Antigua Power Company Ltd v Attorney General of Antigua and Barbuda and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sumption,Lord Toulson,Lord Neuberger,Lord Mance |
| Judgment Date | 23 July 2013 |
| Neutral Citation | [2013] UKPC 23 |
| Date | 23 July 2013 |
| Docket Number | Appeal No 0063 of 2012 |
| Court | Privy Council |
[2013] UKPC 23
Privy Council
Lord Neuberger
Lord Mance
Lord Sumption
Lord Carnwath
Lord Toulson
Appeal No 0063 of 2012
Appellant Geoffrey Robertson QC Dane Hamilton QC
Kim Franklin (Instructed by Howard Kennedy Fsi LLP)
1 st, 2 nd, 4 th Respondents James Dingemans QC Hafsah Masood (Instructed by Charles Russell LLP)
3 rd Respondent Sir Gerald A Watt QC Dr David Dorsett Ph.D. (Instructed by Simons Muirhead & Burton)
Heard on 20–21 May 2013
(WITH WHOM Lord Mance, Lord Sumption AND Lord Toulson AGREE)
This is an appeal brought by Antigua Power Company Limited ("APCL") against a decision of the Eastern Caribbean Court of Appeal dismissing its appeal from a decision of Thomas J in the High Court of Antigua and Barbuda. Thomas J had dismissed APCL's claim for relief against (i) the Attorney General, (ii) Antigua Public Utilities Authority ("APUA"), (iii) The Hon Baldwin Spencer who, at all relevant times, was the Prime Minister ("the Prime Minister"), but was sued in his capacity "as Minister of APUA and Energy", and (iv) the Commissioner of Police ("the Commissioner").
From its inception, the case has been rendered far more complex than it should have been by the inappropriate procedure adopted by APCL and by the over-elaboration of the points at issue. Because of that, it is sensible to identify the only issues raised by this appeal. Those issues are: (i) the extent of the approval given by Cabinet on 16 May 2006 ("the 16 May approval") to a Joint Venture Agreement ("JVA") contained in a letter dated 12 May 2006; (ii) if approval to the JVA as a whole was not given, whether APUA is effectively estopped from so contending; (iii) whether it is appropriate to grant APCL any relief, and if so what relief, against the Prime Minister; and (iv) whether this appeal should be allowed because of the Court of Appeal's delay in giving judgment.
By 2005, it had become apparent that there was both a short term problem and a longer term problem, so far as the supply of electricity in Antigua was concerned. The short term problem arose from the fact that the Cricket World Cup ("the CWC") was due to take place in Antigua in 2007, and it was clear that this would result in a demand for energy beyond the then existing capacity. The longer term problem arose from the fact that projections for future energy consumption in Antigua suggested that, even if capacity was increased to accommodate the CWC, there would be an undercapacity in the not too distant future.
With a view to dealing with these problems, APUA (a public utility, which is the national Antiguan power generator and supplier) entered into discussions with various possible contractors. Those contractors included APCL, an Antiguan-owned corporation, which in 1996 and 2003 had agreed to supply APUA with a total of 27 megawatts ("MW") of power. APCL had performed that agreement with generators made by Wärtsilä Finland Oy and its subsidiary Wärtsilä Caribbean Inc (which can be referred to together indiscriminately for present purposes as "Wärtsilä").
In December 2005, APUA invited APCL to submit proposals for supplying and installing generators to fulfil these short term and longer term needs. On 25 April 2006, a meeting of the Cabinet was adjourned, according to the certified minute, so that members could consider a presentation from representatives of APUA, APCL and Wärtsilä "with regards to supply of generators(s) to [APUA]". At that meeting, the sort of terms which were likely to be agreed between APUA and APCL were explained. It was made clear that Wärtsilä could provide, and APCL could install, "a [17] mega watt plant which could provide electricity by December, 2006 or in time for Cricket World Cup 2007".
The Cabinet was apparently enthusiastic about these proposals, but was concerned at the absence of any draft agreement. Negotiations ensued between representatives of APUA and of APCL, with some government involvement. On 2 May 2006, the matter was further discussed in Cabinet, albeit as a result of a letter from another company which was involved in litigation with the government. The Cabinet encouraged Mr Wilmoth Daniel, the Minister of Works for Transportation and the Environment ("the Minister"), to get all relevant parties together to discuss the way forward.
