Mauritius Telecom Ltd and 3 others v Emtel Ltd (Mauritius)

A regulator operating an ex ante licensing regime cannot be assumed to have power to backdate a licence so as to validate earlier prohibited conduct. The statutory scheme must clearly support that result. Even if a licence is retrospectively effective, prior approval requirements for tariffs remain operative: a zero charge is still a tariff and cannot lawfully be applied without approval. Licence conditions need not be contained in one document where the statute does not require that form and contemporaneous communications clearly impose them. Statutory succession provisions may transfer liability arising from predecessor regulatory functions regardless of the predecessor’s separate legal personality. A public body may also be barred from raising a late defence where its earlier conduct caused judicial review proceedings to be abandoned in favour of civil proceedings.

Emtel, the first mobile operator in Mauritius, claimed damages under article 1382 of the Civil Code against Mauritius Telecom Ltd, Cellplus and the telecommunications regulator. It alleged unfair competition through unlicensed market entry, a zero tariff, cross-subsidisation and regulatory failure.

The trial judge awarded Rs 554,139,900 in damages: [2017] SCJ 294. The Court of Civil Appeal allowed the Operators’ appeals and the ICTA’s appeal in separate judgments: [2021] SCJ 390 and [2021] SCJ 389. The issues before the Board were whether the Period 1 claim was pleaded, whether backdating validated the conduct, whether the interconnection and anti-subsidy requirements were licence conditions binding both Operators, and whether the statutory successors remained liable for the predecessor regulator’s conduct.

Both appeals allowed. The matter was remitted to the Court of Civil Appeal because that court had dealt with only some of the respondents’ grounds of appeal.

1. Period 1 and pleading. Emtel’s pleadings, particulars, evidence and damages case clearly advanced an independent claim based on Cellplus’s commercial provision of mobile services before licensing, including the zero tariff. The Board rejected the contention that the claim was confined to breaches of later licence conditions. An appeal lies against the order, not the reasons supporting it: Lake v Lake [1955] P 336. Emtel could therefore challenge the order concerning Period 1 on all available grounds.
2. Retrospective licensing. The question whether the Telecommunication Act 1988 authorised a licence to be backdated was left undecided. Applying the approach in Howell v Falmouth Boat Construction Co Ltd [1951] AC 837, a statutory power to license does not ordinarily include power to authorise or ratify previously prohibited conduct unless the statutory terms clearly warrant that construction.
3. Zero tariff. Sections 17 and 41 of the Telecommunication Act 1988 required prior approval of tariffs and made unauthorised tariffs criminal. A zero tariff is still a tariff. Backdating Cellplus’s licence did not retrospectively approve its charging of zero for domestic calls. That conduct remained unlawful and supported a finding of unfair competition and faute under article 1382 of the Civil Code.
4. Licence conditions. Sections 5, 11 and 12 of the Telecommunication Act 1988 did not require every condition to appear in one document. The contemporaneous letters and press release clearly showed that the interconnection requirement and cross-subsidy prohibition were imposed as conditions of the Cellplus licence. The conditions were imposed contemporaneously, with adequate notice, and bound Mauritius Telecom Ltd as well as Cellplus. The Appeal Court’s re-evaluation of the trial judge’s factual findings was unjustified. The Board applied the appellate restraint identified in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5.
5. ICTA liability. The deeming provisions in sections 29 and 51 of the Telecommunications Act 1998 and the Information and Communication Technologies Act 2001 transferred to the successor regulators acts and omissions arising from the predecessor regulator’s statutory functions, together with any liability arising from that conduct. The transfer applied whether or not the Telecom Authority had separate legal personality. The Board applied the construction of deeming provisions stated in Fowler v Revenue and Customs Commissioners [2020] UKSC 22.
6. Abuse of process. It was an abuse for ICTA to raise the lack-of-personality argument only at trial after relying on the civil claim to have the judicial review proceedings dismissed and after omitting the point from earlier interlocutory and case-management challenges. The Board did not need that alternative ground to allow the appeal.

The Board did not decide whether the Telecom Authority had separate legal personality or whether the statutory immunity applied on the facts. Remaining grounds were remitted to the Court of Civil Appeal.

1. Privy Council: Both appeals allowed. The orders of the Court of Civil Appeal were set aside and the matters remitted for determination of the remaining grounds.
2. Court of Civil Appeal of the Supreme Court of Mauritius: The Operators’ appeals were allowed in [2021] SCJ 390, and the ICTA’s appeal was allowed in [2021] SCJ 389.
3. Supreme Court of Mauritius, trial judge: Emtel’s claim against Mauritius Telecom Ltd, Cellplus and ICTA succeeded, with damages awarded in [2017] SCJ 294. The claim against the Ministry was dismissed.