Digicel (St. Lucia) Ltd (a Company Registered Under The Laws of St. Lucia) 2) Digicel (SVG) Ltd (a Company Registered Under The Laws of St. Vincent & The Grenadines) and Others v 1) Cable & Wireless Plc 2)Cable & Wireless (West Indies) Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan |
| Judgment Date | 15 April 2010 |
| Neutral Citation | [2010] EWHC 774 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC07C01917 |
| Date | 15 April 2010 |
[2010] EWHC 774 (Ch)
Before: Mr Justice Morgan
Case No: HC07C01917
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Mr Stephen Rubin QC, Mr Huw Davies QC, Mr Stephen Houseman & Mr Rupert Allen (instructed by Jones Day) for the Claimants
Lord Grabiner QC, Mr Edmund Nourse & Mr Conall Patton (instructed by Slaughter and May) for the Defendants
Hearing dates: 5 th-8 th, 11 th-15 th, 18 th-22 nd May, 2 nd-5 th, 8 th-12 th, 15 th-19 th, 22 nd, 24 th– 26 th, 29 th– 30 th June, 1 st– 3 rd, 6 th– 10 th, 13 th, 15 th– 17 th, 20 th– 24 th, 27 th– 30 th July, 5 th– 9 th, 12 th– 16 th, 19 th, 20 th October, 16 th, 17 th, 19 th, 20 th, 23 rd– 27 th and 30th November 2009.
| Heading | Paragraph |
| MAIN JUDGMENT | |
| PART 1: GENERAL MATTERS | |
| THE CASE IN OUTLINE | 1 |
| THE ISSUES | 9 |
| JURISDICTION | 21 |
| THE APPLICABLE LAW | 22 |
| THE CLAIMANTS | 24 |
| THE DEFENDANTS | 35 |
| THE PROCEDURAL HISTORY | 44 |
| LIBERALISATION | 50 |
| INTERCONNECTION | 53 |
| CONTRACTUAL INTERCONNECTION | 56 |
| PHYSICAL INTERCONNECTION | 60 |
| REGULATION OF INTERCONNECTION | 67 |
| THE EVIDENCE | 70 |
| THE DOCUMENTS | 71 |
| THE CLAIMANTS' WITNESSES | 78 |
| THE DEFENDANTS' WITNESSES | 82 |
| THE EXPERTS | 90 |
| PART 2: ST LUCIA | |
| INTRODUCTION | 98 |
| THE LEGISLATION | 102 |
| ARE BREACHES OF THE LEGISLATION ACTIONABLE? | 159 |
| ARE BREACHES OF THE LEGISLATION “UNLAWFUL MEANS” FOR THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS? | 186 |
| CWWI'S LICENCE | 188 |
| WERE THERE BREACHES OF THE LEGISLATION? | 198 |
| JOINT TORTS AND CONSPIRACY | 201 |
| DAMAGES | 214 |
| LIMITATION | 219 |
| THE RESULT IN ST LUCIA | 222 |
| PART 3: ST VINCENT AND THE GRENADINES | |
| INTRODUCTION | 223 |
| THE LEGISLATION | 228 |
| ARE BREACHES OF THE LEGISLATION ACTIONABLE? | 231 |
| ARE BREACHES OF THE LEGISLATION “UNLAWFUL MEANS” FOR THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS? | 235 |
| CWWI'S LICENCE | 237 |
| WERE THERE BREACHES OF THE LEGISLATION? | 245 |
| JOINT TORTS AND CONSPIRACY | 248 |
| DAMAGES | 251 |
| THE RESULT IN ST VINCENT AND THE GRENADINES | 254 |
| PART 4: GRENADA | |
| INTRODUCTION | 255 |
| THE LEGISLATION | 259 |
| ARE BREACHES OF THE LEGISLATION ACTIONABLE? | 261 |
| ARE BREACHES OF THE LEGISLATION “UNLAWFUL MEANS” FOR THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS? | 264 |
| C&W GRENADA'S LICENCE | 266 |
| WERE THERE BREACHES OF THE LEGISLATION? | 274 |
| JOINT TORTS AND CONSPIRACY | 277 |
| DAMAGES | 281 |
| THE RESULT IN GRENADA | 284 |
| PART 5: BARBADOS | |
| INTRODUCTION | 285 |
| THE LEGISLATION | 288 |
