Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors

A claimant relying on a hypothetical sequence of events must prove every material counterfactual on the balance of probabilities. In a loss-of-chance case, uncertainty is not automatically resolved in the claimant’s favour. The claimant must show a real or substantial chance of the beneficial outcome.

Where the alleged outcome depends on a multi-stage regulatory or arbitral process, the court should examine each stage and the evidence of what the relevant decision-makers could and would have done. General evidence of urgency or the possibility of swift arbitration is insufficient. A merely speculative chance cannot establish causation or loss.

The sixth claimant operated a proposed mobile telecommunications network in Trinidad and Tobago. It alleged that the incumbent operator had engaged in unfair competition by delaying physical interconnection and thereby postponing the launch of its service. The claim was brought under the Protection against Unfair Competition Act 1996.

After an extensive trial, Mr Justice Morgan found certain conduct contrary to honest practices but held that it had not caused loss. He dismissed the relevant claim in [2010] EWHC 774 (Ch). The claimant sought permission to appeal, arguing that an earlier physical interconnection would probably have led to an earlier arbitration-panel decision permitting commercial launch. The central issue was whether that alleged earlier outcome was proved or remained speculative.

1. Disposition. The Court of Appeal unanimously dismissed the application for permission to appeal. The eleventh ground was a self-contained point which, if unsuccessful, was conclusive. The court therefore did not determine the remaining grounds.
2. Burden and standard of proof. The claimant bore the burden of proving all aspects of its case. That applied whether it alleged actual loss or the loss of a real and substantial chance. The judge had not improperly given the respondent the benefit of the doubt. Requiring proof on the balance of probabilities was not a misdirection. A rule resolving every evidential doubt in favour of a claimant would effectively convert a loss-of-chance claim into a presumption that the claimed benefit had in fact been obtained.
3. Counterfactual procedural analysis. The judge was entitled to examine the successive stages of the Trinidad and Tobago dispute-resolution process. The claimant had to identify the counterfactual steps necessary to produce an earlier launch and adduce evidence showing what the regulator and arbitration panel could and would have done in the altered circumstances. It was insufficient to rely on general propositions that international commercial arbitration can proceed quickly or on references to urgency.
4. Application. The procedure could not have begun before 19 January 2006. Although some stages might possibly have been shortened, there was no evidence explaining what occurred between the referral to arbitration and the issue of the terms of reference, or showing that the regulator would have acted materially faster. Even if physical interconnection had been achieved a few weeks earlier, the chance of an earlier panel decision remained speculative. The claimant therefore failed to prove loss caused by the respondent’s conduct. Permission to appeal was refused, with costs payable by the appellant on the standard basis if not agreed.

• Court of Appeal (Civil Division). In [2011] EWCA Civ 606, the court refused permission to appeal and ordered the appellant to pay the respondents’ costs of the application.
• High Court of Justice, Chancery Division. Mr Justice Morgan, in [2010] EWHC 774 (Ch), found certain conduct contrary to honest practices but dismissed the Trinidad and Tobago claim on causation and loss.