Digicel (St Lucia) Ltd & Ors v Cable & Wireless Plc & Ors

These are claims for damages brought by several companies in the Digicel group of companies against several companies in the Cable & Wireless group of companies (or in one case, the relevant Defendant is Telecommunications Services of Trinidad & Tobago Limited, a company in which a Cable & Wireless company has a 49% interest).

The background to these claims is that, before the relevant events occurred, the Defendant companies (except for the parent company, Cable & Wireless plc, which is the First Defendant) were monopoly telecommunications operators in various jurisdictions in the Caribbean. The governments in those jurisdictions passed primary legislation providing for the ending of those monopolies and for new operators to be able to enter the telecommunications markets to compete with the former monopolist. That legislation, and regulations made under it, and the terms of the telecommunications licences granted to the former monopolist, provided in various ways for the new world of competition in telecommunications and, in particular, provided for the new entrant to be able to interconnect its network to the existing network of the former monopolist.

In various jurisdictions in the Caribbean, a subsidiary company in the Digicel group applied for and obtained a telecommunications licence for a mobile telecommunications network which would allow it to enter the relevant market and compete with the former monopolist. The Digicel subsidiary wished in every case to interconnect with the existing network. It considered that it could not hope to survive as a mobile telecommunications operator without such interconnection. The Digicel subsidiary sought to rely on the provisions of the legislation, and of the regulations, dealing with such interconnection. Jamaica was the first jurisdiction where a Digicel subsidiary sought interconnection from a Cable & Wireless subsidiary. Matters appeared to have proceeded without difficulty in Jamaica. The Digicel subsidiary entered the mobile telecommunications market in Jamaica and its business flourished.

Following interconnection in Jamaica, and over a period of some 4 years, a Digicel subsidiary sought interconnection from one of the Defendant companies in a further 7 jurisdictions. In date order, the relevant jurisdictions were St Lucia (“SLU”), St Vincent & the Grenadines (“SVG”), Grenada, Barbados, the Cayman Islands (“Cayman”), Trinidad & Tobago (“T&T”) and, finally, the Turks & Caicos Islands (“TCI”).

In each of the above-mentioned 7 jurisdictions, the Digicel subsidiary did, in time, interconnect with the relevant Defendant company. Interconnection required the purchase and installation of specialist equipment at the Digicel end of the interconnection and at the Defendant operator end of the interconnection. Speaking generally, interconnection also requires the interconnecting parties to enter into a detailed interconnection agreement. The relevant parties did enter into such an agreement in each jurisdiction, except in the case of T&T where the matter was dealt with, on an interim basis, by a ruling from an arbitration panel.

Following the completion of interconnection in the above-mentioned seven jurisdictions, the Digicel subsidiary launched its mobile telecommunications service in competition with the Defendant operator. The dates of those launches were over a period from 2003 to 2006.

The Digicel subsidiaries say that the Defendant operators delayed the process of interconnection in many different ways. The Digicel subsidiaries say that the conduct of the Defendant operators in causing such delay was a breach of the primary legislation and/or of the regulations and/or of the Defendant operator’s telecommunications licence. The Digicel subsidiaries say that these breaches are actionable as breaches of statutory duty. It is then said that other companies, such as C&W plc, are liable as joint tortfeasors together with the Defendant operating company. It is also said that there was an actionable conspiracy involving the Defendant operator but also including others, in particular, C&W plc. The alleged conspiracy is a conspiracy to injure by unlawful means. Initially, it was said that there had been a conspiracy between the operating company in T&T and C&W plc and Cable & Wireless (West Indies) Limited. The relationship between the Cable & Wireless companies and the operating company in T&T was investigated in detail at the trial. When the Claimants made their closing submissions, this allegation of conspiracy was abandoned.

The Digicel companies say that they have suffered heavy losses by reason of the enforced delay in their entering the relevant market. They say that if the Defendant operator had complied with its duties, interconnection would have been completed much earlier. They say that if interconnection had been completed much earlier, then the Digicel subsidiary would have entered the market much earlier. The first part of the trial of this action was for the purpose of determining questions of liability and causation and the extent of any delay caused to the Digicel subsidiary but not for the purpose of determining the quantum of any damages. The Claimants have pleaded that they have suffered losses in excess of US $ 100 million.

The litigation bristles with issues of law and issues of fact. I will not attempt a comprehensive statement of all the issues that potentially arise. I will however try to indicate the broad nature of the issues that need to be, or may need to be, dealt with in this judgment.

I will deal first with the broad issues which arise in 5 of the jurisdictions, leaving Barbados and T & T for separate mention. In SLU, SVG, Grenada, Cayman and TCI, the first issue is as to the meaning and effect of the primary and secondary legislation in those jurisdictions. The second issue is whether the relevant Defendant acted in breach of that legislation. The third issue is whether any breach of such legislation is actionable by any Claimant? The fourth issue is whether there was a breach of a telecommunications licence in any of these jurisdictions. The fifth issue is whether a breach of a telecommunications licence was a breach of the legislation and, if so, whether any such breach was actionable. The sixth issue is, if any breach of such legislation is actionable by a Claimant, which Defendants are liable? Are there joint tortfeasors, and, if so, who are they? The seventh issue is whether a breach of such legislation constitutes “unlawful means” for the tort of conspiracy to injure by unlawful means. The eighth issue is whether a breach of a telecommunications licence (which is not also a breach of the legislation) constitutes unlawful means for the purposes of the tort of conspiracy. The ninth and tenth issues arise in TCI only. The ninth issue is whether the relevant Defendant was in breach of contract in relation to interconnection in TCI. The tenth issue is whether any such breach of contract constitutes unlawful means for the purposes of the tort of conspiracy. The eleventh issue is whether there was a combination between some or all of the Defendants with an intent to injure a Claimant by any such unlawful means. The twelfth issue is whether any intent to injure was negatived by the existence of an honest belief that the actions complained of were lawful and, if so, whether such an honest belief existed in fact. The thirteenth issue is whether any unlawful conduct on the part of a Defendant delayed the completion of interconnection. The fourteenth issue is whether any delay to the completion of interconnection due to an unlawful act of a Defendant delayed a Claimant’s launch of its network in the relevant jurisdiction. The fifteenth issue relates to SLU alone: is the claim in conspiracy in relation to SLU brought outside the relevant limitation period? The sixteenth issue concerns the approach the court should take to exemplary damages and restitutionary damages.

In Barbados the issues can be broadly summarised as follows. The first issue is as to the meaning and effect of the primary legislation. The second issue is whether the relevant Defendant acted in breach of that legislation. The third issue is which Defendants are liable? Are there joint tortfeasors, and, if so, who are they? The fourth issue is whether there was a combination between some or all of the Defendants with an intent to injure the Fourth Claimant by unlawful means. The fifth issue is whether an intent to injure was negatived by the existence of an honest belief that the actions complained of were lawful and, if so, whether such an honest belief existed in fact. The sixth issue is whether any unlawful conduct on the part of a Defendant delayed the completion of interconnection. The seventh issue is whether any delay to the completion of interconnection due to an unlawful act of a Defendant delayed the Fourth Claimant’s launch of its network in the relevant jurisdiction. The eighth issue concerns the approach the court should take to exemplary damages and restitutionary damages. The ninth issue is whether a statutory limitation period in relation to any statutory tort of conspiracy bars a claim based on an alleged common law tort of conspiracy.

It may be helpful to emphasise the following point which emerges from the above statement of the issues in the six jurisdictions referred to above. The question in this case is not whether the relevant Defendant did everything in its power to expedite the launch of the relevant Claimant’s telecommunications network. If that had been the question, the answer would have been simple: the relevant Defendant did not do everything in its power to expedite the relevant Claimant’s launch. Instead, what the court has to determine is: (1) what duty was placed on the relevant Defendant by the legislation or by the licence in the relevant jurisdiction; and (2) did the relevant Defendant cross the line so as to commit a breach of that duty. If the relevant Defendant did not cross the line so as to commit a breach of duty, then that is the end of the claim. If the relevant Defendant did cross the line and did commit a breach of duty, then the further questions arise as to whether the relevant Claimant has a claim in law for loss suffered as a result of that breach of duty.

In T & T, the position is somewhat different from the position in the other six jurisdictions. In T&T, in certain circumstances, the relevant legislation prohibits conduct which is “contrary to honest practices”. The first issue is as to the meaning and effect of that legislation. The second issue is whether the relevant Defendant acted in breach of that legislation. The third issue is whether any unlawful conduct on the part of a Defendant delayed the completion of interconnection. The fourth issue is whether any delay to the completion of interconnection, due to an unlawful act of a Defendant, delayed the Sixth Claimant’s launch of its network in the relevant jurisdiction. The fifth issue concerns the approach the court should take to exemplary damages and restitutionary damages. There originally was, but no longer is, a claim based on the tort of conspiracy in T&T.

I will make some preliminary comments on the above issues. The Defendants say that in four of the seven jurisdictions with which this litigation is concerned (SLU, SVG, Grenada and Cayman), the Claimants have no cause of action at all, whatever the facts might be. In relation to TCI, the Defendants say that the only cause of action is for breach of contract and that claim was introduced by amendment during the trial. The Defendants accept that the Claimants have a cause of action in Barbados and T&T.

Although I have tried to set out the issues in a logical order, I have sometimes found it convenient later in this judgment to deal with the issues in a different order. Further, as will be seen, it sometimes emerges that my decision on one issue means that a later issue does not arise. However, in such a case, I will make findings of fact on issues that do not strictly arise, in case that would be helpful to the parties or an appellate court, save where the burden of making findings of fact is disproportionate to the benefit or where there are other difficulties such as the need to make assumptions of fact, contrary to my actual findings, which would make the process unhelpful and/or burdensome.

In the course of my judgment, it will be necessary to set out the facts in considerable detail and, unfortunately, this judgment will be long. The parties addressed me at considerable length on the facts; the written closing submissions (much of which dealt with matters of fact) exceeded 2000 pages and I had the advantage of several days of oral submissions in addition. The principal reason for this is that the case involves allegations of delay. As will be seen, there are many steps which need to be taken before interconnection between a new entrant and an incumbent is completed.

The Claimants have exposed to scrutiny virtually every step in that process in all of the seven relevant jurisdictions. The Claimants say, in relation to many of those steps, that the relevant Defendant was guilty of delay and that that delay was in breach of a duty owed to the Claimants. The Defendants deny that they were guilty of any delay and further deny that any delay was in breach of duty. The positions taken by the parties means that I have to examine a large number of steps which were taken on the way to completion of interconnection and make my findings as to the fact of delay and whether any such delay was in breach of duty.

The matter does not end there. If I were to find that the Defendants were guilty of delay in breach of a duty to the Claimants, then I need to consider the consequences of that delay. The Claimants’ case is relatively straightforward. They say that the Defendants delayed in many different respects and if all of that delay were eliminated, then interconnection would have been completed much earlier. They say that the launch of the new network in the relevant jurisdiction would have followed almost immediately on the completion of interconnection. The Defendants deny that there was any delay in breach of duty so that causation does not arise but if it were to arise, the Defendants say that the Claimants have failed to prove the necessary causal link between the breach of duty and the time when interconnection was completed. The Defendants go further. They say that even if the Defendants unlawfully delayed interconnection, the Claimants have failed to prove that a delay in interconnection delayed any of the Claimants’ launch.

The questions of causation in this case require considerable attention to be paid to all of the factors in play which caused the interconnection process to take the time which it did take. An issue which arises in some of the jurisdictions is: where the time taken to achieve interconnection was attributable to a large number of factors in combination and some of those factors did not involve any unlawful behaviour on the part of a Defendant, while other factors did involve a breach of duty, have the Claimants proved that the breaches caused delay to the completion of interconnection, or would the time for completion of interconnection have been much the same, by reasons of the factors which did not involve any breach?

There is a further reason, in relation to T&T, for it being necessary to set out the facts in detail. In T&T, the Claimants alleged that TSTT acted dishonestly or otherwise in a reprehensible manner. That allegation is strenuously denied. The Claimants’ written closing submissions ran to some 212 pages. The Defendants retaliated with 179 pages of their own. In addition, I heard oral submissions on this point and the parties then provided further written submissions. Further, in relation to T&T, there are major issues as to the causal effect, if any, of any unlawful conduct of TSTT and whether such conduct made any difference in the event to the time when interconnection was completed.

The Claimants have brought these proceedings in London in relation to events which occurred, or which principally occurred, in seven Caribbean jurisdictions. When permission to serve these proceedings out of the jurisdiction was sought and obtained, the justification for the Claimants suing in London was said to be that, at the centre of the claim, was an allegation of a conspiracy to injure the Claimants, where the seat of the conspiracy was London. The Claimants have throughout maintained that assertion except in relation to the claim in T&T. There is no longer any allegation of a conspiracy in relation to the events in T&T. The case in relation to T&T now involves an examination of events which occurred in T&T and the application of a T&T statute to those events. There is no connection with the claim and England and Wales. Nonetheless, there has not been a challenge to my jurisdiction to hear and determine the claim in relation to T&T. Similarly, if I were to hold that there was no conspiracy in relation to the other six jurisdictions, or that the seat of any such conspiracy was not in England and Wales, again there is no challenge to my jurisdiction to hear and determine all matters arising.

With one exception (the point as to limitation in SLU), there is no disagreement as to the law applicable to these claims. The issues as to the extent of the obligations in relation to interconnection in a particular jurisdiction are governed by the primary and secondary legislation in that jurisdiction. The issue as to whether that primary or secondary legislation creates a cause of action for breach of statutory duty is also governed by the law of that jurisdiction. Thus, in the case of a claim by (for example) Digicel SLU for damages against CWWI for the tort of breach of statutory duty in relation to interconnection in SLU, it is clear that the claim is governed by the law of SLU. The same applies as to the law as to joint tortfeasors in relation to such a tort. I have not been given any evidence as to the law in the various jurisdictions. This is because the parties have agreed that the principles of law which apply in those jurisdictions are identical to the principles of English law (with the exception of the argument as to the limitation point in relation to SLU, to which I refer below). Thus, when I come to construe the primary and secondary legislation in a particular jurisdiction it is agreed that I should construe the legislation as if it were legislation in England and Wales. Similarly, when considering whether a breach of a duty in the legislation is actionable, I am to apply English law. Similarly, with the principles as to the liability of joint tortfeasors.

The position is not so clear in relation to the alleged tort of conspiracy. If (taking the example of SLU) C&W plc and CWWI conspired together to cause damage to Digicel SLU in SLU, by the use of unlawful means in SLU, there is an issue between the parties as to whether the claim is governed by the law of SLU or some other system of law. This issue does not in general cause any difficulty because the parties are again agreed that the law as to conspiracy in the different jurisdictions, or any other system of law which might be relevant, is identical to English law. However, there is one issue where the parties are in dispute as to whether the relevant part of the claim is governed by the English law as to limitation (or possibly by Jamaican law) or conversely is governed by SLU law. If I were to hold that there was a conspiracy involving C&W plc and CWWI to cause damage to Digicel SLU in SLU, the cause of action in conspiracy will be statute barred if it is governed by the law of SLU but not statute barred if it is governed by English law (or Jamaican law). Accordingly, if I reach that point, it will be necessary to decide which system of law applies.

There are eight Claimants, all companies within the Digicel group of companies.

The First Claimant is Digicel (St Lucia) Limited, a company registered in SLU. I will refer to this company as Digicel SLU. At all material times, this company was wholly owned, indirectly, by Digicel Limited, the Eighth Claimant. On 6^th September 2002, Digicel SLU was granted a licence to operate a mobile telecommunications network in SLU. In due course, Digicel SLU entered the market in SLU and operated a mobile network there.

The Second Claimant is Digicel (SVG) Limited, a company registered in SVG. I will refer to this company as Digicel SVG. At all material times, this company was wholly owned, indirectly, by Digicel Limited, the Eighth Claimant. On 11^th September 2002, a licence to operate a mobile telecommunications network (with effect from 12^th September 2002) was issued to the Eighth Claimant, Digicel Limited, rather than to Digicel SVG. It may be that Digicel SVG had expected that the licence would be issued to it. In due course, Digicel SVG entered the market in SVG and operated a mobile network there. Later, on 11^th September 2003, Digicel Limited assigned the benefit of its licence to Digicel SVG.

The Third Claimant is Digicel Grenada Limited, a company registered in Grenada. I will refer to this company as Digicel Grenada. At all material times, this company was wholly owned, indirectly, by Digicel Limited, the Eighth Claimant. On 20^th May 2003, Digicel Grenada was granted a licence to operate a mobile telecommunications network in Grenada. In due course, Digicel Grenada entered the market in Grenada and operated a mobile network there.

The Fourth Claimant is Digicel (Barbados) Limited, a company registered in Barbados. I will refer to this company as Digicel Barbados. At all material times, this company was wholly owned, indirectly, by Digicel Limited, the Eighth Claimant. On 8^th August 2003, Digicel Barbados was granted a licence to operate a mobile telecommunications network in Barbados. In due course, Digicel Barabados entered the market in Barbados and operated a mobile network there.

The Fifth Claimant is Digicel Cayman Limited, registered in the Cayman Islands. I will refer to this company as Digicel Cayman. At all material times, this company was wholly owned, indirectly, by Digicel Limited, the Eighth Claimant. On 17^th October 2003, Digicel Cayman was granted a licence to operate a mobile telecommunications network in the Cayman Islands. In due course, Digicel Cayman entered the market in the Cayman Islands and operated a mobile network there.

The Sixth Claimant is Digicel (Trinidad & Tobago) Limited, registered in T&T. I will refer to this company as Digicel T&T. At all material times, this company was wholly owned, indirectly, by Digicel Limited, the Eighth Claimant. On 30^th December 2005, Digicel T&T was granted a concession to operate a mobile telecommunications network in T&T. In due course, Digicel T&T entered the market in T&T and operated a mobile network there.

The Seventh Claimant is Digicel (Turks & Caicos) Limited, registered in TCI. I will refer to this company as Digicel TCI. At all material times, this company was wholly owned, indirectly, by Digicel Limited, the Eighth Claimant. On 31^st March 2006, Digicel TCI was granted a licence to operate a mobile telecommunications network in TCI. In due course, Digicel TCI entered the market in TCI and operated a mobile network there.

The Eighth Claimant is Digicel Limited, registered in Bermuda. I will refer to this company as Digicel. Digicel wholly owns, indirectly, the other seven Claimants. Digicel did not operate a mobile telecommunications network in any of the seven jurisdictions referred to above and in particular did not operate a mobile network in SVG. However, as pointed out above, it was Digicel, and not Digicel SVG, which had the benefit of the SVG mobile telecommunications licence between 11^th September 2002 and 11^th September 2003.

Where it is not necessary to distinguish between the individual companies, I will refer to some or all of the eight Claimants as the Digicel companies. From time to time, where it is unnecessary to distinguish between the Digicel companies then, for the sake of brevity, I will simply refer to Digicel. I will also refer to the Claimants collectively as “the Claimants” even where I am discussing a claim that is put forward by one of the Claimants only. It is often more convenient to do so rather than specifying on every occasion which Claimant is the relevant Claimant. As will be seen I usually find it convenient to refer to submissions made on behalf of one or other of the Claimants as “the Claimants’ submissions”.

The Claimants were represented by Mr Rubin QC, Mr Davies QC, Mr Houseman and Mr Allen of counsel, instructed by Jones Day. This is heavy litigation and I am very grateful to them for the considerable assistance they gave me on all matters arising at all stages. They presented the case with great ability and immense industry.

There are six Defendants. The first five Defendants are in the Cable & Wireless group of companies.

The First Defendant is Cable & Wireless plc, to which I will refer as C&W plc. This company is the head of the Cable & Wireless group. It is registered in England & Wales and its headquarters are in London. It did not directly carry on any operations in any of the seven jurisdictions with which this case is concerned. C&W plc wholly owns, indirectly, Cable & Wireless (West Indies) Limited.

The Second Defendant is Cable & Wireless (West Indies) Limited to which I will refer as CWWI. CWWI is registered in England & Wales. Its headquarters were in Jamaica although it also had offices elsewhere, in particular, in Miami, USA. It was the regional holding company within the Cable & Wireless Group. It held the licences to operate the fixed telecommunications network in SLU, SVG and TCI. It also held the licence to operate the mobile telecommunications network in TCI. It wholly owned Cable and Wireless Caribbean Cellular (St Lucia) Limited which held the mobile telecommunications licence in SLU; that company is not a Defendant in these proceedings. It also wholly owned Cable and Wireless Caribbean Cellular (SVG) Limited which held the mobile telecommunications licence in SVG; that company is also not a Defendant in these proceedings. CWWI also wholly owned C&W (Cayman Islands) Limited. CWWI had a controlling interest in C&W Grenada Limited (as to 70 %) and a controlling interest in C&W (Barbados) Limited (as to 81%). CWWI owned 49% of the shares in Telecommunications Services of Trinidad & Tobago.

The Third Defendant is Cable & Wireless Grenada Limited, registered in Grenada. I will refer to this company as C&W Grenada. This company held the fixed telecommunications licence and the mobile telecommunications licence in Grenada.

The Fourth Defendant is Cable & Wireless (Barbados) Limited, registered in Barbados. I will refer to this company as C&W Barbados. This company held the fixed telecommunications licence and the mobile telecommunications licence in Barbados.

The Fifth Defendant is Cable & Wireless (Cayman Islands) Limited, registered in the Cayman Islands. I will refer to this company as C&W Cayman. This company held the fixed telecommunications licence and the mobile telecommunications licence in the Cayman Islands.

Where it is not necessary to distinguish between the above five companies, I will refer to some or all of the above five companies as the C&W companies or C&W.

The Sixth Defendant is Telecommunications Services of Trinidad & Tobago Limited, registered in T&T. I will refer to this company as TSTT. CWWI owned 49% of the shares in TSTT. The remaining 51% of those shares were owned by National Enterprises Limited. The T&T government owned 83% of the shares in National Enterprises Limited; 66% of those shares were directly owned, and 17% of those shares were indirectly owned, by the T&T Government. The remaining shares in National Enterprises Limited, not owned by the Government, i.e. some 17%, were traded on the T&T stock exchange. Accordingly, TSTT was not a Cable & Wireless Group company. The relationship between CWWI and National Enterprises Ltd was governed by a shareholders’ agreement of 20 December 1989 as amended on 19^th July 1999 and again on 22^nd August 2000. Under the shareholders’ agreement, CWWI had the right to appoint four directors and National Enterprises Ltd had the right to appoint five directors to the board of TSTT. One of the National Enterprises Ltd’s appointees was to be the Chairman of the Board, following consultation with CWWI on the choice of Chairman. TSTT held a fixed telecommunications licence and a mobile telecommunications licence in T&T.

All of the Defendants, that is all the C&W companies and TSTT, were represented by the same solicitors and counsel at all stages of this action. The Defendants’ counsel were Lord Grabiner QC, Mr Nourse and Mr Patton. They were instructed by Slaughter and May. I am grateful to them for the considerable assistance they gave me on all matters arising at all stages. Their ability and industry matched that of counsel for the Claimants.

On 11^th July 2007, the Claimants obtained leave from Master Winegarten to issue and serve these proceedings out of the jurisdiction on the 3^rd to 6^th Defendants. The proceedings were then issued on 18^th July 2007.

In December 2007, following service of a detailed Defence, the Defendants applied for an order for the trial of certain preliminary issues, in particular, issues as to the actionability of the alleged breaches of the statutes and regulations dealing with interconnection and as to whether any such breaches amounted to “unlawful means” for the tort of conspiracy to injure by unlawful means. In January 2008, the Claimants applied for an order for a split trial so that liability would be tried before any consideration of the quantum of any damages. These applications came before Lindsay J and he gave his judgment in relation to them on 6^th February 2008. He dismissed both applications and gave directions intended to lead to the trial of the entire action.

In the course of 2008, difficulties arose in relation to the disclosure given by the Defendants. In September 2008, I heard an application by the Claimants for an order that the Defendants do give specific disclosure of certain classes of documents. I gave my ruling on that application in a judgment delivered on 23 October 2008: see [2008] EWHC 2522 (Ch), [2009] 2 All ER 1094. I made a detailed order for further disclosure by the Defendants. In the course of hearing that application, I raised with the parties the desirability of splitting the trial so that issues as to quantum would be tried after the trial of issues as to liability and causation. Following argument on that subject, I directed that the first trial in this action should be restricted to issues of liability and causation with any issues as to quantum to be postponed to a later stage. In particular, I directed that the issues to be tried at the first stage were (a) issues as to liability; (b) issues as to causation, including ascertaining the period of delay (if any) suffered by each Claimant to the launch of its mobile network service for which the relevant Defendant(s) is/are liable; (c) issues of principle as regards any Claimant’s entitlement to recover: (i) compensatory damages, (ii) restitutionary damages and/or an account of profits, including whether any Claimant is entitled to restitutionary damages and/or an account of profits and, if so, the basis upon which the same is to be calculated and/or assessed, and (iii) an award of exemplary damages, including whether any Claimant is entitled to exemplary damages as against any of the Defendants. The trial before me has proceeded in accordance with that direction.

In March 2009, Arnold J conducted a pre-trial review of this action. Each side asked the judge to order the other side to give further disclosure. It seems that some progress was made in the course of the pre-trial review and it was agreed that some further disclosure would be provided. The judge declined to order disclosure beyond the scope of that agreement. He gave his reasons in his judgment of 3 April 2009: [2009] EWHC 731 (Ch).

In the course of the trial, the Claimants applied to me for an order that the Defendants give further disclosure. The documents which were sought were admitted to have been, initially at any rate, the subject of legal professional privilege, as they contained legal advice given to the Defendants by their lawyers. Nonetheless, it was argued that privilege in those documents had been waived. That argument was advanced on two bases. The first was that the Defendants had referred to the contents of the legal advice and had waived privilege therein. The second basis involved the assertion that the Defendants were putting forward a positive case as to their state of mind on a matter of law, in circumstances where they had received legal advice on that matter, and the result was that the Defendants had waived privilege in such legal advice. I declined to order disclosure on either basis, for the reasons given in my judgment of 17^th July 2009: [2009] EWHC 1437 (Ch).

During the course of the trial, notwithstanding sustained opposition from the Defendants, I granted the Claimants permission to make various amendments to their pleadings. These resulted in consequential amendments to the Defence.

The last decade of the 20^th century saw vast changes in the global telecommunications industry. Across the world, numerous state-owned telecommunications operators were privatised. A wave of pro-competitive and deregulatory telecommunications policies swept the globe. Competition was perceived to be beneficial as a spur to technological innovation, as leading to reduced prices and leading to growth in the economies of countries with advanced telecommunications. The process of opening up the market to competition was called “liberalisation”.

Liberalisation led to certain identified consequences. In liberalised markets, the penetration of mobile telephony grew very quickly. As predicted, this led to a growth in the economy of the relevant country. New entrants into the market benefitted significantly. Incumbents also benefitted. First, an incumbent with a fixed network sold its services to the new entrant into the mobile market. Secondly, an incumbent with a mobile network benefitted from the expansion of the entire mobile market.

On 4^th May 2000, certain states in the Eastern Caribbean entered into what has been called the ECTEL Treaty. In particular, St Lucia, St Vincent and the Grenadines, and Grenada were signatories to this treaty. The recitals to the treaty referred to the desirability of creating a competitive environment for telecommunications in their states, to the benefits of competition for the public and to the perception that competition was essential for the future economic and social development of their states.

Where the telecommunications market consists of an incumbent with a fixed network (and often a mobile network as well) and a new operator wishes to enter that market, the new entrant will wish to interconnect with the incumbent. It would be technically possible for the new entrant to build its own mobile telecommunications network and run that network without interconnecting with the incumbent. That would mean that the customers of the new entrant could telephone other customers of the new entrant but they could not telephone customers (fixed or mobile) of the incumbent, or indeed anyone else. In the present case, the Digicel company which wished to enter one of the markets in question always wished to interconnect with the incumbent before launching its service.

It is necessary to understand something of what is involved in interconnection. The word “interconnection” is defined in the legislation of all of the states with which this case is concerned and those definitions, as they appear in the legislation, are set out in the Annexes to this judgment. It is helpful to consider what is involved in more general terms before, in due course, seeking to construe and apply the relevant legislation.

Interconnection has two elements. One can be called “contractual interconnection” and the other “physical interconnection”.

It is useful to refer to the first interconnection agreement made between some of the parties in this case to illustrate the type of thing involved in contractual interconnection. On 13^th March 2003, CWWI entered into an interconnection agreement with Digicel SLU. This agreement consisted of the principal agreement to which were attached 6 schedules. The principal part was the Legal Framework agreement extending to 26 pages. The clauses of the Legal Framework agreement dealt with such matters as duration, the nature of interconnection, forecasting, ordering and provision of interconnection capacity, testing, operation and maintenance, charges, billing and many other matters. Schedule 1 consisted of 10 pages of Definitions. Schedule 2 consisted of 28 pages of Service Descriptions. Schedule 3 was the Service Schedule, running to 6 pages. Schedule 4 was the Parameter Schedule consisting of 4 pages. Schedule 5 was the Joint Working Manual consisting of 52 pages. Schedule 6 was the Tariff Schedule and ran to 9 pages. The tariffs set out in that schedule include a tariff for a Digicel call terminating on the CWWI fixed network (payable to CWWI), a tariff for a Digicel call terminating on the C&W Caribbean Cellular (Saint Lucia) Ltd mobile network (payable to CWWI), a tariff for a CWWI call from its fixed network terminating on the Dicicel network (payable to Digicel), a tariff for a call from the C&W Caribbean Cellular (Saint Lucia) Ltd mobile network terminating on the Digicel network (payable to Digicel) and a tariff for a Digicel call crossing the CWWI fixed network to terminate on a mobile network (whether the mobile network of C&W Caribbean Cellular (Saint Lucia) Ltd or another network provider) (payable to CWWI).

It should also be noted that when the parties have negotiated a draft interconnection agreement and are both content to be bound by its terms, it is necessary in three of the states the subject of these proceedings (SLU, SVG and Grenada) that the draft agreement is submitted to an independent regulator for approval before the parties are free to give effect to those draft agreed terms. The regulator plainly has regard to interests other than the interests of the negotiating parties. An obvious example of the interests which will be considered by the regulator will be the public interest, in particular the interest of consumers in avoiding high prices. The interests of the negotiating parties and the public may well be conflicting on that question. In Barbados and TCI, the parties may enter into an interconnection agreement but the agreement must then be submitted to the regulator for its review. In Cayman, the parties may enter into an interconnection agreement but the agreement must then be filed with the regulator who has power to reject the agreement. It is only in Trinidad and Tobago that there is no express provision in the legislation for prior approval, or subsequent review, by a regulator.

When I described the interconnection agreement that was entered into in SLU, I referred to the Tariff Schedule and the various rates or tariffs. I will now expand a little on that description. The fixed termination rate is paid for calls from a mobile network to the fixed network; the originating mobile network pays the termination rate to the fixed network. The mobile termination rate is paid for calls either from one mobile network to another mobile network or from a fixed network to a mobile network. The originating network pays the charge to the recipient mobile network for terminating the call. Where there is no direct interconnection between one mobile network and another mobile network (and that was the case in the jurisdictions with which this litigation is concerned), it is necessary for such calls to cross or “transit” the fixed network to which both mobile networks are connected. A transit rate is in such a case payable by the originating mobile network to the fixed network.

When I come to consider the detailed facts of the case and the specific allegations made, I will consider in more detail the way in which the interconnection agreements were negotiated, the nature of the process and the time involved.

I will next attempt to give an overview of what is involved in physical interconnection. I stress that this is only a brief summary and it may be necessary when considering what happened in the individual cases to discuss in a more technical way some of the steps involved. Nonetheless, an overview is helpful at this stage. This process can be broken down into a number of key steps.

The first step is for the representatives of the incumbent and the new entrant to exchange technical information about each other’s network. It is essential that each party understands the network topology or layout of the other’s network so that interconnection between the two networks can take place at the right level in the network hierarchy and is simple and efficient. The parties also need to assess the technical standards applied to their networks and the capacity of those networks. The two networks must be compatible or made to be compatible. This process of exchanging information should lead to the selection of an appropriate point of interconnection (“POI”).

The next step is to consider the appropriate method of connecting the switch site of the incumbent to the switch site of the new entrant. This may, and usually will, involve a survey of the sites. The options to link the sites are either by a digital microwave link or by fibre optic cable. The latter method is usually preferred and was chosen in each of the cases with which I am concerned. This method of connection can be speedy if there is an easy access point on an existing fibre route but a longer period of time may be required if a new cable has to be laid between the sites. It will then be necessary to dig a trench. It may be necessary to obtain permissions and approvals from the local authority. It may even be necessary to obtain the consent of a third party land owner whose land is being crossed by the trench. There is an issue in this case as to whether the incumbent ought to have started work on digging the trench and laying the cable before the parties had entered into a binding interconnection agreement.

The next step in relation to physical interconnection is the assessment of the equipment required to make the interconnection. The parties must first assess the capacity of the incumbent’s existing switch equipment. Additional equipment may be needed to increase that capacity to handle the traffic following interconnection. It is also necessary to consider what interconnection-specific equipment is needed. It is normally necessary to have multiplexor (“MUX”) equipment and its associated cabling. The MUX is a key piece of equipment. The parties need to assess the type of MUX and the size of MUX. The type of MUX varies with the standard applicable, American or European, but this is a simple matter to determine in any case. The type of MUX also depends on the supplier of the MUX. The size of the MUX depends on forecasts as to future volumes of traffic across the POI. In some of the jurisdictions with which this litigation is concerned, there was argument as to whether a forecast from the entrant should be for a three year period or whether a forecast for a lesser period (perhaps one year) would suffice.

The most usual method of interconnection involves using an existing digital distribution frame (“DDF”) or optical distribution frame (“ODF”) at the fixed network operator’s switch and at the proposed site of the entrant’s switch. This is the equipment which allows cables connected to one side of it to be routed to wiring on its other side. The incumbent’s existing equipment may have sufficient capacity or may need to be enhanced. Normally, this interconnection specific equipment for both the incumbent and for the entrant will need to be ordered from a supplier, unless there is spare equipment in store and available to either the incumbent or the entrant. If ordered from a supplier, the equipment will need to be delivered to the state in question, to clear customs and to be collected by, or delivered to, the purchaser of the equipment. There is a major issue between the parties as to whether the incumbent should have ordered the necessary equipment before the parties entered into an interconnection agreement.

The next step towards physical interconnection is the installation and commissioning of the new equipment.

The last step towards physical interconnection is the testing and commissioning of the interconnection link in readiness for the passing of traffic between the two networks. There is a number of very important aspects of the interconnection that need to have detailed testing before the interconnection can “go live”. The tests must be two-way tests to ensure network integrity. The tests should include the following: (1) service tests; (2) routing tests; (3) tests of the charging mechanism; (4) tests as to billing; and (5) tests of the procedures as to maintenance and error.

At an early stage it was recognised around the world that the legislation and regulations which provided for liberalisation of telecommunications market should specifically regulate the process of interconnection.

Much of the legislation and regulations in relation to interconnection between an incumbent and a new entrant owes its origin to the 1997 WTO Agreement on Basic Telecommunications (formally known as the Fourth Protocol of the General Agreement on Trade in Services or “GATS”). This was the first widely accepted multilateral trade agreement to include binding interconnection rules. These rules were included in a document called the Reference Paper which set out regulatory principles negotiated and agreed by WTO members. Mr Logan, an expert witness instructed by the Claimants, prepared a report which stated that the signatories to the WTO agreement included St Lucia, St Vincent and the Grenadines, Grenada, Barbados and Trinidad and Tobago whereas Mr Webb, an expert witness instructed by the Defendants prepared a report stating that, of those five states, only Grenada, Barbados and Trinidad and Tobago were bound by the terms of the Reference Paper. Those statements are not necessarily inconsistent for reasons which I need not explain and it is not essential to investigate that point of detail any further. The Reference Paper’s central principles were non-discrimination, transparency and the availability of reasonable interconnection terms, including cost-oriented rates and unbundled access from persons defined as “major suppliers” or persons with a relevant dominant position in relation to essential infrastructure.

In the seven states which are the subject of these proceedings, the relevant government introduced legislation and regulations dealing with liberalisation of the telecommunications market in that state and that legislation and those regulations contained provisions in relation to interconnection. I have set out in the Annexes to this judgment, the relevant provisions in each state.

The evidence before the court comprised voluminous documentary evidence together with witness statements and three expert’s reports. I heard oral evidence from eighteen witnesses for the Claimants and twenty five witnesses for the Defendants. By agreement between the parties, the experts were not called to give oral evidence. I will comment on various features of the evidence.

At various points during the interlocutory stages and during the trial, the parties fought a number of battles in relation to disclosure of documents. In the event, the Claimants have disclosed a large number of documents and more than the Defendants have disclosed. At the end of the trial, all outstanding applications for disclosure had been dealt with.

At various stages in their closing submissions, the Claimants have commented on the absence of disclosure from the Defendants on various matters. If the Claimants had wanted to say that the Defendants had failed to disclose something which they ought to have disclosed, then the proper course was for the Claimants to seek disclosure of the allegedly missing disclosable documents. Indeed, the Claimants did make such applications and the court ruled on all such applications. There is no outstanding application by the Claimants based on an allegation that an order for disclosure has not been complied with. In these circumstances, I will proceed on the basis that this litigation is to be decided on the basis of the documents which have now been put before the court. I do not draw any inferences, one way or the other, as to what has happened to documents which might at one time have existed but which no longer exist, according to the disclosure statements of the parties.

The Defendants have claimed legal professional privilege in relation to certain classes of documents. One such class related to documents which might have revealed the legal advice given to various of the Defendants as to: (1) the existence or non-existence of an obligation to negotiate with a new entrant, on the subject of interconnection, before that new entrant had a telecommunications licence; and (2) the existence or non-existence of an obligation to order interconnection equipment and do other things, such as civil works to join the parties’ switch sites, before the parties had entered into an interconnection agreement dealing with such matters. As I have already explained, the Claimants applied to me in the course of the trial for an order for disclosure of such documents and I rejected that application. In accordance with the established law in this area, I do not draw any adverse inferences against the Defendants by reason of the fact that they have claimed legal professional privilege. In particular, I do not reach the conclusion that the documents, if disclosed, would show something adverse to the Defendants’ case. Conversely, as the Defendants fully accept, since they have chosen not to put these documents before the court, the Defendants are not in a position to ask the court to infer that the contents of these documents support the Defendants’ case. When the Claimants made their application for disclosure of this class of documents, although I rejected the application, I was concerned that the Claimants might be placed at a disadvantage because they were facing an allegation by the Defendants that some of the Defendants had an honest belief as to the legal position, in relation to the existence or non-existence of the obligations referred to above, but yet the Claimants would not be able to see, and cross-examine upon, relevant documents. I was also concerned as to the ability of the court to make findings of fact on the alleged honest belief in this respect when the court was not able to see documents which might be relevant to such findings. As it has turned out, I have made findings on this question of honest belief and I did not find it difficult to do so. I have fully taken into account the fact that the Claimants were not able to cross-examine witnesses by reference to such documents. However, in making my findings, I was assisted by the inherent probabilities of the matter and the conduct of the individuals concerned and the degree to which that conduct was consistent with the existence of such a belief.

Altogether, the parties have disclosed a large number of documents. All of the documents disclosed were copied electronically and a hard disk containing all of the electronic copies was provided to the court. This source was also used for the purpose of cross-examining witnesses. I was provided with a screen on which was displayed any document being put to a witness. The witness and counsel and the solicitors also were provided with screens. This meant that it was not necessary to prepare a witness bundle containing these documents. I indicated at an early stage that electronic copies of documents would not suffice for my purposes. The Claimants had anticipated this indication by preparing for my use, some 50 or so lever arch files of these documents, in addition to many other files containing pleadings, witness statements, experts’ reports and yet further documents. In the course of the trial further documents were regularly supplied to be placed in the 50 or so files to which I have referred. When the parties prepared closing submissions, they added to the documents which had earlier been provided. The Claimants provided three further lever arch files and the Defendants provided one further file. In the course of considering my judgment, I asked the parties to make further submissions which provoked the delivery of another file of documents, in addition to the submissions.

