LIME v Inf & Comms Auth

• Jurisdiction: Cayman Islands
• Judge: (Henderson, J.)
• Judgment Date: 09 June 2011
• Court: Grand Court (Cayman Islands)
• Date: 09 June 2011

Grand Court, Civil Division

(Henderson, J.)

CABLE & WIRELESS (CAYMAN ISLANDS) LIMITED (trading as LIME)

and

INFORMATION AND COMMUNICATIONS TECHNOLOGY AUTHORITY

H. Robinson and N. Fox for the applicant;

G. F. Ritchie, Q.C. and D. Collier for the respondent.

Cases cited:

(1) Associated Provncl. Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223; [1947] 2 All E.R. 680; (1947), 177 L.T. 641, considered.

(2) Council of Civil Service Unions v. Minister for Civil Service, [1985] A.C. 374; [1984] 3 All E.R. 935, followed.

(3) Streeter v. Immigration Bd., 1998 CILR 366, followed.

Legislation construed:

Information and Communications Technology Authority (Dispute Resolution) Regulations 2003, reg. 2:

‘In these regulations––

“dispute” means any dispute which is the subject of a determination requested . . .’

reg. 8: The relevant terms of this regulation are set out at para. 4.

Telecommunications-decisions of Information and Communications Technology Authority-dispute resolution-proposed process for resolution of voting deadlock irrational if unpredictable or random-tie-breaking solutions should entail rational and independent judgment

Administrative Law-judicial review-natural justice-opportunity to be heard-no breach of natural justice if parties know in advance that decision imminent but fail to take immediate opportunity to make representations

The applicant sought judicial review of the decision of the Information and Communications Technology Authority on how certain voting disputes should be resolved in the event of a deadlock.

The Local Number Portability Consortium was established by the Authority to plan and implement local number portability in the Cayman Islands. The Consortium had four members who were service providers, acting partly in the public interest and partly for their own commercial benefit. The Consortium operated a simple-majority voting system, which gave rise to voting deadlocks and it therefore sought a solution to the deadlock problem from the Authority. The Authority decided, under the Information and Communications Technology Authority (Dispute Resolution) Regulations 2003, reg. 8(g), that (a) assuming the membership of the Consortium remained the same size and each member had one vote, three votes would be required to reach a decision; (b) in the event of a deadlock, a second vote should take place within 24 hours; and (c) if the deadlock persisted, the Consortium should draw one name from a ‘hat’ to select a member at random to cast the deciding vote.

The applicant (a member of the Consortium) submitted that the Authority”s decision was ultra vires because (a) it had not been afforded a reasonable opportunity of being heard by the Authority on how the voting rights question should be resolved; (b) random selection between two competing alternatives was irrational and unreasonable if public policy considerations were engaged; (c) the random method of resolving voting deadlocks would make decisions wholly unpredictable; and (d) disputes

should therefore be resolved by an independent person or body, rather than self-interested Consortium members.

The Authority submitted in reply that (a) the applicant had known that it was going to decide the voting rights question and could have made submissions at that time; (b) although the Consortium voted on matters of public policy, the proposed solution to the voting rights question enabled decisions to be made quickly, which was in the public interest; (c) although the process chosen was random, it would save expense and encourage members of the Consortium to reach an agreement; and (d) these benefits outweighed any risk that members of the Consortium would act out of self-interest.

Held, setting aside...