Bahamas Telecommunications Company Ltd v Island Bell Ltd

• Jurisdiction: Bahamas
• Judge: Allen, P.
• Judgment Date: 07 February 2017
• Neutral Citation: BS 2017 CA 14
• Docket Number: SCCivApp No. 188 of 2014
• Court: Court of Appeal (Bahamas)
• Date: 07 February 2017

Court of Appeal

Allen, P.; Isaacs, J.A.; Crane-Scott, J.A.

SCCivApp No. 188 of 2014

Bahamas Telecommunications Company Ltd.

and

Island Bell Limited

Appearances:

Mr. Raynard Rigby with Ms. Magan Taylor, Counsel for the appellant.

Mr. Carl Bethel, QC with Mr. Michael Foulkes, Counsel for the respondent.

Clarapede v. Commercial Union Association (1883) 32 WR 262 mentioned

Cropper v. Smith (1883) 26 Ch. D. 700 applied

Edevain v. Cohen (1890) 43 Ch. D. 187 applied

James v. Smith [1891] 1 Ch 384 mentioned

Ketteman v. Hansel Properties [1987] A.C. 189 mentioned

Rainy v. Brave [1872] L.R. 4 PC 287 applied

Soar v. National Coal Board [1965] 1 W.L.R. 886 applied

Three Rivers District Council v. Governor and Company of The Bank of England (No.3) [2003] 2 A.C. 1 applied

Civil Practice and Procedure - Amendment to statement of claim — Granting leave to amend — Whether the trial judge erred in granting leave to amend the statement of claim with respect to the particulars of the breach of duty after the case had been closed where the amendments added made entirely new claims of unlawful conduct against the appellant and substantially changed the case against the appellant — Consideration of Cropper v. Smith (1883) 26 Ch D. 700; Tidesly v. Harper (1876) 10 Ch D 393; Clarapede v. Commercial Union Association (1883) 32 W.I.R. 262; Ketteman v. Hansel Properties [1987] A.C. 189 — International tort and misfeasance in public office — Importance of sufficiently particularised pleadings in intentional torts — Consideration of Three Rivers District Council v. Governor and Company of The Bank of England (No.3) [2003] 2 A.C. 1 — Amendment at the end of case — Consideration of Rainy v. Brave [1872] L.R. 4 PC 287; Edevain v. Cohen (1890) 43 and Soar v. National Coal Board [1965] 1 W.L.R. 886 — To determine whether there is injustice the Court must consider the lateness of the application; the sufficiency of the reasons for the late application; whether a fair trial and the determination of the issues would be compromised by the granting of leave and whether costs would compensate — Finding that such amendments will only be allowed if the amendments can be done without injustice — Finding that the trial judge did not reasonably exercise her discretion in granting leave to amend as the trial judge failed to take into accounts matters that were required — Ordered that the leave granted to amend the statement of claim set aside and the trial was ordered to continue and a decision given on the evidence of the pleaded case — Order 20, r. 5 of the Rules of the Supreme Court.

Facts

This case was commenced by way of Writ of Summons filed 15 September 2004. The plaintiff/respondent then filed the S. Commercial Union Associationt atement of Claim on 5 January 2005 alleging that the failure of the defendant/appellant as regulator and principal to effectively address the matters particularised where in the face of repeated written complaints and evidence received from the claimant constituted Misfeasance in a Public Office; and claimed that it suffered loss, damage and economic loss. The Defence to the Statement of Claim denied each allegation made in the Statement of Claim. On 15 June 2005, the respondent filed a Reply, and also filed Further and Better Particulars of the Statement of Claim on 9 February 2011. The trial commenced on 15 October 2011, and on 7 November 2011, the appellant filed an Amended Defence and the respondent filed an Amended Reply thereto on 8 November 2011.

The trial of the matter took place over a period of twenty days spanning between 15 November 2011 and 30 October 2013 when the appellant closed its case. At the close of the case for the defendant/appellant the plaintiff/respondent made application by Summons filed 30 October 2013 for leave to amend its Statement of Claim pursuant to Order 20 r.5 of the Rules of the Supreme Court. The summons for leave to amend was heard on 31 October 2013, and on 7 July 2014, leave was granted to the plaintiff/respondents to amend its statement of claim in terms of the draft attached to the application filed. The reason given for the grant of the amendment was “that it is necessary in order to determine the real controversy between the parties”, stating the original statement of claim as drafted did not do. The judge granted leave on the basis that there would be no injustice to the appellant. The appellant filed an appeal against the decision.

