Datalink Ltd v Utility Regulation and Competition Office - Judgment

¶ ```html IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31
```markdown The Plaintiff seeks Judicial Review (JR) of the Defendant's Determination, (ICT 2017-1), Determination on Pole Attachment Reservation Fees (hereinafter “the Decision”), wherein it concluded that the reserved spaces fees charged by the Plaintiff were “contrary to sections 65 (5) and 69 (2) (b) of the ICT Law and Regulations 6(a), 6(j) and 10(1)(b) of the Infrastructure Sharing Regulations.” **BACKGROUND** The Plaintiff is responsible for managing and licensing communications spaces on utility poles, which are designated for the attachment of communications cables for information and communications technology (“ICT”). The Defendant is the Regulator established by s.4 of the Utility Regulation and Competition (URC) Law 2016, (hereinafter referred to as “the URC Law”), responsible, inter alia, for regulating the sharing of infrastructure between ICT providers. The Plaintiff entered into various pole-sharing agreements for the provision of licensed communications spaces to other ICT providers (hereinafter referred to as “the Licensees”), which allow the Licensees to reserve communications spaces on utility poles until such time as they are required, in return for the payment of reserved spaces fees and total annual minimum payments. Both the Licensees and the Plaintiff fall under the regulation of the Defendant. On 12th September 2014, one of C3 submitted a complaint to the Defendant regarding the height of its utility poles. The Defendant rejected C3’s complaint. At the same time the Defendant published two consultation ``` This document is a legal document from the Grand Court of the Cayman Islands, specifically from the case "DataLink Ltd v. Utility, Regulation and Competition Office. G 134 of 2017." The court date is 17th July 2019, and it is page 2 of 25.
```html 1 papers one of which was “ICT Consultation 2016-2 - pole attachment reserved spaces fees, 2 permits application process and charging principles” (hereinafter “the Consultation”). 3 4 6. Relevant to this application, the Consultation included a section on the “the appropriateness of 5 the reserved spaces fees relating to the attachment of communication cables to CUC’s 6 electricity poles”. The Defendant expressed its concern that reserved spaces fees had been 7 imposed in a discriminatory way and invited consultation responses on its proposal to strike 8 out references to reserved space, reserved spaces payments and minimum annual payments 9 10 7. The Plaintiff and other licensees submitted responses to the Consultation and on the 9 11 December 2016, the Defendant formed a Pole Attachment Industry Working Group, comprised 12 of representatives from the Plaintiff and the Licensees to consider a number of issues including 13 the “pricing/costing elements applicable in the Pole Sharing Agreements”. At the Defendant’s 14 request, the members of the Working group submitted final position papers on 21st and 26th 15 April 2017. At the Defendant’s further request, the members of the group submitted responses 16 to each other’s final position papers on 16th and 20th June 2017. 17 18 8. The Decision was issued on the 11th July 2017. In essence the Defendant came to the 19 conclusion2 that the Plaintiff’s operation of “Reserved Space”, “Quarterly Reserved Space 20 Payments” and “Total Minimum Annual Payments” is contrary to sections 65 (5) and 69 (2) 21 (b) of the ICT Law and Regulations 6(a), 6(j) and 10(1)(b) of the Infrastructure Sharing 22 Regula it had “impt utilisation 2competLayman Islar for ICT see 23 of pole infra tion in the C and 24 tions in that ed the effa er 25 ed the effa structure”， “bl at 26 cie. “harmed ination in the C 1 provided 27 1 The C3 and Logic contracts (but not the Flow contract, which had not yet been entered into). 2 See paragraphs 161-164 of the Decision DataLink Ltd v. Utility, Regulation and Competition Office. G 134 of 2017. Coram: Carter J (Actg.). Date: 17th July 2019 Page 3 of 25 ```
```html 1 rates, terms and conditions which were not reasonable” and “had been discriminatory (both 2 at horizontal level and with self-preference)”. 9. 4 The Defendant determined that “it was appropriate to modify those parts of the Pole 5 Attachment Agreements which have had the effect of limiting (a) the efficient and harmonized 6 utilisation of infrastructure, and (b) the promotion of competition in the provision of ICT 7 services of ICT networks.” The Defendant made clear that it considered “that DataLink has 8 not provided infrastructure sharing services in accordance with section 65 (5) of the ICT Law”. 9 10. 