Digicel (St Lucia) Ltd Others v Cable and Wireless Plc and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MORGAN,Mr Justice Morgan |
| Judgment Date | 17 June 2009 |
| Neutral Citation | [2008] EWHC 2522 (Ch),[2009] EWHC 1437 (Ch) |
| Docket Number | Case No: HC07C01917 |
| Court | Chancery Division |
| Date | 17 June 2009 |
[2008] EWHC 2522 (Ch)
Mr Justice Morgan
Case No: HC07C01917
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Huw Davies QC & Stephen Houseman (instructed by Jones Day) for the Claimants
Edmund Nourse & Conall Patton (instructed by Slaughter & May) for the Defendants
Hearing dates: 16 th, 17 th and 18 th September 2008
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
[HEADING]Paragraph
INTRODUCTION
THE CLAIM
THE HISTORY OF THE DISCLOSURE GIVEN
THE RELEVANT RULES AND THE PRACTICE DIRECTION
THE CRESSWELL REPORT
DISCUSSION
BACK-UP TAPES
ORDER IN RELATION TO BACK-UP TAPES
KEY WORD SEARCHES
ORDER IN RELATION TO KEY WORD SEARCHES
SPLIT TRIAL
DISCLOSURE IN RELATION TO QUANTUM
INTRODUCTION
This judgment concerns an application by the Claimants pursuant to CPR Rule 31.12 for an order that the Defendants give specific disclosure of certain classes of documents. There are three parts to the Claimants' application as originally drafted. The first two parts of the application concern electronic documents. In the first part of their application, the Claimants seek an order that the Defendants restore relevant back-up tapes for the purpose of searching for the e-mail accounts of certain former employees; this has been described as “the application for restoration of the back-up tapes”. The second part of the Claimants' application relates to all of the electronic documents already identified by the Defendants together with the further electronic documents that may be identified in accordance with the first part of the Claimants' application. In relation to all such electronic documents, the Claimants seek an order that the Defendants carry out a further search across those documents by reference to a set of additional key words/phrases as identified by the Claimants. This has been described as “the application for additional search terms”. The third part of the Claimants' application concerns documents containing financial and operational data falling within specified categories. This application has been referred to as “the application relating to quantum”.
At the hearing of this application, I raised the question with the parties whether it was appropriate to order that there be a split trial in this action with a view to issues as to quantum being tried only after issues as to liability and causation had been tried. When the point was raised, the Claimants supported the suggestion of a split trial and the Defendants opposed that suggestion. In the event, in the course of the hearing, I announced my decision that I would order a split trial. The parties agreed that in that event, the third part of the application which related to documents dealing with matters of quantum no longer needed to be considered. Accordingly, the issues arising in relation to the third part of the application were not the subject of argument and are not further discussed in this judgment. I will, however, give my reasons for the decision I announced in the course of the hearing that it is appropriate in this case to order a split trial.
THE CLAIM
It is necessary to attempt a brief summary of the nature of the claim the subject of this action. A brief summary will necessarily not do justice to the many issues of fact and of law which may arise at the trial of this action. The pleadings are voluminous. The Amended Particulars of Claim run to more than 320 pages. The Claimants' Responses to Requests for Information run to more than 490 pages. The Amended Defence extends to more than 830 pages and that is supplemented by more than 50 pages which comprise the Defendants' Response to a Request for Further Information.
The Claimants are mobile phone companies operating in 7 jurisdictions in the Caribbean, as follows:
) St Lucia,
) St Vincent and the Grenadines (“SVG”),
) Grenada,
) Barbados,
) The Cayman Islands,
) Trinidad and Tobago (“T & T”), and
) The Turks and Caicos Islands (“TCI”).
The relevant Defendant was, in each of the above jurisdictions, the incumbent telephone operator, operating telecommunication services, including both fixed line (or land line) and mobile networks, under exclusive licences. Apart from the Sixth Defendant, Telecommunication Services of Trinidad & Tobago Limited (“TSTT”), all of the Defendants are part of the Cable and Wireless Group headed by the First Defendant, Cable & Wireless Plc. Cable & Wireless Plc did not operate in any of the relevant jurisdictions and is based in London.
The relevant period for the purposes of the action is the period from 2001/2002 to 200In that period, the telecommunications markets in each of the jurisdictions were liberalised. The relevant Defendant companies, by agreement with the relevant Governments, surrendered their exclusive licences to operate both fixed and mobile telecommunications networks in order to permit competition for the provision of such services. In each of the jurisdictions, the relevant Claimant sought to set up a mobile phone business and applied for a licence from the relevant Government and, in due course, the relevant Claimant obtained a licence.
In order to enable the relevant Claimant to provide a mobile phone service, the relevant Claimant needed to “interconnect” with the network of the relevant Defendant in each jurisdiction. “Interconnection” is the process by which one telecommunications network is connected to another, enabling customers of each network to call customers of the other network. Interconnection has two relevant aspects. The first is contractual interconnection and the second is physical interconnection. Contractual interconnection is the process of negotiating the terms and conditions of interconnection, including the terms as to charges. Physical interconnection is the engineering process of joining two networks and is carried out on the basis of the terms agreed in an interconnection agreement. The Claimants say that physical interconnection can occur before the formal agreement is entered into.
Speaking broadly, the legislation in each of the jurisdictions required the relevant Defendant as operator to grant interconnection to the relevant Claimant or, at any rate, to grant interconnection once the relevant Claimant had obtained a telecommunications licence. For example, in St Lucia, Section 46 of the relevant Telecommunications Act provided that:
“A telecommunications provider who operates a public telecommunications network shall not refuse, obstruct, or in anyway impede another telecommunications provider from making an interconnection with his or her telecommunications network”.
The phrase “telecommunications provider” is defined in Section 4 of the same Act as referring to a person who is licensed under the Act to operate a telecommunications network or to provide telecommunication services. The legislation varies somewhat in the different jurisdictions although it is almost identical in St Lucia, SVG, Grenada and the Cayman Islands.
The basic allegation which the Claimants make against the Defendants is that in each jurisdiction, the relevant Defendant deliberately delayed interconnection with its network by the relevant Claimant. The Claimants say that such delay was a breach of statutory duty and that the Claimants are entitled to claim damages for breach of such statutory duty. The Claimants build on this basic allegation by alleging that the various breaches of statutory duty were pursuant to an overall conspiracy directed by Cable & Wireless Plc and Cable & Wireless (West Indies) Limited (“CWWI”), the Second Defendant, in London. The Claimants allege a conspiracy to injure by unlawful means and the unlawful means are said to be the breaches of statutory duty. Further, the Claimants allege that Cable & Wireless Plc and CWWI are joint tortfeasors with the relevant Defendant in each jurisdiction.
The Claimants have pleaded that the matters they complain of have caused them considerable loss and damage. The Amended Particulars of Claim refer to lost revenue, lost profits and lost market share in each of the relevant territories as a result of the delayed launch of the relevant Claimant's mobile network in that territory. The Claimants claim damages under various heads. First, they seek damages by way of compensation for the losses they have identified. Secondly, the Claimants seek damages on what they call “a restitutionary basis” which they...
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