Court orders Digicel to pay some costs in long-distance service legal battle
Digicel has been ordered to pay some of the legal costs so far of TBI, CellOne and Government in their bitter battle over international long distance.
The award for costs against Digicel related to its application earlier this year to have the Chief Justice lift a stay and proceed to hear their case.
The Chief Justice had refused Digicel’s application on the grounds that it was “premature and that a reference to the Commission is not a reviewable decision”.
The dispute over Digicel/Transact international long distance had been sent to the Telecoms Commission, which despite completing its inquiry in February, has yet to announce its decision on whether the new ILD service offered by Digicel/Transact is in compliance with the two companies’ licences.
The matter of who will have to pay the more substantial costs of all the hearings previous to Digicel’s application to have the stay lifted is expected to be decided after the Commission finally announces its decision.
The Ministry of Environment, Planning, & Infrastructure declined to comment yesterday on when the Telecoms Commission’s decision would be announced.
Digicel said yesterday it‘s been trying to have the case heard and determined since October last year.
“The matter was brought on for trial on 14 December but the Chief Justice declined to hear it ruling that it should go to the Commission at first instance,” a Digicel spokesman told
The Royal Gazette.
“He made this ruling following applications made by TBI and CellOne. We applied to him twice since then to lift the stay and proceed to determine the case. On this last occasion, he refused to do so. He awarded the costs of so applying against us but these only relate to that specific application to lift the stay.
“We are appealing his refusal to hear this case to the Court of Appeal which also means of course that will appeal the costs Order made on foot of that refusal.”
The spokesman added that the “main element of our case is (and always has been) that we met with Government before we purchased Transact and were absolutely clear what our intentions were re ILD.
“Government understood this and approved the matter on that basis. Digicel proceeded to purchase Transact following Government’s express approval. That key meeting took place on 16 September and was attended by Ms Patricia De Shields (Acting Director of Telecoms), Mr Hiram Edwards (Department of Telecoms) and Mr Melvin Douglas (Solicitor General) on behalf of Government,” Digicel said.
“Digicel was represented by Wayne Caines and our attorneys. So our clear position is that we had a legitimate expectation (a specific legal right) to offer ILD based on this express Government approval. That Government sought to change its mind post the event on foot of pressure applied by other players in the industry cannot defeat this legitimate expectation.
“We invested on foot of a Government decision. The Government cannot pretend this never happened. They have never denied this meeting or our version of what happened either.
“The only forum that can rule on any issue of public law (which legitimate expectation is) is the Courts of the land. The Commission cannot adjudicate on such a claim. It does not have jurisdiction to this end. This is one of the reasons why we say the Commission simply cannot determine the dispute.
“This is why we have consistently sought to have the Courts intervene to determine the ILD issue. Digicel was, and is, extremely disappointed and very surprised that the Chief Justice decided against making a decision in this matter.
“In terms of the Commission, the fact of the matter is that this entire ILD issue can only ever be resolved by the Courts given the public law issues involved. As such, whilst we fully respect the Commission as a body and indeed the members of the Commission, this is a matter for the Courts ultimately and this is really understood by all concerned.
“Even the Chief Justice remarked that any decision may be the Minister on foot of a decision from the Commission is open to challenge through the Courts. It is a great pity that CellOne and TBI and Government opposed the hearing fixed on 14 December. Has they not done so, this matter would have been well decided by now.”
Digicel originally went to court to get CellOne to provide interconnection for the new long distance service.
Government then joined with long distance provider TBI in objecting to Digicel’s launch of ILD.