This method of presenting the documents had implications for the reading which the court could be expected to undertake. When the court is provided with bundles of documents, the court can, if it thinks it is appropriate, read documents in those bundles even though they are not referred to in the course of the trial, either by the witnesses or by counsel. It is sometimes useful for the court to see what happened before and what happened after a particular event, which is examined in detail at the trial, even though the parties do not themselves invite the court to review that material. In this case, I have read documents in the bundles in addition to the documents to which I was specifically referred. I have made my findings on the documents which are in the bundles which were provided to me. However, I considered it to be impracticable and disproportionate to make any attempt to explore what was in the tens of thousands of pages of documents which existed in electronic form on the disk supplied to me, when such pages had not been provided in the court bundles.

The documents before the court contained many internal documents, in particular, emails. On some issues of fact, these internal documents were of great assistance to me in seeking to discover what was really going on, what people really thought and what their motives were. It was possible to contrast statements made for internal consumption with statements made to the other party to the dispute or to a regulator or to a government minister or official. Speaking generally, the internal comment was likely to be more reliable than any public statement on the same subject. This comment is not only applicable to statements which are adverse to a particular party’s interest. If it is said that a particular person was acting or failing to act for a reason hostile to the opposing party and the contemporaneous internal documents clearly show the reverse, I believe that I am entitled to rely upon the supportive documents to make my findings on the issue. The internal documents, which were not prepared to be used as self serving documents, are not to be dismissed on account of the fact that they support the case now being put forward by the maker of the document.

In this litigation, there have been very many allegations that representatives of the Defendants said one thing to the Claimants or publicly, but privately acted in a different way. For example, it is said by the Claimants that more or less throughout the relevant period the Defendants were plotting to cause delay to the Claimants while at the same time the Defendants were protesting that they welcomed the arrival of competition and were doing all that they properly could to facilitate interconnection and the resulting competition. Further, many witnesses for the Defendants said in evidence that they were in favour of competition and wished to facilitate interconnection. On an issue such as that, I have obviously looked closely at the Defendants’ internal documents in order to form an assessment of the situation. I have also been on my guard against the possibility that any plotting which might have been going on is obscured from the court under the cloak of legal professional privilege. It is a fact that legal advisers were involved with some of the matters in dispute and legal professional privilege has been claimed for communications between the legal advisers and others. I do not draw any adverse inference against the Defendants because of the assertion of this privilege. Nonetheless, I believe that I am entitled to bear in mind, when I consider the internal documents of the Defendants and seek to compare those documents with the external statements and conduct of the Defendants, that I may not have been given a complete set of all internal documents, privilege in some having been successfully claimed.

I heard the evidence of eighteen witnesses called on behalf of the Claimants. I will discuss the position of Mr Francis, Ms Turner and Mr Taylor separately below. The other witnesses for the Claimants were generally persons who were acting as employees or officers of the Claimants at the relevant time. The Defendants made sustained and sometimes fierce attacks on the credibility of these other witnesses for the Claimants. It is not necessary to set out at this point my assessment of such witnesses. As it turns out, when making my findings of fact, I was not very often required to consider the evidence of the Claimants’ witnesses. There were some disputes of fact which I have to resolve and on which these witnesses gave evidence. It is more helpful to leave any necessary assessment of such a witness until the point in this judgment where I address the necessary finding of fact on the issue. As will appear, it has not even then generally been necessary to form a view as to the reliability of these witnesses for the Claimants because the resolution of the issue of fact is usually possible by reference to the documents. Even if a witness is shown by the documents to have misremembered some matter of fact, that does not mean that the evidence of that witness is entirely to be discounted. These witnesses for the Claimants spoke of their frustration at what they saw as the delaying tactics of the various Defendants. These witnesses offered their views as to the motives or other intentions of the representatives of the Defendants. If the motives or the intentions of the Defendants are relevant in this case, then it is for the court to make findings based on the evidence of such representatives, their cross-examination and the documents. I am not assisted by the opinions of the Claimants’ witnesses as to what they think should be the appropriate findings of fact based on that material. I am of course assisted by the submissions of counsel for the Claimants but not by what are essentially the submissions of the Claimants’ witnesses. In any event, many of these witnesses were caught up in the events at the time and they tended to be influenced by the feelings of hostility which were running at the relevant time. I will now consider the evidence I heard from Mr Francis, Ms Turner and Mr Taylor.

The Claimants called Mr Pinkley Francis who had been employed by CWWI from a date in the 1990s until September 2005. From 2000 to 2004, Mr Francis worked in the Carrier Services Team as Service Provider Operations Manager in the OECS. He was involved with the interconnection negotiations in SLU and SVG and attended a number of meetings with Digicel SLU and Digicel SVG. Although Mr Francis was dismissed by CWWI in 2005 for misconduct, it was not suggested by the Defendants in their closing submissions that Mr Francis’s evidence should be rejected on that account. The Defendants accepted that “for the most part”, he was a straightforward witness. They said that his evidence was of limited relevance. I have certainly no difficulty in accepting parts of his evidence. He referred to the steps which the CWWI business unit in SLU took to compete with the new entrant Digicel SLU. I find that the business unit wanted the new entrant to enter the market later, rather than earlier. In particular, it wanted the new entrant to enter after, rather than before, Christmas 2002. In the period before the entry into the market of Digicel SLU, the business unit wanted to improve its competitive position. This attitude is exactly what one would expect of the business unit facing the likelihood of new competition. I also accept Mr Francis’s evidence to the effect that the carrier services team would have been aware of the general aspirations of the business unit in this respect. As it was reasonably obvious that the business unit would want Digicel SLU to enter the market later, rather than earlier, then this is likely to have been obvious to the carrier services team also. Mr Francis also said that the approach of the carrier services team to the interconnection negotiations with Digicel SLU was one of “orchestrated inefficiency”. There are two aspects to this statement. The first is that the carrier services team was inefficient; the second is that the inefficiency was orchestrated. Dealing first with the suggested inefficiency of the team, I will in due course examine the detailed allegations which the Claimants make as to the progress of the negotiations in SLU and SVG. When I do so, I will bear in mind Mr Francis’s assessment that the carrier services team was inefficient. The second allegation is that the inefficiency was deliberate and on the part of more than one person and “orchestrated”. Mr Francis’s detailed evidence supported his suggestion that the inefficiency was deliberate, and on the part of more than one person, but did little to support his suggestion that the inefficiency was orchestrated. A fair reading of his evidence was to the effect that it was obvious that an incumbent, negotiating interconnection with a potential new entrant, would not want to put itself out to help speed up the process of interconnection. His evidence does not support the conclusion that this attitude on the part of members of the carrier services team was the result of discussion and agreement or combination and conspiracy. Rather it was simply that it was obvious to all members of the team that that was a desirable attitude to adopt. In any event, whether the carrier services team or others in SLU and SVG did cause delay and/or set out to cause delay will be the subject of detailed examination when I consider the detailed allegations as to SLU and SVG and I will approach the evidence bearing in mind Mr Francis’ comments.

The Claimants called Ms Vonciel Turner who had been employed within the C&W group of companies. It is not precisely clear which C&W company was her employer at any particular time. She worked for a C&W company from approximately July 2001 to May 2003, although her contract of employment continued until August 2003. Ms Turner gave evidence over a video link from the United States. The Defendants say that Ms Turner was over-confident, over-bearing and bombastic. They add that she was inspired by animosity towards C&W, had a selective recall and misunderstood what was involved in the interconnection process. I find that I can accept much of what Ms Turner said. Much of what she said is inherently likely and rings true. However, she had comparatively little to say about the interconnection process as distinct from the wider subject of competition between the relevant C&W company and the relevant Digicel company. In so far as her evidence bears upon the interconnection process, it is somewhat general and I do have some reservations about the accuracy of her generalisations. I think I ought to bear her general evidence in mind but test it against the specific evidence which describes the detail of what happened in relation to a particular feature of interconnection which is now a matter of complaint by the Claimants. I think there is force in the Defendants’ criticism that Ms Turner was over ready to describe matters, which were open to interpretation, in a way which was unfavourable to the Defendants. I think it is likely that her attitude to C&W is influenced by a feeling that she was not well treated by C&W, when she worked for them. Based on her evidence, I am prepared to accept that the C&W business units saw themselves as on a war footing with Digicel as the likely new entrant. The C&W business units were determined to prepare themselves for the very stiff competition which Digicel would bring. The C&W business units saw competition as more of a threat than an opportunity, although Ms Turner herself tried to persuade the business units of the positive consequences of competition. The business units would have liked Digicel to enter the market later, rather than earlier. The business units wanted to use the time until such market entry to prepare themselves for competition from Digicel. Ms Turner stressed that the carrier services department were supposed to be separated from the business units by a Chinese Wall. I accept her evidence that the Chinese Wall was not a wholly effective barrier to communication between carrier services and the business unit and that the carrier services team probably knew of the attitudes of the business units in relation to competition. I can readily make that finding because the attitudes of the business units were entirely predictable and it is likely that with or without a Chinese Wall, the carrier services team would have worked out what those attitudes were. I also find that the business units were aware that the carrier services team were, generally, not prepared to negotiate interconnection with a possible new entrant until that new entrant had obtained a formal licence to provide a telecommunications service and that the carrier services team were not prepared to order the equipment needed for the C&W side of the interconnection until the parties had agreed the terms as to interconnection. The business units welcomed those stances on the part of the carrier services team because they did nothing to advance the time when the Digicel would enter the relevant market. Based on Ms Turner’s evidence, I am not able to find that the carrier services team declined to give information to Digicel SLU or SVG after those companies had obtained their licences; her evidence appeared to describe the situation before the licences were granted. As regards her suggestion that the carrier services team would deliberately spin out the negotiations by causing difficulties with personnel being unavailable for meetings and/or sending unauthorised personnel to the negotiations with Digicel, I will bear that in mind when I consider the specific evidence as to what happened at specific meetings. I am very doubtful about her evidence that the carrier services team proposed unreasonable rates and/or terms for the principal purpose of causing delay but I will again keep it in mind when I consider the specific evidence which is relevant.

The Claimants called Mr Kevin Taylor in connection with the claim in relation to T&T. At the relevant time, Mr Taylor had been employed by Nortel who was to supply interconnection equipment and other equipment to TSTT. In March 2009, Mr Taylor had given evidence on deposition in Florida when he was cross-examined by counsel for TSTT. Initially, the Claimants stated that they intended to rely upon the evidence given by Mr Taylor on that occasion. Later, the Claimants stated that they would tender Mr Taylor for cross-examination by TSTT at this trial. Later still, the Claimants delivered a witness statement signed by Mr Taylor. Mr Taylor was called as a witness, cross-examined and re-examined. He gave evidence on a number of topics which are relevant in relation to T&T. I discuss all of that evidence in detail in Annex F to this judgment, dealing with the claim in relation to T&T. One of the topics dealt with by Mr Taylor concerned a day on which there was an alleged conversation which Mr Taylor heard taking place between Ms Bejar of Nortel and Mr Espinal, the CEO of TSTT, followed by a conversation between Ms Bejar and Mr Taylor, followed by a conversation between Mr Taylor and a Mr Davy of Nortel. Mr Taylor’s account of these events conflicted with the evidence of Mr Davy, who was called as a witness by TSTT. The nature of the dispute of fact is such that either Mr Taylor or Mr Davy is wrong in his evidence. Indeed, I find that there is no real possibility of one of these witnesses being wrong as a result of faulty recollection. The witness who is giving incorrect evidence must be doing so deliberately. As between Mr Taylor and Mr Davy, I have no hesitation in preferring the evidence of Mr Taylor. I find that Mr Davy had a substantial motive for giving untruthful evidence. It is possible that Mr Taylor had an incentive to give evidence on behalf of the Claimants but I think it is very unlikely that Mr Taylor would have deliberately given untruthful evidence on these issues. Further, Mr Taylor’s evidence is supported by other contemporaneous material. In addition, when Mr Espinal was cross-examined, he provided further material, albeit somewhat reluctantly, which supports Mr Taylor’s version. Mr Taylor also gave evidence on a question as to whether Nortel was in a position in late 2005 to expedite the manufacture and delivery of equipment ordered by TSTT for interconnection with Digicel T&T. In relation to parts of this evidence, I found Mr Taylor’s evidence less reliable. I find that he was basing himself to a significant extent on his reading of documents which are material to this issue and less on his recollection of any involvement he might have had in the relevant events at the time. I will base my findings on this part of the case on my own reading of the relevant documents and any other reliable evidence and not on what Mr Taylor has said about that matter. This approach does not necessarily apply to more general evidence which Mr Taylor gave about the difficulty of assessing whether Nortel could, in certain hypothetical circumstances, have manufactured and delivered interconnection equipment more quickly than it actually did. It can be said against Mr Taylor that the part of his evidence, which was based on his reading of the documents and which might not be right, diminishes his reliability on other matters, such as the conversations I have referred to above. I agree that this is so. Nonetheless, although I have been cautious for this reason amongst others about believing Mr Taylor on his evidence about the relevant conversations, I still conclude that that part of his evidence is reliable and certainly to be preferred to the evidence of Mr Davy. I discuss the evidence on all these matters in more detail in Annex F to this judgment.

I heard the oral evidence of twenty-five witnesses called by the Defendants. I will discuss the evidence of Mr Barnes, Mr Espinal and Mr Davy separately below. I will make some general comments as to the other witnesses called by the Defendants, without mentioning all of them by name. Many of these witnesses appeared reasonable and measured in their oral evidence. They were cross-examined at length about the various allegations in this litigation. It was put to them that they had a motive to cause delay to the Claimants, that they deliberately did cause delay to the Claimants and that they repeatedly made statements to the Claimants and to the regulator and to government ministers and officials pretending to welcome competition and to be ready to facilitate interconnection, which statements did not represent their true intentions or views. Speaking generally, in their oral evidence, these witnesses adhered to the public views they expressed at the time. Where it is relevant to make findings as to the true motives and intentions of these witnesses when involved in the relevant events, I will pay far more attention to the contemporaneous internal documents which throw light on those matters than to the way matters were described in evidence from these witnesses. If those internal documents show that the public statements did not represent the true intentions of a witness, then I will give more weight to the internal documents than I will give to the public statements which were made and, similarly, than I will give to repetitions in evidence at the trial of the public statements made at the time.

It is worthwhile at this point making a general comment on the likelihood that the Defendants hoped that the new entrant would enter the market later, rather than earlier. In this regard, it is useful to distinguish between the business units, the carrier services team and senior management of C&W plc. At this point, my comment is a general one and is merely to set the scene for the detailed findings of fact which I will in due course make when considering the specific allegations in each jurisdiction.

As regards the Defendants’ business units, I think that it is inherently likely that the business units wanted to see a new entrant enter the market later, rather than earlier. First of all, I think that that attitude is to be expected. Secondly, in most if not all of the jurisdictions, there were specific reasons why the incumbent business unit wanted time to get itself more ready than it previously was to face competition. The Digicel company, which was the intended new entrant in each case, was well understood to be likely to be a formidable competitor. The incumbent business unit was usually handicapped by the fact that it had been the monopoly provider in the past and had not previously been challenged by competition. There were often technical matters concerning its network that needed attention before the incumbent business unit would feel itself ready to face competition.

As regards the carrier services team, I find that they were aware of the wishes of the business units as regards the time at which interconnection, and the resulting competition, was desirable. I find that it was the preference of the carrier services team that interconnection should be completed later, rather than earlier. One of the reasons that the carrier services team had for not negotiating with a possible new entrant before that new entrant had a licence, was that this approach would cause interconnection to happen later, rather than earlier. I do not say that this was the only reason. It was possible for the carrier services team to put forward other reasons for this attitude and they did so. Some of those other reasons may have been genuinely believed by the carrier services team. But that does not negative my finding that one of the reasons was the desirability, as they saw it, of interconnection happening later, rather than earlier.

My findings in relation to the business units and the carrier services team do not necessarily apply to the senior management of C&W plc. I will in due course make a finding that C&W plc was not involved in the detailed steps in the interconnection process. The senior management of C&W plc left such details to the carrier services team and, to the extent appropriate, to the business units. Some senior management of C&W plc may very well have seen competition as a good thing. Others may have regarded it as inevitable so that it was not worth their while bothering with the question whether it would happen a little bit later or a little bit sooner. At this stage, I record my finding that in the case of the senior management of C&W plc, I do not approach the evidence with any expectation that they wished to postpone the completion of interconnection and the arrival of competition.

The Defendants called Mr Barnes as a witness. He was a highly qualified technical member of the CWWI carrier services team. His evidence is relevant in a number of the jurisdictions with which this litigation is concerned. The Claimants were critical in a number of specific respects of Mr Barnes’s conduct at the time and of his evidence at the trial. In particular, the Claimants said that Mr Barnes had behaved improperly and untruthfully in relation to Cayman. I have therefore had to assess Mr Barnes’ evidence on a large number of topics. I have available to me a considerable amount of internal documentation involving Mr Barnes at the relevant time and throwing light on his behaviour and the reasons for it. With the assistance of that material, I have reached the conclusion that Mr Barnes generally behaved in a very responsible fashion and not with a view to delaying the Digicel new entrant for the purpose of gaining a benefit through such delay. I will discuss the detailed findings of fact I make in relation to Mr Barnes, including in respect of Cayman, when I consider the detailed evidence on the matters of complaint.

Mr Espinal was the CEO of TSTT. His evidence is only relevant in relation to the case concerning T&T, but there it is of central relevance. As will be seen, I will have to consider Mr Espinal’s evidence in detail and to decide how much of it I can accept. Mr Espinal was plainly highly intelligent. Although his first language was Spanish, he had a very good grasp of English. Much of his evidence was quite frank about TSTT’s desire to have time to get itself ready for competition with Digicel T&T. However, I do not think that Mr Espinal was prepared to be candid in all respects when giving evidence. I found that he tended to give explanations which were designed to draw the focus away from the real point in issue and he would decline to accept things which were obviously correct. An example of this tendency came at the very beginning of his evidence. Mr Espinal gave oral evidence in chief in addition to the evidence contained in his witness statement. The reason he was asked to do so was that during the trial, before Mr Espinal was called to give evidence, the Defendants disclosed documents which had not earlier been disclosed. These documents included appraisals of the performance of a number of employees of TSTT, including Ms Agard and Mr Kurleigh Prescod. The self-assessement part of Ms Agard’s appraisal included under “Performance Highlights” the comment: “Successfully delayed the introduction of interconnection”. Under the heading “Targets Missed” was the comment: “Competition delayed the ability to sell interconnection services but has resulted in an enormous benefit to the Company overall”. The parties agreed that this last comment should be understood as if it were preceded by the words: “Lack of” or “Delay in”. Ms Agard’s self-assessment was written by her in March 2006 and it was shown to Mr Espinal at that time. The appraisal documents in relation to Mr Prescod contained the same comments in relation to his performance and his missed targets. His appraisal form was counter-signed by Ms Agard in May 2006. These appraisals clearly showed that TSTT had wished to delay interconnection with Digicel T&T and had believed that it had been successful in achieving that delay. It is also clear to me that these comments correctly described the situation. It is apparent from the documents before the court that TSTT did not do things which it could have done which would or might have brought forward the time when Digicel T&T were ready to launch in T&T. An obvious example is that when Digicel T&T requested interconnection as early as 24^th June 2005, TSTT responded that it would be premature to discuss interconnection. Of course, TSTT was right in the sense that it was not at that stage under a legal obligation to discuss interconnection but the principal reason for not discussing interconnection was that TSTT did not at that stage wish to take action to bring forward the date of Digicel T&T’s launch. As I have described, Mr Espinal was asked about the appraisal documents when giving evidence in chief. He explained at great length how the appraisal system worked. This explanation was obviously designed to suggest that the comments in the appraisal documents, to which I have referred, were somehow not significant and they could be ignored in this litigation. To my mind, this evidence was largely pointless and did nothing to encourage me to be receptive to other explanations which Mr Espinal gave, instead of facing up to the real issue which needed to be addressed. I bear in mind, in Mr Espinal’s favour, that the questions in examination in chief were selected by counsel and it was Mr Espinal’s job to answer the specific questions put to him. However, I do not on that ground acquit Mr Espinal of what I have described as the tendency to give explanations which were a distraction from the real point. When he was cross-examined directly about the appraisals, he built on his evidence in chief about the way in which the system worked and avoided the real point which clearly emerged from the appraisals. Given that the case which is made against Mr Espinal is that he said one thing publicly, and privately thought and did the reverse, I was very much on my guard as to whether I was also being treated to self justificatory explanations which were not wholly candid. As will be seen, when I consider the detailed evidence in relation to T&T, I have not felt able to accept everything that Mr Espinal told me. Indeed, I find in that part of the judgment that Mr Espinal acted “contrary to honest practices”.

The last witness to whom I refer is Mr Tony Davy, called by the Defendants. I have considered something of his position when discussing the evidence of Mr Taylor, called by the Claimants. I am satisfied that Mr Davy deliberately lied to me about the conversation he had with Mr Taylor about Mr Espinal’s instruction to Ms Bejar of Nortel that Nortel was to provide for interconnection between TSTT and the new entrants, not earlier and not later than the end of March 2006. I find that Mr Davy gave untruthful evidence out of a desire to help TSTT, which he regarded as being in his own interests also. Mr Davy gave further evidence on other topics. Although I will reject his evidence on the conversation he had with Mr Taylor and topics closely associated with that evidence, it does not necessarily follow that I must reject his evidence on all points. For example, he gave evidence which I will have to consider in relation to the issue whether Nortel were in a position in late 2005 to bring forward the date of delivery of interconnection equipment to TSTT. I can unreservedly accept one statement which I find Mr Davy did make to Mr Taylor, although Mr Davy denied it in evidence, that he would “sell guns to the Indians”.

I received the reports of three expert witnesses. The Claimants had instructed Mr Logan and the Defendants had instructed Mr Short and Mr Webb. Each prepared a very detailed report. The experts had been asked to direct themselves to the following question: “what is the minimum period (if any) and what is the maximum period (if any) in which all aspects of interconnection (i.e. both physical and contractual interconnection as explained in paragraph 19 of the Amended Particulars of Claim) should reasonably be completed in a jurisdiction?”

Mr Logan stated that the answer to the question posed was a minimum period of seven weeks and a maximum period of thirteen weeks. He identified six specific assumptions which he made for the purpose of answering the question posed. In particular, he assumed that the parties involved in the interconnection process were reasonable commercial parties negotiating in good faith and were not intent on delaying the interconnection process. In the course of his report he stated that if the parties were having difficulty in agreeing termination rates (the tariffs) then it would be reasonable for them to enter into an interim agreement which allowed interconnection to take place, with the final position on the termination rates to become established by further negotiation or in some other way. He also stated that it would be reasonable for the incumbent to carry out the necessary civil works before conclusion of the negotiation of the interconnection agreement. Similarly, he stated that it would be reasonable for the incumbent to order the interconnection equipment before the conclusion of those negotiations. Indeed, he added that it would not be rational to wait for the conclusion of the negotiations in respect of the interconnection agreement. In a joint statement issued by the 3 experts, Mr Logan added, in relation to the assumption to be made about the attitude of the parties, to which I have referred above, that the commitment of both parties to conclude the interconnection agreement was key to their joint success in the future. He took the view that reasonable parties would conduct hard but fair negotiations, but not obstruct the process, and they would be aware that they would both benefit from a timely conclusion to the negotiations.

Mr Short, one of the two experts instructed by the Defendants, dealt with physical rather than contractual interconnection. He described in detail the various stages on the way to completion of physical interconnection and the technical issues that would, or might, arise. He stated that physical interconnection was a complex process requiring exchange of detailed information, careful planning, construction, testing and implementation. He identified a number of factors which could impact on the time taken to complete the process. Accordingly, he concluded that it was not possible to set firm minimum or maximum periods for physical interconnection. He referred to experience in various other countries, mentioning one case which took three months and another which took twelve months. He suggested that a more typical time scale would be in the region of five to seven months.

Mr Webb was the second of the two experts instructed by the Defendants. His report discussed the process of contractual interconnection. He stressed that the incumbent and the entrant were subject to different incentives in negotiating an interconnection agreement. Mr Webb dealt with these incentives in some detail. It was not submitted that his comments on those matters were inadmissible on the ground that they were not truly expert evidence. It might have been said in response to any such challenge that Mr Webb was able to describe his experience of a large number of interconnection negotiations around the world. In any event, I found his comments useful in seeking to understand the reasons for the behaviour of the various participants in the interconnection process. Further, I found his comments well expressed and apposite in relation to the detailed events which occurred in the jurisdictions with which this litigation is concerned. Although the passage is a lengthy one, it is useful to set out an extract from Mr Webb’s report which records his view as to these incentives. Mr Webb wrote:

“The negotiation process and incentives

65.

As noted above, the prevailing model for interconnection negotiations as reflected in the WTO Reference Paper, the EU Directives and the APEC Principles is one where the incumbent operator is obliged to provide interconnection to an entrant in a timely fashion. This model relies upon direct negotiations between the parties, commonly with the backdrop of a RIO and of general principles for interconnection either set out in legislation or prescribed by the national regulator. Should the negotiations fail, either party may request the regulator to intervene. The form of intervention may include a direction from the regulator to resume negotiations or to complete negotiations within a prescribed period, or alternatively, or as well as, mediation, arbitration, or a regulatory determination of the matters in dispute.

66.

Faced with a legal obligation to interconnect, coupled with obligations to negotiate in good faith and to provide interconnection in a timely fashion, an incumbent fixed network operator providing both wholesale access services and retail services has an incentive to comply with those obligations and to avoid losing influence over the negotiation process as a result of a compliance failure. In addition, where governments are committed to market liberalization, as in the territories, incumbent operators face a material reputational risk if they should fail to achieve physical and contractual interconnection with credible entrants . [Footnote: In my experience, it is common for entrants to actively use the media and to lobby politicians and officials with complaints concerning the pace of interconnection negotiations.]

67.

An interconnection agreement contains many terms that are likely to be uncontroversial. There are however terms with significant commercial implications, discussed earlier in this report. To the extent that these key commercial terms have not been predetermined by a regulatory decision or a published reference interconnection offer, both parties will wish to make offers and to try to maximize their commercial positions.

68.

As I have noted above, generally, the most difficult commercial issue to be resolved in contractual interconnection is the charge to be made by a terminating operator to the originating operator for the termination of a call. I am instructed that in each of the territories, there were three main termination rates to be negotiated: termination on the relevant Cable & Wireless fixed network of a call from a Digicel mobile customer to a Cable & Wireless fixed customer (fixed termination); termination on the relevant Cable & Wireless mobile network of a call from a Digicel mobile customer to a Cable & Wireless mobile customer or vice versa (mobile-to-mobile termination); and termination on the Digicel mobile network of a call from a Cable & Wireless fixed customer to a Digicel mobile customer (fixed-to-mobile termination). [Footnote: I am instructed that in each of the territories, Cable & Wireless offered only interconnection with its fixed network. As a result, calls from a Digicel mobile customer to a Cable & Wireless mobile customer would transit the fixed network before termination on the Cable & Wireless mobile network. Calls originating from a Cable & Wireless mobile customer to a Digicel mobile customer would be handled in the same manner and would transit the Cable & Wireless fixed network before presentation to Digicel for termination.]

69.

The fixed termination rate will compensate the fixed network operator for the use of the fixed network in terminating an inbound call. The mobile-to-mobile and fixed-to-mobile termination rates will compensate the terminating mobile operator for the use of the mobile network in terminating an inbound mobile or fixed call. Mobile-to-mobile and fixed-to-mobile termination rates are commonly the same, absent regulatory intervention, as both call types make the same use of the terminating mobile network. The two types of mobile termination rate are typically significantly higher than the fixed termination rate, reflecting the higher unit cost of call carriage on a mobile network in comparison to a fixed network.

70.

I would expect that where a mobile operator seeks interconnection with a fixed operator providing termination both on the fixed network and on its own mobile network, agreement on each termination rate and on the relativities between those rates would be seen as of major importance by all parties. I refer in this regard to the discussion of call charging at paragraphs 41.5-41.12 of this report.

71.

Within the scope of its legal obligations, to the extent that it is permitted to do so by the regulatory regime, an incumbent operator has an incentive to maximize its bargaining position and to use the time allowed for negotiation. There are two reasons for this.

72.

First, as a response to the incentive of the entrant to shorten the negotiating period and therefore to accelerate market entry. This incentive reflects the potential benefits of market entry at a time that is favourable to the entrant, such as prior to an important marketing period, or prior to the potential entry of other competitors. It also reflects the benefit of earlier revenues to offset set-up costs. It would be rational for an incumbent operator to use the incentive of the entrant to conclude negotiations by withholding agreement on issues where an improved outcome from the perspective of the incumbent may be available.

73.

Second, entry will inevitably reduce the market share of the incumbent operator and will probably lead to a reduction in retail margins as price competition erodes monopoly rents. The length of the bargaining process determines the monopoly rents retained by the incumbent operator. The incumbent operator has a weak incentive to support interconnection for the opportunity to receive interconnection revenue, but this is typically outweighed by the benefits of later competitor market entry. Competition will usually also expand the market through the introduction of pricing and service differentiation to target under-served potential users. Again though, it would be rational for an incumbent operator to seek to retain its market dominance and monopoly rents for as long as possible within the requirements of the law and the regulatory framework.

74.

With a regulatory backstop, however, both parties will have an incentive to avoid regulatory intervention, since this will lead to uncertain pricing outcomes. For the entrant, intervention by the regulator remains preferable to a failure to reach a negotiated agreement. The trade-off between the incentive of the incumbent operator to preserve its monopoly position for as long as possible and that of the entrant to refer a dispute to the regulator is the middle ground that will generally result in an agreed, rather than a regulated, outcome.

75.

Referral of a dispute over interconnection terms generally does not ‘stop the clock’ on continuing negotiations. The parties are able to continue to negotiate until the regulator has issued a final decision on the interconnection terms. This allows either party the opportunity to improve its position in the negotiations as the regulator’s range of possible outcomes becomes more apparent during the regulatory process.

76.

Rather than taking over a dispute referred to it, the regulator may in some jurisdictions require that the parties continue to negotiate for a fixed period after the dispute has been referred. In these circumstances, the party that has the opportunity to make the last offer before the deadline, which may be either the incumbent operator or the entrant, has the stronger bargaining position. However, if the regulator instead sets a minimum bargaining period before it will consider the dispute, the incentive of the incumbent operator is to use that entire period and therefore to gain the monopoly profits. There is then no downside for the incumbent operator in the referral to the regulator so long as the parties retain the option to negotiate post-referral.

77.

In summary, where an incumbent operator is under an obligation to provide interconnection, and to negotiate in good faith and in a timely manner, the incentives faced by the parties are as follows:

77.1

The incumbent operator will prefer to comply with its obligations rather than be in breach, with both reputational risk and the risk of losing influence over the negotiation as a result of regulatory intervention;

77.2

Both parties will aim to achieve the best possible outcomes on key commercial terms, particularly related to interconnection rates for each network;

77.3

The incumbent operator will have an incentive to use the negotiating space allowed to it by the regulatory regime, both to achieve better outcomes in the interconnection terms and to preserve monopoly rents for as long as possible;

77.4

The entrant will have an incentive to shorten the negotiating period to accelerate market entry;

77.5

With a regulatory backstop, both parties have an incentive to avoid regulatory intervention, but the entrant has a greater incentive to request intervention if it appears that negotiations may fail;

77.6

Once the regulator has intervened, there is an incentive for the parties to continue negotiations if possible, shaped by the narrowing of options as the regulator’s preferences become apparent;

77.7

If the regulator sets a minimum bargaining period before it will consider the dispute, the incumbent operator has an incentive to use that full period to maximize the monopoly rents or to otherwise achieve an improved commercial outcome.”

Mr Webb went on to explain that the length of the period which would be taken in any set of negotiations should reasonably reflect the existence of these incentives. He referred to other factors which would impact on the pace of the negotiations. These factors would vary from one jurisdiction to another and that alone rendered arbitrary any attempt to set either a minimum or a maximum period for the completion of negotiations. Taking all matters together it was not possible robustly to identify in the abstract any such minimum or maximum period. Mr Webb disagreed with Mr Logan’s assumptions as to the attitude of the parties to the negotiations, with his suggestion that the parties would approach the negotiations on the basis that they would both benefit from timely conclusion of the negotiations. He also disagreed with Mr Logan’s suggestion that reasonable parties would enter into an interim agreement if they were having difficulty in agreeing termination rates.

The parties agreed in the course of the trial that the reports of the three experts would be admitted into evidence but that the experts would not attend to give oral evidence and would not be cross-examined. Neither side was to be taken to have agreed with the evidence given by the other side’s expert or experts. In the course of closing submissions, I raised with the parties what courses were open to the Court in view of the fact that the experts’ reports were in evidence but the experts had not been cross-examined. The parties agreed that I was able to accept or reject the evidence of an expert, providing I had good reasons for so doing and I was not disabled from rejecting a statement made by an expert simply because that expert had not been cross-examined. Accordingly, in the case of the expert witnesses, the parties have agreed a departure from the usual rule that the Court is not able to reject the evidence of a witness who has not been challenged on the relevant point by cross-examination.

At this stage, I can record one finding as to the attitude of the actual parties to the negotiations in the jurisdictions with which I am concerned. I hold that Mr Webb’s comments about the expected behaviour of the participants in interconnection negotiations are more realistic than those of Mr Logan. It is clear that the actual Defendants did not adopt the attitude to the negotiations which was assumed by Mr Logan. As to his assumptions as to the behaviour of the participants, I do not see that the legislation in any of the jurisdictions obliges me to assume notional behaviour on their part. Instead I hold that I should make any necessary findings as to the actual attitude of the actual parties and then consider whether the attitude adopted by any Defendant and, more importantly, the behaviour of that Defendant broke any obligation owed to any Claimant.

As to Mr Logan’s suggestion that it would have been reasonable for the incumbent operator to enter into an interim interconnection agreement (leaving issues such as the rates payable to be resolved later) and reasonable for the incumbent to carry out civil works and order interconnection equipment before the parties had concluded an interim or a final interconnection agreement, I am not necessarily concerned with what is to be regarded as “reasonable” behaviour. I will only be required to consider what is “reasonable” behaviour, if on the true construction of the legislation in question there is a legal duty on the incumbent to act in a reasonable way. If the legal duty is expressed in different terms, then I must address myself to those terms to assess whether the incumbent has complied with its duty or whether it has crossed the line into committing a breach of its duty.

In SLU, the incumbent telecommunications operator was CWWI. The licensed new entrant was Digicel SLU. The claim in relation to SLU is brought by Digicel SLU against CWWI and C&W plc. The Claimants allege that CWWI was in breach of the primary and secondary legislation in SLU, that such breaches were actionable as the tort of breach of statutory duty, that CWWI and C&W plc were joint tortfeasors and/or that they combined together such that they are liable for the tort of conspiracy to injure by unlawful means. The Claimants accept that, with one exception, these claims are statute barred. The conspiracy claim is said to be the exception where the claim is not statute barred.

CWWI and C&W plc deny that there were any breaches of the primary or secondary legislation. In any event, they say that any such breaches were not actionable. They also say that on the facts and as a matter of law, they are not liable in the tort of conspiracy. They further say that any breaches caused no loss. Finally, they say that all the claims, including the conspiracy claim are statute barred.

The parties disagree as to the meaning and effect of the primary and secondary legislation in SLU. Accordingly, I will begin by considering that legislation in detail. As I will be examining the scope of the duties imposed by that legislation, it is convenient for me next to consider whether any breach of such duties would be actionable as the tort of breach of statutory duty, before I consider the facts. If I find that any breach of the legislation would not be actionable, then I will consider whether any breach of the legislation would be “unlawful means” for the purpose of the tort of conspiracy to injure by unlawful means, again before I consider the detailed facts.

Whatever I decide about the actionability of any breaches and whether any breaches could be unlawful means, I will make findings of fact on the matters of complaint which the Claimants say were breaches of the primary or secondary legislation. Finally, I will discuss the question of limitation in relation to the tort of conspiracy in SLU.

It is necessary to refer to a large number of the provisions of the legislation in SLU. Because of its length, and because I will be referring at similar length to the legislation in the other jurisdictions which are the subject of this litigation, I have set out the relevant parts of the legislation in each jurisdiction in a separate Annex for that jurisdiction. The legislation in SLU is therefore set out in Annex A to this judgment.

The claim made by Digicel SLU is that CWWI acted in breach of section 46(1) of the Telecommunications Act 2000 and in breach of regulation 5 of the Telecommunications (Interconnection) Regulations 2002. Section 46 of the 2000 Act states that a telecommunications provider is not to refuse, obstruct, or in any way impede another telecommunications provider from making an interconnection with its telecommunications network. Regulation 5 of the 2002 regulations states that a telecommunications provider shall act in a manner that enables interconnection to be established as soon as reasonably practicable. The parties are very far apart as to the meaning and effect of these provisions.

The submissions of the parties as to the correct interpretation of Section 46(1) of the Telecommunications Act 2000 and of regulation 5 of the Telecommunications (Interconnection) Regulations 2002 involved an examination of many of the provisions of the Act and of the regulations. This examination threw up many further questions which were debated in argument. I will refer to some of the more important questions on which it is useful to comment.

The 2000 Act defines “interconnection” to mean “the connection of two or more separate telecommunication systems, networks, links, nodes, equipment, circuits and devices involving a physical link or interface”. The Claimants say that this definition describes only the physical side of interconnection and does not extend to anything concerned with contractual interconnection. The Defendants submit that the definition refers to both physical and contractual interconnection.

Section 46(1) of the 2000 Act provides:

“Subject to subsection (5), a telecommunications provider who operates a public telecommunications network shall not refuse, obstruct, or in any way impede another telecommunications provider from making an interconnection with his or her telecommunications network.”

Some matters are relatively clear as to the operation of section 46(1). At the relevant time, CWWI was “a telecommunications provider”. At the relevant time, CWWI operated “a public telecommunications network”. Digicel SLU was “another telecommunications provider”, but because that phrase is defined in section 4(1) of the 2000 Act by reference to a person who is licensed under the Act, it necessarily follows that Digicel SLU was only “another telecommunications provider” from the date it was granted its licence to operate in SLU. The date of grant of the licence is, beyond any serious argument, the date of 6^th September 2002. Thus, although this matter was not common ground at all stages of this litigation, it later became common ground and is in my judgment clear that whatever duty was created by section 46(1) of the 2000 Act, that duty was not owed to Digicel SLU until 6^th September 2002.

The parties disagree as to the meaning of the phrase “making an interconnection” in section 46(1). The Claimants submitted that this is a reference to the physical link involved in an interconnection and the phrase does not refer to anything involved in the process of contractual interconnection. The Defendants submit that the reference to making an interconnection is apt to refer to both physical and contractual interconnection. Neither side submitted that the reference was to contractual interconnection only, to the exclusion of physical interconnection.

Section 46(1) refers to a telecommunications provider not refusing, obstructing, or impeding another telecommunications provider from making an interconnection. There did not seem to be much difference between the parties as to the meaning of the three verbs, “refuse”, “obstruct”, “impede”. Although section 46(1) is clearly expressed, as a matter of language, as a negative prohibition on refusing, obstructing or impeding, both sides in this litigation proceeded on the basis that section 46(1) in substance imposed positive obligations on CWWI. The Claimants submitted that the duty created by section 46(1) was a duty on CWWI to provide the specialist equipment needed to be installed at a CWWI switch site for the purpose of completing CWWI’s end of physical interconnection. As regards the specialist equipment needed for the Digicel SLU end of the interconnection, the Claimants did not suggest that CWWI was obliged to provide that equipment; the Claimants accepted that it was for Digicel SLU to provide that equipment. The Defendants accepted that CWWI was obliged, at an appropriate time and, in particular, after an interconnection agreement had been entered into, to provide the specialist equipment needed for the CWWI end of the physical interconnection. Both parties appear to agree that CWWI’s duty to provide this equipment could extend to a duty to identify the equipment which was needed, to order that equipment, to pay for that equipment, to take delivery of the same, to install the same and to test the same.

Both sides supported their primary contentions as to the meaning of section 46(1) by referring to other provisions in the 2000 Act. The Claimants stressed the use of the word “making” in section 46(1). This was said to be a strong pointer to the conclusion that the subsection was dealing with physical interconnection only. The Claimants also referred to section 46(4), pursuant to which the parties were to agree a date when interconnection would be effected; it was suggested that such a provision made good sense if it applied only to physical interconnection but made less sense, or no sense, if it applied to both physical and contractual interconnection. The Claimants also referred to the different words used in other parts of the 2000 Act which referred to “interconnection service” rather than “interconnection”; it was suggested that a reference to interconnection service was apt where the physical equipment used in the interconnection was operating to permit the carriage of live traffic. Conversely, it was argued, the word “interconnection” referred to physical interconnection alone. The Claimants also submitted that section 48, dealing with the costs of establishing any interconnection, was dealing only with physical interconnection and that demonstrated that the word “interconnection” was confined to physical interconnection.

