Cable & Wireless Jamaica Ltd T/A as Lime v The Honourable Prime Minister Bruce Golding Minister With Responsibility for Information, Telecommunications and Special Projects and Fair Trading Commission

• Jurisdiction: Jamaica
• Judge: SYKES J
• Judgment Date: 07 October 2011
• Judgment citation (vLex): [2011] 10 JJC 0701
• Court: Supreme Court (Jamaica)
• Date: 07 October 2011
• Docket Number: CLAIM NO. HCV 2011/5659

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. HCV 2011/5659

BETWEEN

CABLE & WIRELESS JAMAICA LIMITED T/A AS LIME

APPLICANT

AND

THE HONOURABLE PRIME MINISTER BRUCE GOLDING MINISTER WITH RESPONSIBILITY FOR INFORMATION, TELECOMMUNICATIONS AND SPECIAL PROJECTS

FIRST RESPONDENT

AND

THE FAIR TRADING COMMISSION

SECOND RESPONDENT

IN CHAMBERS

Denise Kitson, Suzanne Risden Foster and Kashina Moore instructed by Grant Stewart Phillips for the applicant

Douglas Leys Q.C. Solicitor General and Harrington McDermott instructed by the Director of State Proceedings for the first respondent

Dr. Delroy Beckford, Wendy Duncan and Sashawah Newby for the second respondent

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW - WHETHER TEST FOR JUDICIAL REVIEW MET - SECTIONS 11 (1) (a), (b), 17 (2), (3) OF THE TELECOMMUNICATIONS ACT - SECTIONS 17, 19, 20, 21, 35, 46, 47 OF THE FAIR COMPETITION ACT

SYKES J

1 [1] In March 2011, Oceanic Digital Jamaica Limited trading as Claro (“Claro”) and Digicel Jamaica Limited trading as Digicel (“Digicel”) announced that Claro would be transferring all its assets in Jamaica to Digicel and Digicel would be transferring all its assets in El Salvador and Honduras to Claro. This transaction would mean that Claro's licence to provide mobile communication services in Jamaica would be transferred to Digicel. Section 17 of the Telecommunications Act (“ TCA”) authorises the Minister to give approval to this transfer of licence. The Minister with responsibility for Information, Telecommunication and Special Projects has approved the transfer.

2 [2] Cable and Wireless Jamaica Limited which trades under the name LIME (“LIME”) wants to apply for judicial review for the following remedies:

• a. an order of certiorari against the first respondent quashing the approval given by the 1st Respondent in August 2011 to the merger entered into between Oceanic Digital Jamaica Limited trading as Claro and Digicel Jamaica Limited trading as Digicel whereby it is, inter alia , agreed that there be an assignment of the licence and/or rights thereunder and/or control of the operations of Claro to Digicel;

• b. a declaration that the first respondent's decision to approve the Transaction is unlawful and/or was effected by an improper exercise of his powers.

3 [3] LIME is also disgruntled with the Fair Trading Commission (“FTC”) a statutory body established under the Fair Competition Act (“FCA”) to regulate competition in the market place in Jamaica. LIME says that the FTC is not utilizing its powers under the FCA to scrutinize this transaction between Claro and Digicel. This prompted LIME to seek leave to get an order of mandamus. LIME wants to ask the judicial review court to grant:

• a. An order of mandamus against the 2 ^nd Respondent compelling it to complete its investigation into the likely effects on competition in the telecommunications sector of the agreement for the assignment of the license and transfer of the business operations of Claro to Digicel against the criteria set out in Sections 17, 19 to 21 and 35 of the Fair Competition Act and take such action in relation thereto as may be deemed appropriate including but not limited to:

  • i. seeking an injunction against Digicel and Claro under section 47 of the Fair Competition Act 1993 (the ‘FCA’) on the basis of breaches of sections 17 and 35 of the FCA, such injunction to last until such time as the transaction can be lawfully approved;

  • ii. issuing directions under section 21 of the FCA to prevent the abuse of dominance given effect to by the transaction itself;

  • iii. issuing directions under section 21 of the FCA to halt the steps already being taken by Digicel and Claro to combine their operations pending final judgment in this action, should leave be granted.

4 [4] What has been set out above in respect of the FTC is the amended application for leave. Both respondents appeared and vigourously opposed the application. The application was dismissed on September 27 and leave to appeal refused. These are the reasons for the decisions.

Background

5 [5] All legal disputes have a factual and social context. LIME, a Jamaican company, for many years was the incumbent and sole provider of telephonic services within Jamaica. It pioneered the introduction of mobile telecommunication services in Jamaica. Indeed, it enjoyed a monopoly in many Caribbean countries. In early 2000, the Government of Jamaica decided that the monopoly should be broken. In response to this development, an Irish based company alighted on the shores of Jamaica. Since its arrival, the provision of mobile services underwent a virtual revolution. The company, Digicel, has been locked in fierce combat with LIME for market share. Claro, a third provider of telecommunications services, also took advantage of the liberalized market in Jamaica.

6 [6] Since liberalization, Digicel and LIME have had innumerable disputes. They have been litigated both here in Jamaica and in the United Kingdom. This is the latest skirmish in this long running “war.” In the eyes of LIME this transaction between Claro and Digicel will lead to a reduction of competition because the number of mobile service providers will be reduced from three to two. This, according to LIME, is reason enough for the Minister not to grant permission for the assignment of the licence to Digicel by Claro. LIME also takes the view that the FTC has not exercised its powers to prevent the merger or to take such other steps as may be necessary to preserve and enhance the competitive environment which, LIME claims, now prevails. LIME is also saying that Digicel is not constrained by competitive forces even at the present moment and this transaction will only serve to strengthen Digicel's hand in the mobile service market. LIME goes further to say that failure to act on the part of the FTC and the decision of the Minister mean that the consumers will be worse off.

The application: LIME

7 [7] The modern test for leave to apply for judicial review is now found in the Judicial Committee of the Privy Council's decision Sharma v Bell-Antoine (2006) 69 WIR 369 [14], on an appeal from the Republic of Trinidad and Tobago (Lord Bingham and Lord Walker):

The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: see R v Legal Aid Board, Exp Hughes (1992) 5 Admin LR 623, 628 and Fordham, Judicial Review Handbook 4th ed (2004), p 426. But arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application.

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It is not enough that a case is potentially arguable: an applicant cannot plead potential arguability to ‘justify the grant of leave to issue proceedings upon a speculative basis which it is hoped the interlocutory processes of the...