Hardell Entertainment Ltd v Minister of Telecommunications and E-Commerce

• Jurisdiction: Bermuda
• Judgment Date: 27 April 2005
• Docket Number: Civil Jurisdiction 2003 No. 21
• Date: 27 April 2005
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Bell, J

Civil Jurisdiction 2003 No. 21

BETWEEN:

Hardell Entertainment Ltd

and

Hardell Cable TV Ltd

Appellant

and

The Minister of Telecommunications and E-Commerce

Respondent

Mr. D. Duncan for the Applicants/Plaintiffs

Mr. W. Bourne for the Respondent/Defendant

The following cases were referred to in the judgment:

Minister of Foreign Affairs Trade & Industry v Vehicles and Supplies LtdUNK [1991] 4 All ER 65

Adams v Mason Bullock [2004] EWHC 2910

Re Bank of Bermuda Limited and Butterfield Executor & Trustee Company Limited and LP Gutteridge Ltd.BDLR [1993] Bda LR 51

R v Secretary of State for Education and Science ex parte Avon County CouncilELR [1991] 1 QB 558

R v Secretary of State of Health ex parte Scotia Pharmaceuticals [1997] EuLR 625

R v Ashworth Hospital Authority [2002] EWCA 923

Administration of Justice (Prerogative Writs) Rules 1978, Rule 5(4),

Crown Proceedings Act, s. 19

Telecommunications licence — Stay or interim stay — Methods of service — Estoppel — Judicial review

JUDGMENT of Bell, J

Background

On 20 January 2003, the Applicants in civil action no. 21 of 2003 (‘the First Action’) made application by way of summons for an order granting leave to issue an originating summons seeking relief by way of :-

an order of certiorari removing into the Supreme Court and quashing the decision of the Minister of Telecommunications and E-commerce (‘the Minister’) made on 15 October 2002 purportedly revoking the frequency allocation to the First Applicant of the 2.5 to 2.76 GHZ frequency range of the MMDS spectrum (‘the Frequency Range’) to operate a wireless cable television service.

an order of mandamus directing the Minister to issue to the First Applicant licences granted to it to operate a wireless cable television service within the Frequency Range, and

an interim stay prohibiting the Minister from allocating the Frequency Range to any other party and / or issuing or granting a licence to any other party to utilise the Frequency Range pending the outcome of the proceedings.

The summons seeking the relief set out above was returnable before the Chief Justice at 10:00 a.m. on 21 January 2003, and Mr. Duncan submitted that at the hearing of the summons, the Chief Justice had granted leave to the Applicants to issue an originating summons seeking orders of certiorari and mandamus, and had also granted an interim stay. In fact, the order is unfortunately worded, insofar as the paragraph purporting to grant the interim stay is included in the paragraph granting leave to seek orders of certiorari and mandamus, so that on its face it appears to grant leave to issue an originating summons seeking the grant of an interim stay, as opposed to actually granting a stay. The order was signed by the Chief Justice in this form. Nevertheless, throughout the first three days of argument, the signed order of the Chief Justice was treated as if it had granted a stay, rather than that it had granted leave to issue an originating summons which would itself seek an interim stay. The grant of a stay would accord with the provisions of Rule 5 (4) of the Administration of Justice (Prerogative Writs) Rules 1978 (‘the Rules’), which give the judge granting leave to issue judicial review proceedings the power, upon granting leave, to direct that such grant shall operate as a stay of the proceedings in question until the determination of the issue. When the originating summons itself came to be issued pursuant to the Chief Justice's order, the slip was repeated, and the originating summons set out the relief being sought on behalf of the Applicants as being an order of certiorari, and an order of mandamus, and an interim stay. There was never a form of order which did in fact grant a stay. I will revert to the form of the Chief Justice's order in due course.

