Digicel (Barbados) Ltd

• Jurisdiction: Barbados
• Court: Fair Trading Commission (Barbados)
• Judge: Sir Neville Nicholls,Professor Andrew Downes,Mr. Gregory Hazzard,Mr. Trevor Welch
• Judgment Date: 04 April 2012
• Docket Number: No. 1 of 2012

In the Matter of the Utilities Regulation Act Cap. 282, the Fair Trading Commission Act Cap. 326B and the Telecommunications Act Cap. 282B of the Laws of Barbados;

And in the Matter of the Utilities Regulation (Procedural Rules 2003 and the Utilities Regulation (Procedural) (Amendment) Rules, 2009;

And in the Matter of the Application by Digicel (Barbados) Limited for a Stay of the Decision of the Fair Trading Commission dated the 12 ^th day of December 2011.

Digicel (Barbados) Limited

Applicant

Before:

Sir Neville Nicholls—Chairman

Professor Andrew Downes — Deputy Chairman

Mr. Gregory Hazzard—Commissioner

Mr. Trevor Welch—Commissioner

No. 1 of 2012

FAIR TRADING COMMISSION

DECISION

THE APPLICATION FOR REVIEW AND STAY

1 Digicel (Barbados) Limited (hereinafter called the Applicant) by a Notice of Motion dated and filed on the 13 ^th January, 2012 has applied to the Commission for a review of its decision on the Long Run Incremental Costs (LRIC) Guidelines dated 12 December, 2011. (LRIC Decision).

2 The Commission's LRIC Decision stated that following the publishing of the LRIC Guidelines, Cable & Wireless (Barbados) Limited was required to provide the Commission with proposed model specifications that were consistent with the said Guidelines. The Commission would then review the proposed model specifications and provide feedback to C&W on any required amendments. Subsequently they would then be required to develop the LRIC model based on these agreed model specifications.

3 However, the Applicant, being dissatisfied with the decision sought a review on a number of grounds.

4 Pursuant to the aforementioned review, the applicant further sought from the Commission (i) an order staying the Decision and Order of the Commission decision dated 12 December, 2011 and the LRIC process until final determination of all the matters raised in the aforementioned Notice of Motion or upon further determination of the matters raised as may be required, and (ii) an order restraining the Commission from taking any further action in relation to the Decision and Order and the LRIC process generally until final determination of this matter or upon further determination as may be required.

5 The Commission, after reviewing the Notice of Motion and supporting documentation, determined in a “Procedural Direction” dated February 13, 2012 that the issue of the stay would be dealt with as a preliminary matter. The Commission further stated that Digicel, Cable & Wireless (Barbados) Limited (C&W) and CARITEL as parties to the consultation process were permitted to submit reasons either in support of or against the granting of a stay of the LRIC Guidelines Decisions and Order no later than February 24, 2012.

6 On the 24 ^th February, 2012, the Commission received documents from C&W and Digicel which gave their reasons either against or in support of the granting of the stay. CARITEL did not submit any documents to the Commission regarding this issue.

7 The Commission thereafter sat to hear and determine the issue as to whether or not the stay ought to be granted. In so doing, they considered the arguments submitted by Digicel and C&W as well as the guiding legal principles which are utilised when seeking to determine whether or not a stay should be granted.

Synopsis of the Submissions DIGICEL

8 Digicel expressed the view that the stay should be granted. They based their arguments on natural justice and procedural fairness. In support of this, Digicel first made allegations of a general nature and then further submissions under six main captions. Firstly, Digicel argued that a refusal of the Stay by the Commission would amount to a complete predetermination of this matter. The second argument made by Digicel is that all sides must be heard in relation to this issue Digicel argues that a refusal of the stay signifies that the legal principle of audi deteram partem is infringed. Also Digicel stated that there would be no prejudice to other parties with the exception of themselves and that there would be no delay to the underlying LRIC process if the stay was granted. Digicel also submitted that there was little merit in refusing the stay and proceeding substantively with a process based on fundamental principles under review and on the other hand, seeking to conduct a review process of those principles. Finally, Digicel asserted that they had not been given the opportunity to address certain issues during the course of the consultation but rather this was the first time for them to be able to address them. Therefore, Digicel considered that this was a factor that militated in favour of the stay being granted.

C&W

9 C&W submitted that they were of the view that the stay should not be granted. Their main rationale for this submission was the fact that the Applicant in their view did not meet the legal criteria that was necessary to substantiate a stay as set out in the Commission's decision dated August 29, 2003 to an Application by Cable & Wireless (Barbados) Limited for a stay of the Decision of the Fair Trading Commission dated the 30 ^th day of June 2003 and the 1 ^st day of July, 2003 “Commission August 29, 2003 Decision”.

Burden and Standard of Proof

10 In order for the Commission to grant the stay which is being sought by the Applicant, the burden and the standard of proof required to be met under the law must be discharged. This matter which is being heard before the Commission is analogous to a civil proceeding in a court of law. Therefore, both the burden and standard of proof in this instance would be the same as for a civil proceeding in a Court of Law. The general rule in law is that the burden of proof in civil cases lies on the party who asserts an issue. Therefore the burden of proof in this instance would be on Digicel to prove that the stay should be granted.

11 As it relates to the standard of proof, Section 131 of the Evidence Act stipulates that:

“In a civil proceeding, the court shall find the case of a party proved if it is satisfied that the case has been proven on a balance of probability.”

12 Therefore, Digicel is required to demonstrate on a “balance of probabilities” that the stay should be granted in accordance with the established legal principles.

Legal Principles

13 It was decided in the Commission's August 29, 2003 Decision that the appropriate legal criteria to be utilised when seeking to assess whether or not a stay should be granted are set out in AG Manitoba v Metropolitan Stores et al [1987] 1 SCR 110] “ AG v Manitoba” and the American Cyanamid v Ethicon Ltd [1975] AC 396 “ The American Cyanamid Case”.

14 The Commission should first consider:

• (i) Whether there was a serious issue to be tried;

• (ii) Whether the Applicant would suffer irreparable damage in the event that the stay is not granted;

• (iii) The balance of convenience which requires consideration of the public interest and other interested parties. This is ultimately a way to determine which party will suffer the greater harm from the grant or refusal of the stay.

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