In relation to the regulations in SLU, the Claimants relied on the duty created by regulation 5 which again referred to “interconnection” being established. The Claimants again submitted that “interconnection” in regulation 5 was confined to physical interconnection.

The Defendants, as I have indicated, submitted that “interconnection” in section 46(1) of the Act and in regulation 5 referred to both physical and contractual interconnection. The Defendants also drew my attention to various other provisions in the 2000 Act and in the regulations. They dealt with the various linguistic points made by the Claimants. They drew attention to section 46(7) of the 2000 Act which refers to “providing an interconnection service in accordance with this section”. They submitted that “an interconnection service” must entail the passing of live commercial traffic and that was only permissible when there had been an interconnection agreement: see section 47(1). Section 46(7) referred to the service being provided “in accordance with this section” i.e. in accordance with section 46. The Defendants submitted that that was a clear pointer to section 46(1) creating a duty as to the provision of an interconnection service with the result that section 46(1) was not confined to physical interconnection to the exclusion of contractual interconnection.

Before attempting to resolve this difference as to the scope of the duty imposed by section 46(1) of the Act and regulation 5, it is useful to consider the fact that section 46(1) of the Act is expressed as a negative prohibition rather than as a positive obligation. On any view, section 46(1) is not well drafted. In fact, it is not wholly grammatical. Section 46(1) seems to impose three negative prohibitions. The first prohibition is that a telecommunications provider “shall not refuse… another telecommunications provider from making an interconnection…”. The second prohibition is that a telecommunications provider “shall not obstruct… another telecommunications provider from making an interconnection”. The third prohibition is that a telecommunications provider “shall not… in any way impede another telecommunications provider from making an interconnection”. It would have been more grammatical for the subsection to say that a provider should not refuse a request from another provider to make an interconnection and to refer to a provider not obstructing or impeding another provider in making an interconnection. Alternatively, the subsection might have stated that the provider should not “prevent” another provider from making an interconnection.

The second comment is that if section 46(1) is construed literally as a negative prohibition, CWWI’s compliance with that prohibition i.e. not refusing, obstructing or impeding Digicel SLU would suggest a result whereby Digicel SLU could make an interconnection with CWWI’s network. That result would only follow if Digicel SLU had a pre-existing right to make an interconnection which was not to be refused or obstructed or impeded by CWWI. Of course, as a matter of general law, Digicel SLU did not have a pre-existing right to install specialist equipment at CWWI’s switch site.

I have therefore considered whether the 2000 Act conferred such a right upon Digicel SLU. Although this argument was not relied upon by either party, it is possible that section 50(1) (notwithstanding its somewhat limited heading) would allow Digicel SLU to go to CWWI’s switch site and install equipment at that switch site for the purpose of interconnecting Digicel SLU’s network with CWWI’s network. Section 50(1) refers to a “site”. That word is defined in section 4 of the 2000 Act to refer to land or a building on land or a structure on land. If section 50(1) were to be interpreted to give Digicel SLU the right to go to CWWI’s switch site in that way, then section 46(1) could be construed literally to impose on CWWI a negative prohibition on any obstructing or impeding of Digicel SLU, in the exercise of that right. Read that way, section 46(1) would not impose a positive obligation on CWWI at any time to order, install and test specialist equipment to use at CWWI’s end of physical interconnection.

I have also considered whether section 46(1) might be read as dealing primarily, if not exclusively, with contractual interconnection so that the duty upon CWWI, if there were to be such a duty, to order, install and test specialist equipment at its end of the interconnection would be a duty undertaken as one of the express terms of an interconnection agreement rather than a duty imposed by the statute itself.

Although I have considered the possibility that section 46(1) takes effect, in accordance with its express terms, as a negative obligation and not so as to create a positive duty and although I see some force in an argument that section 46(1) is concentrating primarily, if not exclusively, on contractual interconnection, in the end, I have decided not to pursue these possibilities any further. The Defendants have been prepared to accept that section 46(1) refers to physical interconnection as well as contractual interconnection and have further been prepared to accept that section 46(1) imposes on the Defendant a positive obligation, at an appropriate stage in the process, to order, install and test the equipment at its end of the physical interconnection. Accordingly, I will now make my choice between the stances adopted by the parties in this case and give my reasons for that choice.

In my view, the Claimants’ contention that section 46(1) and regulation 5 are dealing only with physical interconnection is wrong. The definition of “interconnection” in section 4 of the 2000 Act is the connection of two systems etc “involving a physical link or interface”. I read “involving” in the sense that interconnection must contain a physical link or interface as a necessary part. That does not mean that interconnection refers only to that physical link and not to anything else. If it had been intended to define “interconnection” to refer only to the physical link the definition would have been expressed so that interconnection meant “the physical link or interface between two or more separate telecommunications systems etc.”.

The principal difficulty with the Claimants’ construction of section 46(1) is that, if the Claimants were right, then the Act would not have imposed on the incumbent network operator any duty in relation to contractual interconnection. If the Claimants were right, the incumbent would be obliged to provide physical interconnection between the two networks but then could refuse absolutely to agree any terms for interconnection and, in the absence of an agreement as to those terms, the incumbent could refuse to permit the passage of live traffic from the new entrant onto the incumbent’s network. If that were the result, it would be clear that the Act had failed to achieve what was evidently its object, namely, to produce an outcome whereby the new entrant could pass live traffic through the interconnection onto the incumbent’s network. When this point was put to the Claimants in argument, they appeared to accept that this was the result of their argument. Indeed, I understood them to accept this was the position under the regulations also, although I think that is less clear.

The Claimants appeared to be relatively unconcerned about a conclusion to the effect that the Act did not achieve anything in relation to contractual interconnection. That was because it suited the Claimants’ case, as they saw it, to make their principal attack on the Defendants that the Defendants had failed to achieve physical interconnection as required by section 46(1), because the Defendants had refused to take any step towards physical interconnection and, in particular, had refused to order the necessary equipment, until the parties had negotiated the terms of an interconnection agreement. Although the Claimants’ construction of the provisions might suit the Claimants’ purpose in the present litigation, a court when construing these provisions should consider which of the rival constructions makes better sense, having regard to the evident purpose of the provisions. In this way, I readily conclude that the Claimants’ construction is difficult to justify when measured against the purpose of these provisions and the court would only be minded to accept the Claimants’ construction if it were driven so to do.

I do not feel driven to accept the Claimants’ interpretation of section 46(1). I do not regard the reference to “making an interconnection” in section 46(1) as being expressed in such clear terms that it is restricted to physical interconnection only. In any event, the grammatical infelicity of section 46(1) does not encourage me to place undue weight upon the word “making” alone. The reference in section 46(4) to the parties agreeing a date when interconnection will be effected might be thought to be a little unrealistic, whether the section is dealing with physical interconnection alone or with both physical and contractual interconnection. In the case of physical interconnection, to some extent, matters could be outside the complete control of the network owner. The equipment may have to be ordered from a third party supplier. The fact that section 46 and other sections refer, some of the time, to “interconnection” and other times to an “interconnection service” is a point which merits consideration but, at the end of the day, I do not find there to be such clarity in the various uses of those phrases as to restrict “interconnection” to physical interconnection only. Indeed, section 46(7) proceeds on the basis that an “interconnection service” is to be provided in accordance with section 46 which, elsewhere, refers to making or effecting an “interconnection”.

As regards the regulations, I again reject the Claimants’ submission that regulation 5 is restricted to physical interconnection. The various definitions in regulation 3 which refer to interconnection do not compel the conclusion that “interconnection” in the regulations is restricted to physical interconnection.

For the above reasons, in relation to the choice between the Claimants’ submissions and the Defendants’ submissions as to the operation of section 46(1) of the Act and of regulation 5, I prefer the Defendants’ submissions. This means that section 46(1) and regulation 5 are not restricted to dealing with physical interconnection but refer to both physical and contractual interconnection. In view of the fact that the Defendants have accepted that section 46(1), notwithstanding its negative language, imposes on the Defendants a positive duty in relation to physical interconnection, requiring the Defendants to take action at an appropriate stage in the process, I will proceed on the basis that section 46(1) does indeed impose that obligation.

I have not so far discussed all of the points of detail which arise under the 2000 Act and under the regulations as regards the content of the duties imposed. Many of those detailed points are best considered in the context of the specific findings of fact I will in due course make in relation to SLU. However, there are four important subjects which require separate consideration. The first is whether the 2000 Act and/or the regulations imposed any relevant duty on the incumbent operator before Digicel SLU obtained a licence to operate a mobile telecommunications network in SLU. The second is whether the 2000 Act and/or the regulations imposed a duty on CWWI to order and, as appropriate, to install and test the specialist equipment needed to complete CWWI’s side of physical interconnection before the parties had made an interconnection agreement. The third is whether the 2000 Act and/or the regulations imposed on CWWI a duty to carry out what had been described as the civil works (for example digging a trench and laying fibre to connect Digicel’s switch site with CWWI’s switch site) before the parties had made an interconnection agreement. Finally, the fourth subject concerns what has been called “leverage”, which I will describe in more detail below.

As regards the first question as to any duties placed on CWWI under the Act and/or the regulations before Digicel SLU obtained its licence to operate a mobile telecommunications in SLU, the position is now clear. I have referred to the situation, in passing, when discussing the operation of section 46(1). It is clear that section 46(1) does not impose a duty on CWWI, which is owed to Digicel SLU, at any time prior to the date when Digicel SLU became licensed to operate a telecommunications network in SLU. The same comment applies in relation to regulation 5.

The second question is whether CWWI was under an obligation to order and install and test the specialist equipment for its side of the physical interconnection before the parties had concluded the terms of an interconnection agreement and/or before those terms were approved by the regulator. Having already reached the conclusion that section 46(1) of the Act and regulation 5 refer to both physical and contractual interconnection, this question must be addressed on that basis.

The Claimants contend that if section 46(1) of the Act and regulation 5 are dealing with both physical and contractual interconnection and if, as the Defendants accept, CWWI was under a positive duty at some stage in the process to order, install and test the specialist equipment for its side of the interconnection then this means, the Claimants say, that the Defendants were to take positive action to avoid obstructing or impeding physical and contractual interconnection (section 46(1)) and the Defendants were to act in a manner which enabled physical and contractual interconnection to be established as soon as reasonably practicable (regulation 5). The Claimants then say that if the specialist equipment had been ordered by CWWI, and installed and tested thereafter, in parallel with continuing negotiations in respect of the interconnection agreement, then the date by which the parties would have achieved both physical and contractual interconnection would have been an earlier date, as compared with the result of a process whereby the parties negotiated an interconnection agreement and only following completion of those negotiations and/or approval of the agreement by the regulator, did CWWI order the necessary equipment for its side of the interconnection. In short, the Claimants submit that it is obviously faster for ordering equipment and negotiating an interconnection agreement to proceed in parallel, rather than in sequence.

At the trial, the Claimants accepted that the equipment to be ordered by CWWI for its side of the interconnection would ultimately be paid for by Digicel SLU: see section 48 of the Act. The Claimants also accepted that CWWI could reasonably ask Digicel SLU to provide security for CWWI’s right to be reimbursed the cost of the equipment. Indeed, Digicel SLU went further and accepted that CWWI could insist on more than mere security for reimbursement and could require payment up front, or a cash deposit, so that CWWI would not suffer a cash flow disadvantage by having to pay for the equipment in the first instance and then wait for reimbursement. In this way, the Claimants came to accept that if the parties, by agreement, were to take the course of ordering and installing and testing equipment before the conclusion of negotiations on an interconnection agreement, it would be necessary to agree a certain number of matters. If CWWI were to be content with security for reimbursement of the costs, then an appropriate contract providing for that security would have to be negotiated. If CWWI wished to have payment upfront or a cash deposit then again an agreement to that effect would have to be negotiated. If CWWI agreed upon a figure for payment up front, or a cash deposit, the possibility would exist that the overall charge might subsequently turn out to be higher than foreseen and even with payment up front, or a cash deposit, there might need to be further terms agreed as to any shortfall that might later emerge. As regards installation and testing, there would need to be agreement as to the standards to be adopted for those purposes although the Claimants suggested that, on the evidence, those matters would have been relatively straightforward and, indeed, much more straightforward than would be suggested by the length of the documents dealing with those matters, which were in fact later agreed as part of the interconnection agreement.

The Claimants’ submission was that, even if it were necessary to agree a certain number of matters to enable CWWI to proceed to ordering, installing and testing specialist equipment it needed for its side of interconnection, it would still have been worthwhile negotiating such an agreement and ordering the equipment in parallel with the wider negotiations, which could continue in relation to all the other terms of the interconnection agreement, including the all important subject of rates. In summary, the Claimants contended that there was, in effect, an obligation upon CWWI to order the technical equipment it needed unless CWWI could satisfy the Court that it had a good commercial reason for not proceeding in that way.

The Defendants submitted that CWWI was not obliged to take any steps towards ordering, much less installing and testing, the specialist equipment needed for its side of interconnection prior to the parties concluding an interconnection agreement and/or that agreement being approved by the regulator. Indeed, the Defendants went further and submitted that on the true construction of the 2000 Act, the parties were prohibited from making an ad hoc agreement dealing with the question of ordering, installation and testing and/or were prohibited from ordering the equipment without such an ad hoc agreement. Although the Defendants submitted that they did not have to succeed with their argument as to the existence of a prohibition, it seems to me to be logical to consider that argument first before turning to the other ways in which the Defendants put their case.

The Defendants’ argument that they were prohibited by the statute from ordering equipment before concluding an interconnection agreement is based on section 47(1) of the Act. Section 47(1) provides:

“No person shall enter into any interconnection agreement, implement or provide interconnection service without first submitting the proposed agreement to the Commission for its approval, which approval shall be in writing.”

The Defendants say that pre-ordering equipment, with or without an ad hoc agreement, would involve implementing or providing an interconnection service and that could not be done without an agreement being approved by the Commission. It was implicit in this submission that the agreement which was to be approved by the Commission was the full interconnection agreement. If that submission were correct then it would follow that the parties had to negotiate an interconnection agreement and have the same approved before CWWI would be able to order its specialist equipment.

Section 47(1) refers to “any interconnection agreement”. “Interconnection agreement” is not defined in the Act. No doubt, the final agreement between the parties which contains all the relevant provisions as to physical interconnection and as to the provision of interconnection services into the future would be an interconnection agreement. It is much less clear whether an ad hoc agreement providing for the ordering of specialist equipment would itself be an interconnection agreement. I can see that it might be said that an ad hoc agreement which provided not only for ordering equipment but also for installation and testing of that equipment, in accordance with detailed standards, is beginning to look more like an interconnection agreement, than not.

The Defendants focused on the part of section 47(1) which prevented a person implementing or providing an interconnection service. It was said that ordering specialist equipment for the purpose of interconnection and, even more so, installing and testing that equipment was providing an interconnection service. If the word “provide” were more apt to refer to the continued provision of a service which allowed commercial traffic to pass from Digicel SLU’s network to CWWI’s network, then the Defendants emphasised the word “implement”. It was submitted that by ordering equipment and, even more so, installing and testing that equipment, one was implementing an interconnection service.

I can readily understand why the terms of a full interconnection agreement have to be approved by the regulator. The regulator will want to ensure that those terms are not against the public interest, even where they are perceived by the parties to the agreement to be in their private interests. This has particular relevance in connection with the rates chargeable by one party to the other party, which rates will influence the amount of the charges ultimately paid by the consumer. It is less clear why the regulator would wish to consider and, if appropriate, withhold approval to any other form of agreement, such as an ad hoc agreement dealing with ordering equipment or installing and testing equipment. Indeed, regulation 20, which requires the parties to submit an agreement to the regulator for approval, refers only to a proposed interconnection agreement and this phrase is more apt to refer to an agreement which deals with physical interconnection and the ongoing provision of an interconnection service. Nonetheless, it was submitted by the Defendants that an ad hoc agreement as to ordering equipment might deserve to be scrutinised by the regulator to ensure that the parties had complied with section 48 of the Act, which required the cost of establishing an interconnection to be based on cost oriented rates which had been arrived at in a transparent manner. Accordingly, I can see the possibility that section 47(1) might have contemplated that an agreement, which falls short of a full interconnection agreement, might need to be submitted to the regulator. That possibility is, if anything, made more likely because section 47(1) uses the phrase “the proposed agreement” and that suggests that the agreement in question might not be an interconnection agreement but some other ad hoc agreement.

I am not wholly satisfied that section 47(1) does apply to a case where the parties agree limited terms as to the ordering of equipment, before they conclude their negotiations on an interconnection agreement. I reach a similar view as to an ad hoc agreement providing not only for ordering equipment but also for installation and testing of equipment. If, contrary to those reservations, section 47(1) does apply to an ad hoc agreement providing for ordering of equipment before the conclusion of negotiation for an interconnection agreement, then in my judgment section 47(1) does not impose an absolute prohibition on the parties making such an agreement but only requires them to submit that ad hoc agreement to the regulator for approval before the ad hoc agreement is carried into effect. On that basis, section 47(1) does not prohibit pre-ordering of equipment as the Defendants contended but it would, or might, impose the requirement of prior approval by the regulator of an ad hoc agreement before that agreement was implemented. It must be recognised that any such requirement for approval from the regulator would introduce some element of delay into the pre-ordering process and that might be seen as discouraging the parties from bothering with pre-ordering and might encourage them instead to concentrate upon concluding the negotiations on all aspects of the interconnection agreement rather than seeking to make an ad hoc agreement as a step on the way.

Putting the possibility of a prohibition on pre-ordering pursuant to section 47(1) of the Act on one side, the Defendants submitted that the express terms of the Act and, even more so, the regulations showed that it was contemplated that the parties would conclude an interconnection agreement, which agreement would provide for the subsequent ordering, installation and testing of equipment and then that agreement would be implemented in accordance with its terms. The Defendants submit that since section 46(1) of the Act refers to interconnection, meaning both physical and contractual interconnection, there is no express direction there, or elsewhere, in the Act that physical interconnection is to be dealt with as a priority matter in advance of negotiations on the interconnection agreement. When one turns to the regulations, it is again submitted that regulation 5 contains no direction that physical interconnection is to be attended to first. Indeed, the Defendants submit regulation 16 clearly contemplates that the parties will enter into an interconnection agreement, which will provide for the subsequent ordering, installation and testing of equipment, and those steps will then be taken by way of implementation of the agreement. The Defendants refer in particular to paragraph (b) of regulation 16(1) which refers to the capacity of the interconnection service level, to paragraph (e) which refers to “forecasting, ordering, provisioning and testing procedures”, to paragraph (g) which refers to various aspects of the points of interconnection, to paragraph (p) which refers to technical specifications and standards, to paragraph (q) which refers to terms of payment, to paragraph (t) which refers to the scope and description of the interconnection services to be provided, to paragraph (u) which refers to various other technical matters and, finally, to paragraph (y) which refers to the obligations and responsibilities of each party in the event that inadequate or defective equipment was connected to a network.

I can now express my conclusions as to the effect of the Act and the regulations on this question of a possible obligation on CWWI to order and install and test equipment prior to the conclusion of negotiations on the interconnection agreement. My overall conclusion is that there is no provision in the Act or the regulations which specifically requires CWWI to order first and conclude negotiations on the agreement second. Conversely, there is no provision in the Act or the regulations which prohibits CWWI from acting in that way save, possibly, the provisions of section 47(1) which might mean that CWWI had to submit any ad hoc agreement on ordering (and installation and testing) to the regulator before it was implemented. The way in which the parties were to be expected to address these matters, and in particular, the way in which the parties were to use the time available to them is provided for in section 46(1) by use of the words “obstruct” and “impede” and in regulation 5 by use of the phrase “as soon as reasonably practicable”. In section 46(1) the word “obstruct” has the sense of making progress or activity difficult. The word “impede” has the sense of restricting or retarding action or progress by hindering or obstructing. Accordingly, the word “impede”, at least, has some content which is concerned with the use of time.

The other relevant matter which appears from the Act and the regulations is that it was expected that the parties would engage in commercial negotiations on the terms of an interconnection agreement but that if they were unable to reach an agreement, the matter would be determined by the regulator. Section 47(3) of the Act refers to the parties negotiating an interconnection agreement. Regulation 28(1) refers to the parties negotiating in good faith for a reasonable period following which either party might request the assistance of the regulator in resolving their dispute. In such a case, the regulator might direct the parties to continue interconnection negotiations and under regulation 28(5) the regulator was able to set a time limit within which negotiations were to be completed what should happen if agreement was not reached within that time limit.

In summary, therefore, I hold that there was no express obligation upon CWWI to order or install or test equipment before concluding negotiations on an interconnection agreement and, conversely, there was no prohibition on them doing so, subject to the possibility that an ad hoc agreement on those matters might need to be submitted to the regulator for approval under section 47(1) of the Act.

The third question is whether the 2000 Act and/or the regulations imposed on CWWI a duty to carry out the civil works before the parties had made an interconnection agreement. In my judgment, the position in relation to the third question is the same as the position I have now considered in detail as to the second question dealing with pre-ordering and installing and testing equipment before the parties had concluded negotiations for an interconnection agreement.

The fourth question concerns what has been called “leverage”. The parties have used the term “leverage” to refer to a reason which CWWI had for taking the position in negotiations with Digicel SLU that CWWI would not order the equipment needed for its side of physical interconnection (and would not carry out the necessary civil works) until the parties had agreed the terms of an interconnection agreement, which provided for the ordering of equipment and the carrying out of civil works. CWWI was influenced in taking this position by the belief that this stance would help CWWI to negotiate favourable terms with Digicel SLU, because Digicel SLU was in a hurry to complete interconnection and would therefore be under more time pressure to agree the terms of an interconnection agreement, if those terms had to be agreed before the process of ordering equipment and the carrying out of civil works would even be started. The question is whether it was permissible for CWWI, in the course of commercial negotiations, and in compliance with the duties upon it, to act in this way.

The issue is whether, in all the circumstances, this conduct of CWWI infringed section 46(1) because it impeded, in the sense of delayed, the date when physical and contractual interconnection were achieved and, further, whether CWWI acted in a manner that enabled interconnection to be established as soon as reasonably practicable as required by regulation 5. Both of these provisions, insofar as they contain a time element, must be applied to a process which contemplated that the parties would conduct commercial negotiations with a view to concluding an interconnection agreement but that there was a possibility that such negotiations might not succeed and other steps might need to be taken to arrive at contractual terms binding both parties.

The Claimants say that a decision to postpone the ordering of equipment until the parties have agreed the terms of an interconnection agreement, for the purpose of gaining leverage in the negotiations, can never be justified. This seems to be a submission of law as to the content of the obligations imposed by section 46(1) of the 2000 Act and regulation 5 of the regulations. The Claimants submit that the use of this leverage is an unlawful collateral purpose. They say that interconnection negotiations are not like “pure” commercial negotiations in that the parties are not entitled to act in an entirely self-interested fashion. In particular, the incumbent has a statutory obligation to enter into such negotiations. The negotiations are to be against the background of the regulatory controls in the 2000 Act and the regulations. CWWI cannot use what might be otherwise normal negotiating tactics to place Digicel SLU at a disadvantage. That would be anti-competitive. The Claimants submit that CWWI’s approach “inevitably” caused delay. Whilst it might be appropriate to delay ordering equipment if there were a difference between the parties as to the terms on which physical interconnection was to be allowed, this leverage must not be used to influence the negotiations as to rates. It is submitted that the illegality of CWWI’s behaviour is demonstrated by the fact that CWWI was not prepared to own up to this strategy at the time.

The Defendants submit that when I am asked to apply the provisions of the statute and of the regulations, and in particular the provisions dealing with the time needed to achieve both physical and contractual interconnection, I should bear in mind what is ordinarily involved in commercial negotiations. It is submitted that I should not interpret, or apply, the provisions of the statute and the regulations in a way which would outlaw usual features of commercial negotiation, unless the words of the statute or regulations clearly so require.

The Defendants submit, and I accept, that it is very common indeed for commercial parties to negotiate and then agree the terms of a contract which will govern their relations, before they begin to implement their contract. It may be worth asking why this is normal commercial behaviour. If parties in the course of negotiating a contract seek to anticipate the result they may arrive at by taking steps which will later be governed by the concluded agreement, difficulties can arise. What rights and obligations govern those steps before the parties reach a concluded agreement on their relationship? What happens if the parties fail to reach a concluded agreement and the negotiations break down? It is of course possible for the parties to make two agreements; the first agreement being an ad hoc agreement dealing with the steps being taken in anticipation of a wider concluded agreement and the second agreement being the wider concluded agreement. However, it may in fact take more time to attempt to agree an ad hoc agreement as well as a wider agreement, as compared with simply getting on with the negotiations for the wider agreement, leading to its later implementation. Of course, if both parties want early action before they conclude the wider agreement then both parties may choose to take those steps and to take any risks that might be involved. However, if one party wants action to be taken in advance of the wider agreement and the other party has no reason of his own to want to take those steps then the second party may see that he has a considerable bargaining advantage in insisting upon the conclusion of the wider agreement before the first party gets the benefits of the implementation of that agreement. In my judgment, these general commercial considerations would appear to be relevant considerations in the present context also.

Furthermore, there is, in the evidence, material which suggests that the persons negotiating interconnection agreements operate under the usual rules which apply to commercial negotiations and do use such negotiating advantages as may be available to them. On the question of whether the incumbent operator has a negotiating advantage as a result of the new entrant’s eagerness to have the interconnection equipment ordered in advance of the interconnection agreement, this matter was clearly in the mind of Mr Thompson in SLU and elsewhere.

The existence of this negotiating advantage is also consistent with other evidence in the case. Mr Batchelor, a witness called by the Defendants, told me that his experience was that the standard behaviour was for the parties to enter into an interconnection agreement first and then to implement that agreement by, amongst other things, ordering the necessary interconnection equipment. It was suggested by the Claimants that this evidence had no relevance to the jurisdictions with which I am concerned. It was suggested that the regulatory framework which was the background to Mr Batchelor’s evidence was quite different from the regulatory position in the seven jurisdictions in this case. However, I am relying upon this evidence only to the extent that it confirms the conclusion that one would reach in any event that: (1) the process of negotiating an interconnection agreement involves each party taking advantage of its bargaining points; and (2) an incumbent operator has a bargaining advantage, when negotiating the terms of an interconnection agreement, if he declines to give to the new entrant the benefit of the equipment being ordered before the interconnection agreement is finalised. Any differences in the regulatory framework do not prevent me reaching those conclusions based on his evidence.

Mr Batchelor’s evidence was supported by the evidence of other witnesses, in particular Mr Fisher and Mr McNaughton, who gave evidence of similar experiences.

The Claimants relied upon the evidence of Mr Logan, an expert instructed on their behalf. He stated that he had never come across a party to negotiations as to the terms of an interconnection agreement insisting that the ordering of equipment or the carrying out of civil works should await conclusion of the interconnection agreement. The other experts, Mr Short and Mr Webb, did not refer to any experience they had had in this respect. Mr Logan was not called to give oral evidence and he was not cross-examined. The parties are agreed that I am free to accept or reject expert evidence if I have good reason to do so, even in a case where the relevant evidence of the expert was not challenged by cross-examination. I do not reject the evidence of Mr Logan in so far as he describes the position in the cases that he has encountered. I accept his evidence that he has not himself come across a case of a party to negotiations for an interconnection agreement declining to order equipment before the conclusion of those negotiations and/or to refuse to commence civil work before the conclusion of negotiations. However, it is clear from the evidence in this case that other persons have had a different experience.

In these circumstances, I reach the following conclusion, as to the usual position of parties to negotiations where one party is under time pressure and wishes some step to be taken prior to the conclusion of those negotiations and the other party is not under time pressure and does not have any reason of his own to see that step taken prior to the conclusion of negotiations. In such negotiations, the second party has a bargaining advantage which it is ordinarily legitimate for that party to use to encourage the first party to agree terms which might be more favourable to the second party, so that the agreed terms can then be implemented and the step which the first party wants to see taken can then be taken in accordance with the agreed terms.

There is a further consideration which needs to be addressed. The criticism of CWWI is that its negotiating stance inevitably lengthened the period of time taken by the parties to complete contractual and physical interconnection. Digicel SLU submits that negotiating terms and ordering equipment in parallel will inevitably be faster than negotiating terms and ordering equipment in sequence. At first blush, this sounds right but the submission assumes that the time taken for negotiations is the same in each case. The submission ignores the possibility that CWWI’s stance in the negotiations could also cause the negotiations on the terms to proceed more quickly. If Digicel SLU truly was in a hurry to complete interconnection then it might be expected to conclude negotiations by agreeing terms quickly so that it could move on to the stage of CWWI ordering and installing equipment. There is a lot of conflicting evidence as to the time taken from ordering until delivery of the necessary equipment. Let us assume that in a particular case, that period is 8 weeks. The time taken for concluding negotiations was not predictable in advance but could take some months. If CWWI’s negotiating stance caused the negotiations to be concluded more quickly, by more than 8 weeks, then the result would be that its stance had led to the conclusion of both contractual and physical interconnection more quickly. The point may also have partial, if not total, validity. One might have to set off the time saved in completing negotiations against the delay caused by only ordering equipment after the completion of negotiations. Indeed, on the facts in the case of SLU, it can be argued that CWWI’s insistence on agreeing the terms of an interconnection agreement before ordering equipment contributed to the parties breaking the deadlock in their negotiations in January 2003. It could be said that if the equipment had been ordered by CWWI before January 2003, Digicel SLU would have been less prepared to agree the terms which it did agree in January 2003. Of course, there are other possibilities. If the CWWI equipment had been ordered and delivered, then Digicel SLU might have been able to persuade the Ministers in SLU or the regulator to put even more pressure on CWWI to install the equipment and allow traffic to be carried. These various possibilities are speculative but the point remains that amongst the possibilities, there is the chance that CWWI’s stance in the negotiations about ordering equipment did in the end speed up the point when the parties managed to bridge what had earlier been an unbridgeable gap in the negotiations about rates.

I have found this fourth question difficult. There are strong competing arguments. However, my conclusion is that the 2000 Act and the regulations contemplate that the parties will engage in ordinary commercial negotiations and, if they do not agree, the relevant terms will be determined by the regulator. I conclude that there is nothing in section 46(1) or regulation 5 which says one way or the other whether a party is able to adopt, or disabled from adopting, a negotiating stance which would be a rational negotiating stance in the context of ordinary commercial negotiations. It follows that these provisions do not outlaw the negotiating stance, based on the leverage described above, adopted by CWWI in SLU. CWWI did not break the duty placed on it by section 46(1) or regulation 5 by adopting that stance.

The Claimants made a further point in connection with the leverage argument. They said that CWWI was not only influenced by a desire to improve its negotiating position as against Digicel SLU, it was also influenced by a desire to pressurise the regulator into approving the terms which CWWI and Digicel SLU would eventually agree. It was said that the way in which this pressure would come about was as follows. It would inevitably take a considerable time for the parties to agree terms. Those terms would have to be approved by the regulator. Only after approval was given, would CWWI be prepared to order the equipment. The regulator would be eager to see the completion of interconnection and would not want to withhold approval as that would mean that the equipment could not be ordered until the parties agreed revised terms, and those terms were approved, or the regulator stepped in and itself determined the terms. The Claimants submitted that, whatever the position about the use of leverage against Digicel SLU, it must have been a breach of the duties in question for CWWI to seek to pressurise the regulator. On the facts, I accept that CWWI did have in mind not only that its negotiating stance might improve its position as against Digicel SLU but also that it might encourage the regulator to approve the terms ultimately agreed by the parties.

The first point to make in relation to this submission about pressurising the regulator is that CWWI’s tactic should not have any adverse effect on the time taken for the parties to reach agreement on the terms of an interconnection agreement. It is even conceivable that this tactic would speed up the time taken by the parties to reach an agreement. That time taken to reach an agreement should not be lengthened because CWWI is influenced by two considerations, namely, leverage against Digicel SLU and, in addition, a desire to put pressure on the regulator as compared with CWWI being influenced by only the first of those two.

The second point is that in SLU, CWWI did order equipment before the agreed terms were submitted to the regulator for approval.

The third point is that the Claimants’ criticism of CWWI’s desire to pressurise the regulator is being put forward to show that CWWI acted in breach of a duty not to delay interconnection. But the way the submission is put by the Claimants shows that, if it were possible that CWWI’s tactic might work with the regulator, it would produce the result that the tactic would speed things up in some respects, rather than slow them down (as well as giving CWWI and Digicel SLU the benefit that the agreed terms would be approved). The possibilities of the tactic being successful would be that the regulator would approve the agreed terms more quickly or that he would approve them rather than decline to approve them. Both possibilities involve that aspect of the matter proceeding more quickly. Accordingly, one would have to consider whether the delay caused by not ordering equipment after the parties had agreed terms was counterbalanced in whole or in part by any time saved in relation to obtaining the regulator’s approval to the agreed terms.

Accordingly, I conclude that the use by CWWI of leverage as against Digicel SLU was not a breach of section 46(1) of the 2000 Act, nor of regulation 5. I also conclude that insofar as CWWI’s behaviour was influenced by the possible effect on the regulator, that did not affect the passage of time up to the point when the parties agreed terms and, on the facts, CWWI did not delay ordering the equipment after making the interconnection agreement (as it in fact ordered the equipment just before making that agreement).

The next question is whether any breach of the primary or secondary legislation in SLU gives rise to a cause of action for that breach. That question arises not only in SLU but also in some of the other jurisdictions with which this litigation is concerned. To answer the question, it is necessary to consider, first, the general legal principles which apply in this area and then to consider the detailed provisions in SLU itself.

The parties do not significantly disagree as to the general legal principles which apply for the purpose of answering the question whether a breach of a statutory duty is actionable. The parties differ as to the emphasis they place on the various considerations in play. Because the general legal principles are relevant not only in SLU but also in some of the other jurisdictions, I have set out those principles in Annex H to this judgment. In Annex H, I refer to some of the more important authorities on this question and I identify the various matters to which attention needs to be given when one examines the individual statute or the regulations in question.

Having reviewed the authorities, as explained in Annex H, when I come to examine the individual statute or the individual regulations in question, I consider that I should address myself to the following principal matters:

for whose benefit was the statute or the regulations passed?

if the statute or regulations were passed to benefit public and private interests, which was the primary object?

for whose benefit was the particular provision enacted?

if the particular provision was passed to benefit both public and private interests, which was the primary object?

has the duty been expressed in terms which make it suitable for actionability?

what is the class of persons who might suffer harm as a result of a breach of duty?

does the expected harm take the form of economic loss or damage to the person or damage to property?

on what type of person is the duty imposed – is it a public authority or a private entity?

does the statute or the regulations impose a sanction for breach of duty: the sanction may be a criminal sanction or something else, such as the suspension or revocation of a benefit?

how adequate is the sanction imposed?

does the statute or the regulations provide a means of enforcement of the duty?

if so, does the omission to provide for a right to claim damages point to an intention not to allow a claim to damages?

do the means of enforcement raise questions of discretion or policy with the result that actionability in the courts would or might proceed on a different basis?

how adequate are the means of enforcement?

overall, having regard to the above and any other relevant matters, what did the legislature intend as regards actionability of a breach of duty?

The relevant provisions of the Telecommunications Act 2000 in SLU are set out in Annex A to this judgment. I have set out above the matters which require attention when considering whether a breach of section 46(1) of the 2000 Act is actionable. I will now discuss those matters in turn.

In my judgment, the 2000 Act was primarily passed in the public interest rather than for the benefit of telecommunications operators. That appears clearly from the provisions of the ECTEL Treaty and section 3 of the 2000 Act. Section 3 spells out in some detail the objects of the Act. As regards the object of the particular provision, section 46(1) of the 2000 Act, in my judgment, that provision was enacted to advance the general purposes of the Act as a whole. The primary object of section 46(1) was to advance the public interest although it is clear that compliance with the statutory duty is also for the benefit of the telecommunications provider who requests interconnection.

As to the terms in which section 46(1) is expressed and whether those terms make the duty suitable or unsuitable for actionability, I have considered in some detail earlier in this judgment the meaning and effect of section 46(1). Whilst the sub-section is challenging to construe, I would not on that account hold that the duty is not suitable for actionability. The construction I have placed on section 46(1) does not mean that section 46(1) is to be re-written as an obligation to negotiate in good faith as the parties from time to time have argued in this case. If the duty had been a duty to negotiate in good faith, that would be a reason for my hesitating before holding that there was an intention to make a breach of that duty actionable.

The class of persons who will suffer harm as a result of a breach of section 46(1) can be described as follows. Consistent with my conclusion that the primary object of section 46(1) is to benefit the public, then the public will suffer harm if the duty is broken. In addition, the particular telecommunications provider who requests interconnection will suffer harm to its enterprise. The harm is economic loss rather than damage to the person or damage to property. The person on whom the duty is imposed is not a public authority administering public welfare legislation, but is a private entity.

The 2000 Act does impose a sanction for a breach of section 46(1). That sanction is not a criminal sanction but a sanction exists pursuant to section 41 of the 2000 Act, whereby the Minister may suspend or revoke the licence of the incumbent operator if the licensee contravenes section 46(1) of the Act. This sanction is an important deterrent against a contravention of section 46(1). It may be that the Minister would hesitate before suspending or revoking the licence of the operator of the fixed telecommunications network and this consideration may lessen the impact of the deterrent of suspension or revocation. However, the Minister may be persuaded to revoke the existing licence and offer a new licence to the operator on more stringent terms and that could operate as a worthwhile deterrent. The power to suspend or revoke a licence conferred by section 41 is a penalty provision by reason of the contravention and is not designed to be a remedial provision. A remedial provision would be a provision which directly provided for the party in breach of duty to perform the duty. The fact that section 41 is not a remedial provision is shown by the fact that if the fixed network operator’s licence was revoked then that operator would cease to be under the duty imposed by section 46(1) until the time came when the operator was granted a new licence, possibly on more stringent terms as referred to above.

It is of the greatest significance, in my judgment, that the 2000 Act provides in considerable detail for a means of enforcement of the relevant duty, principally through the involvement of the regulator. The 2000 Act contains numerous relevant provisions, the principal ones being section 12(1)(k), section 13(2)(c), sections 16 to 24 and the power to make regulations in section 74(2) (see, in particular, paragraphs d), e), n), o).) In addition to these provisions, it is necessary to consider carefully the meaning and effect of sections 58 and 72 of the 2000 Act, to which I refer in more detail below. On the question whether the means of enforcement through the medium of the regulator could raise questions of discretion or policy with the result that actionability in the courts would proceed on a different basis, I refer to section 15 and section 24 which do indeed give rise to this possibility.

Section 58 provides that the court may on the application of the Commission, “or an interested party”, “grant an order restraining a person from engaging in activities contrary to this Act”. In a case where an intending new entrant has requested interconnection in accordance with section 46(1) of the Act and the incumbent operator has contravened section 46(1), there would seem to be little doubt but that the intending new entrant is “an interested party”. Section 58(b) refers to an order “restraining” action contrary to the Act. This is the language of a prohibitory injunction rather than a mandatory injunction. However, the particular duty currently being considered is the duty in section 46(1) which refers to “the operator not refusing or obstructing or impeding the making of an interconnection”. There must be considerable room for doubt whether section 58(b) allows the court to make a mandatory order but in view of the fact that section 46(1) is itself expressed in negative terms, that consideration somewhat lessens the doubt on that score. Thus, there are two possible conclusions as to the applicability of section 58(b) in relation to a breach of section 46(1). The first is that section 58(b) does allow someone such as Digicel SLU to seek an order requiring CWWI to comply with section 46(1). The other possibility is that section 58(b) would permit the court to make such an order but only in a negative form and would not permit the court to make a mandatory order against a party in default. Either way, the result is that section 58(b) does provide a means of enforcement in relation to breaches of the Act including a breach of section 46(1). If section 58(b) is given a wider interpretation then the availability of the remedy of an injunction is highly relevant. If section 58(b) is interpreted narrowly, then it follows that the legislature in SLU intended to confer a remedy to the extent of prohibitory injunction but has decided not to confer a remedy in the form of a mandatory injunction.

