Telecommunications Regulatory Commission Appellant v Caribbean Cellular Telephone Ltd Respondent

• Jurisdiction: British Virgin Islands
• Judge: Pereira CJ,Chief Justice,Justice of Appeal,Dame Janice M. Pereira, DBE,Louise Esther Blenman,Gertel Thom
• Judgment Date: 16 December 2015
• Neutral Citation: VG 2015 CA 12,[2015] ECSC J1216-1
• Court: Court of Appeal (British Virgin Islands)
• Date: 16 December 2015

[2015] ECSC J1216-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

In the Matter of the Telecommunications Act, 2006

Between:

Telecommunications Regulatory Commission

Appellant

and

Caribbean Cellular Telephone Limited

Respondent

On written submissions:

Mr. Brian Kennelly with Ms. Sinead Harris of Forbes Hare for the Appellant

Ms. Tana'ania Small Davis with Ms. Monique Peters of Hunte & Co for the Respondent

Interlocutory appeal — Stay of Spectrum Award 2015 process—Rule 56.4(8) of the Civil Procedure Rules 2000 — Whether a 'stay of proceedings' under CPR 56.4(8) includes a stay of an administrative decision or process — Exercise of judicial discretion in granting interim relief — Interim injunction against public body — Assessing where balance of convenience lies — Determining risk of injustice

The appellant, the Telecommunications Regulatory Commission ("the TRC"), is the body established under the Telecommunications Act, 2006 1 ("the TA") to manage spectrum in the Virgin Islands which is used by internet and other electronic based communication

technologies. The respondent, Caribbean Cellular Telephone Limited ("CCT"), is the pioneer mobile services operator in the Virgin Islands and is one of three licensed mobile network operators ("MNOs") in the Virgin Islands. 2

In June and July 2015, the TRC engaged in consultation with the MNOs regarding the procedure to be adopted for the implementation of the 'Spectrum Award 2015', including the method for applying for the allocation of spectrum under it in the 700 MHz, 1900 MHz and AWS-1 MHz bands to MNOs in the Virgin Islands. Mobile spectrum is a finite resource, and as a result, the allocation of frequency along or within the spectrum is very valuable; accordingly, the Spectrum Award 2015 process is highly anticipated and is of significant importance to all telecommunications operators. The TRC notified the MNOs that applicants for spectrum allocation under the Spectrum Award 2015 would be required to show their compliance with the TRC's regulatory obligations – in respect of their licenses, the telecommunications code, and any instructions issued by the TRC.

On 19 ^th August 2015, the TRC published its rules governing the Spectrum Award 2015 in the final 'Invitation to Apply for 700, 1900 and AWS-1MHz Spectrum' ("the ITA"). The ITA had a number of provisions including a deadline for registration and the submission of applications and a mechanism whereby an MNO could demonstrate its commitment to bring itself into compliance with the TA and the TRC's regulatory framework where the MNO could not be said to be materially in compliance with the TA. This mechanism was in the form of Undertakings from the MNO and was devised primarily to assist CCT who would not be able to come into compliance within the registration time frame. Discussions were held with each MNO on 19 ^th August 2015, pointing out areas of non-compliance as far as the TRC was aware.

The deadline for registration was set for 14 ^th September 2015 at 3:30 pm; but this deadline was extended to 18 ^th September 2015 at 3:30 pm to allow the TRC more time to finalize any Undertakings. The TRC responded to comments received from CCT and sent a revised draft of the Undertakings to CCT by 14 ^th September 2015 and made it clear to CCT that the Undertakings were required to be agreed by the TRC before the extended registration deadline in order for CCT to be allowed to register for the Spectrum Award 2015. By this time, CCT filed an application for leave to bring judicial review proceedings covering a number of issues in respect of the TRC's conduct in relation to its operation, including the Spectrum Award 2015 process.

Following the registration deadline, CCT's application for registration was rejected by the TRC as the TRC was of the view that CCT had failed to comply with the rules governing the ITA in that the application was received minutes after the deadline, and more importantly, that up to that point in time, CCT's proposed Undertakings had not been seen, much less agreed to by the TRC. CCT contended however that the Undertakings were delivered to the TRC at 3:00 pm on 18 ^th September 2015 and satisfied the purpose for which they were required.

