Central Broadcasting Services Ltd and another v The Attorney General of Trinidad and Tobago

In assessing compensatory damages for lost profits based on counterfactual trading, the claimant bears the burden of proving the loss. The court may adopt a conservative projection where estimates of rising profitability lack independent or comparative evidential support.

A judge need not address every argument, provided the vital issues are identified and their resolution is explained. An appellate court should show substantial restraint when reviewing concurrent factual findings and discretionary costs decisions. Intervention generally requires an error of law or a decision that was plainly wrong.

The appellants challenged the refusal by the Government of Trinidad and Tobago to grant a Hindu radio broadcasting licence. The constitutional proceedings established breaches of their rights to equality of treatment and freedom of expression, and the Board ordered that a licence be issued: [2006] UKPC 35. A licence was eventually granted in September 2006.

Boodoosingh J awarded compensatory damages for lost profits and delay, together with vindicatory damages, under section 14(2) of the Constitution of the Republic of Trinidad and Tobago 1976. The Court of Appeal dismissed both the appellants’ appeal and the Government’s cross-appeal on 29 July 2013. Before the Board, only the appellants’ challenge to the compensatory award and the costs order remained. The central issues were whether the assessment of lost profits disclosed an error of law and whether the costs decision was plainly wrong.

1. Appeal dismissed. The Board upheld the compensatory damages award and the costs order. The Government no longer challenged the vindicatory damages award.
2. A trial judge need not address every argument advanced by counsel. It is sufficient to identify the issues vital to the conclusion and explain how they were resolved. The guidance in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 was applicable. A complaint about inadequate reasons should ordinarily be raised in the Court of Appeal, which may remit the case for further reasons. In any event, the judge’s reasons disclosed no material deficiency.
3. The appellants bore the burden of proving their lost profits. The assessment necessarily involved counterfactuals, and the judge was entitled to adopt and adjust the appellants’ own baseline projections. The evidence did not independently or comparatively support the asserted rapid increase in profitability. The competing effects of economic growth and increased market competition created uncertainty, and the judge’s conservative approach involved no error of law.
4. The Court of Appeal and the trial judge had made concurrent findings concerning the likely growth in profitability. Applying the principle stated in Central Bank of Ecuador v Conticorp SA [2015] UKPC 11, the Board would not interfere absent a demonstrated error of law or other limited ground. None was established.
5. The costs decision was discretionary and had been upheld by the Court of Appeal. The Board would interfere only if it was plainly wrong. The choice by each side to instruct three counsel did not determine what costs it was reasonable for the court to award. The appellants were awarded their costs of the Government’s permission application; otherwise, the respondent was awarded the costs of the appeal.

1. Privy Council: On 22 March 2018, the Board dismissed the appellants’ appeal concerning compensatory damages and costs. It awarded costs in the terms stated in the judgment.
2. Court of Appeal of the Republic of Trinidad and Tobago: On 29 July 2013, dismissed both the appellants’ appeal against the assessment and the Government’s cross-appeal.
3. High Court of Trinidad and Tobago: On 22 September 2009, Boodoosingh J awarded compensatory damages of $952,890 and vindicatory damages of $500,000 under section 14(2) of the Constitution of the Republic of Trinidad and Tobago 1976, with costs certified for one advocate attorney and one instructing attorney.
4. Earlier constitutional appeal: The Board held that the appellants’ rights to equality of treatment and freedom of expression had been breached and ordered the issue of a broadcasting licence: [2006] UKPC 35. The licence was granted on 22 September 2006.