Section 58 does not mention damages or compensation for breach of duty. It is not clear, on the material before me, whether a court in SLU has power to grant damages in lieu of the grant of an injunction, in the same way as can be done in England and Wales, pursuant to section 50 of the Senior Courts Act 1981. In their written closing submissions, the Claimants argued for the existence of this power for the court in St Lucia. The Defendants argued against the existence of such a power. In their oral closing submissions, the Claimants withdrew the contention that the court in SLU had such a power. In view of the way the matter has been argued, I am not able to decide one way or the other whether the court in SLU does have a power to award damages in lieu of an injunction. Of course, a power to award damages in lieu of an injunction can in some circumstances be a narrower power than the power to award damages for an actionable breach of statutory duty. It seems to me that I ought to consider section 58 on alternative bases, first, that there is a power to award damages in lieu of an injunction and, secondly, that there is no such power.

If the court in SLU does have power to award damages in lieu of an injunction and section 58 confers a power to grant an injunction, then that seems to me to point very strongly against the legislature in SLU intending to create a tort of breach of statutory duty, entitling a court to award an injunction and damages in respect of such a tort. Further, even if the court in SLU does not have the power to award damages in lieu of an injunction, the fact that the legislature had set out in section 58 the extent to which the court is given an express power to intervene in a case of a breach of statutory duty suggests to me that the legislature did not intend to make a breach of statutory duty a tort and thereby entitle the court to award an injunction or damages in respect of that tort.

The last section of the 2000 Act which needs to be considered is section 72. Section 72 is in part VII of the Act. Part VII has the heading “Miscellaneous”. Section 72 has the heading “Liability of public and private officials”. Section 72 provides:

“Where a breach of this Act or licence has been committed by a person other than an individual any individual including a public officer who at the time of the breach was director, manager, supervisor, partner or other similarly responsible individual, may be found individually liable for that breach if,

having regard to the nature of his of St Lucia or her functions;

and his or reasonable ability to prevent that breach;

I confess that I find this a puzzling provision. The position is not exactly helped by the fact that there are some obvious errors in the wording. The words “of St Lucia” in section 72(a) appear to have been wrongly inserted. The word “her” appears to be missing before the words “reasonable ability” in section 72(b).

It is clear that section 72 does not expressly create civil liability for a breach of the Act or a breach of a licence granted under the Act. Section 72 does not say that where there is a breach of the Act, the person in breach of the Act is liable to pay damages or is liable in any other specified way. The Claimants say, however, that section 72 does place civil liability on certain individuals and it is inconceivable that those individuals would be liable without there also being civil liability on the part of the corporate body with which that individual is connected and which corporate body is directly under the duty imposed by the Act. In order to see whether the civil liability of the person subject to the duty is implicit in section 72, one has to attempt to understand what section 72 does expressly provide.

Section 72 refers to a breach being committed “by a person other than an individual” and then refers to “any individual including a public officer”. It seems unlikely that there will be a public officer connected with the telecommunications provider so the reference to a public officer would seem to be a reference to the case where there is a public officer responsible for the activities of a public body, where that public body has a duty under the Act or under a licence. If the implication contended for by the Claimants is correct then it must apply in the case of a public officer as it applies in the case of other individuals. The Claimants’ implication must therefore be that if a public body commits a breach of the Act or a breach of the licence then not only is the public officer liable in damages for the breach but so is the public body itself liable in damages for the breach. The 2000 Act does in various places impose duties on a public body but I am far from satisfied that it could have been the intention of the legislature to give a claim in damages against the public body, and against the public officer, in the event of a breach of any such duty. Section 72 also refers to a breach of a licence. The second schedule to the Act identifies the conditions that may be included, and the conditions that must be included, in such licences. Again, it is not clear what type of duty would be imposed on a public body under a licence and it is even less clear that the legislature would have intended that a breach by a public body of any such condition would give the telecommunications provider a right to sue the public body, and its public officer, in damages for that breach.

Turning then to the other way in which section 72 might operate, how does it apply to a case of a breach of the Act or a breach of a licence committed by a telecommunications provider? Section 72 provides that an individual including a director, manager, supervisor, partner or other similarly responsible individual, can be individually liable for the breach. Thus, the Claimants argue, if a director of a company which is a telecommunications provider contravenes section 46(1) of the Act then that director is “individually liable” for that breach. The Claimants then argue that it is inconceivable in such a case that the telecommunications provider, the corporate body, would not also be liable for the breach. I would agree that it would be surprising if the individual were liable for a breach to a different extent from the liability of the telecommunications provider. The question therefore arises to what extent are the telecommunications provider and the individual “liable”. Are both liable for a tort of breach of statutory duty or are both liable to the remedies which a court can grant under section 58, or are they liable in some other way?

There is a further difficulty with section 72 referring to the liability of an individual which arises from the reference to a breach of a licence. The conditions that may, and the conditions that must, be included in the licences are in the second schedule to the Act. One of the important liabilities of a licensee is to pay a fee to the Government. I find it difficult to envisage that the legislature intended that a responsible individual would be liable for the fee in addition to the liability of the licensee itself.

The Defendants submit that section 72 is not concerned with civil liability at all but is concerned with criminal liability. The Defendants are able to point to examples of a section not wholly dissimilar from section 72 which imposes criminal liability on a responsible individual. Examples are section 67 of the Information and Communications Technology Authority Law 2002 in Cayman and section 59 of the Telecommunications Ordinance 2004 in TCI. Indeed, a provision of that kind appears to be a relatively usual provision; reference can be made to section 29 of the Betting and Lotteries Act 1934, considered in Cutler v Wandsworth Stadium Limited [1949] AC 398. To my mind, there are considerable difficulties in saying that section 72 is dealing with criminal liability and, indeed, criminal liability only, to the exclusion of civil liability. Nothing in section 72 expressly refers to criminal liability. Further, section 72 is in part VII dealing with miscellaneous matters and not in part VI dealing with offences. Further, if section 72 is dealing with criminal liability then the reference to a public officer being responsible is only explained if the Act or a licence created a criminal offence for a public body and there is no sign in the Act of that possibility. Further, even if section 72 did extend to criminal liability, I do not see any real warrant for restricting section 72 to criminal liability only to the exclusion of civil liability.

The question whether a breach of section 46 is actionable has in fact been decided in the Eastern Caribbean Supreme Court. On 5 March 2006, Mason J decided the case of Cariaccess Communications (St Lucia) Ltd v Cable and Wireless (West Indies) Ltd. Amongst the several points dealt with in her judgment, the learned judge considered whether section 46 of the 2000 Act created an actionable duty in tort. She referred to the decisions of the House of Lords in Cutler v Wandsworth Stadium Ltd [1949] AC 398, Lonrho Ltd v Shell Petroleum Co Ltd (No. 2) [1982] AC 173 and X v Bedfordshire CC [1995] 2 AC 733. She held that the 2000 Act was passed for the benefit of the public interest and not for the benefit and protection of private rights and interests. She concluded that a breach of section 46 of the 2000 Act was not actionable as a breach of statutory duty. It is not necessary to spend any time considering whether her decision was part of the ratio of the case or was obiter. Both sides in the case before me have accepted that I am not strictly bound by that decision but I am free to decide for myself the extent to which the decision has persuasive authority in the present case.

Having considered the detailed provisions of the 2000 Act and having paid attention to the matters which need to be considered to determine this issue of actionability, my conclusions are as follows. The indicators in favour of a breach of section 46(1) not being actionable are very much stronger than the indictors the other way.

The indicators against actionability are the purpose of the statute, the purpose of section 46, the terms of section 58, the fact that the loss is economic loss, the existence of sanctions and the existence of detailed provisions for enforcement of the relevant duty. When considering whether the sanctions provided for in the legislation and/or the means of enforcement are adequate to secure the objects of the legislation, or whether they are inadequate for that purpose so that they need the addition of actionability of the duties to make the consequences of a breach adequate to secure those objects, it is relevant to note the following. It is a somewhat odd thing to hold that the legislature, when considering what to specify as the consequences of a breach of duty and when making detailed provision for sanctions for breach of the duty and means of enforcement of the duty, must have understood that those sanctions and those means of enforcement were inadequate, from which one can deduce that the legislature must also have intended to make the breaches of duty actionable, even though it did not expressly provide for that consequence.

The arguments in favour of actionability are that the duty is placed on a private entity and that identifiable persons will suffer harm as a result of a breach of duty. The fact that the duty is expressed in terms which are not unsuitable for actionability is neutral on the question as to whether the duty is actionable.

In addition, I have to assess any implications which might be appropriate from the express terms of section 72, which section is very problematical to construe. In the end, I am not persuaded that I should draw such implications from section 72 so as to override all the other indicators to which I have referred and which point to the duty in question not being actionable. I conclude that a breach of section 46(1) of the 2000 Act is not actionable.

The Claimants also contend that the duty imposed by regulation 5 of the Telecommunications (Interconnection) Regulation is actionable. It is appropriate, again, to consider the general matters which are relevant for the purposes of determining this question. In my judgment, the purpose or object of the regulations, including regulation 5, was primarily to benefit the public interest. I reach the same conclusion in this respect in relation to the regulations as I did in relation to the 2000 Act. The regulations are made pursuant to section 74 of the 2000 Act “to give effect to this Act”. The way in which regulation 5 is expressed does not make it inappropriate for the imposition of actionability. The persons who might suffer harm as a result of a breach of regulation 5 are, first, the public and, secondly, the interconnecting operator. Regulation 5 imposes a duty on a private entity. The loss to the requesting operator will be economic loss. The regulations do not impose a criminal sanction and the power contained in the 2000 Act to suspend or revoke a licence does not arise unless the breach of the regulations is a breach of the licence or suspension or revocation is necessary for reasons of public interest: see section 41(2)(b) and (f). The regulations do provide a means of enforcement: see regulations 28 to 30, 32 and 34. It is possible that the guidelines imposed by regulation 32 on the regulator would not apply to the determination of a dispute by the court (if that were possible) and so there is a possibility of a different approach being taken by the regulator when resolving a dispute and by the court when determining liability for the alleged tort of breach of the regulations. Looking at the matter in the round, in my judgment, the factors in favour of non-actionability are considerably stronger that the factors in favour of actionability. My conclusion is that a breach of regulation 5 is not actionable.

As the regulations do not provide for the duties they impose to be actionable, it is not necessary to consider whether any regulation which did impose an actionable duty would be ultra vires the regulation making power conferred by the 2000 Act.

My conclusion as to the actionability of any breaches of the legislation in SLU means that I could not find that CWWI was liable for any breach of that legislation. Nor could I find that C&W plc was a joint tortfeasor with CWWI in relation to any such breach. This means that it becomes essential, in order for the Claimants to succeed in SLU, that they establish that a breach of the legislation in SLU, or a breach of CWWI’s telecommunications licence, amounts to “unlawful means” for the tort of conspiracy to injure by unlawful means. Of course, because all claims in SLU except (the Claimants argue) the conspiracy claim are statute barred, it has always been essential for the Claimants’ success in relation to SLU for them to establish their conspiracy claim. The first requirement of the conspiracy claim is that the matters complained of amount to “unlawful means”. If the Claimants do not establish that matter, then they have no cause of action in SLU. Although I will, in any event, make findings of fact on the matters of complaint that have been been argued in SLU, I have decided that it would be convenient to deal with the issue as to the scope of “unlawful means” before I make my findings of fact in SLU.

This question arises not only in SLU but also in some of the other jurisdictions with which this litigation is concerned. I have therefore set out in a separate annex to this judgment (Annex I) my understanding of the legal principles relating to this question and indeed other relevant legal principles in relation to the tort of conspiracy to injure by unlawful means.

My conclusion in relation to the scope of “unlawful means”, for the purpose of the tort of conspiracy to injure by unlawful means, is that a breach of a statutory obligation, which is not an actionable breach, and which is not a criminal offence, does not constitute “unlawful means”.

In SLU, the Claimants rely upon the terms of the licence granted to CWWI in so far as those terms prohibit certain specified anti-competitive behaviour. The Claimants say, first, that CWWI contravened the terms of its licence, secondly, that a breach of the licence is a breach of the statute, thirdly that this breach of the statute is actionable and fourthly, that a breach of the licence amounts to unlawful means for the tort of conspiracy to injure by unlawful means and that this is the position whether a breach of the licence is a breach of the statute or not.

The licence to CWWI in SLU contains clauses 6.4 and 6.5 which provide:

The Licensee shall not engage in any activities, whether by act or omission, which have, or are intended to or likely to have, the effect of unfairly preventing, restricting or distorting competition in any market for the Licensed Services as specified in Regulations issued by the Minister.

Without limiting the generality of clause 6.4 above, any such act or omission shall include:

any abuse by the Licensee, either independently or with others, of a dominant position; or

entering into any contract or engaging in any concerted practice with any other party;

Clause 6.6 of this licence provides that for the purposes of clause 6.5.1, a licensee may be considered as having a dominant position if the Commission has designated the Licensee as a dominant telecommunications provider.

Although the Claimants rely upon these provisions in the licence, the allegations of breach in the Claimants’ pleading are unparticularised and the Claimants did not give further particulars when asked for further information. The position in this respect is similar to the position of the pleadings in Barbados, as to abuse of dominant position pursuant to section 16 of the Fair Competition Act 2002. Nonetheless, the Defendants did not press for an order for further particulars to be given and did not apply to strike out the allegations. For the reasons which I spell out in more detail when dealing with the unparticularised claim based on section 16 of the 2002 Act in Barbados, the claim is one which the court must deal with, even though it is not properly particularised.

As will be seen, when I consider the allegation of abuse of dominant position pursuant to section 16 of the Fair Competition Act 2002 in Barbados, I discuss the extent to which general provisions preventing anti-competitive conduct, such as section 16 of the Fair Competition Act 2002, and such as these provisions in the licence, add anything to the specific provisions in the telecommunications legislation and regulations in the relevant jurisdiction, which specifically deal with the question of competition between an incumbent and a new entrant by making detailed provisions as to interconnection between those persons.

For the reasons which I give in relation to section 16 of the Fair Competition Act 2002 in Barbados, I conclude that the relevant competition rules on the subject of interconnection between an incumbent operator and a new entrant are to be found in the specific rules as to interconnection and the general references to prohibitions on anti-competitive practices do not add anything to the specific rules.

In view of my conclusion in the last paragraph that the terms of CWWI’s licence in SLU, dealing generally with anti-competitive conduct, do not add anything to the specific rules contained in the statutes and regulations in SLU, as to interconnection between operators, it may not be strictly necessary to ask whether CWWI’s breach of its licence is also a breach of the statute or the regulations in SLU. However, for the sake of completeness, I will state my conclusion on that subject.

In SLU, the Claimants rely on section 72 of the Telecommunications Act 2000. Section 72 is somewhat challenging to interpret and I have considered it in detail above when considering the question of whether a breach of the 2000 Act is actionable. My conclusion is that section 72 does not have the effect of making a breach of the licence by CWWI a breach of the 2000 Act. Further, I have held that a breach of the statute is not actionable.

In view of my earlier conclusion that the general prohibitions on anti-competitive conduct do not add anything to the specific obligations as to interconnection imposed by the 2000 Act and by the regulations, it is not strictly necessary to consider whether a breach by CWWI of its licence amounts to unlawful means for the tort of conspiracy to injure by unlawful means. As I have explained above, I am not prepared to extend the scope of “unlawful means” in this context so that it covers a breach of a statute or a regulation, when such breach is not actionable and not a criminal offence. It seems to me that it is consistent with that approach to hold that a breach of a public licence, such as the telecommunications licence in this case, similarly does not constitute unlawful means for the purposes of the tort of conspiracy.

The result of the above conclusions is that the Digicel SLU does not have a cause of action in SLU even if it establishes that CWWI committed breaches of the legislation or the licence in SLU and that CWWI and C&W plc combined in relation to those breaches with the necessary intention to injure Digicel SLU.

Although I have now held that Digicel SLU does not have a cause of action in SLU, I have heard detailed evidence and submissions in relation to the matters of complaint in SLU. I will therefore make findings of fact on those matters.

A discussion of the matters of complaint in SLU and my findings of fact in respect of those matters are somewhat lengthy. I have decided that it is convenient to set out that discussion and my findings separately in Annex A dealing with SLU.

In reaching my conclusions on the matters of complaint in SLU, I have directed myself in accordance with my earlier rulings on the meaning and effect of the legislation in SLU. In particular, I have held that CWWI was not in breach of that legislation by failing to order interconnection equipment earlier than it actually did. My overall conclusion in relation to the allegations in respect of SLU is that the Claimants have failed to establish that CWWI was in breach of duty in relation to physical interconnection. Further, I have held that while it is possible that CWWI was guilty of dragging its feet in relation to contractual interconnection, any such conduct did not in the end delay the time when the parties ultimately reached agreement on interconnection.

In SLU, the Claimants’ case was that the breaches of the legislation were committed by CWWI and that C&W plc was a joint tortfeasor and/or a conspirator with CWWI. In view of my earlier findings, no question of joint torts or conspiracy to injure by unlawful means arises. However, I will deal with these matters briefly and make some comments on the position of C&W plc.

The legal principles as to when persons are joint tortfeasors can be taken from the judgment of Hobhouse LJ in Credit Lyonnais Bank Nederland v Export Credit Guarantee Department [1998] 1 Lloyd’s LR 19, in particular at 46. If A commits a tort, then B will be liable with A as a joint tortfeasor if A and B have combined together to commit the tort or if B has procured or induced A’s commission of the tort. However, B is not liable if he does neither of the above things but only assists (even knowingly assists) A in the commission of his tort.

In SLU, I have held that there was no conduct on the part of CWWI which caused delay to the completion of interconnection and therefore there were no breaches of the legislation in SLU. Further, I have held that any breaches of the legislation were not actionable and so were not torts. Accordingly, the suggestion that C&W plc was a joint tortfeasor with CWWI in SLU must fail.

The Claimants also argued that C&W plc conspired with CWWI to injure Digicel SLU by unlawful means. I have already held on the facts and on the law that there were no unlawful acts and therefore no unlawful means. The legal principles as to what amounts to a combination for the purposes of the tort of conspiracy are set out in Annex I to this judgment. It is difficult to discuss in the abstract the question of whether C&W plc combined in a relevant way with CWWI when I have held on the facts that there were no breaches of the legislation in SLU. However, in view of the considerable amount of time taken at the trial in investigating the nature of the involvement of C&W plc in the process of interconnection in SLU and the other jurisdictions, I will make the following comments. These comments apply not only in SLU but also to the other jurisdictions with which this litigation is concerned and I will not repeat them when I come to consider the other jurisdictions.

The Claimants make a number of submissions as to the role of C&W plc. They say that C&W plc was the 100% owner of CWWI and therefore had effective control over the telecommunications business in the Caribbean. It is said that “head office tentacles reached far and wide”. Conversely, it is accepted that there was no formal or visible head office presence in the negotiations in relation to interconnection. The Claimants seek to rely on the absence of any apparent involvement in the negotiations as actually supporting their case in that they say that it showed that C&W plc did not wish to be seen as involved in connection with interconnection while it in reality controlled matters “behind the scenes”. The Claimants then say that C&W plc had an obvious vested interest in delaying competition in the various jurisdictions, that it had been involved in the negotiation of the terms as to liberalisation with the various governments and that it developed cost models and pricing strategies. It is also said that C&W plc can be detected as being involved in a strategic debate as to levels of rates payable for interconnection and it is said to have been involved in a strategic retreat from obstructive positions in Barbados.

The Claimants developed their case in considerable detail as to the alleged conspiracy in the various jurisdictions and some of the time the Claimants’ case involved allegations against C&W plc in addition to allegations against CWWI and the other C&W subsidiaries. In this context I ought to record one important point which is that the Claimants accepted that the work of the carrier services team was to be identified with CWWI and not with C&W plc, even though the latter was the formal employer of some of the individuals who were part of the carrier services team.

In my judgment, the Claimants have failed to show that C&W plc combined in any relevant way with CWWI in SLU, or indeed with CWWI or the other C&W subsidiaries in any of the jurisdictions with which this litigation is concerned. The fact that C&W plc owned 100% of CWWI does not of itself say anything about whether C&W plc combined with CWWI in any relevant respect. The fact that C&W plc wanted to put itself into a strong position to face the competition, when the competition arrived, is entirely to be expected. That behaviour is the consequence of the arrival of the competition which the various jurisdictions wished to introduce and is inherently lawful. The fact that C&W plc may have been involved in devising the retail strategy to be adopted following competition is to be regarded in the same way. Those facts do not themselves show that C&W plc involved itself in anything which was unlawful. The fact that C&W plc would have preferred to have time before the competition arrived is again to be expected and does not show it combined to commit unlawful acts. The evidence showed that C&W plc was not generally involved in the question of interconnection in any of the jurisdictions. This is what I would have expected. The process of interconnection was a detailed one. Senior management at C&W plc did not generally concern themselves with that level of detail in the operations of its subsidiaries and, consistently with its general approach, they did not concern themselves with the details of interconnection.

This general finding is subject to four further comments. The first is that, at one stage, Mr O’Brien of the Digicel Group wrote on a number of occasions to the Chairman of C&W plc complaining about the conduct of the carrier services team in relation to interconnection. The senior management of C&W plc replied to Mr O’Brien’s letters seeking to answer his concerns and stating that the carrier services team were not acting in any way improperly. I do not regard that limited involvement on the part of senior management of C&W plc as involving them in a combination with the carrier services team in any relevant way. The second comment is that the public relations department of C&W plc were called upon by the local subsidiaries to assist in countering a publicity campaign waged by the Digicel companies. The third comment is that there clearly was some contact between the carrier services team and employees of C&W plc in London. These employees were described as “high level” regulatory lawyers or economists. I find that the carrier services team used these employees of C&W plc as a resource to be consulted on technical and specialist matters. The use of the C&W plc public relations department and the regulatory lawyers and economists did not involve C&W plc combining in any relevant way to commit unlawful acts. The fourth comment concerns the involvement of Mr Loosemore in Barbados. Mr Loosemore was a director of C&W Barbados so it may not even be right to regard his involvement in Barbados as the action of C&W plc. Further, his involvement, if it relates to C&W plc at all, is consistent with senior management of C&W plc not endorsing in one respect the conduct of the carrier services team of which the Claimants complain.

The Claimants were right to accept that there was little or no visible involvement of C&W plc in the process of interconnection in SLU and the other jurisdictions. Although the Claimants seek to make a virtue out of this feature and suggest that C&W plc was trying to create an impression that it was not involved in interconnection, I find that the truth of the matter accords with the appearance, namely, that C&W plc had little or no involvement in the process of interconnection in SLU and the other jurisdictions. Even if I had held that CWWI or another C&W subsidiary had been guilty of conduct which constituted unlawful means, I would not have been able to find on the evidence presented to me that C&W plc had combined with CWWI or any other C&W subsidiary to injure a Digicel company by the use of unlawful means.

In relation to the allegation of conspiracy, the only other matter I will deal with is the question whether certain persons acting on behalf of CWWI had an honest belief that the actions of CWWI were lawful. Although this point does not strictly arise in view of my earlier findings, I heard evidence and argument on it and I will therefore deal with it briefly.

In their closing submissions the Defendants invited me to find that Mr Thompson and Mr Batstone both believed at all relevant times in SLU that CWWI: (1) was not under a legal obligation owed to Digicel SLU to negotiate on the subject of interconnection with Digicel SLU prior to the latter obtaining a licence in SLU; and (2) was not under a legal obligation owed to Digicel SLU to order the equipment needed for CWWI’s side of the interconnection before the parties had entered into an interconnection agreement which provided for the ordering of such equipment.

As to (1), I find that Mr Thompson and Mr Batstone did have that belief as to the legal position. They both gave evidence to that effect. There was no, or next to no, cross-examination in relation to that evidence. I appreciate that the Claimants might have been hampered in relation to such cross-examination because I had refused an application by the Claimants for disclosure by the Defendants of documents which would have revealed the legal advice which the Defendants obtained on this subject. Nonetheless, I must make my findings of fact on the basis of the evidence before me. In any event, I find that the evidence is overwhelmingly likely to be correct. I have already held that there was no such obligation on CWWI. The Claimants sought to outflank the evidence which was given by asserting that the two witnesses had not applied their minds to the possibility that it was the licence to CWWI, rather than the legislation, which imposed on CWWI an obligation to negotiate with Digicel SLU before it obtained its licence. Thus the Claimants say, if I were to hold that there was such an obligation in the licence to CWWI (which I do not), then I should hold that the relevant witnesses did not have an honest belief that there was no such obligation. In my judgment, even if the witnesses did not apply their minds to the argument now advanced by the Claimants as to the effect of the licence to CWWI, that would not negative the fact that they believed that there was no legal obligation of the kind now alleged, whatever is now alleged to be the source of that obligation.

As to (2), I find that Mr Thompson and Mr Batstone did have that belief as to the legal position. I accept their evidence to that effect.

There was a lengthy and detailed dispute on the issue of fact whether, if CWWI had been in breach of duty in SLU and that breach of duty had caused delay to interconnection in SLU, any such delay in interconnection had caused delay to Digicel SLU’s launch of its telecommunications service in SLU. The Claimants said that Digicel SLU was delayed in relation to its launch for more or less the full period of any delay in relation to interconnection. CWWI said that Digicel SLU had many other matters to deal with, apart from interconnection, before it could be ready to launch and, on the detailed facts, Digicel SLU was not ready to launch before it actually did so. Accordingly, any delay on the part of CWWI in relation to interconnection had not made any difference to the date when Digicel SLU launched in SLU.

I have decided that I will not attempt to determine the very many issues which arose in this respect. First of all, I have determined that there was no delay to interconnection in breach of any obligation on CWWI . Secondly, I have held that even if CWWI had been in breach of its obligations, the Claimants would not have had a cause of action. Thirdly, I have held on the facts that there was no conspiracy between CWWI and C&W plc in relation to SLU. Fourthly, I have held that even if there had been a conspiracy in relation to SLU, it would not have been actionable. Fifthly, if there had been an actionable conspiracy it is likely that any claim in relation to it would be statute barred (I deal below with the law in relation to that topic). Further, if I attempted to deal with the many points of detail as to a possible delay to the launch in SLU, I would immediately face the difficulty of having to make an assumption of fact, which I have not held to be well founded, as to when interconnection should have been completed and then to ask whether interconnection on such an assumed date would have allowed Digicel SLU to launch earlier than it actually did. Indeed, I think that I would have to deal with a number of possible assumed dates depending on what conduct on the part of CWWI is to be assumed (contrary to my actual findings) to have been a breach of duty on its part. The assumed dates of interconnection could have a bearing on the effect of the allegedly delayed interconnection on a planned launch. Any attempt to make findings of fact on the question of a possible delayed launch in SLU would involve a very considerable amount of time and delay in concluding my judgment. In these circumstances, I conclude that it is not proportionate to go further than I have done and I will not make findings on the allegation that a delay in interconnection did cause delay to Digicel SLU’s launch.

Quite apart from the fact that an attempt to make findings of fact on the question of possible delay to a launch in SLU would be disproportionate for the above reasons, there were significant arguments as to whether I should permit the Claimants to advance a case that they were delayed from a specified date or alternative specified dates when those dates were not pleaded and the date of commencement of delay, which was pleaded in relation to SLU, was not contended for by the Claimants in their closing submissions. If I were otherwise minded to make findings of fact as to a possible delay to the launch in SLU, it would be necessary to set out in some detail the procedural history in relation to this question and to examine the legal basis for the Defendants’ proposition. This is an additional reason why it is disproportionate to go further into the facts as to any such delay to launch.

There is one final reason which I have taken into account in reaching my conclusion that it would be disproportionate to attempt to make findings as to when Digicel SLU might have been able to launch in certain hypothetical circumstances. When the Claimants delivered their written closing submissions, they also delivered three lever arch files of documents which they said were relevant to this question of when the relevant Claimant company would have been ready to launch its network in the jurisdictions with which this litigation was concerned. The Claimants acknowledged that these documents had not been referred to at any earlier stage of the trial and, in particular, had not been spoken to by any witness in evidence in chief and had not been put to any witness in cross-examination. The Claimants suggested to me that I should simply read my way through this material and draw my own conclusions as to its relevance to the present issue. The Claimants suggested that the documents tended to support their case on the matters in dispute. In my view, taking that step would be burdensome and in view of all the other reasons why it would be disproportionate to make findings on some hypothetical basis as to when Digicel SLU would have been able to launch its network, I decline to take on this additional burden.

In these circumstances, it is not appropriate to discuss the law or the facts as to whether the present is a case of exemplary damages or what have been called restitutionary damages.

The Claimants have throughout accepted that, with one alleged exception, their claims in SLU are all statute barred by reason of section 2122 of the Civil Code of SLU, which prescribes a 3 year limitation period for a claim in delict or quasi-delict. The Defendants allege that by reason of the provisions of section 2129 of the Civil Code any wrongdoing that might have been involved is “extinguished” and so after the 3 year period has expired, the Claimants cannot say that any relevant wrongdoing could be “unlawful means” for the tort of conspiracy to injure by unlawful means. If it had been necessary to deal with that point, I would not have accepted the Defendants’ submission on it.

The Claimants say that their claim against CWWI and C&W plc in the tort of conspiracy to injure by unlawful means is not governed by SLU law and is therefore not subject to a 3 year limitation period under section 2122 of the Civil Code. They say that the law as to the limitation period for that claim is the law of England & Wales, or the law of Jamaica, and applying either of those laws, the claim in conspiracy is not statute barred. The Claimants say that the case is governed by sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995 and applying section 11(2)(c) to this case I should reach the conclusion that the most significant elements of the events on which the claim in conspiracy is based were not in SLU but were in England and Wales, or in Jamaica. To advance that proposition, the Claimants say that the most significant element in the relevant events is the combination between CWWI and C&W plc and that event did not occur in SLU or did not occur only in SLU. The other events which would have to be considered for this purpose would include the conduct of CWWI which was said to be unlawful and the harm to Digicel SLU, all of which did occur in SLU.

As explained above, I have held that there was no relevant combination between CWWI and C& W plc in relation to the events in SLU. It is therefore difficult to discuss how significant such a combination might have been and whether it was a more significant element than the other relevant elements. For that purpose, I would have to make assumptions as to what the combination might have consisted of and where it took place. Accordingly, I will not decide, even on a hypothetical basis, what answer would be produced by applying section 11(2)(c) of the 1995 Act to possible versions of hypothetical facts. I will however comment that the Claimants would have had an uphill task in persuading me that for the purposes of section 11(2)(c) of the 1995 Act the limitation period for the conspiracy claim was not governed by SLU law. Similarly, I will not discuss how section 12 of the 1995 Act would apply to the hypothetical facts of a combination which was not made in SLU, or not only in SLU, and how taking account of “all the circumstances” referred to in section 12, I would have decided what was more appropriate as to the choice of law. Again, I will comment that the Claimants would have had an uphill task in persuading me that it was more appropriate to hold that the relevant law was not SLU law.

The result which emerges from the above conclusions is that the claim by Digicel SLU against CWWI and C&W plc fails on the facts and on the law. The claim will therefore be dismissed.

In SVG, the incumbent telecommunications operator was CWWI. The proposed new entrant was Digicel SVG. Digicel SVG is wholly owned by Digicel. The government of SVG did not initially grant a licence to Digicel SVG; it initially granted a licence to Digicel. Digicel SVG is the Second Claimant and Digicel is the Eighth Claimant. The Claimants say that it was not their intention that the licence should have been granted to Digicel rather than Digicel SVG. Digicel SVG intended to launch a telecommunications service in SVG and did launch such a service. Digicel never had that intention. Digicel later assigned its licence to Digicel SVG. The Defendants did not take any point on the fact that the licence was originally to Digicel rather than to Digicel SVG. I was invited to proceed on the basis that Digicel SVG had a licence in SVG and therefore the duties which were imposed by the legislation in SVG for the benefit of new entrant licensees should be understood to have applied to Digicel SVG after the grant of the licence to Digicel.

The claim in relation to SVG is brought by Digicel SVG against CWWI and C&W plc. Digicel is the Eighth Claimant but if it is accepted (as it has been) that Digicel SVG is to be treated as a licensee, following the grant of a licence to Digicel, no-one argues that Digicel had any relevant claim. The Claimants allege that CWWI was in breach of the primary and secondary legislation in SVG, that such breaches were actionable as the tort of breach of statutory duty, that CWWI and C&W plc were joint tortfeasors and/or that they combined together such that they are liable for the tort of conspiracy to injure by unlawful means.

CWWI and C&W plc deny that there were any breaches of the primary or secondary legislation. In any event, they say that any such breaches were not actionable. They also say that on the facts and as a matter of law, they are not liable in the tort of conspiracy. They further say that any breaches caused no loss. There is no suggestion in SVG that any of the claims are statute barred.

The parties disagree as to the meaning and effect of the primary and secondary legislation in SVG. Accordingly, I will begin by considering that legislation. As I will be examining the scope of the duties imposed by that legislation, it is convenient for me next to consider whether any breach of such duties would be actionable as the tort of breach of statutory duty, before I consider the facts. If I find that any breach of the legislation would not be actionable, then I will consider whether any breach of the legislation would be “unlawful means” for the purpose of the tort of conspiracy to injure by unlawful means, again before I consider the detailed facts.

Whatever I decide about the actionability of any breaches and whether any breaches could be unlawful means, I will make findings of fact on the matters of complaint which the Claimants say were breaches of the primary or secondary legislation.

The legislation and regulations in SVG are closely based on the legislation and regulations in SLU. The relevant parts of the legislation in SVG are set out in Annex B to this judgment.

The Claimants rely on the duties on CWWI imposed by section 44(1) of the Telecommunications Act 2001 and by regulation 4 of the Telecommunications (Interconnection) Regulations 2002. Section 44 of the SVG Act is equivalent to section 46 of the SLU Act. Regulation 4 of the SVG Regulations is equivalent to regulation 5 of the SLU Regulations.

My conclusions as to the scope of the duties imposed on CWWI in SLU apply in all respects to the scope of the duties imposed on CWWI in SVG.

The Claimants contend that the duty imposed by section 44(1) of the Telecommunications Act 2001 in SVG is privately actionable. The 2001 Act in SVG is in essentially the same terms as the 2000 Act in SLU. There is a slight difference in that section 70 of the 2001 Act in SVG does not repeat the obvious printing errors in section 72 of the 2000 Act in SLU. Apart from that matter, I can detect no difference between the SVG statute and the SLU statute. Accordingly, for the reasons I gave in detail in relation to SLU, I conclude that a breach of section 44(1) of the 2001 Act is not actionable.

The Claimants contend that regulation 4 of the Telecommunications (Interconnection) Regulations 2002 is actionable. The 2002 regulations in SVG are in the same terms as the 2002 regulations in SLU. For the same reasons as those which apply in SLU, I conclude that regulation 4 of the 2002 regulations in SVG is not actionable.

My conclusions as to the actionability of any breaches of the legislation in SVG mean that I could not find that CWWI was liable for any breach of that legislation. Nor could I find that C&W plc was a joint tortfeasor with CWWI in relation to any such breach.

This means that it becomes essential, in order for the Claimants to succeed in SVG, that they establish that a breach of the legislation in SLU, or a breach of the telecommunications licence to CWWI, amounts to “unlawful means” for the tort of conspiracy to injure by unlawful means. The first requirement of the conspiracy claim is that the matters complained of amount to “unlawful means”. If the Claimants do not establish that matter, then they have no cause of action in SVG. Although I will, in any event, make findings of fact on the matters of complaint that have been argued in SVG, I have decided that it would be convenient to deal with the issue as to the scope of “unlawful means” before I make my findings of fact in SVG.

As I explained when I was dealing with SLU, I have set out in a separate annex to this judgment (Annex I) my understanding of the legal principles relating to this question and indeed other relevant legal principles in relation to the tort of conspiracy to injure by unlawful means.

My conclusion in relation to the scope of “unlawful means”, for the purpose of the tort of conspiracy to injure by unlawful means, is that a breach of a statutory obligation, which is not an actionable breach, and which is not a criminal offence, does not constitute “unlawful means”.

In SVG, the Claimants rely upon the terms of the licence granted to CWWI in so far as those terms prohibit certain specified anti-competitive behaviour. The Claimants say, first, that CWWI contravened the terms of the licence, secondly, that a breach of the licence is a breach of the statute, thirdly, that this breach of the statute is actionable and fourthly, that a breach of the licence amounts to unlawful means for the tort of conspiracy to injure by unlawful means and this is the position whether a breach of the licence is a breach of the statute or not.

The licence to CWWI in SVG is in essentially the same terms as the licence to CWWI in SLU. I have already set out those terms and I need not repeat them here.

When I considered the Claimants’ case based on CWWI’s licence in SLU, I commented on the fact that the Claimants’ claim in this respect was unparticularised. The same comment applies to the Claimants’ case on CWWI’s licence in SVG. The claim is one which the court must deal with, even though it is unparticularised.

In all other respects the comments I have made as to the Claimants’ case based on CWWI’s licence in SLU apply to the Claimants’ case based on CWWI’s licence in SVG. For the reasons which I gave in relation to SLU, the relevant competition rules on the subject of interconnection between an incumbent operator and a new entrant are those contained in the specific rules contained in the Telecommunications Act 2001 and the regulations in SVG, as to such interconnection, and the general references in the licence to prohibitions on anti-competitive practices do not add anything to those specific rules.

In view of my conclusion in the last paragraph to the effect that the terms of CWWI’s licence in SVG, dealing with anti-competitive conduct, do not add anything to the specific rules contained in the 2001 Act and regulations as to interconnection between operators, it is not strictly necessary to ask whether a breach by CWWI of its licence is a breach of the 2001 Act or the regulations. However, for the sake of completeness, I will state my conclusion on that subject in SVG.

In SVG, the Claimants rely on section 70 of the Telecommunications Act 2001. Section 70 is somewhat challenging to interpret. It is similar to section 72 of the 2000 Act in SLU which I have already considered in detail, when considering the question of whether a breach of the 2000 Act in SLU is actionable. My conclusion in relation to section 72 of the 2000 Act in SLU applies equally to section 70 of the 2001 Act in SVG. I therefore conclude that section 70 does not have the effect of making a breach of the licence by CWWI a breach of the 2001 Act. Further, I have held that a breach of the statute in SVG is not actionable.

When considering the Claimants’ case on the CWWI licence in SLU, I concluded that a breach by CWWI of its licence did not constitute unlawful means for the tort of conspiracy to injure by unlawful means. The same reasoning and the same result apply in SVG also.

The result of the above conclusions is that Digicel SVG does not have a cause of action in SVG even if it establishes that CWWI committed breaches of the legislation or the licence in SVG and that CWWI and C&W plc combined in relation to those breaches with the necessary intention to injure Digicel SVG.

Although I have now held that Digicel SVG does not have a cause of action in SVG, I have heard detailed evidence and submissions in relation to the matters of complaint in SVG. I will therefore make findings of fact on those matters.

A discussion of the matters of complaint in SVG and my findings of fact in respect of those matters are somewhat lengthy. I have decided that it is convenient to set out that discussion and my findings separately in Annex B dealing with SVG.

In reaching my conclusions on the matters of complaint in SVG, I have directed myself in accordance with my earlier rulings on the meaning and effect of the legislation in SVG. In particular, I have held that CWWI was not in breach of that legislation by failing to order interconnection equipment earlier than it actually did. My overall conclusion in relation to the allegations in respect of SVG is that the Claimants have failed to establish that CWWI was in breach of duty in relation to physical interconnection. Further, I have held that while it is possible that CWWI was guilty of dragging its feet in relation to contractual interconnection, any such conduct did not in the end delay the time when the parties ultimately reached agreement on interconnection.

In SVG, the operating company was CWWI. The Claimants’ case was that the breaches of the legislation were committed by CWWI and that C&W plc was a joint tortfeasor and/or a conspirator with CWWI. In view of my earlier findings, no question of joint torts or conspiracy to injure by unlawful means arises.

When considering the position in SLU, I commented on the role of C&W plc. Those comments also apply in the case of SVG.

When considering the position in SLU, I made findings of fact as the belief of Mr Thompson and Mr Batstone as to whether CWWI was obliged to negotiate interconnection with the Digicel SLU before the latter obtained its licence and whether CWWI was obliged to order interconnection equipment before the parties entered into an interconnection agreement. Those findings apply equally to the position in SVG.

There was a lengthy and detailed dispute on the issue of fact whether, if CWWI had been in breach of duty in SVG and that breach of duty had caused delay to interconnection in SVG, any such delay in interconnection had caused delay to Digicel SVG’s launch of its telecommunications service in SVG. The Claimants said that Digicel SVG was delayed in relation to its launch for more or less the full period of any delay in relation to interconnection. CWWI said that Digicel SVG had many other matters to deal with, apart from interconnection, before it could be ready to launch and, on the detailed facts, Digicel SVG was not ready to launch before it actually did so. Accordingly, any delay on the part of CWWI in relation to interconnection had not made any difference to the date when Digicel SVG launched in SVG.

