Caribbean Cellular Telephone Ltd v Bvi Cable TV Ltd
| Jurisdiction | British Virgin Islands |
| Judge | Ramdhani J |
| Judgment Date | 20 July 2022 |
| Neutral Citation | VG 2022 HC 033 |
| Judgment citation (vLex) | [2022] ECSC J0404-3 |
| Docket Number | CLAIM NO. BVIHCV 2020/0136 CLAIM NO. BVIHCV 2020/0160 |
| Court | High Court (British Virgin Islands) |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL DIVISION)
CLAIM NO. BVIHCV 2020/0136
CLAIM NO. BVIHCV 2020/0153
CLAIM NO. BVIHCV 2020/0160
IN THE MATTER OF THE TELECOMMUNICATIONS ACT, 2006
AND
IN THE MATTER OF RULE 56.7 OF THE EASTERN CARIBBEAN SUPREME COURT CIVIL PROCEDURE RULES, 2000
Mr. Sydney Bennet Q.C. for the Claimants, Caribbean Cellular Telephone Limited and BVI Cable TV Limited
Mr. Nigel Pleming Q.C., Mr. Paul B Dennis Q.C., Ms. Asha Johnson Willins, Mr. Jarleth Burke of O'Neal Webster for the Claimant, Digicel
Mr. Brian Child, Laura Gunn, of Campbells for Cable and Wireless
Mr. Terrence B Neale, Nelcia St. John instructed by Mc W. Todman & Co. for the Defendant Commission.
Considered:
Cases:
Agricultural Training Board v Aylesbury Mushrooms [1972] AER 280
Althea Maynard and another v Eastern Caribbean Asset Management Corporation (as receiver of ABI BANK LTD) (Anguilla) Civil Appeal No. 47 of 2018
Birmingham City Council and Others v H (a minor) [1994] Vol 1 All ER 12
Bolton Metropolitan District Council and others v The Secretary of State for the Environment [1995] Vol 1 WLR
Birkdale District Electric Supply Co Ltd v Southport Corpn [1926] AC 355
Chefette Restaurants Ltd v Harris (2020) 98 WIR 79
Council of Civil Service Unions and others v Minister for the Civil Service [1985] AC 374 Carnwath in Lambeth LBC v SSHCLG [2019] 1 WLR 4317
Corocraft Ltd v Pan American Airways Inc. [1968] 3 WLR 714 at 732.
Demerara Distillers Ltd v Guyana Revenue Authority (2008) 73 WIR 244
Deon Davis v Commissioner of Police SVG Magisterial Appeal No. 34 of 2004
Douglas and Others v Pindling (1996) 48 WIR 1
Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812
Eastern Caribbean Court of Appeal in Re Blake — (1994) 47 WIR
Fletcher v Minister of Town and Country Planning [1947] 2 All ER 496
Friar Truck Ltd. and Quiver Inc v International Tax Authority BVIHCAP2017/0003
International Rights in Europe intervening) [2018] 4 WLR 168
In Re Sutherland District Council [1987] Lexis Citation 150
Kennedy (Appellant) v Cordia (Services) LLP (Respondent) (Scotland) 2016 UKSC Para 4851
Midland Bank Trust Co. Ltd. and another v Hett, Stubbs & Kemps (A Firm) [1979] Vol 1 CH 384
National Justice Compania Naviera SA v Prudential Assurance Co. Ltd (“The Ikarian Reefer”) [1993] Vol 2 Lloyd's Rep. 68
Rank Xerox Ltd. V Lane (Inspector of Taxes) [1978] Vol 2 WER 1124, 1128
Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472
Rollo and another v Minister of Town and Country Planning [1948] Vol 1 All ER 13
R. v Broadcasting Compliance [1975] Vol 2 All ER 522
R v Devon County Council, ex parte Baker [1995] 1 All ER 73
R. v Hammersmith and Fulham London Borough Council, ex parte Beddowes [1987]1 All ER 369
R (Miller) v Prime Minister [2019] UKSC 41
R (Help Refugees Ltd) v Secretary of State for the Home Department (Centre for Advice on R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213
R (Mosely) v Haringey LBC [2014] 1 WLR 3947
R (Nettleship) v NHS South Tyneside Clinical Commissioning Group [2020] EWCA Civ 46
R (A) v South Kent Coastal CCG [2020] EWHC 372
R v (on the Application of Moseley) v Haringey London Borough Council 2014 UKSC 56
R v Lord President of the Privy Council ex parte Page [1993] AC 682
R. v Secretary of State for the Home Department, ex parte Khan [1985] Vol 1 AELR 40 Sylvester Spencer et al v Regino Nicholas Civil Appeal No. 22 of 2019 (OECS) (unreported) Strict (Inspector of Taxes) v Regent Oil Co. Ltd. [1964] 1 W.L.R. 309
Telecommunications Regulatory Commission v Cable & Wireless (BVI) Limited. Civil Appeal No. 13 of 2016 (delivered 30th May 2018 (OECS) (unreported).
