Cable & Wireless (Barbados) Ltd
| Jurisdiction | Barbados |
| Judge | Kentish, J. |
| Judgment Date | 10 April 2014 |
| Neutral Citation | BB 2014 HC 23 |
| Docket Number | 168 of 2013 |
| Court | High Court (Barbados) |
| Date | 10 April 2014 |
High Court
Kentish, J.
168 of 2013
Mr. Bryan Weekes and Mr. Philip McWatt for the claimant.
Mrs. Sherica Mohammed-Cumberbatch and Mr. Frank Odle of Carrington & Sealy for the defendant.
Jurisdiction - High Court — Whether Court had jurisdiction to by-pass statutory framework for regulating anti-competitive conduct in market place.
On 22 March 2013 I gave an oral decision in this matter refusing the claimant's application for interim injunctive relief against the defendant. I indicated that I would give written reasons for that decision and I now do so.
Both parties to this action are licensed telecommunications service providers in accordance with the Telecommunications Act, Cap. 282B.
On 1 July 2004 the parties entered into an agreement under which the claimant agreed to purchase and the defendant agreed to provide Internet Service Provider (“ISP”) Connect Services. The material terms of this agreement may be summarised as follows:
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(a) The claimant purchases wholesale internet service referred to as ‘ISP Connect Service’ from the defendant; and
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(b) The defendant sells to the claimant the ISP Connect Service consisting of access to the defendant's Internet backbone via an ISP Connect Circuit together with a block of eight Internet Protocol addresses to enable the claimant to provide internet connectivity services for resale to the claimant's subscribers at prices (charges) agreed between the claimant and the defendant.
The charges as imposed under this agreement are not disputed by the parties.
On 30 January 2013 the claimant filed an action (“the substantive action”) for damages for breach of ss. 13 and 16 of the Fair Competition Act, Cap. 326C (“the FCA”) pursuant to s. 44 of the FCA injunctive relief and costs. Concurrently, the claimant by Notice of Application applied, inter alia, for interim injunctive relief in the following terms:
- That the defendant be enjoined from terminating any of the telecommunications services which it provides to the claimant pursuant to an agreement currently in force between them until the final determination of the substantive issues in this matter by the Court, provided that the claimant remains current in its payments for the defendant's charges for the services actually provided.
In support of its application for interim injunctive relief the claimant filed two affidavits by its Chairman and Director Scott Weatherhead on 30 January 2013 (“the first affidavit of Weatherhead”) and on 8 February 2013 (“the second affidavit of Weatherhead”) respectively.
On 4 February 2013 the defendant filed an application seeking a declaration that the court has no jurisdiction and/or should not exercise any jurisdiction which it may have to try the claim and/or grant the relief sought by the claimant.
In support of its application the defendant filed two affidavits by its Head of Legal and Regulatory Windwards and Leewards Sylvia Nicole Jordan on 4 February 2013 (“the first affidavit of Jordan”) and on 12 February 2013 (“the second affidavit of Jordan”) respectively. A third affidavit of its Vice President Derrick Devotan Nelson (“the Nelson affidavit”) was filed by the defendant on 15 February 2013.
At a hearing of the matter on 19 February 2013 the parties, at the court's request, agreed the facts giving rise to the claimant's application as well as the issues that required determination by the court on the application for interim injunctive relief.