I have decided that I will not attempt to determine the very many issues which arose in this respect. My reasons for this decision are in substance the same as the reasons I have already set out for reaching a similar decision in relation to SLU (save that there is no separate limitation point in SVG). Accordingly, I conclude that it is not proportionate to go further than I have done and I will not make findings on the allegation that a delay in interconnection did cause delay to Digicel SVG’s launch.

In these circumstances, it is not appropriate to discuss the law or the facts as to whether the present is a case of exemplary damages or what have been called restitutionary damages.

The result which emerges from the above conclusions is that the claim by Digicel SVG against CWWI and C&W plc fails on the facts and on the law. The claim will therefore be dismissed.

In Grenada, the incumbent telecommunications operator was C&W Grenada. The licensed new entrant was Digicel Grenada. The claim in relation to Grenada is brought by Digicel Grenada against C&W Grenada, CWWI and C&W plc. The Claimants allege that C&W Grenada was in breach of the primary legislation in Grenada. The Claimants do not make any claim on the basis of the regulations in Grenada because the implementation of the regulations was stayed from 28^th February 2003 until 1^st December 2003, as a result of an order made in proceedings brought by C&W Grenada for judicial review of the regulations. The Claimants say that such breaches were actionable as the tort of breach of statutory duty, that C&W Grenada, CWWI and C&W plc were joint tortfeasors and/or that they combined together so that they are liable for the tort of conspiracy to injure by unlawful means.

C&W Grenada, CWWI and C&W plc deny that there were any breaches of the legislation. In any event, they say that any such breaches were not actionable. They also say that on the facts and as a matter of law, they are not liable in the tort of conspiracy. They further say that any breaches caused no loss. There is no limitation issue in Grenada.

The parties disagree as to the meaning and effect of the legislation in Grenada. Accordingly, I will begin by considering that legislation. As I will be examining the scope of the duties imposed by that legislation, it is convenient for me next to consider whether any breach of such duties would be actionable as the tort of breach of statutory duty, before I consider the facts. If I find that any breach of the legislation would not be actionable, then I will consider whether any breach of the legislation would be “unlawful means” for the purpose of the tort of conspiracy to injure by unlawful means, again before I consider the detailed facts.

Whatever I decide about the actionability of any breaches and whether any breaches could be unlawful means, I will make findings of fact on the matters of complaint which the Claimants say were breaches of the primary legislation.

The legislation and the regulations in Grenada are based on the legislation and regulations in SLU. The relevant parts of the legislation in Grenada are set out in Annex C to this judgment. Even though the Claimants do not make any claim based upon an allegation of a breach of the Telecommunications (Interconnection) Regulations 2003 in Grenada, I have included some of the regulations for the sake of completeness. The Claimants rely on section 45(1) of the Telecommunications Act 2000. Section 45 of the Grenada Act is equivalent to section 46 of the SLU Act.

My conclusions as to the scope of the duties imposed on CWWI in SLU apply in all respects to the scope of the duties imposed on C&W Grenada in Grenada.

The Claimants contend that a breach of section 45(1) of the Telecommunications Act 2000 in Grenada is actionable. The terms of the 2000 Act are essentially the same as the terms of the Telecommunications Act 2000 in SLU save that section 71 of the 2000 Act in Grenada does not repeat the obvious printing errors contained in section 72 of the Act in SLU. For the reasons given in detail in relation to SLU, my conclusion is that a breach of section 45(1) of the 2000 Act in Grenada is not actionable.

My conclusions as to the actionability of any breaches of the legislation in Grenada means that I could not find that C&W Grenada was liable for any breach of that legislation. Nor could I find that CWWI or C&W plc was a joint tortfeasor with C&W Grenada in relation to any such breach.

This means that it becomes essential, in order for the Claimants to succeed in Grenada, that they establish that a breach of the legislation in Grenada, or a breach of the telecommunications licence granted to C&W Grenada, amounts to “unlawful means” for the tort of conspiracy to injure by unlawful means. The first requirement of the conspiracy claim is that the matters complained of amount to “unlawful means”. If the Claimants do not establish that matter, then they have no cause of action in Grenada. Although I will, in any event, make findings of fact on the matters of complaint that have been argued in Grenada, I have decided that it would be convenient to deal with the issue as to the scope of “unlawful means” before I make my findings of fact in Grenada.

As I explained when I was dealing with SLU, I have set out in a separate annex to this judgment (Annex I) my understanding of the legal principles relating to this question and indeed other relevant legal principles in relation to the tort of conspiracy to injure by unlawful means.

My conclusion in relation to the scope of “unlawful means”, for the purpose of the tort of conspiracy to injure by unlawful means, is that a breach of a statutory obligation, which is not an actionable breach, and which is not a criminal offence, does not constitute “unlawful means”.

In Grenada, the Claimants rely upon the terms of the licence granted to C&W Grenada in so far as those terms prohibit certain specified anti-competitive behaviour. The Claimants say, first, that C&W Grenada contravened the terms of the licence, secondly, that a breach of the licence is a breach of the statute, thirdly that this breach of the statute is actionable and fourthly, that a breach of the licence amounts to unlawful means for the tort of conspiracy to injure by unlawful means and this is the position whether a breach of the licence is a breach of the statute or not.

The licence to C&W Grenada in Grenada is in essentially the same terms as the licence to CWWI in SLU. I have already set out those terms and I need not repeat them here.

When I considered the Claimants’ case based on CWWI’s licence in SLU, I commented on the fact that the Claimants’ claim in this respect was unparticularised. The same comment applies to the Claimants’ case on C&W Grenada’s licence in Grenada. The claim is one which the court must deal with, even though it is unparticularised.

In all other respects the comments I have made as to the Claimants’ case based on CWWI’s licence in SLU apply to the Claimants’ case based on C&W Grenada’s licence in Grenada. For the reasons which I gave in relation to SLU, the relevant competition rules on the subject of interconnection between an incumbent operator and a new entrant are those contained in the specific rules contained in the Telecommunications Act 2000 and the regulations in Grenada, as to such interconnection, and the general references in the licence to prohibitions on anti-competitive practices do not add anything to those specific rules.

In view of my conclusion in the last paragraph to the effect that the terms of C&W Grenada’s licence in Grenada, dealing with anti-competitive conduct, do not add anything to the specific rules contained in the 2000 Act and regulations as to interconnection between operators, it is not strictly necessary to ask whether a breach by C&W Grenada of its licence is a breach of the 2000 Act or the regulations. However, for the sake of completeness, I will state my conclusion on that subject in Grenada.

In Grenada, the Claimants rely on section 71 of the Telecommunications Act 2000. Section 71 is somewhat challenging to interpret. My conclusion in relation to section 71 of the 2000 Act in Grenada is the same as my conclusion in relation to section 72 of the 2000 Act in SLU, which I discussed in detail earlier in this judgment. I therefore conclude that section 71 does not have the effect of making a breach of the licence by C&W Grenada a breach of the 2000 Act. Further, I have held that a breach of the statute is not actionable.

When considering the Claimants’ case on the CWWI licence in SLU, I concluded that a breach by CWWI of its licence did not constitute unlawful means for the tort of conspiracy to injure by unlawful means. The same reasoning and the same result apply in Grenada also.

The result of the above conclusions is that the Digicel Grenada does not have a cause of action in Grenada even if it establishes that C&W Grenada committed breaches of the legislation or the licence in Grenada and that C&W Grenada, CWWI and C&W plc combined in relation to those breaches with the necessary intention to injure Digicel Grenada.

Although I have now held that Digicel Grenada does not have a cause of action in Grenada, I have heard detailed evidence and submissions in relation to the matters of complaint in Grenada. I will therefore make findings of fact on those matters.

A discussion of the matters of complaint in Grenada and my findings of fact in respect of those matters are somewhat lengthy. I have decided that it is convenient to set out that discussion and my findings separately in Annex C dealing with Grenada.

In reaching my conclusions on the matters of complaint in Grenada, I have directed myself in accordance with my earlier rulings as to the meaning and effect of the legislation in Grenada. The result I have reached is that it is arguable that C&W Grenada was at fault but in one respect only, that is, in relation to the non-provision of a draft interconnection agreement prior to 30^th June 2003. I have held that if the draft interconnection agreement had been provided earlier, this would not have changed the date when the interconnection agreement in Grenada was ultimately finalised. Accordingly, any arguable fault in this respect did not cause any delay to the completion of interconnection, was therefore not a breach of the duty not to delay interconnection and did not cause any loss to Digicel Grenada.

In Grenada, the operating company was C&W Grenada. The Claimants’ case was that the breaches of the legislation were committed by C&W Grenada and that CWWI and C&W plc were joint tortfeasors and/or conspirators with C&W Grenada. In view of my earlier findings, no question of joint torts or conspiracy to injure by unlawful means arises.

When considering the position in SLU, I commented on the role of C&W plc. Those comments also apply in the case of Grenada.

The position of CWWI in Grenada was different from the position of C&W plc. CWWI provided the carrier services team to assist C&W Grenada. Those two companies were therefore working together to some extent in connection with interconnection in Grenada. The Defendants initially contended that there were Chinese Walls between the carrier services team of CWWI and the business unit of C&W Grenada. However, by the end of the trial it was clear that any suggested restrictions on the passage of information between the carrier services team and the business unit were not fully effective. If I had held that C&W Grenada had committed breaches of the legislation in Grenada, it would then have been necessary to consider whether CWWI had combined with C&W Grenada in a relevant way so that CWWI would also be liable for such breaches. In view of my finding that there were no breaches which caused any delay to the completion of interconnection, it does not seem to me to be helpful to discuss any further the application of the legal principles (which were not seriously in dispute) to possible findings of fact which I have not made.

When considering the position in SLU, I made findings of fact as to the belief of Mr Thompson and Mr Batstone as to whether CWWI was obliged to negotiate interconnection with the Digicel SLU before the latter obtained its licence and whether CWWI was obliged to order interconnection equipment before the parties entered into an interconnection agreement. I know of no reason why those findings should not apply equally to the position in Grenada, although in their closing submissions, the Defendants appear only to refer specifically to the position of Mr Batstone in this regard.

There was a lengthy and detailed dispute on the issue of fact whether, if C&W Grenada had been in breach of duty in Grenada and that breach of duty had caused delay to interconnection in Grenada, any such delay in interconnection had caused delay to Digicel Grenada’s launch of its telecommunications service in Grenada. The Claimants said that the Digicel Grenada was delayed in relation to its launch for more or less the full period of any delay in relation to interconnection. C&W Grenada said that Digicel Grenada had many other matters to deal with, apart from interconnection, before it could be ready to launch and, on the detailed facts, Digicel Grenada was not ready to launch before it actually did so. Accordingly, any delay on the part of C&W Grenada in relation to interconnection had not made any difference to the date when Digicel Grenada launched in Grenada.

I have decided that I will not attempt to determine the very many issues which arose in this respect. My reasons for this decision are in substance the same as the reasons I have already set out for reaching a similar decision in relation to SLU (save that there is no separate limitation point in Grenada). Accordingly, I conclude that it is not proportionate to go further than I have done and I will not make findings on the allegation that a delay in interconnection did cause delay to Digicel Grenada’s launch.

In these circumstances, it is not appropriate to discuss the law or the facts as to whether the present is a case of exemplary damages or what have been called restitutionary damages.

The result which emerges from the above conclusions is that the claim by Digicel Grenada against C&W Grenada, CWWI and C&W plc fails on the facts and on the law. The claim will therefore be dismissed.

In Barbados, the incumbent telecommunications operator was C&W Barbados. The licensed new entrant was Digicel Barbados. The claim in relation to Barbados is brought by Digicel Barbados against C&W Barbados, CWWI and C&W plc. The Claimants allege that C&W Barbados was in breach of the primary legislation in Barbados. There are two statutes, namely, the Telecommunicaitons Act 2001 and the Fair Competition Act 2002. The Claimants do not make any claim on the basis of the regulations in Barbados. The Claimants say that the primary legislation in Barbados expressly provides that a person injured by a breach of the legislation has a claim in damages against a licensee, such as C&W Barbados, if that person contravenes the legislation. The Claimants claim against CWWI and C&W plc as joint tortfeasors with C&W Barbados or as persons who conspired with C&W Barbados to injure Digicel Barbados by unlawful means. Further, the legislation in Barbados provides for persons acting jointly with the licensee, who contravenes the legislation, or who is conspiring with that licensee to contravene the legislation to be liable to pay damages, in the same way as C&W Barbados would be liable.

C&W Barbados, CWWI and C&W plc deny that there were any breaches of the legislation. They further say that any breaches caused no loss. They also say that a claim in respect of a contravention of the Fair Competition Act 2002, or of a conspiry to contravene that Act, is statute barred.

The parties disagree as to the meaning and effect of the legislation in Barbados. Accordingly, I will begin by considering that legislation in detail.

In Barbados, the Claimants rely upon the Telecommunications Act 2001 and the Fair Competition Act 2002. They do not assert any breach of the Telecommunications (Interconnection) Regulations 2003. I have set out the relevant parts of this legislation in Annex D to this judgment.

The Claimants rely, in particular, on sections 25 and 28 of the Telecommunications Act 2001. There does not appear to be any dispute between the parties as to the meaning and effect of section 25 of that Act. There is a major dispute between the parties as to the meaning and effect of section 28. In these circumstances, I will, first, briefly describe the position under section 25 of the 2001 Act and then deal with the dispute as to section 28.

Section 25(1) of the Telecommunications Act 2001 provides as follows:

“A carrier shall provide, on request from any other carrier, interconnection services to its public telecommunications network for the purpose of supplying telecommunication services in accordance with the provisions of sub section (2).”

Section 25(2) of the 2001 Act states that interconnection services are to be offered or made available on certain terms or in certain respects. In particular, section 25(2)(d) provides that interconnection services are to be made available “in a timely fashion”.

By section 25(3)(a), a carrier is obliged to provide interconnection to its network on such reasonable terms and conditions as the interconnecting parties agree through commercial negotiations.

To complete one’s understanding of the operation of section 25 of the 2001 Act, it is necessary to refer to some of the definitions in section 2 of the 2001 Act. “Carrier” is defined to mean “a person who has been granted a licence by the Minister pursuant to this Act to own and operate a public telecommunications network”. “Interconnection” is defined to mean “the linking of public telecommunications networks to allow users of one licensed carrier to communicate with users of another licensed carrier”. “Interconnection service” means “a service provided as part of the obligation to provide interconnection under part VI”. Sections 25 and 28 of the 2001 Act are in part VI of the Act. “Licence” is defined to mean “a licence referred to in this Act”. “Licensee” is defined to mean “a person who is a holder of a valid licence granted under this Act”.

Reading section 25 of the 2001 Act with the benefit of the definitions referred to above, the following conclusions can be drawn. Section 25 requires a carrier to provide interconnection services to another carrier. Interconnection service is a service provided pursuant to an obligation to provide interconnection. Interconnection is the linking of networks to allow users of one carrier to communicate with users of another carrier. The definition of “interconnection” starts by referring to the physical link but continues by referring to the physical link “to allow” the specified use of the link. In my judgment, this definition of interconnection is not restricted to physical interconnection but is apt to refer to both physical and contractual interconnection. I understand that the parties are agreed that this is indeed the meaning of “interconnection” in the 2001 Act.

At all material times C&W Barbados was “a carrier” which owed the obligation imposed by section 25(1) of the Act. Digicel Barbados only became a carrier within the meaning of the 2001 Act when Digicel Barbados was granted a licence under the Act. This licence was granted on the 8^th August 2003. Before the 8^th August 2003, C&W Barbados did not owe a duty to Digicel Barbados pursuant to section 25 of the 2001 Act.

Section 25 of the 2001 Act contemplates that interconnection services would be provided on certain terms and conditions and that those terms and conditions would be contained in an agreement arrived at as the result of commercial negotiations. I will discuss, later in this judgment, the implications of section 25, and of other provisions of the 2001 Act, for the arguments between the parties as to whether the incumbent operator was obliged to order equipment for its side of the interconnection, and/or install and test that equipment and/or carry out civil works to connect the switch sites of the incumbent operator and of the proposed new entrant at any time before the parties had agreed the terms of an interconnection agreement, the terms of which should make provision for those various matters.

I now turn to the dispute between the parties as to the meaning and effect of section 28 of the 2001 Act. The Claimants draw attention to the fact that section 28(1) and (3) referred to “a person” and that section 28(2) and section 28(5) referred to “the person”. The Claimants emphasised that section 28 does not use the words “a carrier”. “A carrier” is defined for the purpose of the 2001 Act as a person who has a licence under the Act. Therefore, the Claimants argue that the obligation created by section 28 is owed to a person, whether that person is a carrier or not and whether that person has a licence or not. Accordingly, the Claimants argue, the obligation created by section 28 was owed to Digicel Barbados prior to 8^th August 2003 when that company was granted a licence under the Act. The Defendants say that if one reads section 28 in the context of the statute as a whole, it was not envisaged that “a person” would mean any person, whether licensed under the Act or not and, in effect, the only person relevant for the purposes of section 28 is a carrier, that is, a person licensed under the Act.

For the purposes of considering the rival positions of the parties, it is necessary to refer to further provisions of the 2001 Act. Section 2 of the Act defines “a person” to “include an individual, a partnership, an unincorporated organisation, a Government or Government agency”. Part IV of the Act deals with licensing requirements in respect of public telecommunications. By section 10(1), no person may own or operate a telecommunications network without a carrier licence under the Act. Section 11 deals with the procedure to be followed when applying for a licence. By section 11(2), an applicant for a licence is required to satisfy the Minister on a number of specified matters. These include a requirement that the applicant will comply with all interconnection obligations and licence limitations, that the licensee possesses the technical qualifications necessary to perform the obligations attached to the licence and that the applicant satisfies certain financial requirements. Section 12 deals with the grant of a licence under part IV of the Act. The Minister is required to consider, amongst other things, whether an applicant is a person of fit and proper character and whether the applicant has had a licence revoked or is affiliated with a person who has had a licence revoked. By section 19 of the Act, the Minister may suspend or revoke a licence granted under part IV of the Act where the licensee has contravened the Act or a term in the licence or on other specified grounds.

Turning then to Part VI of the Act, I have already referred to section 25 (in Part VI). As explained, section 25 only places an obligation on “a carrier” and the obligation is owed only to carriers. Section 25(1) states that the obligation arises “on request”. Section 25 does not itself spell out what must be contained in any such request, nor the immediate consequences of a request being made.

Sections 26 and 27 deal with the subject of a Reference Interconnection Offer, referred to as a “RIO”. By section 26(1), a dominant carrier is required to file a RIO with the regulator. A RIO is described as an offer which sets out the terms and conditions “upon which other licensed carriers will be permitted to interconnect”. Accordingly, a RIO is a document to be entered into between a dominant carrier and another licensed carrier. By section 27(1), a RIO does not take effect unless it is approved in writing by the regulator.

The side note to section 28 is: “Requests for interconnection”. Section 28 provides for the form of a request for interconnection and the immediate consequences of the making of such a request. It will be remembered that section 25(1) referred to “any other carrier” making “a request” but did not, in section 25 itself, identify a form of the request nor the immediate consequences of it.

It is helpful to set out the full terms of section 28 which are as follows:

“28(1) A person who wishes to interconnect with the telecommunications network of a telecommunications provider shall so request that provider in writing giving sufficient information as is reasonably required by a provider to allow for a response to the requests.

Where an RIO is in effect with respect to an interconnection provider, and the person seeking interconnection accepts the terms and conditions set out in the RIO, the parties shall sign an agreement in accordance with those terms and conditions of the RIO within 90 days of the receipt of the request.

Where a person requests an interconnection pursuant to subsection (1) on terms other than those of the RIO that is in effect in relation to the interconnection provider, the parties shall negotiate in good faith to reach an agreement on the terms and conditions of the interconnection; and the negotiations shall commence within 30 days of the receipt of the written request.

A request for interconnection to a public telecommunications network may be refused by an interconnection provider for the following reasons:

for the protection of the

safety of a person;

security of the network;

integrity of the network; or

the difficult technical and engineering nature of the interconnection.

Where there is a refusal by the provider under sub section (4), the person seeking interconnection may refer that refusal to the Commission for review.”

Section 29 deals with interconnection agreements. Section 29(1) refers to “a person” who requests interconnection and an interconnection provider agreeing on the terms and conditions of interconnection; this is described as being “pursuant to subsection (3) of section 28”. In that event, the parties are to file the interconnection agreement with the regulator for its approval. The regulator may then approve the agreement or require the parties to vary it. By section 29(5) an interconnection provider may limit or terminate its agreement to offer interconnection services or may cease to offer those services on various grounds, including where the other party to the agreement fails to comply with the terms of the agreement. Where an interconnection provider takes action pursuant to section 29(5), the other party to the agreement may refer the matter to the regulator for review and section 29(7) allows the party who makes the reference to the regulator to seek compensation for financial loss.

By section 31(1) a dispute which arises between the parties in respect of the negotiation of an interconnection agreement may be referred to the regulator for resolution.

Part XIII of the 2001 Act deals with compliance matters. Under section 72, the Minister may apply to the court for an injunction or the imposition of a pecuniary penalty, where a person has contravened an obligation under the Act. By section 73, a person who suffers financial loss or damage to property as a result of another’s person contravention of the Act may claim a reasonable amount determined by a court of competent jurisdiction.

Part XIV of the Act deals with offences and penalties. By section 78(1) a person who contravenes the Act commits an offence and is liable on conviction on indictment to a fine or a period of imprisonment.

The Claimants submit that Digicel Barbados was “a person” as defined in the 2001 Act at all material times and even before it acquired its licence on the 8^th August 2003. Accordingly, it is said, C&W Barbados owed to Digicel Barbados the duties defined in section 28 of the Act. The Claimants say that there is a deliberate change in the language from section 25 which refers to “a carrier” to section 28 which refers to “a person”. If the Court were to read section 28 so that it only applied to a carrier, that would involve a re-writing of the Act which the Court could not and should not do. The Claimants say that there is nothing unworkable or even surprising in their interpretation. If a person came forward, seeking to rely on section 28, in circumstances where that person had no prospect whatever of later acquiring a licence under the Act then the content of the obligation under section 28(3) would be easily satisfied by the incumbent carrier. Both parties are obliged by section 28(3) to negotiate in good faith and it would soon become apparent in the case of a person who had no prospect of a licence that that person was not negotiating in good faith. The Claimants also distinguished between sections 25 and 28 in that section 25 deals with interconnection services whereas section 28 refers to interconnection. It is said that the phrase “interconnection services” refers to the time when interconnection is in use whereas “interconnection” can occur even before the person who requests interconnection is able to operate a network. The Claimants also submit that there is very good sense in their reading of section 28 because it allows an intending new entrant like Digicel Barbados to make progress with negotiations on an interconnection agreement even before the grant of its licence.

This approach is rejected by the Defendants. They submit that section 28 is not concerned with the class of persons who are entitled to request interconnection. That question is determined by section 25. What section 28 is dealing with are the statutory requirements as to the making of a “request”. If the Claimants were right, the obligation under section 28 would be owed to the world at large, subject only to the making of a request. Such an obligation would be impossibly wide-ranging, burdensome and would serve no useful purpose. The Claimants’ suggested solution, which uses the obligation in section 28(3) to negotiate in good faith, to limit the class of persons who could rely on section 28, is not in fact a solution. Even with a person who requests interconnection under section 28 and who has only a limited prospect of later obtaining a licence, it would not be possible, alternatively it would not be easy, to say that such a person was not negotiating in good faith. The Defendants also point to section 28(2) which contemplates that a “person” might enter into a RIO so that there would be a contractually binding agreement between the incumbent operator and a person who does not have a licence under the Act. The Defendants point out that a RIO is defined in section 26 as an agreement made between carriers. The suggested distinction between section 25 dealing with interconnection services and section 28 dealing with interconnection is not a real distinction.

The parties also referred in this context to regulations 4 and 7 of the Telecommunications (Interconnection) Regulations 2003. Under regulation 4, no person is to be “granted” interconnection unless that person holds a relevant valid licence. There is room for argument as to when a person is “granted” interconnection; it may be that a person is only granted interconnection when the interconnection service is provided. Regulation 7 provides that an interconnection seeker must produce a valid carrier licence as proof of being the holder of such a licence as of the date “the interconnection commences”. Again, it is open to argument when interconnection “commences”; it may be that interconnection commences when the interconnection service begins to be used. In my judgment, it is not necessary to determine whether these Regulations can be relied upon as an aid to the interpretation of the Telecommunications 2001 as I do not find that any clear indication either way is to be found in the terms of the Regulations.

Finally, the Defendants rely upon the provisions of the 2001 Act which deal with compliance and the creation of a criminal offence. It is suggested that it would be surprising if these provisions would apply in a case where an incumbent operator had refused to discuss interconnection with a person who was not a licensee and, even more so, someone who had no real prospect of becoming a licensee.

I prefer the submissions for the Defendants. Section 25 is quite clearly restricted so that the duty it imposes is only owed to a carrier licensed under the Act. Section 25 requires such a carrier to make a request for interconnection services. Section 25 does not itself identify the form of, or the immediate consequences of, such a request. That topic is dealt with by section 28 which deals with requests for interconnection. The purpose of section 28 is to provide that a request for interconnection must be in writing and must be supported by information. Where there is a request for interconnection the parties can either agree to enter into a RIO or negotiate an agreement on terms different from those of the RIO. In my judgment, it is implicit in the language of section 28 that the only request which is relevant for the purposes of section 28 is a request which conforms to section 25, that is, a request from a licensed carrier.

The Defendants’ interpretation of section 28 is a more sensible interpretation of the section and provides a better fit for a number of the detailed provisions, as compared with the Claimants’ interpretation. Section 26(1) defines a RIO as an agreement to be entered into between licensed carriers. Section 28(2) contemplates the parties entering into a RIO. The Claimants’ interpretation of section 28 could produce the result that a RIO was entered into and was binding upon a dominant carrier on the one hand and someone who is not licensed under the Act on the other hand. Such an agreement would not satisfy the definition of RIO in section 26.

Section 28(3) imposes on the incumbent carrier an obligation to negotiate in good faith to reach agreement on the terms and conditions of the interconnection. It may turn out to be a waste of time for the dominant carrier to discuss interconnection with someone who is not a licensee and who does not subsequently obtain a licence. I do not agree with the Claimants’ contention that it will always be apparent at an early stage whether a non-licensed person is, or is not, negotiating in good faith.

Section 28(4) allows an incumbent carrier to refuse a request for interconnection on certain grounds. The incumbent carrier is not entitled to refuse the request on the grounds that the person requesting interconnection does not have a licence and has no prospect of getting one. That means that, if the Claimants are right, the incumbent carrier must negotiate the terms of an agreement with someone who has no licence and has no prospect of getting one.

If a person, who does not have a licence, has a statutory entitlement under section 28 to request interconnection and engage in negotiations on the terms of an interconnection agreement then, in some cases at least, those negotiations will result in an agreement. Such an agreement would have to be submitted to the regulator for approval and the incumbent carrier would be obliged to perform the terms of the agreement. The Claimants submit that the incumbent carrier could easily terminate the agreement because the other party would not be able to perform its side of the agreement. That would depend on the terms of the agreement but, in any event, it seems a strange result to place the incumbent carrier under a statutory obligation to negotiate and, if necessary, agree the terms of an interconnection agreement with a view to the incumbent carrier immediately terminating that agreement. Further, disputes between the parties to the negotiation could lead to a referral to the regulator under section 31.

I also bear in mind the point that the compliance provisions of the 2001 Act, and even more so, the criminal penalty provisions of the Act are likely to be wholly inappropriate in a case where the person requesting interconnection does not have a licence and does not have a prospect of obtaining one. I do not regard the arguments as to section 28 as being evenly balanced but if I did I would incline to read section 28 narrowly, rather than widely, given that a contravention of section 28 is a criminal offence under section 78.

My conclusion on the dispute as to the meaning of section 28 of the 2001 Act is that section 28 when it refers to “a person” or “the person” is referring to a person who is entitled to make a request under section 25 of the Act, that is a carrier with a licence under the Act. It follows that the duty created by section 28 was not owed to Digicel Barbados prior to it obtaining its licence on the 8^th August 2003.

The Claimants also rely upon section 16 of the Fair Competition Act 2002. In summary, section 16 prohibits the abuse by an enterprise of a dominant position which that enterprise holds.

The Fair Competition Act 2002 is a general statute dealing with the subject of competition. The long title to the Act states that the Act was passed to promote and maintain and encourage competition, to prohibit the prevention, restriction or distortion of competition and the abuse of dominant positions and to ensure that all enterprises have the opportunity to participate equitably in the marketplace. The Fair Competition Act 2002 does not deal specifically with the telecommunications market. The Fair Competition Act 2002 was passed in November 2002 and came into force on the 3^rd January 2003. The relevant telecommunications statute in Barbados was the Telecommunications Act 2001, to which I have already referred in detail. The Telecommunications Act 2001 came into force on 30^th September 2002. The Fair Competition Act 2002 does not refer to the Telecommunications Act 2001 and is not expressed as involving any amendment of the Telecommunications Act 2001. The regulator under the Telecommunications Act 2001 was the Fair Trading Commission which was established under the Fair Trading Commission Act. Under the Fair Competition Act 2002, it is also the Fair Trading Commission which is responsible for the administration of that Act: see section 4 thereof.

Section 2 of the Fair Competition Act 2002 defines “anti competitive practice” and “market” and explains references to “the lessening of competition”. It is not necessary to set out those definitions.

Section 16 of the Fair Competition Act 2002 provides as follows:

(1) Subject to subsection (4), the abuse by an enterprise of a

For the purposes of this Act, an enterprise holds a dominant

An enterprise abuses a dominant position if it impedes the

restricts the entry of any enterprise into that or any other

prevents or deters any enterprise from engaging in competi-

eliminates or removes any enterprise from that or any other

directly or indirectly imposes unfair purchase or selling prices

limits production of goods or services to the prejudice of

makes the conclusion of agreements subject to acceptance by

engages in exclusive dealing, market restriction or tied

uses any other measure unfairly in its trading operations that

An enterprise shall not be treated as abusing a dominant

if it is shown that its behaviour was exclusively directed to

the effect or likely effect of its behaviour in the market is the

by reason only that the enterprise enforces or seeks to enforce

has the effect of lessening competition substantially in a

impedes the transfer and dissemination of technology.”

Section 34 of the Fair Competition Act 2002 states that no person may conspire, combine, agree or arrange with another person to lessen unduly competition in the supply of goods or services or otherwise unduly restrain or injure competition.

Section 37 of the Fair Competition Act 2002 confers on the High Court of Barbados power to grant an injunction restraining conduct which is a contravention of sections 16 or 34 of the Act. Contravention of section 16 or section 34 of the Fair Competition Act 2002 is an offence by reason of section 43 of that Act.

Section 44 provides that every person who engages in conduct that constitutes a contravention of any of the obligations or prohibitions imposed by, amongst other sections, section 16 or conspires with any other person to contravene section 16 is liable in damages for any loss caused to any other person by such conduct. Section 44(2) provides that an action under sub section (1) may be commenced at any time within 3 years from the time when the cause of action arose.

By reason of section 44(2) of the Fair Competition Act 2002, the Claimants accept that any direct claim that they might have had on the basis of sections 16 or 34 of the Act was statute barred at the date of commencement of these proceedings. Further, any claim that the Claimants may have had for damages for conspiracy within section 44(1)(e) is also statute barred. However, the Claimants wish to say that a breach of section 16 of the Fair Competition Act 2002 amounts to the use of unlawful means for the common law tort of conspiracy to injure by unlawful means. The Claimants also say that a combination to do something which infringes section 16 would be a combination to lessen competition in the supply of services and would unduly restrain or injure competition so as to amount to a breach of section 34 which, the Claimants again say, amounts to unlawful means for the common law of tort. The Claimants then submit that Section 44(2) does not impose a limitation period of 3 years for the common law tort of conspiracy because, they say, section 44(2) only applies to an action under section 44(1) and an action for the common law tort of conspiracy is different from an action arising out of a statutory conspiracy within section 44(1)(e). Accordingly, it is necessary, in the first instance, to consider the scope of the obligations in sections 16 and 34 of the Fair Competition Act 2002.

In its Particulars of Claim in relation to Barbados, the Claimants pleaded the relevant sections of the Fair Competition Act 2002 and then set out the relevant events by way of a chronology of those events. In paragraph 4.3(b) of the relevant pleading it was alleged that the relevant Defendant had breached its obligations under the Fair Competition Act 2002 by:

deliberately and/or unreasonably abusing its dominant position in the telecommunications market in Barbados in breach of section 16(1) of the Fair Competition Act 2002; and/or

deliberately and/or unreasonably conspiring combining agreeing or arranging with another person to unduly restrict or injure competition in breach of section 34(1) of the Fair Competition Act 2002.”

The Claimants’ pleading of their claim under the Fair Competition Act 2002, which I have set out verbatim above, is extremely brief. The requirements of a pleading which alleges an abuse of a dominant position under article 82 of the EC Treaty (now article 102 of the Treaty on the Functioning of the European Union (“TFEU”) are described in Bellamy & Child, European Community Law of Competition, 6^th Edition at paragraphs 14.151-14.152. The text book states that as a matter of pleading a party raising an issue under article 82 must expressly state that fact in his pleading and adequately set out full and proper particulars of his case on that issue, including the essential facts. Particular care is expected of a party pleading competition law infringements as they are notoriously burdensome allegations, leading to excessive evidence and lengthy trials. Mere assertion in a pleading will not do. Unparticularised allegations may be struck out. The degree of particularity required will depend upon the nature of the allegation. The text book points out that the court should not make it too easy for a party to raise what turns out to be a baseless allegation of article 82 infringement but on the other hand it would be wrong to make it too difficult for a party with a valid case of article 82 infringement to put its case before the court.

The Defendants requested particulars of the Claimants’ pleading of a breach of sections 16 and 34 of the 2002 Act. The Claimants were asked to state the respect in which it was alleged that the relevant Defendant had committed an abuse of a dominant position. The response to the request was in these terms:

“by impeding, obstructing and/or delaying interconnection C&W restricted and prevented Digicel’s entry into the telecommunications market in Barbados and limited the telecommunications services available to the public in contravention of inter alia sections 16(1) and 16(3)(a),(b),(e)and (h) of the Fair Competition Act 2002 respectively. Digicel does not yet know exactly how C&W dealt with its own mobile operation and therefore reserves the right to allege other abuses of dominance as may be supported in evidence in these proceedings. Further details in the response relate to evidence.”

The Defendants did not apply to the Court for further information in relation to the alleged abuse of dominant position and did not apply to strike out the relevant part of the Claimants’ pleading. Thus, this allegation has survived in the pleading although it has never been properly particularised.

In their opening and closing submissions, the Claimants have repeated their reliance on the provisions of the Fair Competition Act 2002. However, the way in which the Claimants have put their case has been simply to state the provisions of the Act and to refer to the facts which the Claimants rely upon to establish breaches of sections 25 and 28 of the Telecommunications Act 2001.

It appeared to me from the Claimants’ closing submissions that the Claimants’ case on the application of the Fair Competition Act 2002 did not really add anything to the Claimants’ reliance on the Telecommunications Act 2001. As I understand it, the only circumstances in which the Claimants might wish to contend that the Fair Competition Act 2002 gave them an additional claim to their claim under the Telecommunications Act 2001 was in relation to the period of time before Digicel Barbados was granted its licence on 8^th August 2003 in the event that I held (as I have held) that neither section 25 nor section 28 of the Telecommunications Act 2001 imposed a duty on C&W Barbados prior to this date. When questioned about reliance on the Fair Competition Act 2002 in such circumstances, it seemed to me that the Claimants’ Counsel did not press the point. At that stage, I drew attention to the position under article 102 of TFEU (formerly article 82 of the EC Treaty) and the European competition law as to the possibility of an abuse of dominant position where a dominant telecommunications operator refuses to grant access to an essential facility, such as its existing network. Having referred to the principles in that respect, I was then addressed by Counsel for the Defendants as to why the Fair Competition Act 2002 did not impose any obligation upon C&W Barbados in relation to the period before the grant of the licence to Digicel Barbados on 8^th August 2003.

The position in European competition law as to a refusal to grant access to an essential facility is described in Faull & Nikpay, The EC Law of Competition, 2^nd Edition, at paras. 4.193 to 4.202. The text book draws upon the detailed discussion of the topic in the Commission Notice on the Application of the Competition Rules to Access Agreements in the Telecommunications Sector; (1998) OJ C265/02. That notice identifies the circumstances in which a dominant telecommunications operator may be required to give access to its network to enable a new entrant to the market to launch its telecommunications service. The Commission Notice draws on a number of cases dealing with transport infrastructure and harbour facilities, in particular, Sea Containers v Stena Sealink [1993] OJ 1994 L15/8. These materials show that in some circumstances, it can be considered to be an abuse of a dominant position for a dominant operator to deny a new entrant access to its network.

The Defendants pointed out that, apart from the general provisions of article 102 of TFEU, the question of interconnection between telecommunicaitons operators is governed in Europe by Directive 97/33/EC, which has been given effect in the United Kingdom by the Telecommunications (Interconnection) Regulations 1997. The Directive identifies the nature and the scope of the obligation on a dominant operator to allow interconnection to its network. It is clear that the obligation is owed to another operator who has a relevant licence to operate a telecommunications network and is not owed to persons who do not have such licences: see recital (5) and article 4 of the directive. The position is the same in relation to the UK regulations: see regulation 3.

The conclusion I draw from this review of the position under European competition law is that the relevant rules in Europe, being the general rules outlawing abuse of a dominant position and the specific rules as to interconnection between telecommunications operators, have the effect that a dominant operator is obliged to provide access to necessary facilities in the form of interconnection to its network but this obligation is owed to another licensed operator and is not owed to persons who are not licensed operators.

The question in the present case is not directly as to the position under European competition law but is, instead, a question as to the combined operation of the Telecommunications Act 2001 and the Fair Competition Act 2002 in Barbados. In my judgment, section 16 of the Fair Competition Act 2002 outlaws abuse of a dominant position. A denial of access to essential facilities can in some circumstances be an abuse of a dominant position. However, this case is specifically about interconnection between telecommunications operators. That topic is dealt with by the specific provisions of the Telecommunications Act 2001 and sections 25 and 28 of that Act, as I interpret them, place duties upon the incumbent operator but those duties are owed only to another licensed operator and are not owed to a person in the period before that person becomes a licensed operator. In my judgment, the way in which Barbados has chosen to give effect to the general duty of a dominant operator to provide access to essential facilities to a new entrant is, in the specific case of interconnection to an existing network, dealt with by the specific provisions of the Telecommunications Act 2001 and is not extended by the general provisions of section 16 of the Fair Competition Act 2002. The position is the same in relation to section 34 of the Fair Competition Act 2002.

It is of interest to note that a similar question as to the inter-relationship of telecommunications interconnection and anti-trust law has been considered in the Supreme Court of the United States in Verizon Communications Inc v Law Offices of Curtis V Trinko LLP 540 US 398 (2004). The approach of the Supreme Court of the United States appears to support the approach I have adopted to this legislation in Barbados.

In these circumstances, I conclude that the Claimants’ reliance upon the Fair Competition Act 2002 does not add anything to their case based on sections 25 and 28 of the Telecommunications Act 2001. If the Claimants fail to establish a breach of sections 25 and 28 of the Telecommunications Act 2001, they will not, in my judgment, be able to establish a breach of the more general provisions about abuse of dominant position contained in the Fair Competition Act 2002.

When I considered the legislation in SLU, I considered whether there was an obligation on CWWI: (1) to order the equipment it needed for its side of the interconnection; and (2) to carry out civil works to effect interconnection; before the parties had agreed the terms of an interconnection agreement. I also considered whether it was legitimate for CWWI to refuse to do either of these things, before the parties had agreed the terms of an interconnection agreement, as a means of leverage in the negotiations as to those terms. I need to consider the same questions in relation to C&W Barbados in Barbados.

When I considered the position in SLU, I referred to the legislation in SLU and then to more general considerations as to the character of commercial negotiations. In the case of Barbados I similarly need to consider the legislation in Barbados and then reflect again on more general considerations.