Given the circumstances of the case, CCT's application came up for hearing before the learned judge in the court below on an expedited basis on 2 ^nd October 2015. In its application, CCT also sought interim relief in the form of injunctions restraining the TRC from essentially taking any action in relation to the Spectrum Award 2015 process. In her oral judgment delivered on 7 ^th October 2015, the learned judge granted leave to CCT to bring judicial review proceedings, and also ordered, purportedly pursuant to rule 56.4(8) of the Civil Procedure Rules 2000 ("CPR 2000"), that the grant of leave to bring judicial review proceedings shall operate as a stay of the Spectrum Award 2015 process pending the hearing and determination of the claim for judicial review. The learned judge however refused to grant the interim injunctions sought, having concluded that CCT was not entitled to the interim relief sought based on the balance of convenience on the evidence before the court.

The TRC is aggrieved by the grant of the stay of the Spectrum Award 2015 and appeals the judge's decision in that regard. The TRC contends that the learned judge erred as matter of law in granting a stay pursuant to CPR 56.4(8) which relates to a 'stay of proceedings' as distinct from a 'stay of an administrative decision or process'. Further, the TRC contends that the grant of a stay of the Spectrum Award 2015, which was not sought by CCT in any event, operates in all practical effect as an injunction against the TRC which the learned judge had refused to grant to the CCT on the evidence it adduced.

CCT has cross-appealed and contends in essence that the learned judge had the power to grant the stay under CPR 56.4(8), but more vigorously, that the learned judge misdirected herself in the exercise of her discretion in refusing the interim relief it sought, in that she applied the wrong approach in assessing the balance of convenience which led her into error in refusing the injunctive relief.

Held: allowing the appeal and setting aside the stay of the Spectrum Award 2015 ordered by the court below; dismissing the cross-appeal; and having regard to CPR 56.13(6), making no order as to costs, that:

• 1. The term "proceedings" as used in CPR 56.4(8) bears a narrow meaning and is to be confined to proceedings properly so called, before a lower court or tribunal exercising judicial or quasi-judicial functions. It would not encompass an administrative decision or action such as the decisions and actions of the TRC which are the subject of this appeal.

  Ministry of Foreign Affairs, Trade and Industry v Vehicles and Supplies Ltd [1991] 1 WLR 550 followed; Cable & Wireless BVI Limited v The Telecommunications Regulatory Commission BVIHCV2012/0179 (delivered 9 ^th August 2013, unreported) approved.

• 2. In this appeal, CCT did not seek a stay, but rather it sought interim injunctive relief to restrain the TRC from implementing the Spectrum Award 2015. Accordingly, it was not open to the learned judge, having refused the interim injunctions, to grant, through the use of the purported stay pursuant to CPR 56.4(8), what in effect amounted to an injunction. Had the stay been permissible (which it was not), it ought to have been refused for the same reasons that the injunctions were refused since the learned judge found that the evidence failed to meet the quality for the grant of the injunctions. It would similarly have failed the test for the grant of a stay as the tests for satisfying either are treated as essentially being the same. Consequently, there was no basis as a matter of law or discretion for the judge to grant, pursuant to CPR 56.4(8), a stay of the TRC's Spectrum Award 2015 process.

  Cala Homes (South) Limited v Secretary of State for Communities & Local Development [2010] EWHC 3278 (Admin) referred; The Queen on the Application of Walshaw Moor Estate Ltd v Natural England [2012] EWHC 331 (Admin) referred.

• 3. The basis on which an appellate court will interfere with a discretion exercised by a trial judge is well established. Such an appeal will not be allowed unless the appellate court is satisfied that in exercising his or her judicial discretion, the judge erred in principle either by failing to take into account or giving too little or too much weight to relevant factors and considerations, or by taking into account or being influenced by irrelevant factors and considerations; and that, as a result of the error or the degree of the error, in principle the trial judge's decision exceeded the generous ambit within which reasonable disagreement is possible and may therefore be said to be clearly or blatantly wrong.

  Dufour v Helenair Corporation Ltd and Others (1996) 52 WIR 188 applied; Charles Osenton & Co. v Johnston [1941] 2 All ER 245 applied.

• 4. When a court is dealing with restraining a public body whether from enforcing the law or from performing their public duties as required and contemplated by the law, the balance of convenience must be looked at more widely by taking into account the public interest in the performance of those responsibilities and duties with which the public body is tasked by the law and in seeking to arrive at a just result in all the circumstances. In this case, the learned judge in the court below in assessing the balance of convenience, placed undue emphasis in approaching the matter from the standpoint of a presumption requiring evidence of considerable weight, in essence, to rebut it. This was an error in principle...