Universal Caribbean v James Harrison [1997] ECSCJ No. 29
United Policyholders Group and others v Attorney General [2016] 4 LRC 433
Woolwich Equitable Building Society v Inland Revenue Commissioner [1993] A.C. 70
Texts:
Bennion Statutory Interpretation 3 rd Edition Pg. 14 —16
Concise Oxford Dictionary of Current English
De Smith's Judicial Review (8 th Edn., Sweet & Maxwell), paragraph 5–058 (as amended by paragraph 5–058 in De Smith's Judicial Review — Third Supplement to the Eight Edition (Sweet & Maxwell)
Eastern Caribbean Supreme Court Civil Procedure Rules 56.13 (3)
Encyclopedia of Forms and Precedents 5 th Edition Para 1372 —1430 & 170 —1476
Halsbury's Laws of England 4 th Edition Vol.1 (1) Para 23
Halsbury's Laws of England 4 th Edition Vol.1 (1) Para 26
Halsbury's Laws of England 4 th Edition Vol.1 (1) Para 33
Halsbury's Laws of England 4 th Edition Vol.1 (1) Para 77
Halsbury's Laws of England 4 th Edition Vol.1 (1) Para 78
Halsbury's Laws of England 4 th Edition Vol.1 (1) Para 83
Halsbury's Laws of England 4 th Edition Vol.1 (1) Para 86
Halsbury's Laws of England 4 th Edition Vol.1 (1) Para 92
Halsbury's Laws of England 4 th Edition Vol.1 (1) Para 93 - 94
Halsbury's Laws of England 4 th Edition Vol.1 (1) Para 117 & 122
Halsbury's Laws of England 4 th Edition Vol.1 (1) Para 1475
Halsbury Laws of England 4 th Edition Vol. 4 at para 50
Halsbury's Laws of England 4 th Edition Vol.44 (1) Para 1371
Halsbury's Laws of England 4 th Edition Vol.44 (1) Para 1369 - 1379
Judicial Review Handbook 7 th Edn. (2020) Sir Michael Fordham at pp 793.
UK Civil Procedure Rules 2014 Para 54.16
Judicial Review — Challenge to decisions of the BVI Telecommunications Regulatory Commission (the Commission) — Illegality — Ultra Vires — Industry Levy — Whether the Commission failed to comply with legislation in fixing levy — Whether the Commission failed to conduct proper consultations for the purpose of fixing and apportioning the levy — Whether the Commission applied royalty payments for improper purposes — Legitimate Expectation — Whether the Commission's statements and conduct gave rise to an enforceable legitimate expectation — Commission acted illegally and ultra vires the Act in calculating the fixing the Industry Levy — Commission failed to adequately consult with the licensees — Commission's statements and conduct not giving rise to an enforceable legitimate expectation for a substantive right — Commission's statements and conduct not giving rise to an enforceable legitimate expectation for a procedural right — Costs on a Judicial Review Claim — Award of Costs
The telecommunications sector in the British Virgin Islands (BVI) is presently regulated by the BVI Telecommunications Regulatory Commission (the Commission) under the BVI Telecommunications Act of 2006 (the Act). The Act imposes various obligations on all licensed telecommunications service providers including the obligation to make annual royalty payments of not less than three percent of the gross earnings or such percentage as may be prescribed. The Act also speaks to the payment of an industry levy to be paid by each of the licensees.
Since 2007, these licensees have been making the annual royalty payments. No industry levy has been paid to date. In fact, no earnest demand for any industry levy was made by the Commission until 2016, when the Commission began discussions with the several licensees about such payments. At this point, the Commission informed the licensees that the royalty payments belong to the Government and should be paid into the Consolidated Fund, and that royalty payments should not have been used to fund the Commission's expenditure. The several licensees resisted the introduction of the industry levy raising a number of objections. High on the list of such objections were that (a) the Commission had acted in breach of the Act by seeking to divert royalty payments to government, and (b) that it had incorrectly calculated the industry levy. Questions were also raised about the absence of audited financial statements from previous years which the licensees argued were critical to the calculation of the industry levy. No industry levy was implemented and collected that year, but the Commission in 2016, outlined the process it would adopt to calculate and fix the levy and in particular stated that each licensee's share of any levy would be that percentage that its revenue represented in relation to the overall combined revenue of all licensees. Between 2016 and 2018, the Commission presented Draft Work Plans and Budget for the 2017/2018 and the 2018/2019 financial years, with allocations being made in each for the
payment of an Industry Levy. Notwithstanding that such a figure for a levy payment was in each of these years budget document, the Commission did not enforce collection of any such payments. In relation to the 2016/2017 industry levy, the Commission waived this payment because of the devastation caused to the Telecommunications' Industry by the hurricanes Irma and Marie. The Commission made it clear that in the upcoming year, the industry levy would have to be paid.
In 2019, following its statutory obligations under the Act, the Commission began the consultation process aimed at collecting an industry levy for the 2019/2020 period from each of the Licensees. The Commission circulated the 2019/2020 Draft Work Plan and Budget (2019/2020 Budget) which reflected operating expenses for that period' to inform and guide the consultations process. Several things became apparent from this 2019/2020 Budget. First, it was clear that the Commission intended to treat royalty payments as belonging to Government, to be paid into the Government's Consolidated Fund. Second, it was...
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