I have already referred to some of the detailed provisions of the legislation in Barbados. On the present questions, I draw attention to the way in which the legislation provides for the parties to negotiate an interconnection agreement and the expected terms of such an agreement in so far as those terms are relevant to the topic of ordering equipment and carrying out civil works. Sections 25(2)(b) and (e) of the Telecommunications Act 2001 refer to the terms on which interconnection services are to be offered or made available. Section 25(2)(d) of the 2001 Act requires interconnection services to be made available in a timely fashion. Section 25(3) of the 2001 Act refers to the parties agreeing the relevant terms through commercial negotiations. Section 26 of the 2001 Act refers to a dominant carrier filing a RIO which will set out the terms on which interconnection is to be provided. Section 28(1) of the 2001 Act refers to a person requesting interconnection and under section 28(3) the parties are then to negotiate in good faith the terms of an interconnection agreement. I comment that the obligation to act in good faith is in relation to the negotiation of the terms of the agreement. The subsection does not in terms impose an obligation to act in good faith in relation to its handling of the process of interconnection.

Section 16 of the Fair Competition Act 2002 prohibits abuse of its position by a dominant operator. I have discussed above the interplay between this provision and the detailed provisions of the Telecommunications Act 2001. In my judgment, section 16 of the 2002 Act does not require any specific behaviour in relation to ordering equipment and carrying out civil works which is not required by the 2001 Act. Further, in my judgment, section 16 of the 2002 Act does not have any implications for the debate as to whether it is open to a party to commercial negotiations to use the bargaining advantages open to it such as the bargaining advantage, referred to as leverage, which is relevant for present purposes. The same reasoning applies to section 34 of the Fair Competition Act 2002.

The Telecommunications (Interconnection) Regulations 2003 which applied in Barbados referred (at regulation 3) to certain published interconnection guidelines. I do not see anything in those guidelines which is material for present purposes in that the guidelines do not add anything relevant to the relevant statutory material. Regulation 5 of the 2003 regulations refers to the permissible content of a draft RIO.

I have also reminded myself of the terms of the draft RIO which was submitted to the regulator by C&W Barbados and the terms of the interconnection agreement which was later entered into by the parties in Barbados. It is not necessary to refer to any particular provision of those documents.

The arguments of the parties in relation to ordering equipment and civil works in Barbados followed essentially the same lines as the arguments I have set out above in relation to SLU, save that C&W Barbados did not advance any argument that it was prohibited from ordering equipment and/or carrying out civil works before agreeing the terms of an interconnection agreement.

My reaction to the detailed provisions of the legislation in Barbados and the arguments of the parties is essentially the same as my reaction to those matters in SLU. I conclude that there is nothing in the legislation which specifically required C&W Barbados to order equipment and carry out civil works before finalising the terms of an interconnection agreement. Similarly, there is nothing in the legislation which prohibited C&W Barbados for doing either or both of these things. The legislation contemplates that the parties will conduct commercial negotiations as to an agreement which will provide for all relevant aspects of interconnection. The negotiations must be conducted in good faith. The use of the leverage in question is, in my judgment, normally a legitimate part of commercial negotiations. I do not see that the use of such leverage is a breach of the obligation to conduct commercial negotiations in good faith.

In the event, in Barbados, C&W Barbados did order its side of the necessary equipment and did commence the civil works before finalising the terms of the interconnection agreement. Digicel Barbados contends that C&W Barbados was in breach of duty by not ordering the equipment at an even earlier stage and, similarly, not commencing the civil works at an even earlier stage. For the reasons given above, I do not agree.

There is one further point which arises on the legislation in Barbados. The issue is whether it is open to the parties to finalise, as between themselves, the terms of an interconnection agreement and to implement those terms, even before the terms are approved by the regulator. The question of approval by the regulator is dealt with by section 29 of the 2001 Act. By section 29(1), where the parties agree the terms of an interconnection agreement, the agreement must be filed with the regulator within 30 days of the date of the agreement, for the purpose of seeking the regulator’s approval to the agreement. By section 29(2), the regulator may approve the agreement as filed or may require it to be varied. Section 29(4) deals with the consequences of the parties failing to comply with such a requirement by the regulator.

In my judgment, these provisions do not prohibit the parties from implementing the interconnection agreement, which they have agreed between themselves, before the agreement is approved by the regulator. However, conversely, these provisions do not prevent the parties making an agreement on terms that it is not to take effect until it receives the approval of the regulator. On this reasoning it is, in principle, open to a party either to agree terms subject to such a suspensive condition, or not so subject. If a party insists in the course of negotiations on such a suspensive condition, which is not acceptable to the other party, then a question could arise whether such insistence is being put forward in good faith, as required by section 28(3) of the 2001 Act or is in bad faith, for the purpose of delaying the time when the agreement may be implemented.

The position in Barbados is different from the above jurisdictions. The Claimants rely on sections 25 and 28 of the Telecommunications Act 2001. Section 73 of that Act provides that where a person suffers financial loss or damage to property as a result of another person’s contravention of any obligation or prohibition imposed by that Act, there is payable to that other person, by the person in default, such reasonable amount as is agreed between the parties or, failing agreement, as is determined by a court of competent jurisdiction.

The Defendants appear to accept that the High Court of England and Wales is a court of competent jurisdiction for the purposes of section 73 of the 2001 Act. The Defendants also accept that when the court is asked to determine “such reasonable amount” for the purposes of making an award in favour of a person who has suffered financial loss, the court should apply the ordinary principles as to the assessment of damages in tort. The parties did not make submissions as to whether it was open to the court to award exemplary damages or what have been called restitutionary damages under section 73 of the 2001 Act. Thus, in the way described above, section 73 makes actionable any breach by C&W Barbados of section 25 or 28 of the 2001 Act.

Section 73 also provides for a right of action under the statute against anyone, in addition to C&W Barbados, who has aided and abetted, counselled or procured a breach of section 25 or section 28, or induced such a breach, or been a party to such a breach or conspired with C&W Barbados to contravene section 25 or section 28: see sub-sections (b), (c), (d) and (e) of section 73. Section 73 (e) refers to a person “conspiring with any other person to contravene any provision under this Act”. Questions might arise as to whether all of the ingredients of the common law tort of conspiracy apply to this statutory tort of conspiracy. In view of the existence of the statutory tort of conspiracy, there seems to me to be little point in the Claimants relying instead on an alleged common law conspiracy to commit a breach of section 25 or 28 of the Telecommunicaitons Act 2001.

The Claimants also rely on sections 16 and 34 of the Fair Competition Act 2002. I have earlier held that sections 16 and 34 of the 2002 Act do not add anything to the obligations of C&W Barbados under sections 25 and 28 of the 2001 Act. If the Claimants could establish a breach of sections 16 or 34 of the 2002 Act, then by virtue of section 44 of the 2002 Act, such a breach would have been actionable, but the limitation period for such a claim was 3 years from the time when the cause of action arose and the Claimants accept that any claim under sections 16 or 34 was statute barred when they brought these proceedings. Section 44 also extended the class of persons who might be liable for a breach of section 16 or section 34 of the 2002 Act to persons who aided and abetted or counselled and procured or induced such a breach or were parties to such breach or who conspired to contravene sections 16 or 34 of the 2002 Act. However any claim of this kind under section 44 was also statute barred. The only relevance, therefore, of the 2002 Act would be if a breach of sections 16 or 34 amounted to unlawful means for the purposes of the common law tort of conspiracy to injure by unlawful means. However, I have already held that sections 16 and 34 of the 2002 Act do not add anything to the claims based on sections 25 and 28 of the 2001 Act. The Defendants also submitted that in view of the statutory tort of conspiracy created by section 44(1) of the 2002 Act, there was no room for the common law tort of conspiracy to contravene sections 16 or 34 of the 2002 Act; alternatively, the three year limitation period in section 44(2) of the 2002 Act also applied to any common law tort of conspiracy. In view of my findings as to sections 16 and 34 not adding anything to the claim based on sections 25 and 28 of the Telecommunications Act 2001, it is not necessary to consider those arguments.

The Defendants accept that a breach of sections 25 or 28 of the Telecommunications Act 2001 or a breach of sections 16 or 34 of the Fair Competition Act 2002 would constitue unlawful means for the purpose of the common law tort of conspiracy to injure by unlawful means.

When discussing the actionability of a breach of the legislation in Barbados, I referred to the express statutory provisions dealing with conspiracy to contravene the legislation and the questions which might arise as to the interrelationship between the statutory tort of conspiracy and the alleged common law tort of conspiracy to contravene that legislation. For the reasons given earlier, it is not necessary to pursue those matters.

Because a breach of sections 25 and 28 of the Telecommunications Act 2001 is expressed to be actionable in the event of such a breach causing damage to Digicel Barbados, it is now necessary to consider whether C&W Barbados acted in breach of the obligations placed on it by sections 25 and 28 of the 2001 Act.

I have set out in Annex D to this judgment a discussion of the matters of complaint in relation to Barbados and my findings of fact in relation to them. In making my findings, I have directed myself in accordance with my earlier rulings as to the content of the obligations imposed by sections 25 and 28 of the Telecommunications Act 2001. My conclusions are that Digicel Barbados has not established that interconnection was delayed by reason of a breach of duty by C&W Barbados. Accordingly, the claim for damages by Digicel Barbados fails.

I have earlier referred to the express statutory provisions in section 73 of the Telecommunications Act 2001 and section 44 of the Fair Competition Act 2002 which deal with secondary parties in relation to a contravention of the legislation and which deal with a conspiracy to contravene the legislation. If I had held that C&W Barbados had acted in contravention of the legislation then various questions would have arisen as to whether CWWI and/or C&W plc were liable under these express statutory provisions. Further questions would arise as to whether CWWI and/or C&W plc were liable for a common law tort of conspiracy to injure by unlawful means. In view of my actual findings that C&W Barbados did not contravene the legislation, I will not discuss these questions in any detail. I will, however, make some brief comments on certain matters of fact in relation to secondary liability and conspiracy which were argued in relation to the claim in Barbados.

The Claimants alleged that C&W plc combined with C&W Barbados (and/or with CWWI) to contravene the legislation in Barbados. When I considered the claim in relation to SLU, I made my findings as to the involvement of C&W plc in relation to the various jurisdictions with which this litigation is concerned. Those comments apply also to the claim in relation to Barbados.

In relation to the allegation of a conspiracy in Barbados, the position of CWWI as an alleged conspirator with C&W Barbados is not the same as the position of C&W plc. After all, CWWI was involved in the detail of the interconnection process in Barbados. However, in my judgment, no purpose is served in discussing in the abstract whether CWWI did or did not combine in any relevant way with C&W Barbados. It would only be relevant and useful to discuss that question if there was some feature of C&W Barbados’ conduct which amounted to an unlawful act. As I have held that C&W Barbados did not commit any unlawful act, I see no purpose in discussing whether CWWI did or did not combine with C&W Barbados in relation to matters which were not unlawful.

Although the next point does not strictly arise in view of my earlier findings, I heard evidence as to the existence of an honest belief on the part of certain persons acting on behalf of C&W Barbados that certain actions of C&W Barbados were lawful and I will briefly record my findings on that evidence.

In their closing submissions, the Defendants invited me to find: (1) that Mr Batstone, Mr Austin and Ms Medford believed at all relevant times in Barbados that C&W Barbados was not under a legal obligation owed to Digicel Barbados to negotiate on the subject of interconnection with Digicel Barbados prior to the latter obtaining a licence in Barbados and (2) that Mr Thompson, Mr Batstone and Mr Austin believed at all material times in Barbados that C&W Barbados was not under a legal obligation owed to Digicel Barbados to order the equipment needed for C&W Barbados’ side of the interconnection before the parties had entered into an interconnection agreement which provided for the ordering of such equipment.

As to (1), I find that Mr Batstone, Mr Austin and Ms Medford did have that belief as to the legal position. They all gave evidence to that effect. Mr Batstone and Ms Medford, but not Mr Austin, were cross-examined as to that evidence. I accept their evidence on this point. I also find that Ms Medford, and possibly Mr Batstone and Mr Austin also, thought that the position was not wholly clear because Digicel Barbados had put forward a contrary argument to the effect that section 28 of the Telecommunications Act 2001 could be relied upon by a “person” even when that person was not a licensee. Nonetheless, they all thought that that argument was probably wrong.

As to (2), I find that Mr Thompson, Mr Batstone and Mr Austin did have that belief as to the legal position. They all gave evidence to that effect and there was no real challenge to that evidence in cross-examination I accept their evidence on this point.

There was a lengthy and detailed dispute on the issue of fact whether, if C&W Barbados had been in breach of duty in Barbados and that breach of duty had caused delay to interconnection in Barbados, any such delay in interconnection had caused delay to Digicel Barbados’ launch of its telecommunications service in Barbados. The Claimants said that the Digicel Barbados was delayed in relation to its launch for more or less the full period of any delay in relation to interconnection. C&W Barbados said that Digicel Barbados had many other matters to deal with, apart from interconnection, before it could be ready to launch and, on the detailed facts, Digicel Barbados was not ready to launch before it actually did so. Accordingly, any delay on the part of C&W Barbados in relation to interconnection had not made any difference to the date when Digicel Barbados launched in Barbados.

I have decided that I will not attempt to determine the very many issues which arose in this respect. My reasons for this decision are somewhat similar to the reasons which I have already set out for reaching a similar decision in relation to SLU, although some of the points which led me to my conclusion in SLU do not apply in Barbados. In Barbados my reasons are as follows. First, I have determined that there was no delay to interconnection in breach of any obligation on the part of C&W Barbados, so the question of any delay to Digicel Barbados’ launch does not arise. Secondly, if I attempted to deal with the many points of detail as to a possible delay to the launch in Barbados, I would immediately face the difficulty of having to make an assumption of fact, which I have not held to be well founded, as to when interconnection should have been completed and then to ask whether interconnection on such an assumed date would have allowed Digicel Barbados to launch earlier than it actually did. Indeed, I would have to deal with a number of possible assumed dates depending on what conduct on the part of C&W Barbados is to be assumed (contrary to my actual findings) to have been a breach of duty on its part. The assumed dates of interconnection could have a bearing on the effect of the allegedly delayed interconnection on a planned launch. Thirdly, any attempt to make findings of fact on the question of a possible delayed launch in Barbados would involve a very considerable amount of time and result in delay in concluding my judgment. Fourthly, there were significant arguments as to whether I should permit the Claimants to advance a case that they were delayed from a specified date or alternative specified dates when those dates were not pleaded and the date of commencement of delay, which was pleaded in relation to Barbados, was not contended for by the Claimants in their closing submissions. If I were otherwise minded to make findings of fact as to a possible delay to the launch in Barabdos, it would be necessary to set out in some detail the procedural history in relation to this question and to examine the legal basis for the Defendants’ proposition. Fifthly, the Claimants proposed a particularly burdensome course of action which, they suggested, required me to read a substantial quantity of further documents which had not been referred to at any earlier stage of the trial solely for the purpose of answering the question of whether Digicel Barbados would have been able to launch its network earlier in certain hypothetical circumstances. For all these reasons, I conclude that it would be disproportionate to go further into the facts as to any such delay to launch. Accordingly, I will not make findings on a hypothetical basis as to whether a delay in interconnection did cause delay to Digicel Barbados’ launch.

In these circumstances, it is not appropriate to discuss the law or the facts as to whether the present is a case of exemplary damages or what have been called restitutionary damages or whether the legislation in Barbados, which allows the court to award damages, extends to an award of exemplary or restitutionary damages.

The result which emerges from the above conclusions is that the claim by Digicel Barbados against C&W Barbados, CWWI and C&W plc fails and will therefore be dismissed.

In Cayman, the incumbent telecommunications operator was C&W Cayman. The licensed new entrant was Digicel Cayman. The claim in relation to Cayman is brought by Digicel Cayman against C&W Cayman, CWWI and C&W plc. The Claimants allege that C&W Cayman was in breach of the primary and secondary legislation in Cayman. The regulations in Cayman only came into effect on 1^st December 2003 so that the claim in relation to the regulations relates only to the period beginning on 1^st December 2003. The Claimants say that such breaches were actionable as the tort of breach of statutory duty, that C&W Cayman, CWWI and C&W plc were joint tortfeasors and/or that they combined together such that they are liable for the tort of conspiracy to injure by unlawful means.

C&W Cayman, CWWI and C&W plc deny that there were any breaches of the primary or secondary legislation. In any event, they say that any such breaches were not actionable. They also say that on the facts and as a matter of law, they are not liable in the tort of conspiracy. They further say that any breaches caused no loss. There is no limitation issue in Cayman.

The parties disagree as to the meaning and effect of the primary and secondary legislation in Cayman. Accordingly, I will begin by considering that legislation in detail. As I will be examining the scope of the duties imposed by that legislation, it is convenient for me next to consider whether any breach of such duties would be actionable as the tort of breach of statutory duty, before I consider the facts. If I find that any breach of the legislation would not be actionable, then I will consider whether any breach of the legislation would be “unlawful means” for the purpose of the tort of conspiracy to injure by unlawful means, again before I consider the detailed facts.

Whatever I decide about the actionability of any breaches and whether any breaches could be unlawful means, I will make findings of fact on the matters of complaint which the Claimants say were breaches of the primary or secondary legislation.

I set out the relevant parts of the primary and secondary legislation in Cayman in Annex F. The Claimants rely upon section 44 of the Information and Communications Technology Authority Law 2002 and upon various regulations in the Information and Communications Technology Authority (Interconnection and Infrastructure Sharing) Regulations 2003. The 2003 Regulations came into effect on 1^st December 2003. The process of arranging interconnection in Cayman had begun before that date so that the 2003 regulations only applied to the later part of that process.

Some of the wording in section 44 of the 2002 Law resembles some of the wording in section 46 of the Telecommunications Act 2000 in SLU. The parties appeared to proceed on the basis that much of the argument and discussion in relation to the SLU Act would also apply in the case of the 2002 Law. Whilst it is true that there are similarities between some of the wording in the SLU Act and some of the wording in the 2002 Law, it seems to me to be desirable to analyse and discuss the 2002 Law afresh, and without any preconceptions arising from the earlier discussion of the SLU Act. There are obvious differences between the wording of the 2002 Law and that of the SLU Act, and those differences may well mean that similar wording in the 2002 Law should not automatically be given the same meaning as that wording in the SLU Act.

The definition of "interconnection" in the 2002 Law is different from the definition of "interconnection" in the SLU Act. In the 2002 Law "interconnection" is defined to mean "the physical or logical connection of public ICT networks of different ICT network providers". This definition refers to physical interconnection, and I do not read it as referring to both physical and contractual interconnection. There is no definition in the 2002 Law of "interconnection service", although that phrase is used in a number of places in the 2002 Law.

Section 44 (1) states that a licensee which operates a public ICT network shall not refuse, obstruct, or in any way impede another licensee in the making of any interconnection with its ICT network and should, in accordance with the provisions of section 44, ensure that the interconnection provided is made at technically feasible physical points. This subsection makes clear that the duty imposed on an incumbent licensee is owed to another licensee. "Licensee" is defined by the 2002 Law to mean a person to whom a licence is granted by ICTA under the 2002 Law. In this case, Digicel Cayman was granted such a licence, and so became a licensee as defined, on the 17th October 2003. Prior to that date, Digicel Cayman was not such a licensee. It is clear, therefore that the duty imposed on C&W Cayman by section 44 (1) of the 2002 Law did not apply in relation to the period prior to 17th October 2003.

Section 44 (1) of the 2002 Law stated that the incumbent licensee was not, amongst other things, to obstruct or in any way impede a new entrant licensee in the making of any interconnection. Because “interconnection” is defined by the 2002 Law to mean physical interconnection, section 44 (1) refers to obstructing and impeding physical interconnection, rather than obstructing and impeding contractual interconnection. However, it is clear from the provisions of the 2002 Law taken as a whole, that the parties were expected to make an agreement in relation to the use of physical interconnection, that is, the use of the interconnection service. If the incumbent licensee proposed that the parties negotiate and agree an interconnection agreement before taking steps to achieve physical interconnection, that stance on the part of the incumbent licensee would not, in my judgment, necessarily mean that the incumbent licensee was obstructing or impeding the making of a physical interconnection. If agreement as to the terms of interconnection agreement were necessary, or even desirable, for the purposes of achieving physical interconnection, a proposal to agree such terms could be seen as making progress towards physical interconnection rather than obstructing or impeding it.

When discussing section 46 (1) of the SLU Act earlier in this judgment, I recorded my difficulty in interpreting an obligation expressed in the negative so as to create a positive obligation to take action. I then referred to the possibility that section 46 (1) of the SLU Act might be given effect as a true negative obligation on the basis that the new entrant licensee would enjoy, pursuant to the provisions of the Act, a right of access to the incumbent's switch site. The new entrant licensee could rely on that right of access to install interconnection equipment on the incumbent’s switch site and it was that process which the incumbent was not to obstruct or impede. The position in Cayman is different for a number of reasons so that this possible interpretation does not arise. The first is that there is no provision comparable to section 50 of the SLU Act which provides for the new entrant licensee to have access to a site owned by the incumbent. The second difference is that it is, in any event, not necessary to interpret section 44 (1) of the 2002 Law as imposing any kind of positive obligation to take action. That is because other provisions in the 2002 Law do impose a positive obligation to take action. In those circumstances, I incline to the view that section 44 (1) does operate in accordance with its express terms as a negative prohibition on obstruction of, and impeding, the making of physical interconnection.

Section 44 (3) obliges the incumbent licensee, subject to subsection (5), to "provide the interconnection service in a reasonable time". "Interconnection service" is not defined but, in my judgment, interconnection service is a reference to the use of the physical interconnection. Other provisions of the 2002 Law make it clear that the parties are expected to agree terms on which the interconnection service may be used. In this way, section 44 (3) places an obligation on the incumbent licensee to provide interconnection service and, for that purpose, to take the steps that are necessary to enter into an interconnection agreement and to complete the work needed to achieve physical interconnection. Accordingly, section 44 (3) does clearly impose on the incumbent licensee a positive obligation in relation to both physical and contractual interconnection. Section 44 (5) refers to "interconnection" as being provided at reasonable rates and on certain terms and conditions. Section 44 (5) goes on to provide in various ways for controls on the parties’ freedom of action in relation to rates, terms and conditions. On the basis that "interconnection", as defined in the 2002 Law, is a reference to physical interconnection, section 44 (5) should be understood as requiring that physical interconnection is to be provided on certain contractual terms, in accordance with the detailed provisions of the 2002 Law.

Section 45 deals with the form of interconnection agreements and certain allied matters. It is clear that the parties can bind themselves to the terms of an interconnection agreement and give effect to those terms, without seeking prior approval from ICTA. However, the concluded agreement must be submitted to ICTA.

Section 46 of the 2002 Law refers to "negotiations for the provision of interconnection". This phrase contemplates that the parties will negotiate the terms on which physical interconnection is to be provided.

When discussing sections 44, 45 and 46 of the 2002 Law, I have referred to the various ways in which those sections refer to physical interconnection and to the terms of an agreement on which physical interconnection is to be provided. Those provisions suggests to me that the draughtsman of the 2002 Law contemplated that the ordinary way in which the parties would go about providing physical interconnection and agreeing the terms on which physical interconnection could be used was that the parties would agree the terms of an interconnection agreement and then implement that interconnection agreement by providing physical interconnection. When the physical interconnection was in place, it could be used by the parties on the terms of the interconnection agreement. I do not see anything in these provisions which places an express obligation upon an incumbent licensee to order the necessary equipment for its side of the interconnection and/or to install and test that equipment prior to the parties agreeing the terms of an interconnection agreement. Similarly, there is no provision which obliges the incumbent licensee to carry out civil works to connect the two switch sites (of the incumbent and the new entrant respectively) prior to the parties agreeing the terms of an interconnection agreement. Conversely, there is no express provision in these sections, which prohibits the parties, if they both so wish, from ordering and/or installing and/or testing the equipment to be used on the incumbent licensee’s side of the interconnection, or the carrying out of the civil works prior to the making of an interconnection agreement.

When I considered the position in SLU, I discussed the question whether it was permissible for the incumbent licensee to withhold its agreement to ordering necessary equipment and/or installing and/or testing that equipment, and to decline to carry out civil works, prior to the parties entering into an interconnection agreement, with a view to obtaining leverage over the new entrant licensee in relation to the negotiations as to the terms of the interconnection agreement. It was seen that such leverage might arise for the benefit of the incumbent licensee, because the new entrant licensee would generally be in a hurry to achieve physical and contractual interconnection in order to be able to launch its telecommunications service. In relation to SLU, I commented on what was generally involved in the conduct of commercial negotiations. I concluded that the use of that kind of leverage could be seen as part of ordinary commercial negotiations. I also concluded that the use of that kind of leverage was not contrary to the express provisions of the SLU Act. I reach the same conclusions in those respects in relation to the 2002 Law.

I now turn to consider the 2003 Regulations in Cayman. These regulations came into force on 1^st December 2003. The interconnection process had already begun by that date and the regulations only apply to the later part of that process. Regulation 2 defines "interconnection" in the same way as that word is defined in the 2002 Law. Accordingly, in my judgment, "interconnection" in the 2003 Regulations refers to physical interconnection.

Regulation 3 in the 2003 Regulations defines "licensee" in a way which shows that Digicel Cayman was not a "licensee" for the purposes of the Regulations until 17^th October 2003.

Regulation 4 (1) provides that a licensee must not refuse, obstruct or in any way impede another licensee in the making of any interconnection or infrastructure sharing arrangement. The obligation imposed by regulation 4(1) is said to be "in accordance with the provisions of section 44 of the Law”. There is, however, a difference between the obligation imposed by section 44 and that imposed by regulation 4 (1). Both provisions use the verbs "refuse, obstruct or impede". However, in the case of section 44 (1) of the Law, the thing which is not to be obstructed or impeded is "the making of any interconnection". In the case of regulation 4 (1), the thing which is not to be obstructed or impeded is "the making of any interconnection ... arrangement". I acknowledge that this is not the only possible reading of regulation 4 (1). Another reading would be that regulation 4 (1) prevents the obstruction or impeding of "the making of any interconnection". That reading of regulation 4 (1) would simply repeat the obligation in section 44 (1) and would not add anything. I prefer the reading of regulation 4 (1) which describes the thing which is not to be instructed or impeded as "the making of any interconnection ... arrangement". That way of reading the phrase "the making of any interconnection or infrastructure sharing arrangement" appears to be more consistent with the later provisions in regulation 4 and the terms of regulation 5. Further, that reading of regulation 4 (1) does not mean that regulation 4 (1) is not "in accordance with the provisions of section 44 of the Law "; it will be remembered that section 44 (3) of the Law required the parties to provide the interconnection service in a reasonable time, and in accordance with that requirement, as I see it, regulation 4 (1) will oblige a licensee not to obstruct or impede the making of an interconnection arrangement. On that reading of regulation 4 (1), an interconnection arrangement would mean an arrangement which provided for the achievement of both physical and contractual interconnection.

Regulation 5 provides that "interconnection and infrastructure sharing arrangements shall be concluded as quickly as possible, and in any event, no later than the time limits set out in these regulations, unless otherwise agreed between the parties." In my judgment, this regulation means what it says and does not pose any real difficulties of interpretation. The arrangements for interconnection are to be concluded as quickly as possible. The arrangements which are referred to involve both the making of an interconnection agreement and achieving physical interconnection. Regulation 5 does not dictate whether the parties should go about the performance of this obligation by making, in the first instance, an interconnection agreement followed by the implementation of the agreement or, conversely, taking steps to achieve physical interconnection prior to the conclusion of an interconnection agreement. The Claimants have sought to rely upon regulation 5 in their closing submissions and they allege that C&W Cayman acted in breach of regulation 5. However, the Claimants do not plead any breach of regulation 5 in their pleaded case. As the Claimants were permitted on three occasions to amend their pleaded claim in relation to Cayman and as they did not on any of those occasions put forward a claim that C&W Cayman had acted in breach of regulation 5, I will not consider in this judgment any allegation by the Claimants of a breach of regulation 5.

Regulation 6 spells out a number of detailed matters as to the principles and guidelines to be applied by the parties to the provision of interconnection services. Regulation 6 (a) imposes on each licensee an obligation to negotiate interconnection agreements and to provide interconnection services "in good faith". It is not necessary at this point in the judgment to discuss the precise meaning of the phrase "in good faith". Regulation 6 (b) refers to the parties “in the first instance” attempting to reach agreement on interconnection by negotiation. The phrase “in the first instance” is used primarily to distinguish the negotiations stage from a possible later dispute resolution stage. However, in my judgment, regulation 6 (b) also suggests that in the ordinary way the parties will go about arranging interconnection by negotiating the terms of an interconnection agreement, which will then be implemented so as to provide physical interconnection and which will identify the terms on which the physical interconnection may be used. The same indication can be found in regulation 6 (e), which refers to interconnection being provided on certain terms and conditions. Regulation 6 (g) refers to the party who is to bear the cost of providing interconnection; the sub-paragraph provides that the costs are to be borne in accordance with the interconnection agreement. Again, in my judgment, this suggests that what was expected in the ordinary way was that the parties would make an interconnection agreement and then implement it so that costs would be incurred and borne in accordance with the terms of the agreement. The same point can be made in relation to regulation 6 (k).

Regulation 8 (1) provides that licensees are obliged to negotiate interconnection in order to ensure the provision and interoperability of services throughout the Cayman Islands. The remainder of regulation 8 specifies a detailed timetable, which proceeds by the following stages: a request from the new entrant to the incumbent for a quotation pursuant to which the incumbent will provide interconnection; an acknowledgment by the incumbent of the request; a statement by the incumbent that the request is complete and accurate or that there is a need for further information; the provision by the incumbent of a quotation as to the rates terms and conditions for obtaining the requested service of interconnection; following the provision of the quotation, the parties are to undertake good faith negotiations for the purpose of producing an interconnection agreement. Regulation 8 (11) identifies five matters, which will be regarded as violating the obligation to act in good faith. It is not necessary to discuss the meaning of regulation 8 (11) at this point in the judgment as its provisions are clear. My reaction to the wording of the timetable in regulation 8 is that it was expected that the parties would conclude an interconnection agreement and then implement that interconnection agreement by, for example, ordering and installing and testing the equipment which was needed on the incumbent’s side of the interconnection and carrying out any necessary civil works.

Regulations 9, 10 and 11 contained detailed provisions as to the rates which might be charged for interconnection services. It is not necessary to refer to those provisions at this point in the judgment.

Regulation 19 deals with the form and the content of an interconnection agreement. It identifies, at a minimum, a number of matters which are required to be specified in an interconnection agreement. Amongst those matters are: the capacity and service levels agreed between the parties; "forecasting, ordering, provisioning and testing procedures"; geographical and technical characteristics and location of each point of interconnection; measures anticipated for avoiding interference with damage to the networks of the parties involved or those of third parties; methods for measuring service quality; provision of network information; technical specifications and standards; the procedures to detect and repair faults; the scope and description of the services to be provided; the technical characteristics of all the main and auxiliary signals to be transmitted by the system; the obligations and responsibilities of both parties in the event that inadequate or defective equipment is connected to their respective networks, and any other relevant issue. The details contained in regulation 19 and, in particular, the reference to the interconnection agreement dealing with matters such as forecasting, ordering, provisioning and testing procedures suggests that it was expected that, in the ordinary case, the parties would make an interconnection agreement, and then implement that agreement in relation to those ordering, installation and testing procedures and the carrying out of any civil works.

Regulation 24 provides that the incumbent licensee should promptly provide services in accordance with the final interconnection agreement. Again, this suggests to me that it was expected that, in the ordinary case, the parties would proceed to conclude an interconnection agreement, and then implement that agreement by providing services, including the service of arranging physical interconnection.

The Claimants contend that breaches of section 44 of the Information and Communications Technology Authority Law 2002 are actionable. As before, I will consider the matters which assist in determining the answer to this question.

In my judgment, the 2002 Law in Cayman was passed primarily to benefit the public interest. Similarly, section 44 of the 2002 Law was enacted primarily to benefit the public interest. The intention to benefit the public interest can be seen from the nature of the many provisions in the 2002 Law, from the long title which states that the object of the Law is to establish the Information and Communications Technology Authority and for incidental and connected purposes, from section 9(3) which refers to the principal functions of ICTA and from section 26(2) which identifies the matters to be taken into account by ICTA before granting or renewing a licence under the law.

The terms in which section 44 is expressed do not make the duty unsuitable to be an actionable duty. The class of persons who might suffer harm as a result of a breach of duty are, first, the public and, secondly, the licensee requesting interconnection. The expected harm to the licensee requesting interconnection is economic loss rather than damage to the person or damage to property. The duty imposed by section 44 is imposed on a private entity.

The 2002 Law does not make a breach of section 44 a criminal offence although sections 70(1) and (2) of the 2002 Law provide that regulations could be made so as to make contravention of any provision in the regulations an offence. Thus, section 44 could have been repeated in the regulations and breach of such provision could have been made an offence. The 2002 Law does contain a sanction for breach of section 44, in that, under sections 32 and 33 of the 2002 law, ICTA may suspend or revoke a licence held by the licensee who is acting in breach of section 44. Thus, sections 32 and 33 provide a sanction for contravention of section 44. Further, sections 32 and 33 have a remedial function in that section 32(4) and section 33(4) permit ICTA to give the defaulting licensee an opportunity to remedy the breach within a reasonable time before the sanction is imposed.

The 2002 Law contains various provisions dealing with the enforcement of the duty under section 44. ICTA may issue a cease and desist order under section 35 of the Law. ICTA can apply to the court for the court to exercise any of its powers under section 37: see section 36 of the Law. Under section 37, the court may impose a substantial pecuniary penalty, or grant an injunction restraining the offending licensee from engaging in a contravention of section 44 or may make such other order as the court thinks fit.

The 2002 Law also contains dispute resolution provisions. Section 46 of the Law provides for the determination of a “pre-contract dispute”. This term applies to a dispute as to the terms and conditions for the provision of interconnection. In my judgment a pre-contract dispute is not restricted to a dispute as to the terms and conditions of a proposed interconnection agreement. Section 46 is supplemented by sections 55 and 56 dealing with a review of a decision by ICTA and an appeal to the court. Section 56 also allows an appeal to the court against a cease and desist order under section 35.

Section 69 is not directly relevant in that it only applies where a person is convicted of an offence under the 2002 Law. In such a case, the court may make an order for the payment of compensation to any person for any damage caused by the offence. By section 69(2), the making of an order for compensation does not prejudice any right to a civil remedy for the recovery of damages beyond the amount of compensation paid under the order. It is not necessary to refer to the detailed provisions as to offences under the 2002 Law. However, it can readily be seen that the facts which give rise to such offences could give rise to civil liability under the general law, for example, for assault or for trespass. Section 69 is relevant to the extent that it shows that the legislature considered the circumstances in which a court should be empowered to order payment of compensation and the 2002 Law did not expressly provide for a general right to damages for breach of any provision of the Law.

On the question whether the 2002 Law provides for disputes to be determined by reference to matters of discretion or matters of policy, which might not be the same as the basis on which a court would decide liability for an actionable breach of statutory duty, it is relevant to refer to section 11 which enables the Minister to give to ICTA directions as to policy in the exercise and performance of ICTA’s functions and, by section 9(3)(g), one of ICTA’s functions was to resolve disputes concerning interconnection.

Having reviewed the matters relevant for the purpose of considering whether a breach of section 44 of the 2002 law is actionable, I find that the factors in favour of non-actionability are very much stronger than the factors in favour of actionability. I conclude that a breach of section 44 of the law is not actionable.

The Claimants contend that a breach of regulations 4, 5, 6 and 8 of the Information and Communications Technology Authority (Interconnection and Infrastructure Sharing) Regulations 2003 are actionable. For the purpose of answering this question I will address the matters that require to be considered.

In my judgment, the regulations, like the 2002 Law itself, were passed to benefit the public interest. This conclusion applies, in particular, to regulations 4, 5, 6 and 8. The regulations were made pursuant to section 70 of the 2002 Law which gave a power to the Governor in Council to make regulations essentially for the purpose of carrying the 2002 Law into effect.

Many of the duties imposed by regulations 4, 5, 6 and 8 are in terms which do not make them unsuitable to be actionable. However, in relation to the obligation to act in good faith, if that matter had stood alone, I would have been more hesitant about holding that it was expressed in terms which made it suitable to be an actionable duty. In Walford v Miles [1992] 2 AC 128, Lord Ackner at 138E – G stated that the concept of a duty to carry on negotiations in good faith was inherently repugnant to the adversarial position of the parties when involved in negotiations. As against that, it was stated in Petromec Inc v Petroleo Brasileiro [2006] 1 Lloyds LR 121 that an express contractual obligation to negotiate in good faith was enforceable: see per Longmore LJ at [115] to [121]. The content of an obligation to negotiate in good faith has received considerably more attention in Australia than it has in England and Wales: see Strickland v Minister for Land [1998] AILR 41; (1998) 3 AILR 532 (concerning a statutory obligation to negotiate in good faith) and United Group Rail Services Limited v Rail Corporation New South Wales [2009] NSWCA 177 (concerning a contractual obligation to negotiate in good faith). In England and Wales, a contractual duty of utmost good faith has been held to be enforceable: see Berkeley Community Villages Limited v Pullen [2007] 3 EGLR 101.

The class of persons who might suffer harm as a result of a breach of the duty created by regulations 4, 5, 6 and 8 will be first, the public and, secondly, the licensee requesting interconnection. The loss suffered by the licensee requesting interconnection will be economic loss. The duty imposed by the relevant regulations is a duty imposed upon a private entity.

The regulations and the 2002 Law impose sanctions for a breach of a duty in the regulations. Regulation 30 provides that the contravention of any provision of the regulations constitutes an offence. Sections 32 and 33 of the Law allow ICTA to suspend or revoke a licence where there is a breach of the regulations in the same way it can suspend or revoke a licence for a contravention of the Law. Section 32(4) and section 33(4) also permit ICTA to give a licensee an opportunity to remedy the breach before suspending or revoking the licence.

The regulations and the 2002 Law provide for methods of enforcing the duties under the regulations. ICTA can issue a cease and desist order under section 35 for a breach of the regulations. The court can act on the application of ICTA for a breach of the regulations: see section 36(c). The court’s powers on an application under section 36 are provided for in section 37. A decision of ICTA to make a cease and desist order can be appealed to the court under section 56. Regulation 26 also allows disputes as to interconnection to be submitted to ICTA for resolution in accordance with the Information and Communications Technology Authority (Dispute Resolution) Regulations 2003.

Taking all these matters together, in my judgment, the factors in favour of non-actionability are considerably stronger than the factors in favour of actionability. I conclude that breaches of the regulations relied upon by the Claimants are not actionable.

This question arises not only in Cayman but also in some of the other jurisdictions with which this litigation is concerned. I have therefore set out in a separate annex to this judgment (Annex I) my understanding of the legal principles relating to this question and indeed other relevant legal principles in relation to the tort of conspiracy to injure by unlawful means.

My conclusion in relation to the scope of “unlawful means”, for the purpose of the tort of conspiracy to injure by unlawful means, is that a breach of a statutory obligation which is not an actionable breach and which is not a criminal offence does not constitute “unlawful means”.

The above conclusion disposes of the claim in so far as it is founded upon an allegation that a breach of the 2002 Law constituted unlawful means for the tort of conspiracy to injure by unlawful means. However, there is a point which arises in Cayman, in relation to this tort, which does not arise in relation to the other jurisdictions. Regulation 30 of the regulations in Cayman provides that a contravention of any provision of the regulations constitutes an offence. In Annex I to this judgment, I discuss the authorities on the question as to whether all crimes are unlawful means for the purposes of the tort of conspiracy to injure by unlawful means. I there explain that I incline to the view that all crimes are unlawful means for this purpose. On that basis, the commission of an offence pursuant to regulation 30 would constitute unlawful means for the purposes of the tort. As explained in Annex I, I did not in the end feel that it was necessary to decide this point in view of the fact that I hold on the facts that C&W Cayman did not commit an offence contrary to regulaton 30. In the remainder of this main judgment, dealing with Cayman, I will assume in favour of the Claimants that the commission of an offence contrary to regulation 30 would constitute unlawful means for the purposes of the tort.

In Cayman, the Claimants rely upon the terms of the licence granted to C&W Cayman in so far as those terms prohibit certain specified anti-competitive behaviour. The Claimants say, first, that C&W Cayman contravened the terms of the licence, secondly, that a breach of the licence is a breach of statutory duty having regard to the terms of the legislation in Cayman and thirdly, a breach of the licence amounts to unlawful means for the tort of conspiracy to injure by unlawful means and this is the position whether a breach of the licence is a breach of statutory duty or not.

