Hardell Entertainment Ltd. and Hardell Cable TV Ltd. have lost a bid to have the Supreme Court void a decision by former Minister of Telecommunications and E-commerce Ren?e Webb to issue a wireless cable licence and frequencies to World on Wireless!

The Hardell companies, owned by businessman Harold Darrell, are however exploring legal options – including an appeal. They may also sue Government for damages for loss of opportunity. understands that Hardell, which maintains that the former UBP government granted it a licence to operate a wireless cable service and the allocation of frequencies in 1996, would be able to claim damages in the tens of millions of dollars.

Mr. Darrell's dispute with Government came to a head on January 21, 2003 when the Minister announced WOW!'s successful application at a Press conference and Hardell lawyer Delroy Duncan served an order on her to prevent her from allocating a licence and frequencies to new applicant WOW!

After WOW! received the licence and frequencies, the Minister declared a moratorium on the issuance of further cable television licences. The Hardell companies asked the court to decide whether the Minister acted in the face of the order intended to prevent her from awarding any licence or granting any frequencies to other parties until she had settled the dispute with Hardell. Puisne Judge Geoffrey Bell originally set about to determine whether the stay served on the Minister was lawfully served on her prior to her decision to award the licence and frequencies to WOW!. If so, Hardell wanted any action she made in breach of that stay – including the awarding of the licence and frequencies to WOW! – quashed.

The ruling did not, however, boil down to the question of whether the document was served in time to prevent her actions. Rather Mr. Justice Bell dismissed the proceeding based on the "unfortunately worded" Hardell order signed by Chief Justice Austin Ward.

Mr. Justice Bell found "there was never a form of order which did in fact grant a stay" because the "paragraph purporting to grant the interim stay is included in the paragraph granting leave to seek orders of certiorari and mandamus, so that on its face it appears to grant leave to issue an originating summons seeking the grant of an interim stay, as opposed to actually granting the stay."

Mr. Duncan had also argued that the actual legal effect of the order served upon the Minister did not matter because she and her counsel and technical officers all understood there to have been a stay. Mr. Justice Bell could not accept this argument either.

"The Chief Justice's order, like any other document, must be construed objectively, giving it the meaning that it would convey to a reasonable person having the relevant background knowledge," he said adding that it did not matter what counsel drafting the order or indeed what the Minister understood by reading the order.

"The order must be construed without reference to the subjective views of the parties, but rather on an objective basis as to what does the order in fact mean. Suppose that the order had been worded so as to grant a stay, but the minister had honestly misread and misunderstood it. Could a breach of the stay be permitted for that reason? The answer must be no."

Since the order left at the minister's office and attorney general's chambers did not indicate that an interim stay had been granted, he declined to make comments on the others declarations requested by the applicants and dismissed the originating summons.

Last night Hardell general manager Corey Butterfield said that the legal battle is not over. Hardell is continuing to fight another aspect of the dispute – over the later granting of WOW!'s Class 7 equipment licence – in Supreme Court. The company is also considering whether to appeal yesterday's ruling or else sue Government for loss of opportunity.

Earlier this year, Mr. Justice Bell signed an order drafted by lawyers for both parties that directed the current minister of telecommunications and e-commerce to grant Hardell Cable TV a public telecommunications service licence and allocate frequencies.

Mr. Butterfield said that order proves the "that we should have been there all along".

"The consequence of Puisne Justice Bell's ruling is Hardell has its licence but because there is only room for two players in the market it cannot launch," said Mr. Butterfield. "Hardell has been given a license that it was entitled to from 1996 but given that Minister Webb placed a moratorium on future licenses and licensed WOW our advisors have told us that we can bring an abuse of power and corruption lawsuit and seek substantial damages," he said adding that industry opinion is that Bermuda is not big enough for three companies.

"If you can't launch at all but your are entitled to launch, that's is now not loss of profit, but loss of opportunity."