On 3 May 2006, Wärtsilä wrote to APCL in connection with "the supply delivery and erection of a diesel power plant of nominal capacity of approximately 40 [MW] consisting of 1 x [17MW] V46 and 2 x 12 V46 Wartsila diesel generator sets and related auxiliary equipment". The letter went on to say that the 17MW generator would only be reserved for APCL if "[o]n or before May 12, 2006", it made "an initial non-refundable payment of US$1 million followed by a down payment of USD 3.0 million to be made on or prior to May 30, 2006".
The following day, APCL sent to the Minister a summary of the proposed terms to be agreed in the JVA. The proposed JVA was to be for a "turnkey project" to "be installed on a Green field site". The proposed project had four components, namely "(i) One 17 Megawatts generator and associated auxiliaries by the 31 January, 2007 in sufficient time for World Cup 2007", "(ii) Three 11.3 megawatts generators each with associated auxiliaries by the end of year 2007", (iii) a substation to accommodate the generators, and (iv) a substation on the southern part of the island. While the other terms set out in that letter were expanded over the next few days, the four components remained in place, and the other terms were added to rather than changed or abandoned.
The proposed terms of the JVA were further refined in two letters dated 8 and 9 May 2006. The 8 May letter was signed on behalf of APCL and APUA and set out the main terms of a "Proposed APCL/APUA Joint Venture", and referred to the venture as concerning a "new 50.9MW turnkey project". The letter of 9 May was sent to the Minister, and referred to the 8 May letter and mentioned that the work would be carried out in two phases, and that any arrangement would be subject to Cabinet approval.
On 9 May 2006, the Cabinet met again. The certified minute of that meeting recorded that the Cabinet was told about the proposed JVA between APUA and APCL, which was described as "using a phased approach". Phase 1 was described as involving "(a) the provision, installation and commissioning of a 17MW Wärtsilä Gen-Set by 31 st January, 2007 … to be financed by APCL and its shareholders", (b) "a new company to be created", 55% owned by APCL and 45% by APUA "specifically in regards to the purchase of the 17MW Gen-Set", and (c) a 7% reduction in the unit price charged to APUA under existing agreements. This was consistent with the description given by the Minister in his Circulation Note to Cabinet dated 9 May 2006.
The certified minute went on to record that Cabinet considered that the "critical" aspect of this "was the acquisition of a 17MW Generator by APCL from Wärtsilä". Accordingly, as the minute recorded, the Minister was "authorize[d] … together with … APUA and … APCL to proceed immediately to make all necessary arrangements for the purchase of one (1) 17MW Generator from Wärtsilä". The Cabinet also asked APUA to "compile all of the relevant documentation" and to prepare "a full report" to the Minister "for presentation to the Cabinet".
The Cabinet decision to approve the purchase of the 17 MW generator was formally passed on to APUA and APCL on 12 May 2006. On the same day, APCL signed the JVA, which had been sent to them the previous day, signed on behalf of APUA, and by the Minister, also purportedly on behalf APUA (although the presence of the other signatories renders irrelevant any issues as regards his possible lack of authority in the latter capacity).
It is appropriate to set out the JVA in full (albeit that irrelevant parts have been omitted and paragraph numbering added for ease of reference):
(i) APCL and APUA agree to enter into a Joint Venture for the new 50.9 Megawatt turnkey project, utilizing a phased approach so as to ensure effective preparation and implementation of the Joint Venture Agreement.
(ii) The following is therefore mutually agreed to and confirmed by the parties with the approval of Cabinet:
Phase 1:
(iii) Provide, install, commission and maintain a 17MW Wärtsilä gen-set with associated auxiliaries and substation facility by 31st January, 2007 …. This 17MW generator with associated auxiliaries will form part of the 50.9 megawatt turnkey project. … [Certain] tests will be done approximately once monthly … financed by APCL and its shareholders.
(iv) A new company shall be created for the purpose of this Joint Venture with APCL holding 55% of the shares in the new 50.0 megawatt turnkey project and APUA holding 45% of the said shares.
(v) As of the 1st June 2006, there shall be a [7%] reduction in the unit price across the board charged to APUA under the existing … Agreement ….
(vi) APCL and APUA shall each have representation on the Board of Directors. …
(vii) The minimum dispatch guarantee for contract year 2007 shall be 220,000,000 units … of electricity.
(viii) The Power Plant generating facility right to first dispatch when energy in excess of the minimum dispatch guarantee is required will not be unreasonably withheld. …
(ix) All day to day management and plant operational activities of the turnkey project will be the responsibility of APCL in consultation with APUA.
(x) APUA will appoint a Project Engineer and a Site Engineer in...
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