| ARE BREACHES OF THE LEGISLATION ACTIONABLE? | 349 |
| ARE BREACHES OF THE LEGISLATION “UNLAWFUL MEANS” FOR THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS? | 353 |
| WERE THERE BREACHES OF THE LEGISLATION? | 355 |
| JOINT TORTS AND CONSPIRACY | 357 |
| DAMAGES | 364 |
| THE RESULT IN BARBADOS | 367 |
| PART 6: CAYMAN ISLANDS | |
| INTRODUCTION | 368 |
| THE LEGISLATION | 372 |
| ARE BREACHES OF THE LEGISLATION ACTIONABLE? | 392 |
| ARE BREACHES OF THE LEGISLATION “UNLAWFUL MEANS” FOR THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS? | 408 |
| C&W CAYMAN'S LICENCE | 411 |
| WERE THERE BREACHES OF THE LEGISLATION? | 420 |
| JOINT TORTS AND CONSPIRACY | 422 |
| DAMAGES | 426 |
| THE RESULT IN CAYMAN ISLANDS | 429 |
| PART 7: TRINIDAD AND TOBAGO | |
| INTRODUCTION | 430 |
| THE LEGISLATION | 432 |
| ARE BREACHES OF THE LEGISLATION ACTIONABLE? | 475 |
| WERE THERE BREACHES OF THE LEGISLATION? | 476 |
| DAMAGES | 479 |
| THE RESULT IN TRINIDAD & TOBAGO | 483 |
| PART 8: TURKS AND CAICOS ISLANDS | |
| INTRODUCTION | 485 |
| THE LEGISLATION | 491 |
| ARE BREACHES OF THE LEGISLATION ACTIONABLE? | 512 |
| ARE BREACHES OF THE LEGISLATION “UNLAWFUL MEANS” FOR THE TORT OF CONSPIRACY TO INJURE BY UNLAWFUL MEANS? | 524 |
| CWWI'S LICENCE | 526 |
| THE MEMORANDUM OF UNDERSTANDING | 535 |
| WERE THERE BREACHES OF THE LEGISLATION? | 547 |
| WERE THERE BREACHES OF THE MEMORANDUM OF UNDERSTANDING? | 550 |
| JOINT TORTS AND CONSPIRACY | 552 |
| DAMAGES | 560 |
| THE RESULT IN TURKS AND CAICOS ISLANDS | 564 |
| PART 9: THE OVERALL RESULT 566 | |
| ANNEX A: ST LUCIA | |
| THE ECTEL TREATY | 1 |
| THE TELECOMMUNICATIONS ACT 2000 | 5 |
| THE TELECOMMUNICATIONS (INTERCONNECTION) REGULATIONS 2002 | 18 |
| THE LICENCES | 21 |
| THE FACTS | 29 |
| ANNEX B: ST VINCENT AND THE GRENADINES | |
| THE ECTEL TREATY | 1 |
| THE TELECOMMUNICATIONS ACT 2001 | 3 |
| THE TELECOMMUNICATIONS (INTERCONNECTION) REGULATIONS 2002 | 16 |
| THE LICENCES | 19 |
| THE FACTS | 27 |
| ANNEX C: GRENADA | |
| THE ECTEL TREATY | 1 |
| THE TELECOMMUNICATIONS ACT 2000 | 3 |
| THE TELECOMMUNICATIONS (INTERCONNECTION) REGULATIONS 2003 | 16 |
| THE LICENCES | 21 |
| THE FACTS | 28 |
| ANNEX D: BARBADOS | |
| THE TELECOMMUNICATIONS ACT 2001 | 1 |
| THE FAIR COMPETITION ACT 2002 | 13 |
| THE TELECOMMUNICATIONS (INTERCONNECTION) REGULATIONS 2003 | 17 |
| THE LICENCES | 19 |
| THE FACTS | 28 |
| ANNEX E: CAYMAN ISLANDS | |
| THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AUTHORITY LAW 2002 | 1 |
| THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AUTHORITY (INTERCONNECTION AND INFRASTRUCTURE SHARING) REGULATIONS 2003 | 11 |
| THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AUTHORITY (DISPUTE RESOLUTION) REGULATIONS 2003 | 15 |
| THE AGREEMENT WITH THE GOVERNMENT | 17 |
| THE LICENCES | 23 |
| THE FACTS | 28 |
| ANNEX F: TRINIDAD AND TOBAGO | |
| THE TELECOMMUNICATIONS ACT 2001 | 1 |
| THE PROTECTION AGAINST UNFAIR COMPETITION ACT 1996 | 9 |
| THE CONCESSIONS | 15 |
| THE FACTS | 21 |
| THE CLAIMANTS' ALLEGATIONS | 267 |
| ANNEX G: TURKS AND CAICOS ISLANDS | |
