Infochannel Ltd v Cable and Wireless Jamaica Ltd

• Jurisdiction: Jamaica
• Judge: DOWNER, J.A. , DOWNER. J.A.:
• Judgment Date: 20 December 2000
• Neutral Citation: JM 2000 CA 51
• Judgment citation (vLex): [2000] 12 JJC 2003
• Court: Court of Appeal (Jamaica)
• Date: 20 December 2000

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE BINGHAM, J.A THE HON. MR. JUSTICE HARRISON, J.A

BETWEEN:

INFOCHANNEL LIMITED

PLAINTIFF/APPELLANT

AND

CABLE & WIRELESS JAMAICA LIMITED

DEFENDANT/RESPONDENT

Dr. Lloyd Barnett and Harold Brady instructed by Brady & Co. for the appellant

Hilary Phillips, Q.C. and Minett Palmer instructed by Grant, Stewart, Phillips & Co for the respondent

INJUNCTIONS - Mandatory injunction - Application to set aside interim injunction - Whether injunction ought to be discharged

DOWNER, J.A.

1 On 12 ^th April 2000, Reckord J. granted an ex-parte mandatory injunction to the appellant Infochannel Ltd. against the respondent Cable & Wireless Jamaica Ltd. (Cable and Wireless). Cable & Wireless responded with promptitude by seeking to set aside or stay the interim injunction on the following day.

2 During the hearing of the summons to set aside the ex-parte injunction the appellant on 18 ^th April, 2000 issued a summons for an interlocutory injunction. At the request of the parties there was a conjoint hearing of these summonses and the result was that the following Order was made:

• "1. The interim injunction granted on the 12th of April is discharged and the Plaintiff's application for an Interlocutory Injunction is refused and the Summons dismissed.

• 2. Costs to be costs in the cause

• 3. Certificate for one counsel granted

• 4. Leave to appeal granted

• 5. Application for stay is refused."

3 It should be stated from the outset that although these are interlocutory proceedings, the issues raised at this stage are of exceptional public importance, and a decision ought to be given with promptitude. They might well involve huge financial sums by the parties as well as guarantees by the Government to Cable and Wireless. It also involves the immediate future structure of telecommunications services. The likely proceedings which will involve a full scale trial, or a further appeal, will also require prompt attention. The Attorney-General should also consider whether, in view of the issues raised, his intervention in any further stage of these proceedings is expedient.

4 Infochannel has appealed the above order so that the substantial issue before this Court is whether Record J. was right to refuse Infochannel the interlocutory relief sought. The following extract from the judgment in the Court below gives the pointer as to how the matter proceeded:

"On the 12 ^th of April, 2000 on the ex-parte application of the plaintiff 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 gives the usual undertaking as to damages.

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

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.

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 Then after dealing with the initial submissions by Ms. Phillips Q.C. to set aside or stay the interim order the learned judge interposed thus:

"Counsel pointed out that the plaintiff had only that day 18/ 4/2000 filed a summons for interlocutory injunction seeking a continuation of the interim injunction granted by me on the 12 ^th of April, 2000 until trial."

6 The learned trial judge also noted that counsel for Cable and Wireless stated that:

"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."

7 In this Court the initial submission of Ms. Phillips was that the interim injunction ought not to have been granted because Infochannel did not disclose to the learned judge the important agreement of 19 ^th August 1999, between the Minister of Commerce & Technology, Cable & Wireless and Infochannel Ltd. This agreement was made before the Telecommunications Act (the "Act") which came into effect on March 1 ^st , 2000, and it is obligatory to refer to it. The recitals read as follows:

"WHEREAS

The Minister of Commerce & Technology; is the recognised regulatory body for the telecommunications industry in Jamaica.

Cable & Wireless Jamaica Limited has been granted five licences pursuant to the Telephone Act and the Radio and Telegraph Control Act, by virtue of which it claims entitlement to exclusivity in areas of telecommunications in Jamaica.

Infochannel Limited has been granted a Special Licence pursuant to the Radio and Telegraph Control Act to provide wireless telecommunications in Jamaica for Internet Services as defined in its licence."

8 So the agreement recognised that there is a conflict between Cable & Wireless who claimed a monopoly position in the area of telecommunications and Infochannel who claimed they exercised a right in this area by virtue of a Special Licence. Be it noted that this Special Licence was claused as follows:

"This station is permitted to transmit data only."

9 In the Act at Section 2 (1) there is the following definition, "data service" means a specified service other than a voice service.

10 Then the savings clause of Section 76(1) of the Act reads:

"76.-

• (1) Any licence which was, before the appointed day, granted under the Radio and Telegraph Control Act and is subsisting on the appointed day shall, on and after that day, be deemed to have been granted under this Act and shall, with such modifications as may be necessary, and until a licence is granted under this Act, continue to have effect in accordance with the terms thereof and subject to the provisions of this Act.

• (2) The Minister shall, within fourteen days after the appointed day, grant a licence under section 13 to any person who, immediately before that day, was the holder of a licence with an unexpired term of six months or more and that licence shall cease to be valid upon the grant of a licence pursuant to this subsection."

11 Dr. Barnett for Infochannel placed great reliance on this Section as well as Section 85 oth of which appear in Part XVII of the Act. This part of the Act is captioned "Repeal nd Transitional." The agreement continues thus:

"Infochannel Limited supports regulation of the telecommunications industry and the introduction of competition in the telecommunications market.

Pursuant to their respective interests in the telecommunications market, Infochannel Limited and Cable & Wireless Jamaica Limited have filed the actions set out in the Schedule hereto.

Cable & Wireless Jamaica Limited has lodged a complaint to the Minister of Commerce and Technology concerning by-pass activities involving the termination of International Voice Telephone Calls by Infochannel Limited into Cable & Wireless Jamaica Limited's network. [Emphasis supplied]

Pursuant to the said complaint the Minister of Commerce and Technology has issued a letter dated 5 August 1999 in response to which Infochannel has agreed to provide Internet Services solely to Infochannel Internet Subscribers;

Cable & Wireless Jamaica Limited has agreed to be a party to this agreement in order to facilitate a resolution of this matter. In furtherance of this process, Cable & Wireless Jamaica Limited and Infochannel Limited have agreed that the actions set out in the Schedule hereto be discontinued upon the terms set out below."

12 After setting out definitions of Cable & Wireless, Infochannel and Minister, the greement referred to the lawsuits which were to be discontinued and to arbitration ursuant to the Arbitration Act of any action that has not been settled n or before 17 ^th eptember 1999. Then there was a specific reference in the agreement which refers o Infochannel internet services thus:

"INFOCHANNEL INTERNET SERVICES

• 2. Subject to clause 3 Infochannel shall not use its facilities to terminate International Voice Telephone Calls into the Cable & Wireless network. [Emphasis supplied]

• 3. The parties agree that Infochannel will provide, solely to its internet subscribers, VOIP and shall cease to provide such services to any other persons.

• 3.1 "VOIP" means interactive voice communication where speech is converted for transmission utilising TCP/IP data transmission techniques.

• 3.2...