Following the making of the Chief Justice's order, steps were taken by the Applicants to serve the signed order on the Minister. Again, I will deal with the various attempts at and methods of service in more detail in due course, but at this stage it is sufficient to note that these took place at about noon on 21 January 2003, at a time when the Minister herself was in a Cabinet meeting. At approximately 12:30 p.m., the Minister came out of the Cabinet meeting and drove directly to a press conference, which, according to the affidavit sworn on 23 January 2003 by Gregory Swan, the Director of Telecommunications, began at about 12:40 p.m. and finished at about 1:10 p.m. Mr. Swan's affidavit says nothing of the events of the press conference itself, and the only evidence in this regard comes from the affidavit sworn by Corey Butterfield, the Applicants' operations manager, on 28 January 2003. He indicated that at the press conference the Minister had made an announcement of the grant to a third party of a licence to operate a wireless cable television service. Again, the circumstances and effect of the announcement will have to be considered in more detail in due course, but there was, in consequence of the press conference, an issue between the parties as to whether the Minister had been properly served with the Chief Justice's order before she made her announcement at the press conference. This caused the Applicants to issue proceedings no. 37 of 2003 (‘the Second Action’), in which they sought a variety of declarations and interlocutory injunctions. A substantial part of the relief sought in the Second Action had already been sought in the First Action. The first two declarations duplicated the applications for orders of certiorari and mandamus in the First Action, and the applications for interlocutory injunctions duplicated the application for a stay. The new declarations sought in the Second Action were, in broad terms,

• i. that the order of the Chief Justice made on 21 January 2003 granting a stay had been lawfully served upon the Minister at 12:10 p.m. on 21 January 2003

• ii. that any decision or act of the Minister made in breach of the stay was unlawful, invalid, void and of no legal effect, and

• iii. the same as (ii) above, with the addition of a proviso where any such decision or act was made before the Chief Justice's order had been either amended or set aside.

This background is necessary to explain the course of events at the hearing. One further detail is that by order dated 6 February 2003, the Chief Justice had consolidated the First and Second Actions, on the basis that the First Action would be the lead action. The consolidation order provided that the First Action should be heard first, with the Second Action to follow immediately thereafter. Although an application to set aside the grant of leave to apply for orders of certiorari and mandamus had been made, this application was ultimately not pursued. The only other procedural development of note was that the Applicants had, in the Second Action, issued a summons seeking interlocutory injunctions. This summons was returnable on 14 February 2003, and by the return date, the Minister had agreed to give an undertaking to abide by the terms of the Chief Justice's order of 21 January 2003 in the First Action, until the determination of the Minister's application to set aside the grant of leave. On the basis of that undertaking, the Applicants' application for interlocutory injunctions was adjourned.

The trial of the First Action commenced before me, but relatively shortly after the start of Mr. Duncan's opening, the parties indicated that they had reached agreement in respect of the issues in the First Action, and a consent order was submitted and signed by me on 22 March 2005. This provided for the Minister to issue to the Second Applicant a wireless telecommunications licence to operate a wireless cable system service within the Frequency Range, and further provided the Second Applicant with a 22 month window within which to launch its wireless cable television service. The consent order provided that further proceedings in respect of the First Action be stayed.

It is against this background that the Second Action proceeded, with the Plaintiffs in the Second Action, whom I will continue to refer to collectively as the Applicants, seeking the declarations referred to in paragraph 3 above.

The Declarations Sought—Preliminary Point

As indicated in paragraph 2 above, the Second Action originally proceeded before me with both sides dealing with matters as if the Chief Justice had in fact ordered an interim stay prohibiting the Minister from allocating to any party the Frequency Range or issuing or granting a licence to any other party to utilise the Frequency Range, pending the outcome of these proceedings. This is the stay order that one might expect to have been made pursuant to Rule 5 (4) of the Rules, when the Chief Justice granted leave to issue an originating summons seeking orders of certiorari and mandamus.

I therefore asked counsel to make further submissions in regard to the nature and effect of the form of order which the Chief Justice had in fact signed. Mr. Duncan accepted that the wording of the formal order was unhappily drawn, but he said that nevertheless the Chief Justice had granted a stay in chambers. Secondly, he submitted that the Minister had at all material times understood the Chief Justice's order to be an order granting a stay, and indicated that both the Minister, her counsel and her technical officers had addressed matters in the context of the timing of service, as opposed to the effect of the order. Mr. Duncan pointed out that it was not just the Minister...