In the licence granted to C&W Cayman, the relevant clauses are clauses 14 and 15. Clause 14 has the heading “Anti-competitive practices: agreements”. Clause 14 is a detailed provision which applies to certain agreements which have as their object or effect the prevention, restriction or distortion of competition within the Cayman Islands. Clause 15 has the heading “Anti-competitive practices: conduct”. Clause 15.1 provides:

“Any conduct on the part of one or more licensees which amounts to the abuse of a dominant position in a market for ICT networks or ICT services is prohibited if it may affect trade within the Cayman Islands”.

Although the Claimants rely upon the provisions in the licence to C&W Cayman, the allegations of breach in the Claimants’ pleading are unparticularised and the Claimants did not give further particulars when asked for further information. The position in this respect is similar to the position of the pleadings in Barbados as to abuse of dominant position pursuant to section 16 of the Fair Competition Act 2002. Nonetheless, the Defendants did not press for an order for further particulars to be given and did not apply to strike out the allegations. For the reasons which I have spelt out when dealing with the unparticularised claim based on section 16 of the 2002 Act in Barbados, the claim is one which the court must deal with even though it is not particularised.

When I considered the allegation of abuse of dominant position pursuant to section 16 of the Fair Competition Act in Barbados, I discussed the extent to which general provisions preventing anti-competitive conduct such as section 16 of the Fair Competition Act and such as these provisions in the licence to C&W Cayman added anything to the specific provisions in the telecommunications legislation and regulations in the relevant jurisdiction, which specifically deal with the question of competition between an incumbent and a new entrant by making detailed provisions as to interconnection between those persons.

For the reasons which I gave in relation to section 16 of the Fair Competition Act 2002 in Barbados, I conclude that the relevant competition rules on the subject of interconnection between an incumbent operator and a new entrant are those contained in the specific rules as to such interconnection and the general references to prohibitions on anti-competitive practices do not add anything to the specific rules.

In view of my conclusion in the last paragraph to the effect that the terms of the licence to C&W Cayman, dealing generally with anti-competitive conduct, do not add anything to the specific rules contained in the statutes and regulations in Cayman, as to interconnection between operators, it may not be strictly necessary to ask whether C&W Cayman’s breach of its licence is a breach of a statute or a regulations in Cayman. However, for the sake of completeness, I will state my conclusion on that subject.

In Cayman, the Claimants rely on section 9(2)(d), section 36 and section 37 of the 2002 Law for their submission that a breach by C&W Cayman of its licence is a breach of the 2002 Law. Those sections are clear as to their meaning and, in my judgment, they do not produce the result contended for by the Claimants. In my judgment, any breach of the licence is not a breach of the 2002 Law.

In view of my earlier conclusion that the general prohibitions on anti-competitive conduct do not add anything to the specific obligations as to interconnection imposed by the 2002 Law and by the regulations, it is not strictly necessary to consider whether a breach by C&W Cayman of its licence amounts to unlawful means for the tort of conspiracy to injure by unlawful means. As I have already explained, I am not prepared to extend the scope of “unlawful means” in this context so that it covers a breach of a statute or a regulation, when such breach is not actionable and not a criminal offence. It seems to me that it is consistent with that approach to hold that a breach of a public licence, such as the telecommunications licence in this case, similarly does not constitute unlawful means for the purposes of the tort of conspiracy.

The result of the above conclusions is that (on the assumption that all crimes are unlawful means for the tort of conspiracy) Digicel Cayman has a cause of action in the event that there was a combination to commit a breach of the regulations, and therefore to commit a criminal offence under regulation 30, and if the other ingredients of the tort of conspiracy to injure by unlawful means were to be established, but Digicel Cayman does not otherwise have a cause of action. Such a cause of action would be against those persons who were a party to such a combination.

I have set out a discussion of the matters of complaint in relation to Cayman and my findings of fact in relation to them. Although Digicel Cayman’s only cause of action was in relation to a conspiracy involving a breach of the regulations, which would constitute a criminal offence under regulation 30 (on the assumption that such an offence constitutes unlawful means for the tort of conspiracy), I have made findings of fact in relation to all the matters of complaint which were relied upon by Digicel Cayman in its closing submissions.

In summary, I find that Digicel Cayman has not established that C&W Cayman delayed interconnection in breach of any duty imposed upon it.

In Cayman, the operating company was C&W Cayman. The Claimants’ case was that the breaches of the legislation were committed by C&W Cayman and that CWWI and C&W plc were joint tortfeasors and/or conspirators with C&W Cayman. In view of my earlier findings, no question of joint torts or conspiracy to injure by unlawful means arises.

When considering the position in SLU, I commented on the role of C&W plc. Those comments also apply in the case of Cayman.

The position of CWWI in Cayman was different from the position of C&W plc. CWWI provided the carrier services team to assist C&W Cayman. Those two companies were therefore working together to some extent in connection with interconnection in Cayman. If I had held that C&W Cayman had committed breaches of the legislation in Cayman, it would then have been necessary to consider whether CWWI had combined with C&W Cayman in a relevant way so that CWWI would also be liable for such breaches. In view of my finding that there were no such breaches, it does not seem to me to be helpful to discuss any further the application of the legal principles (which were not seriously in dispute) to possible findings of fact which I have not made.

In their closing submissions, the Defendants did not ask me to make any findings in relation to Cayman on the subject of the existence of an honest belief so as to negative an intention to injure. Accordingly, I will not consider that question in relation to Cayman.

There was a lengthy and detailed dispute on the issue of fact whether, if C&W Cayman had been in breach of duty in Cayman and that breach of duty had caused delay to interconnection in Cayman, any such delay in interconnection had caused delay to Digicel Cayman’s launch of its telecommunications service in Cayman. The Claimants said that the Digicel Cayman was delayed in relation to its launch for more or less the full period of any delay in relation to interconnection. C&W Cayman said that Digicel Cayman had many other matters to deal with, apart from interconnection, before it could be ready to launch and, on the detailed facts, Digicel Cayman was not ready to launch before it actually did so. Accordingly, any delay on the part of C&W Cayman in relation to interconnection had not made any difference to the date when Digicel Cayman launched in Cayman.

I have decided that I will not attempt to determine the very many issues which arose in this respect. My reasons for this decision are somewhat similar to the reasons which I have already set out for reaching a similar decision in relation to SLU, although some of the points which led me to my conclusion in SLU do not apply in Cayman. In Cayman my reasons are as follows. First, I have determined that there was no delay to interconnection in breach of any obligation on the part of C&W Cayman, so the question of any delay to Digicel Cayman’s launch does not arise. Secondly, I have held that Digicel Cayman did not have a cause of action in relation to all its matters of complaint but only in relation to matters which involved an allegation that C&W Cayman had conspired with others to commit a breach of the regulations, which would have been a criminal offence and therefore unlawful means for the tort of conspiracy to injure by unlawful means. Thirdly, if I attempted to deal with the many points of detail as to a possible delay to the launch in Cayman, I would immediately face the difficulty of having to make an assumption of fact, which I have not held to be well founded, as to when interconnection should have been completed and then to ask whether interconnection on such an assumed date would have allowed Digicel Cayman to launch earlier than it actually did. Indeed, I would have to deal with a number of possible assumed dates depending on what conduct on the part of C&W Cayman is to be assumed (contrary to my actual findings) to have been a breach of duty on its part. The assumed dates of interconnection could have a bearing on the effect of the allegedly delayed interconnection on a planned launch. Fourthly, any attempt to make findings of fact on the question of a possible delayed launch in Cayman would involve a very considerable amount of time and result in delay in concluding my judgment. Fifthly, there were significant arguments as to whether I should permit the Claimants to advance a case that they were delayed from a specified date or alternative specified dates when those dates were not pleaded and the date of commencement of delay, which was pleaded in relation to Cayman, was not contended for by the Claimants in their closing submissions. If I were otherwise minded to make findings of fact as to a possible delay to the launch in Cayman, it would be necessary to set out in some detail the procedural history in relation to this question and to examine the legal basis for the Defendants’ proposition. Sixthly, the Claimants proposed a particularly burdensome course of action which, they suggested, required me to read a substantial quantity of further documents which had not been referred to at any earlier stage of the trial solely for the purpose of answering the question of whether Digicel Cayman would have been able to launch its network earlier in certain hypothetical circumstances. For all these reasons, I conclude that it would be disproportionate to go further into the facts as to any such delay to launch. Accordingly, I will not make findings on a hypothetical basis as to whether a delay in interconnection did cause delay to Digicel Cayman’s launch.

In these circumstances, it is not appropriate to discuss the law or the facts as to whether the present is a case of exemplary damages or what have been called restitutionary damages.

The result which emerges from the above conclusions is that the claim by Digicel Cayman against C&W Cayman, CWWI and C&W plc fails on the facts and on the law. The claim will therefore be dismissed.

In Trinidad and Tobago (“T&T”) the incumbent telecommunications operator was TSTT. The new entrant who obtained a “concession” (the term in T&T which is used for a telecommunications licence) was Digicel T&T. In T&T, Digicel T&T’s claim is against TSTT alone. The claim is not based on the provisions of the Telecommunications Act in T&T nor on the terms of the concession granted to TSTT. The claim is that TSTT acted “contrary to honest practices” and is liable under section 4 of the Protection Against Unfair Competition Act 1996 (“PAUCA”) to pay damages for the resulting loss to Digicel T&T. Digicel T&T originally claimed, in addition, against CWWI and C&W plc on the basis of an allegation of conspiracy between TSTT, CWWI and C&W plc. Digicel T&T maintained that claim until it was abandoned in its written closing submissions. Up to that point, the allegation of conspiracy had been investigated in detail at the trial and, to some extent, the allegation of conspiracy in T&T involved different issues from those arising in the other jurisdictions. One reason for that was that TSTT was not a subsidiary of CWWI or C&W plc; CWWI had a 49% stake in TSTT.

The Claimants’ pleaded case in T&T was significantly amended, with permission, on a number of occasions during the trial. Indeed, Digicel T&T applied to amend its claim against TSTT in other respects for which I did not give permission. This was because I took the view that an allegation of conduct contrary to honest practices is a serious allegation and the matters which were pleaded as proposed amendments were not always sufficient to disclose a prima face case of such conduct and/or because it was clear to me that Digicel T&T did not have material which would be available to it to support the allegation. In the case of some amendments which I permitted Digicel T&T to make, the allegations were later abandoned and removed in later amendments.

The legislation which applies in T&T is quite different from the legislation so far considered. I have set out the relevant provisions in Annex F to this judgment.

The relevant telecommunications legislation is the Telecommunications Act 2001. Unlike the legislation which applies in the other countries and which has been considered above, this Act does not directly impose duties on a telecommunications provider in relation to interconnection with a new entrant into the market. The Act requires the operator of a public telecommunications network to have a “concession” as it is called (rather than a “licence”): section 21. The Act then provides that the concession must contain terms and conditions dealing with certain matters: see sections 22 and 24. Interconnection is dealt with in section 25. By section 25(1), a concession must include conditions obliging the concessionaire to provide for interconnection. In respect of that obligation, the regulatory authority, the Telecommunications Authority of Trinidad and Tobago (“TATT”) (set up by section 4 of the 2001 Act as amended by the Telecommunications (Amendment) Act 2004, section 5) shall require the concessionaire to comply with a large number of specific guidelines, standards and other matters. Thus the direct source of any obligation in relation to interconnection will not be the 2001 Act but will be the terms of the concession or (following the grant of the concession) the guidelines of TATT or specific requirements of TATT. Accordingly, there can be no claim that the 2001 Act directly imposes duties on TSTT, giving rise to a cause of action against TSTT if the duties are broken. Finally, in relation to the 2001 Act, section 65 (as amended by the Telecommunications (Amendment) Act 2004) makes it an offence for a person to commit a material breach of a condition contained in a concession.

The relevant regulations in T&T were the Telecommunications Regulations 2006. They were published on 9^th May 2006 and came into force at the end of August 2006. They were therefore not in force at the time of the events which are the subject of the claim in relation to T&T.

The Claimants do not rely upon the Telecommunications Act 2001 nor the Telecommunications Regulations 2006 nor the terms of the concession granted to TSTT. Instead the Claimants rely only on alleged breaches by TSTT of PAUCA. The full text of PAUCA is set out in Annex F to this judgment.

The only cause of action on which Digicel relies in T&T is based on section 4 of PAUCA, as amended by section 4 of the Intellectual Property (Miscellaneous Amendments) Act 2000. Section 4 of PAUCA, as amended, provides, so far as relevant:

In addition to the acts and practices referred to in sections 5 to 9, any act or practice, in the course of industrial or commercial activities, that is contrary to honest practices shall constitute an act of unfair competition.

Any person damaged or likely to be damaged by an act of unfair competition shall be entitled to the remedies obtainable under the civil law of Trinidad and Tobago”.

This section and sections 5 to 9 shall apply independently of, and in addition to, any legislative provisions protecting inventions, industrial designs, trademarks, literary and artistic works and other intellectual property subject matter.”

Section 3 of PAUCA defines “industrial or commercial activities” so as to include the activities of professionals and other such persons and defines “practice” so as to include “an omission to act”.

On the facts of this case, there is no relevant dispute between the parties as to the meaning of the phrase “any act or practice” or the phrase “in the course of industrial or commercial activities”. It is accepted that the matters which are alleged against TSTT, if they were proven on the facts, would be “any act or practice, in the course of industrial or commercial activities”. The dispute between the parties as to the meaning and effect of section 4(1) of PAUCA concerned the meaning of the phrase “that is contrary to honest practices”.

The Defendants’ interpretation of that phrase can be simply stated. The Defendants contend that the only thing which is contrary to honest practices is an act or practice which is dishonest.

The Claimants’ interpretation of the phrase “contrary to honest practices” is more complicated. The Claimants submit that the test as to whether something is contrary to honest practices is an objective test. That formulation, by itself, is not particularly helpful as it leads only to the real question as to what precisely the test is. The Claimants then submit that the test is not one of dishonesty, even objectively considered. To assist with the interpretation of section 4 of PAUCA, the Claimants rely upon the treaty obligations of the Government of T&T and a large number of decisions dealing with intellectual property matters, in particular trademarks. The Claimants ultimately submitted that the duty imposed by section 4(1) of PAUCA was a duty to act fairly in relation to the legitimate interests involved.

Although there is an immense gulf between a duty to avoid acting dishonestly and a duty to act fairly, the Claimants submitted that when one examined the facts of the allegations against TSTT, it might transpire that nothing really turned on this difference between the parties. Whilst that might turn out to be the case, it seems to me that I ought to consider the different ways in which the parties put their cases on section 4 of PAUCA and come to my own conclusion as to the duty imposed by that section.

For the purpose of considering the meaning and effect of section 4 of PAUCA, I will first consider section 4 itself and then consider the other provisions of PAUCA. I will then consider what is generally meant by “dishonesty” in a civil context. I will then consider the Claimants’ argument based upon the treaty obligations of the Government of T&T and the various authorities cited in relation to intellectual property matters. I will then consider the debate in the Trinidadian Senate on the Bill which became PAUCA and a judgment of the High Court of Trinidad & Tobago which considered section 4 of PAUCA. At the end of that process I will express my conclusions.

Section 4(1) begins by referring to “any act or practice”. “Practice” is defined by section 3 of PAUCA to include an omission to act. Accordingly, “any act or practice” is any act or omission. It can be seen therefore that this part of the section is in very wide terms.

Section 4(1) refers to “in the course of industrial or commercial activities”. This phrase is defined in section 3 to include “the activities of professionals and other such persons”. The meaning of “commercial activities” is reasonably clear and certainly creates no difficulty in the present case. There may be more room for doubt as to the meaning of “industrial”. I imagine that most, if not all, industrial activities would also be commercial activities. Given that PAUCA is, in other sections, concerned with intellectual property it might have been thought that the word “industrial” is being used in the sense it has in the phrase “industrial property”, which was an earlier term for intellectual property. The present case does not involve intellectual property. The Defendants certainly do not submit that industrial activities are confined to intellectual property matters. Such a submission would not have taken the Defendants very far in view of the fact that section 4 is not confined to industrial property or industrial activities but extends to any act or omission in the course of commercial activities. Not only is the phrase “any act or practice” a wide one, so too is the reference to “commercial activities”.

The phrase “that is contrary to honest practices” is a key phrase in section 4(1). In view of the width of the phrase “any act or practice in the course of industrial or commercial activities”, it is essential to focus on the phrase “that is contrary to honest practices” in order to find what is permitted and what is prohibited by section 4(1). The reference to honest practices is thus the essential definition as to what is within section 4(1).

Section 4(1) states that the act or practice which infringes section 4(1) constitutes an act of unfair competition. It is important to notice that section 4(1) does not use the concept of “unfair competition” to define what is permitted and what is prohibited by section 4(1). The reference to unfair competition is for the purpose of describing the consequence of behaviour which infringes section 4(1). Once one has determined that an act or omission infringes section 4(1), one then calls that act or omission “an act of unfair competition” and that gives rise to a right to claim under section 4(2); under that sub-section a claim may only be brought in relation to damage from “an act of unfair competition”.

Section 4(1) refers to matters which are “contrary to honest practices”. I have considered what, if anything, is added by the reference to “practices” in this phrase. In some contexts, a reference to a “practice” might refer to something which is continuous or which occurs regularly. It seems unlikely that this is the meaning intended in the present case because section 4(1) refers to “any act or practice” which effectively means any act or omission. Accordingly, infringing behaviour can consist of a single act which does not continue and which is not repeated. The Claimants say that the word “practices” suggests an objective standard which pays little or no attention to the particular circumstances of the person who carries on the act or practice in question. The difficulty about that submission is that section 4(1) does not refer to practices in general but refers to honest practices. In my judgment, in order to assess whether a practice is honest or not, one needs to look at all the circumstances and that would ordinarily extend to the state of mind of the person responsible for the act or omission in question. In my judgment, the ordinary meaning of the phrase “contrary to honest practices” requires there to be dishonesty involved in the act or omission in question. The thing which is contrary to honesty is dishonesty and in this context the act or omission which is contrary to honest practices is equally an act or omission involving dishonesty.

It is, of course, essential to consider the meaning of section 4 of PAUCA in the context of the act as a whole. The short title to the act refers to “Protection Against Unfair Competition”. This concept is repeated in the long title which stated that the Act was “to provide for protection against unfair competition”. Section 4 is headed “General Principles” and states that section 4(1) prohibits certain acts or practices “in addition to the acts and practices referred to in sections 5 to 9”. Section 4(1) appears to prohibit an act or practice “contrary to honest practices” which is expressed in general terms whereas the prohibitions in sections 5 to 9 relate to more specific matters. Section 5 deals with causing confusion with respect to another’s enterprise or its activities. Section 6 deals with damaging another’s goodwill or reputation. Section 7 concerns an act or practice which misleads the public. Section 8 deals with discrediting another’s enterprise or its activities. Section 9 is concerned with unfair competition in respect of trade secrets.

Part of the drafting style used in section 4 of PAUCA is repeated in the other sections. The phrase “any act or practice in the course of industrial or commercial activities” is used in sections 4, 5, 6, 7 and 9 whereas section 8 refers to “any false or unjustifiable allegation, in the course of industrial or commercial activities”. In all of the sections, 4 to 9 inclusive, the prohibited conduct is said to “constitute an act of unfair competition”. This particular point emphasises that the act which is prohibited by section 4(1) is not “an act of unfair competition” but is an act or practice “contrary to honest practices”. The reference to “an act of unfair competition” in section 4, as in the other sections, is the stated consequence of the prohibited conduct and not the definition of the prohibited conduct.

The phrase “contrary to honest practices” is used only once in PAUCA although section 9(1) refers to “contrary to honest commercial practices”; it may be that there is no difference between these two phrases, given that both sections 4 and 9 refer to acts or practices in the course of industrial or commercial activities. In any case, I do not find the use of a similar phrase in section 9(1) throws any particular light on the meaning of “contrary to honest practices” in section 4(1). Section 9(2)(e) refers to a third party acquiring a trade secret in circumstances where the third party knew or was grossly negligent in failing to know that a certain act was involved. Whilst that refers to knowledge or the means of knowledge I do not get any very clear guidance from it as to the intended meaning of honest practices in section 4(1). Section 9(4)(a) refers to “an unfair commercial use”. This is a specific example of the prohibited conduct being expressed in terms of its unfairness. Again, I do not get any assistance from section 9(4)(a) for the purpose of construing section 4(1).

In the civil, as distinct from the criminal, context, the concept of dishonesty is relatively clear. The matter was described by Lord Nicholls delivering the judgment of the Privy Council in Royal Brunei Airlines v Tan [1995] 2 AC 378 at 389B-G. That case was concerned with an allegation of dishonest assistance in a breach of trust. Lord Nicholls said:

“Whatever may be the position in some criminal or other contexts (see, for instance, Reg. v Ghosh [1982] QB 1053), in the context of the accessory liability principle acting dishonestly, or with a lack of probity, which is synonymous, means simply not acting as an honest person would in the circumstances. This is an objective standard. At first sight this may seem surprising. Honesty has a connotation of subjectivity, as distinct from the objectivity of negligence. Honesty, indeed, does have a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated. Further, honesty and its counterpart dishonesty are mostly concerned with advertent conduct not inadvertent conduct. Carelessness is not dishonesty. Thus for the most part dishonesty is to be equated with conscious impropriety. However, these subjective characteristics of honesty do not mean that individuals are free to set their own standards of honesty in particular circumstances. The standard of what constitutes honest conduct is not subjective. Honesty is not an optional scale, with higher or lower values according to the moral standards of each individual. If a person knowingly appropriates another’s property, he will not escape a finding of dishonesty simply because he sees nothing wrong in such behaviour. In most situations there is little difficulty in identifying how an honest person would behave. Honest people do not intentionally deceive others to their detriment. Honest people do not knowingly take others’ property. Unless there is a very good and compelling reason, an honest person does not participate in a transaction if he knows it involves a misapplication of trust assets to the detriment of the beneficiaries. Nor does an honest person in such a case deliberately close his eyes and ears, or deliberately not ask questions, lest he learn something he would rather not know, and then proceed regardless.”

The question of dishonesty was considered by the House of Lords in Twinsectra Limited v Yardley [2002] 2 AC 64. Difficulties later arose with some of the dicta in the Twinsectra case and the position was clarified by the decision of the Privy Council in Barlow Clowes Limited v Eurotrust International Limited [2006] 1 WLR 1476. At [10], Lord Hoffmann giving the judgment of the Privy Council said:

“The Judge stated the law in terms largely derived from the advice of the board given by Lord Nicholls of Birkenhead in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378. In summary, she said that liability for dishonest assistance requires a dishonest state of mind on the part of the person who assists in a breach of trust. Such a state of mind may consist in knowledge that the transaction is one in which he cannot honestly participate (for example, a misappropriation of other people’s money), or it may consist in suspicion combined with a conscious decision not to make enquiries which might result in knowledge: see Manifest Shipping Co Limited v Uni-Polaris Insurance Co Limited [2003] 1 AC 469. Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If by ordinary standards a defendant’s mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards. The Court of Appeal held this to be a correct state of the law and their Lordships agree.”

The better view is that the law in this area as to the meaning of dishonesty is to be found in the above three cases and that the statements in Twinsectra are to be interpreted in accordance with the explanation given by the Privy Council in the Barlow Clowes case: see Lewin on Trusts, 18^th ed., at para. 40.25.

Having considered the words in which section 4 of PAUCA is expressed and the remainder of the statute, my very clear provisional view is that the only behaviour which is contrary to section 4(1) is dishonest behaviour and for this purpose dishonesty is to be understood in the way described by Lord Nicholls in Royal Brunei Airlines v Tan.

The Claimants submitted that an analysis along the above lines is inadequate for the purpose of interpreting section 4(1). The Claimants draw attention to the terms of the Paris Convention, to which Trinidad and Tobago was a signatory. The Claimants also say that when the Bill which became PAUCA was debated in the Trinidadian Senate, it was expressly stated that PAUCA was to be enacted to give effect to the Government’s obligations under the Paris Convention. The Claimants also say that the Paris Convention has given rise to a Directive and to Regulations in Europe and legislation in the United Kingdom, all of which uses the phrase “contrary to honest practices” and that phrase has been authoritatively considered by the courts in Europe and in England and Wales so that the phrase encompasses many things beyond cases of dishonesty.

The Paris Convention for the Protection of Industrial Property in 1883 was revised in Stockholm in 1967. Article 1(2) of the Convention stated that the protection of industrial property had as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations or origin, and the repression of unfair competition. Whilst this list of objects includes many examples of intellectual property, the list ends with a reference to unfair competition. Many of the articles of the Paris Convention deal with intellectual property but the article which is of relevance for present purposes is article 10 bis which is headed “Unfair Competition”. Article 10 bis provides as follows:

The countries of the Union are bound to assure to nationals of such countries effective protection against unfair competition.

Any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition.

The following in particular shall be prohibited:

all acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial or commercial activities, of a competitor.

false allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial or commercial activities, of a competitor;

indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of the goods.”

The First Council Directive of 21^st December 1988 to Approximate the Laws of the Member States relating to Trade Marks (89/104/EEC) includes, at article 6, certain limitations as to the effects of a trademark. In particular, article 6(1)(a) provides that a trademark does not entitle the proprietor to prohibit a third party from using, in the course of trade, his own name or business “provided he uses them in accordance with honest practices in industrial or commercial matters”. A similar provision appears in Council Regulation (EC) 40/94, dealing with the Community Trade Mark, at article 12(a).

Section 10(6) of the Trade Marks Act 1994 provides:

“Nothing in the preceding provisions of this section shall be construed as preventing the use of a registered trade mark by any person for the purpose of identifying goods or services as those of the proprietor or a licensee. But any such use otherwise than in accordance with honest practices in industrial or commercial matters shall be treated as infringing the registered trade mark if the use without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trademark.”

Section 11(2)(a) sets out certain limitations on the effect of a registered trademark and repeats the “own name defence” in the European Directive and Regulations provided that the use of the mark is in accordance with honest practices in industrial or commercial matters.

The European and United Kingdom legislation in relation to trademarks has been the subject of a considerable body of authority, to much of which I was taken in the course of argument. I will attempt to refer to some of that authority, as economically as possible.

Barclays Bank Plc v RBS Advanta [1996] RPC 307 concerned a case of comparative advertising and section 10(6) of the Trade Marks Act 1994. Laddie J considered the meaning of section 10(6) and the proviso referring to honest practices, at page 315. He said that if the use of the trade mark was considered honest by members of a reasonable audience, the use did not infringe. Conversely, if a reasonable trader was likely to say, on being given the full facts, that the use of the mark in an advertisement was not honest, for example because it was significantly misleading, then the proviso was not satisfied.

In Cable & Wireless Plc v British Telecommunications Plc [1998] FSR 383, Jacob J referred to this case and others. At page 391, he referred to article 10 bis of the Paris Convention. He referred in particular to the examples given in article 10 bis (3) and stated that none of those specific examples seemed to involve any investigation of the state of mind of the advertiser. He suggested that the test for the proviso as to honest practices was objective in the sense that one should ask whether a reasonable trader could honestly have made the statements he made based upon the information that he had. In this way, the information which the trader had was material. The question was whether others would regard what he was doing as honest and his personal state of mind was irrelevant. It did not matter whether the advertiser believed the statements were true; the question was whether an honest man, given the information the advertiser had, would have been prepared to make those statements.

In Reed Executive Plc v Reed Business Information Limited [2004] RPC 40, the Court of Appeal considered the own name defence and section 11(2) of the Trade Marks Act 1994. The principal judgment was given by Jacob LJ. At [126], having referred to the decision of the European Court of Justice in Gerolsteiner Brunnen v Putsch [2004] RPC 39, Jacob LJ said:

“The court also gave guidance on the meaning of “honest practices etc”. It did not go down the route suggested to us by [counsel]. On the contrary it said that “the condition of honest practices constitutes in substance the expression of a duty to act fairly in relation to legitimate interests of the trademark owner” (para.[23]). The test is for the national court to carry out an overall assessment of all the circumstances – and in particular to assess whether the defendant “might be regarded as unfairly competing with the proprietor of the trade mark”(para. [26]).”

Jacob LJ at [131] stated that the ECJ had not by that time ruled “on more subtle questions” concerning “honest practices”. He then identified three possible states of mind on the part of the user of the trade mark. He was inclined to favour the first of these rather than the second (which was the meaning he had put forward in Cable & Wireless Plc v British Telecommunications Plc). The first state of mind was described in these terms:

“… the test is objective and one of simple causation – if the defendant in fact caused significant deception, albeit innocently, there is no defence. He must pay for the damage he unwittingly caused. The position for the past is the same as for the future.”

The defence of honest practices in the context of a trade mark infringement was considered again by the Court of Appeal in L’Oreal v Bellure [2007] EWCA Civ 968. The principal judgment was given by Jacob LJ. At [51] he said:

“So the real question is, whether the use in the comparative lists is “in accordance with honest practices in industrial or commercial matters”. Quite obviously if people are or are likely to be deceived by the use then the use would not be honest. And that must be so even if there is a real likelihood that the use actually made, although it would not deceive the defendants’ actual customers (e.g. market traders), would lead to deception of significant numbers of ultimate consumers. If what you do, to your actual or constructive knowledge, will lead or is likely to lead to deception of someone down the chain, you yourself will not be acting in accordance with an honest practice”.

Jacob LJ also considered a submission that the common law should be developed by the creation of a tort of “unfair competition”. He rejected that submission for various reasons, in the course of which he referred to article 10 bis of the Paris Convention. He rejected the submission that the United Kingdom was in breach of the Convention by not having a tort of unfair competition. He also stated at [147] that article 10 bis did not spell out what was to be regarded as “unfair” and that the article did not clearly identify what was meant in the Convention by an act “contrary to honest practices”.

The own name defence in a case of a trade mark infringement was considered by Arnold J in Hotel Cipriani v Cipriani (Grosvenor Street) Limited [2008] EWHC 3032 (Ch). At [143], the judge stated that the ECJ had repeatedly held that the requirement to act in accordance with honest practices in industrial or commercial matters “constitutes in substance the expression of a duty to act fairly in relation to the legitimate interest of the trademark proprietor” and he referred to a number of cases including Gerolsteiner Brunnen. At [144] the judge stated that the ECJ had held that the court should “carry out an overall assessment of all the relevant circumstances” and in particular should assess whether the defendant “can be regarded as unfairly competing with the proprietor of the trade mark” and he again referred to a number of cases including Gerolsteiner Brunnen. The judge added:

“This makes sense, since the wording of the proviso to article 12 appears to reflect article 10 bis (2) of the Paris Convention for the Protection of Industrial Property, which provides “any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition.”

Arnold J then dealt with the state of the defendant’s information, for the purposes of considering the defence of honest practices. At [149], he stated that the question whether the defendant ought to have been aware of the existence of deception was a relevant factor. The defendant’s knowledge of the trade mark was one of the relevant circumstances to be assessed: see at [151]. At [152], the judge stated that the test was an objective one.

The decision of Arnold J in the Hotel Cipriani case has recently been upheld by the Court of Appeal: see [2010] EWCA Civ 110.

The Bill which became PAUCA was passed in the House of Representatives of T&T on 9^th July 1996. The Bill was then passed in the Senate on 30^th July 1996 and the Senate amendments were agreed to by the House of Representatives on 7^th August 1996. I was shown the debates on the Bill in the Senate on 25^th July and 30^th July 1996. I was shown these debates for the purpose of informing me that T&T was a signatory to the Paris Convention and that the Bill was brought forward for reasons which included a wish to give effect to T&T’s international obligations under that Convention. If the Claimants wish to rely upon the debates in the Senate for wider purposes, then I am far from clear that they are able to do so. I did not receive any submissions as to whether the decision in Pepper v Hart [1993] AC 593 applies to legislation in Trinidad & Tobago. Assuming that the rules laid down in that case do apply in Trinidad & Tobago, then parliamentary material may be introduced as an aid to statutory construction where (a) the legislation was ambiguous or obscure or led to absurdity; (b) the material relied upon consisted of one or more statements by a minister or other promoter of the bill together if necessary with such other parliamentary material as was necessary to understand such statements and their effect and (c) the statements relied upon were clear. I doubt if these requirements are met in relation to the debates in the Senate in T&T. In particular, if the Claimants had wished to rely upon those debates for the purpose of showing the court that the Senate intended that the conduct prohibited by section 4(1) of PAUCA would extend beyond dishonest behaviour to any behaviour which was unfair competition or unfair behaviour in relation to the legitimate interests involved, I do not find the statements in the Senate to be clearly to that effect. Indeed, during the debate on 30^th July 1996, there appears to have been concern expressed as to the possible width of clause 4 of the Bill. The draughtsman of the Bill had departed from article 10 bis (2) of the Paris Convention by changing “any act of competition” to “any act or practice”. Clause 4 was amended but the amendment did not alter clause 4(1); instead, it sought to limit the persons who could claim under clause 4(2). As regards the Paris Convention being the source of the Bill, it was stated at page 19 of the official report of the debate on 30^th July 1996 that there was no single model for the Bill in that it had been drawn from the unfair competition law of several jurisdictions and put together. At pages 16 to 17 of the report of that day’s debate, when referring to honest practices, it was said that the notion of honest practices would have to be interpreted by the judicial authorities in Trinidad and Tobago and the judiciary could be assisted by the case law of other nations with similarly worded legislation.

I have been referred to the decision of Bereaux J, given on 15^th February 2007 in the High Court of Trinidad and Tobago, in a case brought by Digicel T&T against TSTT. The claim was for interim relief in the form of various injunctions against TSTT. The claim was put on various bases and it is not necessary to refer to all of the claims which were made. In particular, the claimant relied on section 4 of PAUCA. There was also reliance on section 6 of PAUCA which provides that any act or practice, in the course of commercial activities, that damages or is likely to damage the goodwill or reputation of another’s enterprise constitutes an act of unfair competition. At paragraph 26 of his judgment, the learned judge stated that he did not propose to embark on any great exposition of the law, although that comment may have been principally directed at the law relating to the grant of interlocutory injunctions. He dealt with the claims under PAUCA at paragraphs 32 to 36 of his judgment. At paragraph 33, he stated that claims under PAUCA were “very much uncharted territory in Trinidad and Tobago” and that there was no direct authority on such claims. At paragraph 33, he stated that the phrase “act or practice” was to be interpreted broadly. At paragraph 34, he stated that in connection with the provision of interconnection, TSTT was required by PAUCA “to treat fairly with Digicel and to engage fair practices in the course of competing with Digicel.” He added: “[t]his would include affording to Digicel the same treatment it affords its own mobile network in relation to its landlines and vice versa.” At paragraph 36, he held that the claimant in the proceedings before him had an arguable case that it was subjected to “acts of unfair competition”. The learned judge did not at any stage discuss the meaning of the phrase “contrary to honest practices”. It is not clear whether the judge had in mind the provisions of section 6 of PAUCA, rather than section 4, when he made the remarks I have quoted. I acknowledge that in paragraph 40 of his judgment he stated: “Given the breadth of section 4 of [PAUCA], it is more than arguable that such a practice is unfair”. Taking that sentence in isolation, it suggests that he was approaching section 4 on the basis that it prohibited anything which the court considered was an unfair practice.

The parties accept that I am not bound by the remarks of Bereaux J in the case before him. In view of the fact that the learned judge did not discuss the phrase “contrary to honest practices” at all and he appears to have regarded the words “unfair competition” as the essential definition of what was prohibited by section 4, I do not in the end derive much assistance from this judgment as to the correct interpretation of “contrary to honest practices” in section 4 of PAUCA.

Having considered the language in which section 4 of, and the remainder of, PAUCA is expressed and considering all the material put before me by the Claimants, I can now state my conclusions. Section 4(1) of PAUCA is clear in its expression. The phrase “any act or practice” is very wide indeed. The phrase “in the course of industrial or commercial activities” provides some limitation on the earlier phrase but does extend to all commercial activities of whatever kind. Section 4(1) is not confined to acts of competition. Section 4(1) is not confined to intellectual property. This means that section 4(1), until one comes to the phrase “contrary to honest practices”, is potentially very wide in its reach. The phrase “contrary to honest practices” is therefore a key phrase in order to define the scope of section 4(1) and to divide permitted activities from prohibited activities. As a matter of language, contrary to honest practices is referring to acts or omissions which involve dishonesty. The Claimants’ approach to the phrase “contrary to honest practices” gives that phrase a very wide ambit. If I held that the phrase prohibited any act or omission which was unfair having regard to the legitimate interests involved in the commercial activities in question, that would prohibit a vast range of behaviour. It would not be confined to unfair use of a trade mark, or unfair use of intellectual property or even unfair acts of competition. If I held that section 4(1) imposed a liability for honest behaviour which was careless (as the Claimants submit that I should) then, again, the scope of section 4(1) would be excessively wide.

I have considered with care the background to PAUCA as represented by the Paris Convention and I have also considered the body of case law on the meaning of “contrary to honest practices” in the specific case of trade marks. If that body of law was lifted out of its context and grafted onto the different context of section 4 of PAUCA then, as explained above, the width of the prohibition which resulted would be unacceptable, at least to my mind. I am not prepared to foist onto Trinidad and Tobago an interpretation of that width particularly when the language used in the provision is clear and is much narrower. The ordinary meaning of the words used in section 4 is limited to acts of omissions involving dishonesty. Accordingly, I hold that section 4(1) of PAUCA refers to any act or practice in the course of industrial or commercial activities which involves dishonesty, in accordance with the meaning of that word given in Royal Brunei Airlines v Tan.

The position as to actionability in T & T is different from the position in the above jurisdictions. In T&T, the only claim made by the Claimants is based on Section 4 of PAUCA. If the Claimants establish that there is conduct which infringes section 4(1) of PAUCA, then that conduct constitutes “an act of unfair competition”. Section 4(2) of PAUCA provides that any person damaged by such an act is entitled to “the remedies obtainable under the civil law of Trinidad and Tobago”. There is no dispute that such remedies include the remedy of damages as claimed by Digicel T&T. The parties did not make submissions to me as to the availability of exemplary or restitutionary damages under the civil law of T&T.

Because a breach of section 4 of PAUCA is actionable if it caused loss to Digicel T&T, the result of the claim in relation to T&T vitally depends on whether TSTT acted in breach of section 4 of PAUCA.

I have set out in Annex F to this judgment a discussion of the matters of complaint which are pleaded in relation to T&T and my findings of fact in relation to them.

In summary, I hold for the reasons given in Annex F that TSTT acted contrary to honest practices and therefore in breach of section 4 of PAUCA in two respects. First, TSTT acted contrary to honest practices when Mr Espinal telephoned Ms Bejar of Nortel in late September 2005 and instructed her not to complete the process of interconnection between TSTT and the new entrants in T&T, including Digicel T&T, before 31^st March 2006. Secondly, TSTT’s involvement in the composition of Mr Davy’s letter of 3^rd October 2005 and TSTT’s later use of that letter was contrary to honest practices.

I have set out in Annex F to this judgment a detailed consideration of whether TSTT’s conduct, which was contrary to honest practices and in breach of section 4 of PAUCA, resulted in any loss and damage to Digicel T&T. My conclusion in relation to the first breach of section 4 of PAUCA described above is that Digicel T&T has failed to establish that it suffered loss and damage as a result of the conversation referred to in that Digicel T&T has failed to show that it had a real or substantial chance of having been better off if that conversation had not taken place and in particular has failed to show that it had a real or substantial chance that interconnection would have been completed before 31^st March 2006. My conclusion in relation to TSTT’s conduct in respect of the composition of and the use of Mr Davy’s letter of 3^rd October 2005 is that Digicel T&T has not shown that such breach caused delay in achieving interconnection between the parties in T&T.

There was a lengthy and detailed dispute on the issue of whether, if TSTT’s breach of section 4 of PAUCA had caused delay to interconnection in T&T, any such delay in interconnection had caused delay to Digicel T&T’s launch of its telecommunications service in T&T. The Claimants said that Digicel T&T was delayed in relation to its launch for the period of any delay in relation to interconnection. TSTT said that Digicel T&T had many other matters to deal with, apart from interconnection, before it could be ready to launch and, on the detailed facts, Digicel T&T was not ready to launch before it actually did so. Accordingly, any delay on the part of TSTT in relation to interconnection had not made any difference to the date when Digicel T&T launched in T&T.

