March 2010 Volume 7

KCOB Lawyers Score Major Victory in Privy Council

Everton Bailey
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A team of lawyers led by KCOB, David Batts (Class of 78), recently won a major victory in the Privy Council in the United Kingdom.

The case in question, styled Mossell (Jamaica) Limited (trading as "Digicel") v. Office of Utilities Regulation ("OUR"), Cable and Wireless Jamaica Limited & Centennial Jamaica Limited, addressed the regulation of the telecommunications industry in Jamaica.

At issue in the case was whether a 2002 directive issued by then Minister of Industry, Commerce and Technology, Phillip Paulwell, which barred the OUR from regulating mobile communications rates, was within the Minister's power. The rationale for the Minister's directive was allegedly to promote policies which "facilitated competition" in the fast-growing mobile phone industry. The Director General of the OUR at the time, Winston Hay, coincidentally yet another KCOB, had presciently warned the Minister that the proposed directive exceeded his authority.

In response, the OUR issued a determination, which reiterated its authority to set caps on the rates charged by mobile providers. The OUR's statutory mandate includes, among other things, the duty to "promote the interests of customers, while having due regard to the interests of carriers and service providers." Digicel had violated the OUR's pricing cap and was charging Cable and Wireless an interconnectivity fee in excess of the maximum rate allowed. The Minister's directive had clearly ignored the "promote the interests of customers" component of the OUR's mandate.

Digicel initially prevailed in the Supreme Court and the OUR appealed to the Court of Appeals in Jamaica which ruled unanimously in the OUR's favor. Undaunted, Digicel appealed to the Privy Council, Jamaica's final court of appeal.

The issues raised on appeal were:

 (a) was the directive within the Minister's powers?
(b) even if it was not, was the OUR was still obligated to comply until the directive was   set aside by a court?
(c) did the determination made by the OUR contravene the Minister's directive? and
(d) whether the determination was within the powers of the OUR.

Through skillful lawyering and careful statutory interpretation, Batts and his team, which included two other KCOBs, Ransford Braham and George Wilson, and Susan Risden- Foster, were able to weave together a coherent and persuasive case which ultimately carried the day in the Privy Council. In a scathing rejection of Digicel's arguments, Lord Phillips upheld the Court of Appeals decision and ruled that the Minister's directive was ultra vires; i.e., beyond the scope of his powers and, consequently, the OUR was not obliged to comply with the directive.  

"Three cheers for the director general of the OUR at the time, one Winston Hay, but for whose integrity and sense of duty there would  have been no matter arising. Let us hope all public servants will take a leaf out of that man's book," said Batts.

The case again highlights the pivotal leadership role KCOBs continue to play in all areas of society, both in Jamaica and beyond its shores. However, the true winners are the Jamaican consumers who will benefit from the regulatory protection offered by a rejuvenated OUR, which the Minister transparently attempted to undermine in the name of blind allegiance to the free market.

At a time when the effects of deregulation has ravaged the US and world economy, the decision is an encouraging sign that large multi-national corporations are finally beginning to be constrained by common sense regulations to ensure that, even if they do not act in the public's best interest, their potential to do harm is mitigated.

Fortis,
ebaileylaw@yahoo.com

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