10 As a result of its findings the Defendant directed the Plaintiff to “Remove all references to, 11 including the effects of, the: “Reserved Space”; “Quarterly Reserved Space Payment” and 12 “Total Minimum Annual Payments” from its Pole Attachment Agreements with C3, Logic 13 and Flow, such removals to be confirmed to the Defendant within thirty (30) calendar days 14 from the date of the Decision. 15 16. 16 The Defendant also directed the Plaintiff to consider and agree separately with each of the 17 Licensees “the type and quantum of the reservation fees to be repaid by DataLink to C3, Logic 18 and Flow respectively.” 19 20 21 CHALLENGE TO THE DECISION 22 12. 23 The Plaintiff applied for and was granted Leave to Apply for Judicial Review on 9th August 24 2017. The Plaintiff was also granted a stay of the Decision at that time. 3 See the “Follow up Procedures” at paragraphs 174-177 of the Decision DataLink Ltd v. Utility, Regulation and Competition Office. G 134 of 2017. Coram: Carter J (Actg.). Date: 17th July 2019 Page 4 of 25 ```
```html 1 13. On the 25th of August 2017 the Plaintiff filed a Notice of Originating Motion and its Statement of Facts and Grounds. The Notice of Originating Motion was supported by the affidavit of 2 3 Claire Stafford. 4 5 14. It is useful to summarize of the grounds of challenge (as set out by the Plaintiff in its skeleton of 7th May 2018) as follows: 6 i. the Defendant breached the requirements of section 7 of the Utility Regulation and 7 8 Competition Law 2016 by failing to issue the Decision in draft, in order to enable the 9 10 Plaintiff to make representations on it and for these to be considered before a decision 11 12 was finalized; 13 14 ii. There is a fundamental inconsistency in the Decision. The Decision imposed two 15 16 requirements on the Plaintiff as a result of the Defendant's findings. The first requirement 17 18 was... to leave it to the Plaintiff to negotiate with the Licensees on the amount of any 19 20 repayment of reservation fees, and to consider the matter further only if no agreement 21 22 was reached. ... the Decision also required all references to reservation fees be 23 24 immediately struck from the licences. The effect of the second requirement is that, 25 26 notwithstanding the Defendant's acceptance of the legality of reservation fees in 27 28 principle, the Licensees will have an unqualified right to the repayment of the reservation 29 30 fees in full. This renders obsolete the ostensible requirement to negotiate levels of 31 32 repayment; 33 34 iii. contrary to the constitutional protection for property, the interference with the Plaintiff's 35 36 property right was disproportionate in its removal of its right. 37 38 iv. the Defendant failed to have regard to a number of vital material considerations and 39 40 accordingly acted irrationally; DataLink Ltd v. Utility, Regulation and Competition Office. G 134 of 2017. Coram: Carter J (Actg.). Date: 17th July 2019 Page 5 of 25 ```
```markdown # FURTHER GROUNDS OF CHALLENGE

¶ [15] On 29th September 2017, the Plaintiff was granted leave to amend the Originating Motion and Ground of Judicial Review to include a ground of "conspicuous unfairness." The Plaintiff did not pursue the "conspicuous unfairness" ground at the hearing, instead seeking that the Court have regard to what was related to therein of the Defendant's conduct as "part of the factual background to the Decision and the unsatisfactory nature of the decision-making process."

¶ [16] At hearing of the Originating Motion, counsel for the Defendant drew to the Court's attention that the Plaintiff appeared to have added further grounds of challenge to the Decision for which permission had not been granted by this court. The Defendant objected to this course. Counsel for the Plaintiff responded that these were not new grounds as they were essentially encompassed within the grounds for which permission had already been granted and pointed to the fact the Defendant was not prejudiced at the hearing even if these were found to be new grounds and that the Defendant appeared well able to answer the Plaintiff's submissions as evidenced by the Defendant's filed skeleton arguments.

¶ [17] In the usual course a Plaintiff seeking permission to amend its grounds would be expected to have given proper notice to the other side and any other relevant party. The discretion remains with the court as to this matter. It appears that the Plaintiff sought leave to amend its grounds to include a ground '1A,' which this court considers a "new" ground of challenge. The Plaintiff is not allowed to pursue this ground and as was agreed at the hearing, this court will not now consider ```
```markdown the arguments relating to same. The other "new" grounds of challenge are essentially amplification of arguments on the grounds for which leave had been sought and granted under the headings of irrationality and the expropriation of the Plaintiff's property contrary to the Bill of Rights, and accordingly arguments on those matters will stand. ## GROUND 1 - BREACH OF THE URC LAW