Held:

Appeal allowed. Costs of the appeal and occasioned by the application to amend in the court below to be the appellants, to be taxed if not agreed.

Allen, P.

INTRODUCTION

1 This appeal challenges the decision of Bain J. of 7 July 2014, to grant leave to the respondent to amend its Statement of Claim.

2 The respondent's Summons for leave to amend its statement of claim was filed on 30 October 2013 at the close of the appellant's case and more particularly, on the last day of the trial which had by then, already lasted some 15 days. The application was instituted under Order 20 of the Rules of the Supreme Court and accordingly, the appeal will require an examination of the Rules and a discussion of the matters to be taken into account by a court in exercising the discretion to amend confound by the Rules.

3 Before delving into the merits of the appeal, it is necessary to set out the particulars of the Statement of Claim, and how the respondent proposed to amend it.

4 On examining the pleadings filed in this matter, and in particular the Writ of Summons filed on 15 September 2004 by the respondent, I found it significant that the only cause of action pleaded is misfeasance in a public office; although damages are also claimed for economic loss, with no indication of what caused the economic loss. It is a generally endorsed writ, which says simply;

“THE plaintiff's claim is against the defendant for:

• 1. Damages for misfeasance in a Public Office;

• 2. Damages for economic loss;

• 3. Aggravated damages;

• 4. Exemplary damages;

• 5. Interest;

• 6. Costs; and

• 7. Further or other relief.”

THE ORIGINAL STATEMENT OF CLAIM

5 The relevant Statement of Claim was that filed on 5 January 2005 in which the respondent pleaded a contract between the parties, which it said included that all Automated Operator Services (AOS) were to be installed on hotel premises only; a prohibition against the use of toll free numbers; the published Operator Assistance Call Rates were not to be exceeded; the use of voice over the internet platform (Voice Over IP) was prohibited; the operator had to be a Bahamian Company/business as defined by the Companies Act.

6 The respondent further pleaded in that Statement of Claim that each and every licensed AOS operator became an agent of the appellant; that by virtue of the appellant's statutory duty and licensing powers, it was responsible for regulating these operators and was charged with the duty of ensuring that all AOS operators complied with all the terms and conditions of the contractual licenses issued by the appellant: the respondent alleged that in breach of its statutory duty as regulator, and its contractual duty as principal, the appellant knowingly failed to prevent one of its licensees and agents, namely One World Communications (OWC) from breaching the terms and conditions of its contractual license with the respondent, thereby causing loss, damage, and economic loss.

7 The Statement of Claim further set out under “Particulars of Statutory Duty”, the following:

• “A. The defendant knowingly permitted OWC to:

  • (i) provide AOS services without having any equipment installed in any hotel premises as required by the contract;

  • (ii) persistently and habitually charge rates for long distance international calls upwards of 500% above the defendant's published operator assisted call rates, contrary to the terms and conditions of the contractual licence; and

  • (iii) breach the Public Policy of Bahamianization by use of the device of incorporation of a “Bahamian” company under the Companies Act, which definition of “Bahamian” is inconsistent with the definition of a Bahamian entity for the purposes of the Business Licence Act, and which definition allows for the practice of illegal “fronting”.

• B. In so doing the defendant knowingly failed to perform its duty as regulator to ensure that required Foreign Investor Approvals were in place to permit non-Bahamians to participate in a telecommunications service provider and that in the absence of such approval only fully Bahamian entities competed in the provision of telecommunications services in and from The Bahamas; that an illegal “Call-back” service was not being offered by OWC and, further, that unsuspecting consumers were not being “priced-gouged” by any of the defendant's licensees. The defendant was repeatedly informed by the plaintiff and by Departments of Government of the many complaints received from tourists who were the victims of the aforesaid price-gouging by OWC, yet the defendant failed to take any or any effective measures to prevent the same.

• C. The defendant failed to ensure that OWC was a fully Bahamian-owned Company, when presented with evidence to the contrary, and failed to ensure that OWC was, in fact, entitled to be a licensee of the defendant in the absence of the required Foreign Investor approvals.

• D. The plaintiff repeatedly presented the defendant with documentary evidence supporting each of the above contentions between the years 2000 and December 2003.

• E. Notwithstanding the above, the defendant failed and refused to prevent the matters complained of, revoke the licence of OWC, and/or to otherwise ensure that there was a level field of competition for all AOS licensees regulated by the defendant.

8 The respondent further claimed in the Statement of Claim that the failure of the defendant as regulator and...