Mossell (Jamaica) Limited (T/A Digicel) v Office of Utilities Regulations and others (Jamaica)

A ministerial power to give general policy directions to a regulator does not permit a direction that prevents the regulator from performing statutory duties. Where legislation requires a regulator to assess interconnection agreements and determine charges, the minister cannot remove that function by directing non-intervention. An executive direction is presumed lawful pending challenge, but once found ultra vires it ordinarily has no legal effect retrospectively. The public authority may disregard it. Interconnection terms may be regulated through an approved reference interconnection offer where the statutory process is ongoing and the parties’ agreement provides for amendment. The public-law validity of that determination is distinct from its contractual effect.

Two conjoined judicial review applications concerned a ministerial Direction issued under the Telecommunications Act and an OUR Determination approving revised interconnection terms. Dukharan J held that the Direction was valid, that the OUR had to obey it unless it was quashed, and that the Determination was unlawful. The Court of Appeal of Jamaica reversed those conclusions and upheld the Determination. Digicel appealed on the Minister’s power, the OUR’s interim obligation to comply, whether the Determination contravened the Direction, and whether the OUR had power to make it. The Board also refused a late Gazette-publication argument under the Interpretation Act.

1. Disposition. The Board dismissed the appeal. Digicel was ordered to pay the respondents’ costs unless an application was made within 28 days.
2. Ministerial direction power. Section 6 of the Telecommunications Act permits directions of a general nature concerning policy to be followed by the OUR in performing its statutory functions. Since “functions” includes duties and powers, the direction must be capable of being followed while those duties are performed. A direction preventing the OUR from carrying out statutory interconnection duties was therefore ultra vires: paras [37]-[40].
3. Interconnection regulation. Part V of the Act required carriers to permit interconnection and required interconnection agreements to be lodged for assessment. The OUR had power to determine terms and conditions, including charges. These were core regulatory functions which the Minister could not emasculate by directing the OUR not to set interconnection rates.
4. Effect of invalidity. The Board rejected Digicel’s submission that the OUR had to obey the Direction until it was quashed. Smith v East Elloe Rural District Council [1956] AC 736 and F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 were treated in their procedural contexts. Following Boddington v British Transport Police [1999] 2 AC 143, an ultra vires executive order ordinarily has no legal effect retrospectively. The analogy with defective superior-court orders, which must be obeyed until set aside, was rejected: paras [42]-[45].
5. Contravention of the Direction. Although academic after the first two conclusions, the Board held that the Determination did contravene the Direction. Under the caller-pays system, a cap on what the fixed network could recover effectively capped the mobile carrier’s termination charge. A theoretical charge to the mobile customer did not alter that conclusion. The same applied to the cap on charges for incoming international calls: paras [46]-[50].
6. Validity of the Determination. The Determination approving RIO 4 formed part of the ongoing statutory process under section 32 of the Telecommunications Act for replacing interim reference interconnection arrangements. Section 46 contemplated a separate price-capping mechanism, but no rules had been made under it. The Determination was nevertheless lawfully made under the RIO approval process, and its absence of a pre-contract dispute under section 34(1) did not invalidate it: paras [51]-[54].
7. Contractual effect. The effect of the Determination on the existing interconnection agreement was essentially a private-law question governed by clause 23. Clause 23.5 appeared to provide for amendment to reflect the revised RIO, but any remaining issue about the precise contractual effect was not resolved on this appeal: paras [54]-[57].

• Privy Council: Dismissed Digicel’s appeal from the Court of Appeal of Jamaica and upheld its conclusions. [2010] UKPC 1.
• Court of Appeal of Jamaica: Allowed the OUR’s appeal from Dukharan J. It held that the Direction was ultra vires, that the OUR was not obliged to comply with it, and that the Determination was within the OUR’s powers and lawfully made. Citation not stated in the judgment.
• First instance: Dukharan J, on 15 December 2003, held that the Direction was valid, that the OUR had to comply with it unless it was quashed, and that the Determination was unlawful.