I have decided that I will not attempt to determine the very many issues which arose in this respect. My reasons for this decision are somewhat similar to the reasons which I have already set out for reaching a similar decision in relation to Barbados. In T&T my reasons are as follows. First, I have determined that there was no delay to interconnection even though TSTT was in breach of section 4 of PAUCA. Secondly, if I attempted to deal with the many points of detail as to a possible delay to the launch in T&T, I would immediately face the difficulty of having to make an assumption of fact, which I have not held to be well founded, as to when interconnection should have been completed and then to ask whether interconnection on such an assumed date would have allowed Digicel T&T to launch earlier than it actually did. Indeed, I may have to deal with a number of possible assumed dates depending on what Digicel T&T says is the date on which interconnection should have been completed (contrary to my actual findings). The assumed dates of interconnection could have a bearing on the effect of the allegedly delayed interconnection on a planned launch. Thirdly, any attempt to make findings of fact on the question of a possible delayed launch in T&T would involve a very considerable amount of time and result in delay in concluding my judgment. Fourthly, there were significant arguments as to whether I should permit the Claimants to advance a case that they were delayed from a specified date or alternative specified dates when those dates were not pleaded and the date of commencement of delay, which was pleaded in relation to T&T, was not contended for by the Claimants in their closing submissions. If I were otherwise minded to make findings of fact as to a possible delay to the launch in T&T, it would be necessary to set out in some detail the procedural history in relation to this question and to examine the legal basis for the Defendants’ proposition. Fifthly, the Claimants proposed a particularly burdensome course of action which, they suggested, required me to read a substantial quantity of further documents, which had not been referred to at any earlier stage of the trial, solely for the purpose of answering the question of whether Digicel T&T would have been able to launch its network earlier in certain hypothetical circumstances. For all these reasons, I conclude that it would be disproportionate to go further into the facts as to any such delay to launch. Accordingly, I will not make findings on a hypothetical basis as to whether a delay in interconnection did cause delay to Digicel T&T’s launch.

In these circumstances, it is not appropriate to discuss the law or the facts as to whether the present might have been a case for exemplary damages or what have been called restitutionary damages or whether the legislation in T&T, which allows the court to award the remedies obtainable under the civil law of T&T, extends to an award of exemplary or restitutionary damages.

The result in T&T is that although TSTT acted contrary to honest practices in various respects, Digicel T&T has not shown that it suffered loss and damage as a result.

Digicel T&T’s claim to damages against TSTT will be dismissed.

In TCI the incumbent telecommunications operator was CWWI. The licensed new entrant was Digicel TCI. The claim in relation to TCI is brought by Digicel TCI against CWWI and C&W plc. The Claimants allege that CWWI was in breach of the primary and secondary legislation in TCI, that such breaches were actionable as the tort of breach of statutory duty, that CWWI and C&W plc were joint tortfeasors and/or that they combined together such that they are liable for the tort of conspiracy to injure by unlawful means.

By an amendment, with permission, during the course of the trial, the Claimants alleged that CWWI had committed a breach of contract, namely a Memorandum of Understanding entered into at the end of February 2006, and that Digicel TCI had suffered loss and damage as a result. The Claimants also alleged that a breach of contract by CWWI constituted unlawful means for the tort of conspiracy and that CWWI and C&W plc had conspired to commit the breach of contract. Somewhat oddly, the Claimants never asserted that C&W plc was liable in the different tort of procuring or inducing a breach of contract.

CWWI and C&W plc deny that there were any breaches of the primary or secondary legislation. In any event, they say that any such breaches were not actionable. They also deny the alleged breach of contract. They also say that on the facts and as a matter of law, they are not liable in the tort of conspiracy. They further say that any breaches caused no loss.

The parties disagree as to the meaning and effect of the primary and secondary legislation in TCI. Accordingly, I will begin by considering that legislation in detail. As I will be examining the scope of the duties imposed by that legislation, it is convenient for me next to consider whether any breach of such duties would be actionable as the tort of breach of statutory duty, before I consider the facts. If I find that any breach of the legislation would not be actionable, then I will consider whether any breach of the legislation would be “unlawful means” for the purpose of the tort of conspiracy to injure by unlawful means, again before I consider the detailed facts.

Whatever I decide about the actionability of any breaches and whether any breaches could be unlawful means, I will make findings of fact on the matters of complaint which the Claimants say were breaches of the primary or secondary legislation.

As regards the breach of contract claim, I will make findings of fact in relation to that claim and also consider whether a breach of contract constitutes “unlawful means” for the tort of conspiracy to injure by unlawful means.

In TCI, the Claimants relied upon the provisions of the Telecommunications Ordinance 2004 and the Interconnection and Access to Telecommunications Facilities Regulations 2005.

Section 2 of the 2004 Ordinance defines "interconnection" to mean "the physical linking of public telecommunications networks to allow users of one licensed carrier to communicate with users of another licensed carrier". This definition refers, first, to the physical link involved in interconnection, but the definition goes on to refer to that physical link "allowing" the two licensed carriers to communicate. In my judgment, this definition of "interconnection" is not restricted to physical interconnection but is apt to refer to both physical and contractual interconnection. Both parties appeared to agree with this interpretation of the definition.

Section 13 of the 2004 Ordinance deals with the grant of a licence under the Ordinance. Section 13 (5) states that the licensee must comply with the terms and conditions of the licence. This means that compliance with the terms and conditions of the licence is required, first, by the licence and, secondly, by the Ordinance. In view of the fact that the terms of the licence are made matters of statutory obligation, I will, at this point, refer briefly, to some of the relevant terms in the licence granted to CWWI on 25^th January 2006.

Clause 15.1 of the licence referred to the licensed services and licensed networks which were the subject matter of the licence. Those services and networks were the relevant services and networks provided at the relevant times by CWWI. Clause 15.1 went on to require CWWI to provide interconnection to another licensee in accordance with section 22 of the Ordinance. I will refer to section 22 later in this judgment. Clause 15.2 of the licence stated that the regulator might issue instructions to CWWI, in accordance with section 23 of the Ordinance. Accordingly, it can be seen, that clauses 15.1 and 15.2 of the licence cross referred to the statutory provisions. They did not extend the obligations beyond the obligations contained in those statutory provisions.

Clause 15.3 does not in terms refer to the statutory provisions, but instead requires CWWI to make available to other carriers or service providers such technical information as the regulator might determine on a timely basis, as the regulator may prescribe.

Clause 13 of the licence has the heading: "Non-discrimination and Fair Trading". Clause 13 contains a number of more general provisions in relation to non-discrimination by CWWI in the provision of the licensed services and the operation of the licensed networks. In particular, by clause 13.4, it was provided that CWWI should not engage in practices or activities, whether by act or omission, which have or are intended to or likely to have the effect of unfairly preventing, restricting or distorting competition in any market for the licensed services. Clause 13.4 refers to such practices or activities "as may be further specified in regulations". Accordingly, the expectation is that further specification of the practices or activities in question will be the subject matter of regulations pursuant to the 2004 Ordinance.

Clause 13.5 is expressed in terms which are not to limit the generality of clause 13.4. By clause 13.5, any act or omission, which leads, or is likely to lead to a substantial lessening of competition in the market for any telecommunications network or telecommunications service is prohibited. Clause 13.5 states that the regulator will issue guidelines describing what is to constitute a substantial lessening of competition and the procedures for assessing it.

Thus, it can be seen that the licence contains, in clause 15, provisions dealing specifically with interconnection, essentially by cross-referring to the provisions of the Ordinance, and the licence also contains at clause 13 general provisions as to non-discrimination which contemplate further detailed provision being made in regulations or in guidelines issued by the regulator.

Section 16 of the 2004 Ordinance states that the regulator is able to make a determination that a particular licensee is dominant in relation to a particular telecommunications network or service. By clause 9 of the licence granted to CWWI on 25th January 2006, CWWI was declared dominant in relation to the relevant services and networks.

The 2004 Ordinance deals with interconnection in sections 22 to 25A. Section 22 (1) deals with a case where a licensee has been determined to be dominant, as was the case with CWWI by reason of clause 9 of its licence of 25^th January 2006. In such a case, pursuant to section 22 (1), the licensee is obliged to "provide an interconnection timeously to another licensee who requires the interconnection". “Timeously” means “in good time”.

Section 23 permits the regulator to issue instructions to a dominant licensee or, indeed, any licensee, in relation to the provision of interconnection. Section 23 refers to a number of topics, and, in particular, refers to the terms and conditions on which interconnection is to be provided. As will be seen, the Regulations in TCI contain detailed provisions as to interconnection agreements and these are stated to be an instruction pursuant to section 23 of the Ordinance.

It is clear that the obligation on CWWI to provide interconnection only applies in the case of other licensees. Accordingly, CWWI did not owe any obligation, under section 22 of the 2004 Ordinance to Digicel TCI until the latter was granted its licence on 31^st March 2006. The 2004 Ordinance says comparatively little about the negotiation of, and the terms and conditions of, an interconnection agreement. However, section 23 recognises that interconnection will be provided upon a set of terms and conditions. Under section 64(2) of the 2004 Ordinance there is a power to make regulations in relation to a number of matters including the procedures to be followed under the Ordinance and as to interconnection agreements. As will be seen, the Regulations in TCI contain very detailed provisions in relation to interconnection agreements.

I now turn to the detailed provisions of the 2005 Regulations in TCI. Regulation 2 of the Regulations defines an "interconnection agreement" as an agreement setting forth the rights and obligations of the parties with respect to providing interconnection between their networks and services. By regulation 3 (1), carriers and service providers are required to co-operate with each other, in accordance with the regulations, in order to enable carriers and service providers to provide integrated public telecommunications services through TCI. By regulation 3 (2), interconnection is to be established and provided in accordance with interconnection agreements negotiated and agreed between the parties and submitted to the regulator, pursuant to the Ordinance and the Regulations.

Regulation 5 (1) imposes on every carrier and service provider "a duty to interconnect" with other carriers and service providers. This imposed on CWWI a positive duty to interconnect with Digicel TCI, following the grant of a licence to the latter on 31st March 2006. By regulation 5 (3), it was provided that the duty to interconnect specified in regulation 5 (1) obliged CWWI to refrain from refusing, obstructing or in any way impeding the interconnection of another carrier or service provider, entitled to obtain such interconnection. Whereas the duty in regulation 5 (1) is expressed as a positive duty on CWWI, the obligation on CWWI imposed by regulation 5 (3) is expressed in what are clearly negative terms. In my judgment, it is neither necessary, nor appropriate, to read regulation 5 (3) as imposing a positive duty on CWWI to provide interconnection. Regulation 5 (6) requires any agreement governing interconnection between licensees to be embodied in a written interconnection agreement.

Regulation 6 deals with the subject of non-discrimination. By regulation 6 (1), every carrier and service provider must offer to provide, and in fact provide, interconnection to other carriers and service providers on the basis of terms and conditions that are non-discriminatory. This obligation is owed to carriers and service providers and was therefore owed to Digicel TCI from the date the latter obtained its licence, but not before.

By regulation 6 (3), it is provided that every carrier and service provider must offer to provide and provide interconnection "on a timely basis, not to exceed 90 days, subject to section 8 ...". Regulation 6 (3) refers to interconnection being provided on the basis of certain terms and conditions. Regulation 8 imposes on a carrier or service provider, upon request, an obligation to make available a standard, or a reference, interconnection offer.

Part 4 of the Regulations (regulations 9 to 13) makes further provision for interconnection agreements. The duty owed by CWWI under regulation 9 plainly only applied to a request for interconnection from a licensed operator. Under regulation 9 (5), it was provided that the parties were to negotiate in good faith with the objective of concluding an interconnection agreement. Regulation 9 (6) stated that good faith negotiations required, at a minimum, adherence by the parties to a detailed timetable. This timetable identified a period for acknowledgment of a request for interconnection and a further period for the provision of a complete response to a request for interconnection.

Regulation 10 dealt with the contents of interconnection agreements. Regulation 10 was stated to be "pursuant to section 23 of the Ordinance". It will be remembered that section 23 of the Ordinance referred to the regulator issuing instructions in respect of interconnection. Accordingly, regulation 10 is such an instruction in relation to the contents of interconnection agreements. By regulation 10, an interconnection agreement was to address a large number of matters, including the technical characteristics of interconnection, capacity levels, service levels, forecasting, "ordering and provisioning", provision of information, fault detection and repair and provision for breaches of the agreement.

It is clear that the specific duties as regards interconnection imposed by the Ordinance and the Regulations were owed by CWWI to Digicel TCI only from the date that the latter obtained its licence, i.e. 31^st March 2006. I will deal later with the argument that the general obligations as to competition contained in clauses 13.4 and 13.5 of the licence applied to a period before the 31^st March 2006.

The Regulations contain detailed provisions as to interconnection agreements. It seems to have been contemplated that the parties would negotiate and agree the terms of an interconnection agreement and then implement that agreement in order to provide interconnection. There is no express obligation upon CWWI, whether pursuant to the Ordinance or the Regulations, to order and/or install and/or test the specialist equipment needed for its side of the interconnection, or to carry out civil works, before concluding an interconnection agreement. Conversely, there was no prohibition upon the parties, if both so wished it, making an ad hoc agreement which dealt with ordering or installation or testing equipment, or the carrying out of civil works, before they concluded a comprehensive interconnection agreement.

When considering the obligations on CWWI in SLU, I discussed what was involved in the course of ordinary commercial negotiations. I reached the following conclusion, as to the usual position of parties to negotiations where one party is under time pressure and wishes some step to be taken prior to the conclusion of those negotiations and the other party is not under time pressure and does not have any reason of his own to see that step taken prior to the conclusion of negotiations. In such negotiations, the second party has a bargaining advantage which it is ordinarily legitimate for that party to use to encourage the first party to agree terms more favourable to the second party, so that the agreed terms can then be implemented and the step which the first party wants to see taken can then be taken in accordance with the agreed terms. I also considered that it was not contrary to the legislation in SLU for the second party to use that advantage to negotiate more favourable terms by declining to order and/or to install and test interconnection equipment and/or to carry out civil works before the parties had entered into an interconnection agreement which provided for all those steps to be taken. Having considered the Ordinance and the regulations in TCI, I consider that the conclusions I reached in SLU are also appropriate in TCI. However, as will be seen in TCI, the question of ordering and installing and testing equipment and carrying out civil works did not rest on the terms of the Ordinance and the regulations but was made the subject to an express contract entered into by CWWI and Digicel TCI.

The Claimants contend that a breach of section 22 of the Telecommunications Ordinance 2004 is actionable. I will now consider the various matters which are relevant for the purpose of determining this question.

In my judgment, the 2004 Ordinance and, in particular section 22, were passed primarily for the purpose of benefiting the public interest. The long title to the Ordinance states that it was passed to provide for the establishment of a telecommunications commission, to provide for the functions of the commission and for connected purposes. The functions of the commission are set out in section 4.

On the question whether section 22 is expressed in terms which make it suitable for actionability, there is nothing in section 22 which is unsuitable for an actionable duty. The persons who will suffer harm as a result of a breach of duty are, first, the public and, secondly, the licensee requesting interconnection. The loss to the licensee requesting interconnection as a result of a breach of the duty is economic loss. The person on whom the section 22 duty is imposed is a private entity.

The 2004 Ordinance does impose sanctions for a breach of the section 22 duty. By section 51(1) where the regulator is satisfied that the licensee has not complied with section 22 then the regulator may issue to the licensee a direction to bring the contravention to an end or to ensure that the contravention is not repeated. By section 51(2) a licensee is obliged to comply with such a direction. If a licensee fails to comply with such a direction then under section 51(5), the regulator may censure the licensee publicly and impose a financial penalty and enforce a remedy available to the regulator under the licensee’s licence, including a suspension or revocation of that licence. By section 51(6), where the regulator imposes a penalty under section 51(5), the penalty is recoverable in the same manner as a fine imposed by the magistrates’ court. Section 52 deals with revocation and suspension. By section 52(1) the regulator may give to the licensee a notice requiring the licensee to take remedial action. Thereafter, the regulator may suspend or revoke the licence.

The 2004 Ordinance provides means of enforcement of the section 22 duty. Under section 23 the regulator may issue instructions to a licensee as to how to implement section 22. Under section 51(1) and (2) the regulator may give directions to bring a contravention of section 22 to an end or to ensure that such contravention is not repeated and the licensee must comply with such a direction. Under section 24, a dispute as to interconnection may be referred to the regulator and the regulator is able to take such measures as it deems fit to resolve a dispute. By section 64(2)(f) of the 2004 Ordinance, the Governor is given power to make regulations providing for a dispute resolution process in relation to interconnection.

Having considered these various matters, in my judgment, the factors in favour of non-actionability are considerably stronger than the factors in favour of actionability. I conclude that a breach of section 22 of the 2004 Ordinance is not actionable.

The Claimants contend that various regulations in the Interconnection and access to Telecommunications Facilities Regulations 2005, and in particular, regulations, 3, 5, 6 and 9 are actionable. The Defendants contend that these duties are not actionable. To answer this question it is necessary to consider the matters I have identified above.

In my judgment, the regulations and, in particular, those regulations relied upon by the Claimants were passed to benefit the public interest. The regulations were made to give effect to the 2004 Ordinance: see section 64(1) thereof. Further, the functions of the regulator identified in regulation 4 show that the purpose of the regulations is primarily to benefit the public interest.

The various duties are expressed in terms which are not unsuitable for actionable duties. As before, I have some reservations about an obligation to act in good faith although in the case of these regulations, regulation 9(6) gives some specific directions as to what is required by good faith negotiations.

The class of persons who might suffer harm as a result of a breach of a duty in the regulations are, first, the public and, secondly, the licensee requesting interconnection. The harm which may be suffered by a licensee requesting interconnection as a result of a breach of duty is economic loss. The duties in question are imposed upon a private entity. The 2004 Ordinance imposes sanctions for a breach of a duty in the regulations. Section 51(1) of the Ordinance refers to non-compliance with a provision of the subordinate legislation and this extends to the regulations. Thus a breach of the regulations entitles the regulator to give a direction under section 51(1) requiring compliance with the regulations and under section 51(2) a licensee is obliged to comply with that direction. If the licensee does not comply with a direction which requires compliance with the regulations, then the regulator can act under section 51(5) and (6) of the Ordinance. Further, in a case where the regulator has acted under section 51(1) to require compliance with the regulations and the regulator’s directions have not been complied with then the regulator may require remedial action under section 52(1) and, in case of default, suspend or revoke the licence.

In addition to the various sanctions and other methods or enforcing the requirements of the regulations, regulation 11 provides for dispute resolution in respect of disputes as to interconnection.

Having considered the various matters which require attention, in my judgment, the factors in favour of non-actionability are stronger than the factors in favour of actionability. I conclude that a breach of the various duties in the regulations, which are relied upon by the Claimants are not actionable.

As the question has arisen not only in TCI but also in some of the other jurisdictions with which this litigation is concerned, I have set out in a separate annex to this judgment (Annex I) my understanding of the legal principles relating to this question and indeed other relevant legal principles in relation to the tort of conspiracy to injure by unlawful means.

My conclusion in relation to the scope of “unlawful means”, for the purpose of the tort of conspiracy to injure by unlawful means, is that a breach of a statutory obligation which is not an actionable breach and which is not a criminal offence does not constitute “unlawful means”.

In TCI, the Claimants rely upon the terms of the licence granted to CWWI in so far as those terms prohibit certain specified anti-competitive behaviour. The Claimants say, first, that CWWI contravened the terms of the licence, secondly, that a breach of the licence is a breach of statutory duty having regard to the terms of the legislation in TCI and thirdly, a breach of the licence amounts to unlawful means for the tort of conspiracy to injure by unlawful means.

The licence granted to CWWI in TCI contains clauses 13.4 and 13.5 which are similar to clauses 6.4 and 6.5 of the licence granted to CWWI in SLU. In particular, the relevant part of clause 13.4 in the TCI licence is essentially the same as clause 6.4 of the SLU licence. Clause 13.5 of the TCI licence provides:

“Without limiting the generality of clause 13.4 above, any act or omission which leads, or is likely to lead, to a substantial lessening of competition in the market for any telecommunications network or telecommunications service is prohibited. The Commission will issue Guidelines describing, or may otherwise determine, what constitutes a substantial lessening of competition and the procedures for assessing it.”

Although the Claimants rely upon the provisions in the licence referred to above, the allegations of breach in the Claimants’ pleading are unparticularised and the Claimants did not give further particulars when asked for further information. The position in this respect is similar to the position of the pleadings in Barbados as to abuse of dominant position pursuant to section 16 of the Fair Competition Act 2002. Nonetheless, the Defendants did not press for an order for further particulars to be given and did not apply to strike out the allegations. For the reasons which I spelt out in more detail when dealing with the unparticularised claim based on section 16 of the Fair Competition Act 2002 in Barbados, the claim is one which the court must deal with, even though it is not particularised.

When I considered the allegation of abuse of dominant position pursuant to section 16 of the Fair Competition Act 2002 in Barbados, I discussed the extent to which general provisions preventing anti-competitive conduct such as section 16 of the Fair Competition Act and such as the provisions in the licence to CWWI added anything to the specific provisions in the telecommunications legislation and regulations in the relevant jurisdiction which specifically deal with the question of competition between an incumbent and a new entrant by making detailed provisions as to interconnection between those persons.

For the reasons which I gave in relation to section 16 of the Fair Competition Act 2002 in Barbados, I conclude that the relevant competition rules on the subject of interconnection between an incumbent operator and a new entrant are to be found in the specific rules as to interconnection and the general references to prohibitions on anti-competitive practices do not add anything to the specific rules.

In view of my conclusion in the last paragraph to the effect that the terms of a telecommunications licence dealing with anti-competitive conduct do not add anything to the specific rules contained in the statutes and regulations as to interconnection between operators, it may not be strictly necessary to ask whether a breach by CWWI of its licence is a breach of a statute or a regulation in TCI. However, for the sake of completeness, I will state my conclusion on that subject.

The position in TCI on the question whether a breach of the licence is a breach of the statute is different from the position in the other four jurisdictions where the point has been raised. Section 13(5) of the 2004 Ordinance provides that a licensee shall comply with the terms and conditions of its licence. Thus if the licensee breaks its licence it also fails to comply with, and therefore breaks, section 13(5) of the TCI Ordinance. Therefore, a breach of the licence is a breach of the statute in TCI.

I have already considered the question whether a breach of the legislation in TCI is actionable. I have held that a breach of the legislation is not actionable. I have further held that a non-actionable breach of the legislation does not constitute unlawful means for the tort of conspiracy. For completeness, I also hold that a breach of the licence is not separately to be considered (leaving aside section 13(5) of the Ordinance) to be unlawful means. As I am not prepared to extend the scope of unlawful means so as to embrace a non-actionable, non-criminal breach of the legislation, I am similarly not prepared to extend the scope of unlawful means to embrace a breach of a public licence such as the telecommunications licence to CWWI in TCI.

The result of the above conclusions is that the Digicel TCI does not have a cause of action in TCI arising out of any breach of the legislation or licence in TCI, even if it establishes that CWWI committed breaches of the legislation or licence in TCI and that CWWI and C&W plc combined in relation to those breaches with the necessary intention to injure Digicel TCI. I will separately consider Digicel TCI’s case that CWWI committed a breach of contract causing loss and damage to Digicel TCI.

In late February 2006, Digicel TCI and CWWI entered into an agreement recorded in letter form. This agreement has been referred to at the trial as the memorandum of understanding or MOU. The MOU is agreed to have contractual effect. The MOU deals with the subject of CWWI ordering interconnection equipment, carrying out civil works and installing, commissioning and testing the interconnection equipment and the links between the two switch sites and keeping Digicel TCI generally informed of progress in relation to these matters. The parties disagree as to the meaning and effect of this MOU. In those circumstances, I need to set out the full terms of this agreement.

The agreement is recorded in the form of a letter dated 23^rd February 2006 from CWWI to Digicel TCI. The letter provides as follows:

ordering the required interconnect equipment and fiber and C&W notifying, within one week of its having ordered the interconnection equipment, Digicel of the type of such equipment;

undertaking, at the same time as ordering the interconnection equipment, all civil works associated with, installation of and testing of fiber link(s) and C&W informing, on at least a weekly basis, Digicel of the current location of the interconnection equipment and its date of delivery to C&W in TCI;

commence installing the interconnection equipment within one week of the date of delivery to C&W, and commence commissioning and testing the interconnection equipment and the links within one week of completion of installation.

On 25^th February 2006, Digicel TCI emailed to CWWI a copy of this letter signed on behalf of Digicel TCI. On 27^th February 2006, Digicel TCI gave to CWWI a cheque for the deposit of US $90,000, as referred to in the agreement.

In the absence of this MOU, on the true construction of the 2004 Ordinance and the 2005 regulations and, so far as it matters, the licence granted to CWWI in TCI, CWWI was not under an obligation to negotiate interconnection with Digicel TCI until it received its licence on 31^st March 2006. Further, CWWI was not under an obligation in advance of the parties entering into an interconnection agreement, to order the interconnection equipment required for the CWWI side of the interconnection or to install and test such equipment or to carry out civil works to join the two switch sites. It is clear that the MOU placed contractual obligations on CWWI in relation to ordering, installing and testing interconnection equipment and carrying out civil works, even at a time when Digicel TCI did not have a licence in TCI and the parties had not entered into an interconnection agreement.

The parties differed as to what was required of CWWI by the MOU in relation to the timetable for taking the various steps referred to in the MOU. They differed, in particular, as to the timetable which was to be complied with by CWWI in relation to ordering interconnection equipment. CWWI accepted in its submissions to me that the MOU placed on it a contractual obligation of some kind in relation to ordering interconnection equipment. It seemed to be accepted that CWWI was to commence the process of ordering the equipment but, it was submitted, the letter said nothing as to any timetable for the placing of the order for the equipment or for later stages of the process. The Claimants submitted that CWWI was contractually obliged to order the interconnection equipment “immediately”. In the course of their submissions, the Claimants said that “immediately” meant either “as soon as possible” or “as soon as reasonably practicable”.

I am not able to accept CWWI’s submission that the memorandum of understanding does not lay down a timetable for the various matters which are the subject of the MOU. Starting with the question of ordering interconnection equipment, the MOU makes clear that the task of ordering the interconnection equipment is included within “this work” and the phrase “this work” refers to “the physical and technical interconnection necessary to interconnect their respective networks”. On that basis, the task of ordering the interconnection equipment is to be commenced and completed “immediately”. The ordinary meaning of “immediately” can be expressed in different ways. It can mean “without delay” or “at once”. The word “immediately” has to be read in context. Part of the context is that the parties to the MOU appreciated that for CWWI to order interconnection equipment, it would be necessary for certain preliminary stages to be gone through. The Claimants do not appear to challenge the need for CWWI to communicate with an equipment supplier to obtain a proposal or a quotation from the supplier, for that quotation or proposal to be placed before CWWI for approval of the expenditure and, following that approval, for the order to be placed with the supplier. The Claimants submitted that CWWI had to go through those stages as soon as possible but the Claimants were prepared to accept that the obligation might mean that CWWI should go through those stages “as soon as reasonably practicable”. In my judgment, the obligation is to go through the various stages with a view to placing the order for the interconnection equipment as soon as reasonably practicable.

The MOU then provides that CWWI is obliged to commence installing the interconnection equipment within one week of the date of delivery of that equipment to CWWI. CWWI is also to commence commissioning and testing the interconnection equipment within one week of completion of installation. It must have been envisaged that CWWI would be obliged to do more than simply commence the installation of the equipment; it must have been envisaged that it would complete that installation. Indeed, in my judgment, the MOU expressly says so when it directs that CWWI is to complete the physical and technical interconnection, necessary to interconnect the respective networks, “immediately”. Accordingly, CWWI must complete the installation of the interconnection equipment as soon as reasonably practicable after it has commenced the installation. CWWI then has one further week from completion of installation to commence commissioning and testing the interconnection equipment and then must complete commissioning and testing as soon as reasonably practicable.

As regards the civil works, CWWI is to “undertake” the civil work at the same time as ordering the interconnection equipment. Again, CWWI is to undertake the civil works as soon as reasonably practicable. The requirement “to undertake” the civil works requires CWWI to begin the civil works and carry them to completion as soon as reasonably practicable.

The parties disagree as to what is meant by the phrase “the required interconnect equipment”. There seem to be two points in play. The first is whether this phrase refers to the MUX and associated cables (this is sometimes called the optical equipment or the transmission equipment) or whether the phrase extends to other work, by way of an upgrade of the switch and signalling equipment at the CWWI switch site. The second point appears to be, once one has identified the interconnection equipment which is needed to interconnect the two networks, whether CWWI has to order all of that equipment or whether it must order only such of it as is immediately needed having regard to spare equipment which might be available to CWWI.

As to the meaning of “the required interconnection equipment”, the parties agree that this, at least, includes the MUX and cables and any ancillary equipment needed to connect the MUX and make it work. In my judgment, the phrase may go further than those items. The interconnection equipment which is “required” is the interconnection equipment which is required to “complete the physical and technical interconnection necessary to interconnect their respective networks”. Therefore, one asks: what is the equipment which needs to be installed so that, following installation, one could properly say that the two networks have been interconnected and the interconnection will work? If that process requires the addition of equipment to the switch or signalling equipment then the equipment which needs to be added is part of the required interconnection equipment. Conversely, if CWWI had a wish to carry out an upgrade to its network and, in particular, the switch and signalling equipment and even if it made sense to carry out that upgrade at the same time as it installed the equipment needed to effect the interconnection, the equipment needed for the upgrade is not part of the required interconnection equipment.

The second point concerns whether CWWI must draw on its stock of spares so that it must not order an item which it already has in stock or, at any rate, must not order such an item if placing that order would delay the process of obtaining and installing the other parts of the required interconnection equipment. It is clear that CWWI would be entitled to draw on its stock of spares if it wished to do so. If the item taken from stock was part of the equipment needed to interconnect the networks then CWWI would be entitled to charge for the item which it supplied to itself from its stock. The question is: if CWWI decides not to supply itself with an item from stock and if the ordering of that item afresh in some way delayed the ordering or delivery of other equipment, has CWWI broken the MOU because it has not ordered the “required” equipment as soon as reasonably practicable?

In my judgment, the word “required” refers to the equipment required to effect the interconnection of the networks. If an item is required in this sense and if CWWI orders such an item, even though it could have supplied itself from stock, CWWI is complying with its obligations and is therefore not in breach of its obligations; in particular, it is not obliged to supply itself from its own stock.

Although I have now held that Digicel TCI does not have a cause of action in TCI arising out of any breach of the legislation, I have heard detailed evidence and submissions in relation to the matters of complaint in TCI. I will therefore make findings of fact on the matters of complaint put forward by Digicel TCI.

As a discussion of the matters of complaint in TCI and my findings of fact in respect of those matters are somewhat lengthy, it is convenient to set out that discussion and my findings separately in Annex G dealing with TCI.

In reaching my conclusions on the matters of complaint in TCI, I have directed myself in accordance with my earlier rulings on the meaning and effect of the legislation in TCI. My overall conclusion in relation to the allegations in respect of TCI is that the Claimants have failed to establish that CWWI was in breach of duty under the legislation in relation to interconnection.

In Annex G to this judgment, I have discussed in detail the claims made by Digicel TCI that CWWI committed breaches of contract, namely, the memorandum of understanding (“MOU”) dated 23^rd February 2006. I have concluded for the reasons set out in Annex G that CWWI did commit breaches of the MOU in that it delayed in ordering interconnection equipment until 6^th April 2006 when it should have ordered all such equipment by 24^th March 2006. CWWI committed a futher breach of the MOU by failing to keep Digicel TCI informed of the progress in relation to the ordering and delivery of the interconnection equipment.

I have also concluded for the reasons given in Annex G that these breaches of contract did not cause delay to the completion of interconnection in TCI and did not otherwise cause loss to Digicel TCI.

In TCI, the Claimants’ case was that the breaches of the legislation were committed by CWWI and that C&W plc was a joint tortfeasor and/or a conspirator with CWWI. In view of my earlier findings, no question of joint torts arises.

As regards the allegation of conspiracy to injure by unlawful means, I have held that any breach of the legislation or the licence did not constitute unlawful means and, in any event, there was no such breach.

Digicel TCI also alleges that CWWI and C&W plc conspired together to commit a breach of contract, i.e. a breach of the MOU. It is said that a breach of contract constitutes unlawful means for the tort of conspiracy. I have held that CWWI committed a breach of the MOU but I have also held that the breach did not cause damage to Digicel TCI. As there was no resulting damage, there cannot have been an actionable conspiracy on that ground alone. I note that the Claimants do not allege that C&W plc induced CWWI to commit the breach of contract in TCI. To my mind, if the Claimants were going to allege that C&W plc had participated in some way in the breach of contract by CWWI, I would have expected the Claimants to put their case on the basis that C&W plc induced a breach of contract. That way of putting the case would, at least have allowed the Claimants to rest their case on a recognised tort rather than take on the burden of showing that a breach of contract constitutes unlawful means for the tort of conspiracy to injure by unlawful means.

In Annex I to this judgment, I discuss the matters which would need to be addressed before a court would recognise a tort of conspiracy to commit a breach of contract alongside the established tort of inducing a breach of contract. For the reasons given in Annex I, I have decided not to attempt to answer the general question of law as to whether a breach of contract constitutes unlawful means for the tort of conspiracy to injure by unlawful means.

For the sake of completeness, I will make my findings of fact as to whether C&W plc did combine with CWWI to commit a breach of the MOU.

There is absolutely no material on which I could find that C&W plc did combine with CWWI to commit the breach of the MOU. The breach of contract came about as a result of the actions or omissions of the employees of the business unit in TCI, in particular, Mr Gibbs. The carrier services team within CWWI did not induce that breach or combine with Mr Gibbs, or anyone else in the business unit in TCI, to commit that breach. C&W plc was wholly remote from any of the matters which led to the breach of contract in TCI.

More generally, as regards the role of C&W plc in TCI, the comments I made when discussing the allegation that C&W plc was involved in a conspiracy in SLU apply also to the position in TCI.

In their closing submissions, the Defendants did not ask me to make any findings in relation to TCI on the subject of the existence of an honest belief so as to negative an intention to injure. Accordingly, I will not consider that question in relation to TCI.

I have held, as explained in Annex G to this judgment, that CWWI committed breaches of the MOU but those breaches did not cause loss to Digicel TCI. Digicel TCI is therefore entitled to receive only nominal damages for breach of contract.

There was a lengthy and detailed dispute on the issue of fact whether, if CWWI’s breach of the MOU or any breach of duty under the legislation in TCI had caused delay to interconnection in TCI, any such delay in interconnection had caused delay to Digicel TCI’s launch of its telecommunications service in TCI. The Claimants said that the Digicel TCI was delayed in relation to its launch for more or less the full period of any delay in relation to interconnection. CWWI said that Digicel TCI had many other matters to deal with, apart from interconnection, before it could be ready to launch and, on the detailed facts, Digicel TCI was not ready to launch before it actually did so. Accordingly, any delay on the part of CWWI in relation to interconnection had not made any difference to the date when Digicel TCI launched in TCI.

I have decided that I will not attempt to determine the very many issues which arose in this respect. First of all, I have determined that there was no delay to interconnection by reason of any breach of any obligation placed on CWWI. Secondly, I have held on the facts that there was no conspiracy between CWWI and C&W plc in relation to TCI. Thirdly, I have held that even if there had been a conspiracy to act in breach of the legislation in TCI, it would not have been actionable. Fourthly, if I attempted to deal with the many points of detail as to a possible delay to the launch in TCI, I would immediately face the difficulty of having to make an assumption of fact, which I have not held to be well founded, as to when interconnection should have been completed and then to ask whether interconnection on such an assumed date would have allowed Digicel TCI to launch earlier than it actually did. Indeed, I think that I would have to deal with a number of possible assumed dates depending on what conduct on the part of CWWI is to be assumed (contrary to my actual findings) to have been a breach of its obligations. The assumed dates of interconnection could have a bearing on the effect of the allegedly delayed interconnection on a planned launch. Fifthly, any attempt to make findings of fact on the question of a possible delayed launch in TCI would involve a very considerable amount of time and delay in concluding my judgment. Sixthly, there were significant arguments as to whether I should permit the Claimants to advance a case that they were delayed from a specified date or alternative specified dates when those dates were not pleaded and the date of commencement of delay, which was pleaded in relation to TCI, was not contended for by the Claimants in their closing submissions. If I were otherwise minded to make findings of fact as to a possible delay to the launch in TCI, it would be necessary to set out in some detail the procedural history in relation to this question and to examine the legal basis for the Defendants’ proposition. This is an additional reason why it is disproportionate to go further into the facts as to any such delay to launch. Finally, in relation to any assessment of when Digicel TCI would have been able to launch, the Claimants invited me to take the burdensome course of reading additional documents which they supplied as part of their closing submissions and which had not been examined at any earlier stage of the trial and had not been put to any witness.

In these circumstances, I conclude that it is not proportionate to go further than I have done and I will not make findings on the allegation that a delay in interconnection, in alleged breach of the legislation in TCI, did cause delay to Digicel TCI’s launch. Further, it is not appropriate to discuss the law or the facts as to whether the present is a case of exemplary damages or what have been called restitutionary damages.

My conclusion is that Digicel TCI is entitled to an award of nominal damages against CWWI for breach of the MOU.

All other claims by Digicel TCI against CWWI and all of its claims against C&W plc will be dismissed.

The result in SLU is that all claims by Digicel SLU against CWWI and C&W plc will be dismissed.

The result in SVG is that all claims by Digicel SVG against CWWI and C&W plc will be dismissed. Further the claim by Digicel Ltd in relation to SVG will be dismissed.

The result in Grenada is that all claims by Digicel Grenada against C&W Grenada, CWWI and C&W plc will be dismissed.

The result in Barbados is that all claims by Digicel Barbados against C&W Barbados, CWWI and C&W plc will be dismissed.

The result in Cayman is that all claims by Digicel Cayman against C&W Cayman, CWWI and C&W plc will be dismissed

The result in T&T is that the surviving claim which is a claim by Digicel T&T against TSTT will be dismissed. All other claims by Digicel T&T against TSTT and all claims against CWWI and C&W plc have been abandoned and will be dismissed.

The result in TCI is that Digicel TCI is entitled to an award of nominal damages for breach of contract against CWWI. All other claims by Digicel TCI against CWWI and all claims against C&W plc will be dismissed.

ANNEX A – ST LUCIA

St Lucia was a signatory to the Treaty (“the Treaty”) establishing the Eastern Caribbean Telecommunications Authority (“ECTEL”).

The Preamble to the Treaty is in the following terms:

Article 1 of the Treaty contains definitions which include the following defined terms:

The following Articles of the Treaty are material:

The Telecommunications Act 2000 was in force at all material times.

The objects of the Telecommunications Act 2000 were set out in section 3 of the Act as follows:

Section 4(1) of the Telecommunications Act 2000 contained a number of defined terms, including the following:

“interconnection” means the connection of two or more separate

telecommunication systems, networks, links, nodes, equipment,

circuits and devices involving a physical link or interface.

…

“telecommunications” means any form of transmission, emission,

or reception of signs, text, images and sounds or other

intelligence of any nature by wire, radio, optical or other

electromagnetic means;

“telecommunications facilities” means any facility, apparatus or other

thing that is used or capable of being used for telecommunications

or for any operation directly connected with

telecommunications, and includes a transmission facility;

“telecommunications network” means any wire, radio, optical, or

other electromagnetic system used to route, switch, or

transmit telecommunications;

“telecommunications provider” means a person who is licensed

under this Act to operate a telecommunications network or to

provide telecommunications services;

“telecommunications services” means services provided by means

of telecommunications facilities and includes the provision in

whole or in part of telecommunications facilities and any

related equipment, whether by sale, lease or otherwise, or

such other services as may be prescribed by the Minister

from time to time;

…

Section 4(2) of the 2000 Act provided:

Section 7 conferred powers on the relevant Minister, as follows:

Part II of the 2000 Act established the National Telecommunications Regulatory Commission and contained a number of provisions as to its functions and powers. The most relevant provisions are:

Part III of the 2000 Act deals with licensing of Telecommunications Providers. The more relevant provisions are as follows:

Part IV of the 2000 Act deals with the provision of universal service, interconnection, infrastructure sharing and numbering. The more relevant provisions are as follows:

Part V of the 2000 Act contains provisions dealing with compliance and management. The more relevant provisions are as follows: