Infochannel Ltd v Cable and Wireless Jamaica Ltd

• Jurisdiction: Jamaica
• Judge: Reckord, J.
• Judgment Date: 27 April 2000
• Judgment citation (vLex): [2000] 8 JJC 1702
• Court: Supreme Court (Jamaica)
• Docket Number: SUIT NO. C/L 1.038/2000
• Date: 27 April 2000

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. C/L 1.038/2000

BETWEEN

INFOCHANNEL LTD

PLAINTIFF

AND

CABLE AND WIRELESS JAMAICA LTD

DEFENDANT

INJUNCTIONS - Interim - Application to restrain defendant from terminating/suspending services provided to plaintiff

Reckord, J.

1 On the 12 ^th of April, 2000 on the ex-parte application of the plaintiff.

2 I granted an interim injunction against the defendant whereby it was ordered that

• 1. The defendant reconvert from uni-directional to bi-directional and to restore the full characteristic of the telephone lines supplied by the defendant to the plaintiff so that they can operate in the manner in which they operated prior to Friday 31 ^st March, 2000, forthwith.

• 2. The defendant by itself, its servants or agents, or otherwise howsoever be restrained from suspending, terminating, altering or compromising the facilities the defendant has supplied to the plaintiff pursuant to its All Island Telephone Licence issued under the Telephone Act preserved by the Telecommunications Act 2000, for a period of fourteen (14) days from the date hereof.

• 3. That plaintiff give the usual undertaking as to damages.

• 4. The cost accasioned by this application be costs in the cause.

3 By the next morning, on the 13 ^th April, 2000, the defendant filed in the Registry of the Supreme Court, a summons seeking an order that the ex-parte order made the day before be stayed or discharged.

4 Because of the importance of the matter, with the consent of the parties, I commenced the hearing of this summons that same morning. The affidavit of the vice-president for Regulatory Affairs of the defendants company Miss Minnett Palmer was filed in support of the summons.

5 Miss Phillips began her submissions by setting out reasons why the interim injunction ought not to have been granted. What was the urgency that would justify the ex-parte application, she asked? The plaintiff's writ was dated the 12 ^th of April, 2000, while the affidavit in support is dated the 6 ^th of April, 2000. This was an irregularity. The plaintiff's complaint was because of action taken by the defendant on the 31 ^st March, 2000. The parties had been in continuous communication up to February, 2000. On the basis of the New Telecommunications Act, the orders made on the ex-parte summons ought not to have been made.

6 The plaintiff admits that they were conducting these actions before 31 ^st March, 2000. However, subsequent to March 2000, the Telecommunications Act states that certain activities known as voice on internet and voice over I.P. which the plaintiff contends that it ought to be able to provide for its customers, cannot be so provided after the Act, as it is prohibited by the statute. The plaintiff is using the assistance of the court in the commission of an offence (see sec. 9).

7 Section 9 provides:-

1. "A person shall not

• a. own or operate a facility in Jamaica unless that person is the holder of a carrier licence granted under section 13;

• b. provide services to the public by means of that facility unless the person is also the holder of a service provider licence granted under section 13;

• c. sell, trade in or import any prescribed equipment unless that person is the holder of a dealer licence granted under section 13;

• d. engage in bypass operations"

8 "Bypass operations" means operations that circumvent the international network of a licensed international voice carrier in the provision of voice services". See section 2 (1) of the Act.

9 In its affidavit sworn to on the 6 ^th of April, 2000, the plaintiff sets out in paragraphs 2–6, 16, 20, 22, 25–27 and 29 the type of activities it is engaged in providing for its customers, including voice over internet.

10 On the subject of the mandatory injunction granted Miss Phillips submitted that the threshold of satisfying the court that a legal right is being infringed has been described by high authority that the court must be satisfied to a high degree of assurance. In the instant case the plaintiff is saying it wishes to continue to provide voice over internet and voice over I.P. both of which are illegal acts.

11 Counsel pointed out that a person engaged in bypass operations is liable on conviction to a fine of $3 million or 4 years or to both such fine and imprisonment. Voice over I.P. and voice over internet are bypass operations and the action taken by the defendant was pursuant to section 51 of the Act which states:-

"A carrier or service provider may on application to the office and on such terms and condition as the office may specify:-

• a. discontinue the provision of specified services to any person, or

• b. disconnect any facility from that carrier's facility or another facility used to provide that service providers specified services,

  If that carrier or service provider believes on reasonable grounds, that the person who owns or operates that facility or person to whom those specified services are provided, is engaging in bypass operations or in conduct in respect of international services that is prohibited or regulated by the international service rules. Counsel submitted that the plaintiff is not an international voice carrier but is an internet service provider to carry voice.

12 Section 9 (d):- A person shall not engage in bypass operations.

13 Counsel pointed out that before the Act came into operation, the plaintiff had applied for a licence. The application was not considered as the applicant had failed to comply with section 11 of the Act. Having regard to the admissions of activities being conducted by the plaintiff, the defendant threatened withdrawal of lines to Infochannel. Following correspondence between the parties, the defendant had written to the plaintiff informing it that certain services were disconnected and that it had one way dialing functionality only. The plaintiff had been acting in breach of its V sat licence and was...