| THE TELECOMMUNICATIONS ORDINANCE 2004 | 1 |
| THE INTERCONNECTION AND ACCESS TO TELECOMMUNICATIONS FACILITIES REGULATIONS 2005 | 8 |
| THE LICENCES | 17 |
| THE FACTS | 27 |
| ANNEX H: ACTIONABILITY OF STATUTORY OBLIGATIONS: THE LEGAL PRINCIPLES | |
| ANNEX I: CONPIRACY TO INJURE BY UNLAWFUL MEANS: THE LEGAL PRINCIPLES | |
| THE TORT OF CONSPIRACY | 1 |
| UNLAWFUL MEANS | 3 |
| UNLAWFUL ACTS | 4 |
| MEANS / INSTRUMENTALITY | 70 |
| COMBINATION | 72 |
| INTENTION | 79 |
| HONEST BELIEF | 86 |
Mr Justice Morgan:
PART 1: GENERAL MATTERS
THE CASE IN OUTLINE
These are claims for damages brought by several companies in the Digicel group of companies against several companies in the Cable & Wireless group of companies (or in one case, the relevant Defendant is Telecommunications Services of Trinidad & Tobago Limited, a company in which a Cable & Wireless company has a 49% interest).
The background to these claims is that, before the relevant events occurred, the Defendant companies (except for the parent company, Cable & Wireless plc, which is the First Defendant) were monopoly telecommunications operators in various jurisdictions in the Caribbean. The governments in those jurisdictions passed primary legislation providing for the ending of those monopolies and for new operators to be able to enter the telecommunications markets to compete with the former monopolist. That legislation, and regulations made under it, and the terms of the telecommunications licences granted to the former monopolist, provided in various ways for the new world of competition in telecommunications and, in particular, provided for the new entrant to be able to interconnect its network to the existing network of the former monopolist.
In various jurisdictions in the Caribbean, a subsidiary company in the Digicel group applied for and obtained a telecommunications licence for a mobile telecommunications network which would allow it to enter the relevant market and compete with the former monopolist. The Digicel subsidiary wished in every case to interconnect with the existing network. It considered that it could not hope to survive as a mobile telecommunications operator without such interconnection. The Digicel subsidiary sought to rely on the provisions of the legislation, and of the regulations, dealing with such interconnection. Jamaica was the first jurisdiction where a Digicel subsidiary sought interconnection from a Cable & Wireless subsidiary. Matters appeared to have proceeded without difficulty in Jamaica. The Digicel subsidiary entered the mobile telecommunications market in Jamaica and its business flourished.
Following interconnection in Jamaica, and over a period of some 4 years, a Digicel subsidiary sought interconnection from one of the Defendant companies in a further 7 jurisdictions. In date order, the relevant jurisdictions were St Lucia (“SLU”), St Vincent & the Grenadines (“SVG”), Grenada, Barbados, the Cayman Islands (“Cayman”), Trinidad & Tobago (“T&T”)...
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