The agreed facts were as follows:
- There exists a service agreement between the parties for ISP Connect Services at an agreed monthly charge (Service Provider Agreement dated 1 July 2004); 2. The agreement commenced on 1 July 2004 (“the 2004 Agreement”) under which an agreed price for services was fixed. There was a renewal of that agreement on 12 January 2006 (“the Renewed Agreement”) when the monthly charges were modified. 3. Both the 2004 Agreement and Renewed Agreement contain an express provision for arbitration in the event of a dispute in relation to the level of charges (Clause 9.11 of the General Terms and Conditions Schedule to the Agreements). 4. At the date of hearing, the Renewed Agreement remained in force to date; 5. Over the period of the agreements the claimant has been in arrears of the monthly charges. As at January 2013 the arrears stood at $648,840.87. These arrears were calculated pursuant to the level of charges set out in the 2004 Agreement and the Renewed Agreement; 6. Under the Renewed Agreement the defendant has the right, as it did under the 2004 Agreement, to disconnect or terminate service to the claimant on the grounds of non-payment of charges (Clause 14.3.1 of the General Terms and Conditions Schedule to the Agreement); 7. At the date of the hearing, the defendant had disconnected service to the claimant on one occasion. That disconnection lasted for approximately one day; 8. From time to time over the period of the agreements, the claimant made several proposals to liquidate the arrears. The most recent proposal was put forward in January 2013, its terms being: (a) From the proceeds of sale of a property the claimant would pay to the defendant the sum of $100,000.00 towards the arrears; and (b) The claimant would maintain current on the monthly charges in the sum of $70,000.00 or thereabouts. 9. Of the several proposals made by the claimant, none have been implemented; 10. In November 2012, Mr. Weatherhead and Mr. Derrick Nelson entered into discussions and it was then agreed that the claimant would make a payment of $100,000.00 towards the arrears. This payment was to be facilitated by way of a bank loan and was to be made in December 2012. However, as a result of subsequent negotiations, it was agreed that instead of the initially agreed payment of $100,000.00 being made in December 2012, a payment of $150,000.00 would be made in January 2013; 11. It was further agreed that after the initial payment of $100,000.00 or $150,000.00 that the balance of the arrears would be settled in full upon completion of the sale of the property, on 3 March 2013; 12. On 25 January 2013 the defendant received a letter from the claimant's attorney-at-law, Mr. Azaz Juman, stating that from the proceeds of the sale of the property only the sum of $100,000.00 would be paid to the claimant; 13. On 28 January 2013 the defendant wrote to the claimant and threatened suspension of their services to the claimant without further notice; 14. From on or about 22 March 2012 the claimant initiated communication by e-mail with the Fair Trading Commission (“the Commission”) eliciting its assistance on the basis that the defendant was abusing its dominant position in the market place and was providing services to the claimant at anticompetitive prices. These communications with the Commission were without notice to the defendant; 15. During the discourse between the Commission and the claimant, the Commission indicated that it would take some time to resolve the issues raised and that they would consider the material submitted by the claimant and revert to the claimant in due course. There was no resolution of the matter by the Commission; 16. On 30 January 2013, faced with the threat of disconnection, the claimant initiated these proceedings in the High Court; and 17. The claimant has failed to keep current with the monthly charges.
The parties did not identify any facts in dispute which would affect a determination of the application for interim injunctive relief.
The issues as agreed are:
- Whether under the provisions of the Fair Trading Commission Act, Cap. 326B (“the FTCA”) and the FCA, the court has jurisdiction to hear the substantive matter; and 2. If the answer is in the affirmative, whether or not in the circumstances of this action the court should exercise its discretion to grant the interim injunction sought?
An appropriate starting point for a consideration of this matter is an examination of the preambles to the FTCA and the FCA.
The preamble of the FTCA states that it was enacted to provide for:
“…the establishment of a Fair Trading Commission to safeguard the interests of consumers, to regulate utility services supplied by service providers, to monitor and investigate the conduct of service providers and business enterprises, to promote and maintain effective competition in the economy, and for related matters.”
The preamble of the FCA states that it is an Act:
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(a) to promote and maintain and encourage competition;
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(b) to prohibit the prevention, restriction or distortion of competition and the abuse of dominant positions in trade in Barbados and within the Caricom Single Market and Economy;
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(c) to ensure that all enterprises, irrespective of size, have the opportunity to participate equitably in the market place; and
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(d) for connected matters.
S. 4 of the FCA stipulates that the Fair Trading Commission established by s. 3 of the FTCA shall be responsible for the administration of the FCA.
The ambit of the Commission is encapsulated in s. 5 of the FCA which provides, that it shall, inter alia:
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(a) be responsible for the promotion and maintenance of fair competition;
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(b) carry out, on its own initiative or at the request of any person that has an interest in the matter, such investigations or inquiries in relation to the conduct of trade
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(i) as will enable it to prevent the use of trading practices in contravention of [the] Act;
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(ii) as it may consider necessary or desirable in connection with any matters falling within the provisions of [the] Act;
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(c) keep under review commercial activities to ensure that practices that may adversely affect the interests of consumers are prevented or...
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