Application to Set Interim Rates, submitted to the panel on 29 March 2006. The panel is aware of the realities of business, and that delay in starting a service on schedule can impose major costs on a company, not to mention potential loss of momentum in a marketing campaign and wasted investment.
Nevertheless, the application for interim pricing, while long on detail of the history of the interconnection negotiations, is short on detail of the harm to Digicel of some delay. Digicel may be ready at a network and operational level to offer services, but readiness alone does not provide sufficient indication of the level of urgency. While Digicel may consider this to be self evident, Digicel has not actually put before the panel any detail or scale of the damage that it faces due to delay.
2.3 Addressing urgency with sufficient due process
Nevertheless, the matter clearly has some urgency about it. Having considered all of the foregoing matters and all other points discussed between the parties and the panel on 31 March 2006, the panel concludes that a delay of about two weeks is appropriate to provide the parties the opportunity to formulate submissions and expert evidence for the specific purpose of addressing this application.
The interim procedure ordered at the end of this Decision provides for a rapid but reasonable procedure to accomplish this. The parties and their consultants have already done a large amount of work on this matter in their original claim, Response and Reply. The procedure provided should put them in a position to meet the timetable contemplated."
"3.3 Situations of urgency
Section 2.10.9 of the DR Procedures requires the resolution of interconnection disputes that are referred to the arbitration process within three months of the issuance of the TOR by the Authority. A three month deadline may generally seem to be relatively prompt, particularly given the complexity of matters often at stake in an interconnection dispute.
Nevertheless, according to the DR procedures, the three month period only commences after consecutive periods during which the complainant issues a notice of dispute, the Authority issues a confirmation of dispute, the complainant presents its complaint, the respondent presents its response, the complainant presents a reply, the Authority holds a preliminary hearing, determines whether to refer to mediation or arbitration, and then it must still seek and engage arbitrators and send them the TOR. This amounts to a potential period of several weeks before the three month period commences. In the case before us it took less than 8 weeks.
Three months from the date of issuance of the TOR may be viewed as prompt in many cases. It is entirely possible, however, that an ongoing failure to conclude an interconnection agreement becomes such an urgent problem that it needs resolution earlier than the end of the three month period. Where the failure to conclude the interconnection agreement is preventing the commencement of services by an operator that has made large investments and is ready in all other material respects to get going – and is incurring significant losses by the day because of the delay – it is likely to be one such situation. There may be others.
Without the ability to make interim measures enabling interconnection, situations of urgency could not be addressed and the procedures would be ineffective precisely when they are most needed. The problem that is intended by the Act to be solved would not be solved."
"4. Sender-keeps-all stop-gap measure
As noted above, from the panel's review of the pleadings and consideration of the oral submissions made on 31 March 2006, it appears urgent to enable Digicel to commence some form of interconnection as quickly as possible even if interim rates cannot be set as of 31 March 2006. Accordingly, a sender-keeps-all arrangement is provided for in the order below until interim rates are put in place.
A sender-keeps-all measure has inherent limitations – for both parties – on their ability to plan retail pricing strategy and other financial items since neither knows yet what its interconnection revenues and costs will be. Nevertheless, in this case, better something than nothing. Digicel has the option to proceed on the basis of sender-keeps-all for a short period but remains free to wait until the interim application is addressed before commencing commercial service.
Since prices cannot operate in a vacuum, terms and conditions would be necessary for this short period. While some fundamental points persist in the text of the reference interconnection offer (RIO), the parties are agreed on most of the text, which can be used in its latest form until revised by decision of the panel or agreement of the parties."
The judge's decision
"347. In their lengthy written closing submissions, the Claimants did not put forward any specific submissions at all as to why I should hold that the arbitration process would have been completed earlier than 31st March 2006, if physical interconnection had been completed earlier than that date. Similarly, the Claimants put forward no submission to the effect that contractual interconnection would have been concluded before 31st March 2006, but for the matters alleged against TSTT. This was a remarkable state of affairs. It meant that even if I held that TSTT had acted unlawfully in delaying physical interconnection, the Claimants put forward no reasoned case that contractual interconnection (or an alternative way forward imposed by an arbitration panel) would have come about before 31st March 2006. TSTT drew attention to this point and the absence of any submission on it from the Claimants when, in turn, TSTT made its written closing submissions. This prompted the Claimants in their oral closing submissions to submit, for the first time, that if physical interconnection had been completed before 31st March 2006 then the dispute resolution procedures would have led to a conclusion earlier than 31st March 2006, but to the same effect as the actual decision of 31st March 2006.
348. I can see how it can be argued that if physical interconnection had been completed a good deal earlier than 31st March 2006, then there might have been a chance of the dispute resolution procedures being expedited to produce a decision by the arbitration panel that might have been before 31st March 2006. Conversely, if physical interconnection were only completed a few weeks before 31st March 2006, it becomes much less likely that those procedures would have been expedited to any marked extent. In the end, the debate on what, to my mind, is a critical element in the assessment of the case on loss of a chance came down to the Claimants asserting that it was obvious that they were right on the point, without seeing any need to examine the individual steps in the period January 2006 to March 2006 in order to see how, and if so when, the actual timetable towards the decision on 31st March 2006 might have been shortened. Conversely, TSTT submitted that there was simply no material before the court which would enable me to reach a judicial conclusion in favour of the Claimants on this point.
350. … Finally, if physical interconnection might have been brought forward, but only by a few weeks at the most, then I do not think that I could reach the conclusion on the material (or more properly the lack of material) before me that there was a real or substantial chance that the arbitration procedures would have been appreciably speeded up so as to produce a decision from the arbitration panel, favourable to Digicel T&T, on any date earlier than the date of the actual decision, 31st March 2006. …"
The appellant's challenge
"It is difficult to assess whether TSTT's mode of conducting its defence of the claim against it was influenced by the Claimants' statement in opening that the Claimants did not claim on the basis of a lost chance. Nonetheless, the stance adopted by the Claimants in this respect does not encourage me to be too adventurous in speculating as to the possibility that the Claimants might have lost a chance of being better off, if Mr Espinal had not had his conversation with Ms Bejar in late September 2005."
Lord Justice Gross
Lord Justice Maurice Kay
Appeal Court Reference No: A3/2010/1299
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE HONOURABLE MR JUSTICE MORGAN
Claim No: HC07C01917
UPON THE APPLICATION of the Sixth Claimant, Digicel (Trinidad & Tobago) Limited, the Appellant, dated 28 May 2010 for permission to appeal;
AND UPON THE ORDER of the Rt. Hon. Lord Justice Mummery dated 3 August 2010 that the application be adjourned to the full court with the appeal to follow immediately if permission granted
AND UPON HEARING, Leading Counsel for the Appellant and Leading and Junior Counsel for the Respondents
IT IS ORDERED THAT: