Mossell v Office of Utilities
| Jurisdiction | UK Non-devolved |
| Judge | LORD PHILLIPS |
| Judgment Date | 20 January 2010 |
| Neutral Citation | [2010] UKPC 1 |
| Docket Number | Appeal No 0079 of 2009 |
| Court | Privy Council |
| Date | 20 January 2010 |
[2010] UKPC 1
Lord Phillips
Lord Rodger
Lord Brown
Lord Kerr
Lord Clarke
Privy Council
Appellant
Nigel Pleming QC
Paul Beswick
(Instructed by Jones Day Solicitors)
1 st Respondent
David Batts
Ransford Braham
Suzanne Risden-Foster
George Wilson
(Jamaican Bar)
(Instructed by M A Law
(Solicitors) LLP)
2 nd Respondent
Sandra Minott Phillips
Dave Garcia
Gavin Goffe
(All of Jamaican Bar)
(Instructed by Myers, Fletcher & Gordon)
3 rd Respondent
Unrepresented
Introduction
This appeal is about the extent of the powers, respectively, of the Minister of Industry, Commerce and Technology ("the Minister") and the First Respondent, the Office of Utilities Regulation ("the OUR"), in relation to the regulation of the telecommunications market in Jamaica. On 9 April 2002 the Minister issued a Direction ("the Direction") that purported to restrict the powers of the OUR. The OUR considered that the Minister had no power to issue this Direction. On 22 May 2002 the OUR issued a Determination Notice ("the Determination"), some aspects of which both they and the Minister considered contravened the Direction. This Determination impacted favourably on the Second Respondent, Cable & Wireless Jamaica Ltd ("C&WJ"), at the expense of the Appellant, Mossell (Jamaica) Ltd (Trading as Digicel) ("Digicel"), and the Third Respondent, Centennial Jamaica Ltd ("Centennial").
These events led to two applications for judicial review that were heard together. They raised the following issues:
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i) Was the Direction within the Minister's powers?
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ii) If it was not, was the OUR still obliged to comply with it unless and until it was set aside by a court?
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iii) Did the Determination contravene the terms of the Direction?
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iv) Was the Determination within the powers of the OUR and lawfully made?
Judgment in the judicial review proceedings was given by Dukharan J on 15 December 2003. He resolved the issues as follows:
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i) The Direction was within the Minister's powers.
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ii) The OUR was bound to comply with the Direction unless and until it was set aside by the court.
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iii) The Determination contravened the terms of the Direction and was consequently unlawful.
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iv) It was unnecessary to consider this as a separate issue.
The OUR appealed to the Court of Appeal (Harrison P., Cooke and McCalla JJA). The Court of Appeal allowed the appeal. It held:
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i) The Direction was outside the Minister's powers and invalid.
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ii) The OUR was under no obligation to comply with the Direction.
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iii) The Determination did not contravene the terms of the Direction.
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iv) The Determination fell within the powers of the OUR and was lawfully made.
Although the Minister and the Attorney General for Jamaica were party to the proceedings below, they did not appeal to the Board against the judgment of the Court of Appeal. Centennial have taken no part in the appeal to the Board Digicel has sought to reverse the findings of the Court of Appeal on each of the four issues.
C&WJ sought to raise a new issue before the Board. This was that the Direction was a "regulation" as defined by section 3 of the Interpretation Act and that, by reason of section 31 of that Act, it could not take effect until published in the Gazette. No such publication ever took place.
It would not have been fair for this issue to be pursued in an appeal to which the Minister was not party and the Board ruled that it was too late for the point to be raised.
Background
Up to 2000 C&WJ enjoyed a monopoly in respect of the supply of telecommunications services in Jamaica. That monopoly had been granted for a 50 year period that was due to expire in 2012. Under that monopoly C&WJ provided both fixed line and mobile services. Like other monopoly providers of utility services, namely transport, sewerage, electricity and water, C&WJ was brought under the regulation of the OUR by the Office of Utilities Regulation Act 1995 "the OUR Act". Section 4(4) of the OUR Act included in the functions of the OUR
"power to determine, in accordance with the provisions of this Act, the rates or fares which may be charged in respect of the provisions of a prescribed utility service."
Section 11 of the OUR Act gave the OUR power, by order published in the Gazette, to prescribe rates to be charged in respect of utility services, but this did not apply where any other Act specified the manner in which rates might be fixed by a licensee or specified organization.
In 1997 Mr Phillip Paulwell MP was appointed the Minister. His portfolio included responsibility for telecommunications. He set about liberalising telecommunications in the Island. To that end he was instrumental in the drafting of a "Telecommunications Policy" published by his Ministry in October 1998. This provided that telecommunications would be regulated by the OUR, "operating in a transparent, accountable and non-discriminatory manner". It emphasised the importance of fostering competition, to which end there would be a need for a change in the structure of telephone prices. The rate rebalancing strategy was to be developed by the OUR. The Policy dealt specifically with "interconnection" of services provided by entrants to the market with the fixed line service, in respect of which C&WJ was initially to maintain the monopoly. The terms of interconnection, including the charges, would be subject to regulation by OUR.
In September 1999 the Government reached agreement with C&WJ as to the terms on which the latter's monopoly would come to an end, to be replaced by a competitive market. This involved three phases. In March 2000 a new Telecommunications Act ("the Act") would come into effect. Phase 1 would run for the next 18 months. During Phase 1 licences would be granted to two new providers of mobile services. C&WJ would retain their monopoly of fixed network services. In Phase 2 licences would be granted for fixed line competitors and competition would be extended in areas not relevant to this appeal. Not until the beginning of Phase 3 would competition be permitted in the provision of international facilities. Until then all international calls, whether incoming or outgoing, would have to be routed thorough C&WJ's fixed network. The pricing structure would depend critically on terms of interconnection, which would be regulated by the OUR in accordance with the Act.
The Telecommunications Act
Section 2 of the Act contains a list of definitions. "Functions" are defined as including "duties and powers". "Interconnection" is defined as meaning "the physical or logical connection of public voice networks of different carriers". "Logical" is not defined, but the Board was informed that this term embraces radio connection.
Section 4 of the Act specifies the functions of the OUR. These include:
"(a) regulate specified services and facilities…."
"(c) promote the interests of customers, while having due regard to the interests of carriers and service providers…"
"(f) promote competition among carriers and service providers."
In exercising these functions the OUR is required to have regard to whether the specified services are provided efficiently and in a manner designed to afford economical and reliable service to customers and to whether they are likely to promote or inhibit competition.
Section 6 is the section relied upon by the Minister as empowering him to issue the Direction. It provides:
"The Minister may give to the Office such directions of a general nature as to the policy to be followed by the Office in the performance of its functions under this Act as the Minister considers necessary in the public interest and the Office shall give effect to those directions."
The sections under which the OUR contends that it validly issued its Determination appear in Part V of the Act, which is headed " Interconnection". Some sections in this Part apply to carriers classified as "dominant public voice carriers". Although one would think that C&WJ would, at least initially, have satisfied this description, no carrier was, in fact, classified under this description, and we will not refer to those sections. Express provision is, however, made for C&WJ, who are described as "the existing telecommunications carrier". The following provisions are relevant:
"29. - (1) Each carrier shall, upon request in accordance with this Part, permit interconnection of its public voice network with the public voice network of any other carrier for the provision of voice services.
(2) A public voice carrier shall provide interconnection in accordance with the following principles -
(a) any-to-any connectivity shall be granted in such manner as to enable customers of each public voice network to complete calls to customers of another public voice network or to obtain services from such other network;
(b) end-to-end operability shall be maintained in order to facilitate the provision of services by an interconnecting carrier to the customer notwithstanding that the customer is directly connected to a different network;
(c) interconnecting carriers shall be equally responsible for establishing interconnection and so as quickly as is reasonably practicable.
(3) Copies of all interconnection agreements shall be lodged with the Office which may object to any such agreement in the prescribed manner.
(4) The Office may, either on its own initiative in assessing an interconnection agreement, or in resolving a dispute between operators, make a determination of the terms and conditions of call termination, including charges.
(5) When making a determination of an operator's call termination charges, the Office shall have regard to the principle...
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