¶ [18] Section 7 (1) of the URC Law provides as follows:

¶ [7] (1) Prior to issuing an administrative determination which, in the reasonable opinion of the Office, is of public significance, and subject to specific procedures under sectoral legislation, the Office shall - (a) issue the proposed determination in the form of a draft administrative determination; (b) allow persons with sufficient interest or who are likely to be affected a reasonable opportunity to comment on the draft administrative determination; and (c) give due consideration to those comments with a view to determining what administrative determination (if any) should be issued." ## THE PLAINTIFF'S SUBMISSIONS

¶ [19] The Plaintiff submits that the Defendant breached its duty pursuant to s.7 (1) of the URC to issue the Decision in draft.

¶ [20] The Plaintiff submits that the Defendant's breach of its statutory duty to issue the Decision in Draft was material as before issuing the Decision, the only reasoning provided by the Defendant in relation to reserved spaces and reserved spaces fees was contained in the Consultation and ran to 4 pages. By contrast, the reasoning contained in the Decision, which runs to 77 pages, was substantially more developed, thus highlighting the extent to which the Defendant was deprived of the opportunity to comment on the matters set out in the other grounds of challenge on this application as well as those matters raised and expanded in the first affidavit. DataLink Ltd v. Utility, Regulation and Competition Office. G 134 of 2017. Coram: Carter J (Actg.). Date: 17th July 2019 Page 7 of 25 ```
```html 1 of Claire Stafford wherein Stafford listed a number of matters that the Plaintiff contends, had 2 a draft determination been issued, the Plaintiff would have commented on in particular.4 3 4 THE DEFENDANT'S SUBMISSIONS 5 6 21. The Defendant accepted that the Decision was an Administrative Determination and that it was 7 under a duty to issue a Draft Administrative Determination pursuant to s.7(1)(a). 8 9 22. However, the Defendant in reply submitted that the Plaintiff's first ground of review should be 10 dismissed. The Defendant's set out a number of reasons for its position, the first of which is 11 that it did issue a ‘draft administrative determination’ within the meaning of s.7(1)(a). In 12 support of this argument the Defendant pointed out that there is no statutory provision or 13 stipulation as to when a draft determination must be issued and that it could therefore be 14 published at the same time as the original consultation.5 Further the Defendant argued that the 15 consultation contained sufficient detail of the eventual determination to amount to a draft 16 administrative determination, as it contained the main ideas and intentions later found in the 17 Decision. In particular the Defendant referred to the “proposals” contained in paragraph 165 18 of the Consultation as being reflected in paragraph 173 of the Decision, and that this was 19 essentially the operative part of the Defendant's Decision within s.2 of the URC Law. Counsel 20 for the Defendant argued that although these were headed “proposals” in the Consultation, 21 rather than “draft determinations” that the Court should find that this is their effect. 22 23 23. The Defendant also argued that there was sufficient background reasoning in the consultation 24 document determined persons 25 document determined persons 26 who were affected a 27 le c 28 on the drag 29 o commen 30 o commen 31 opportunit 32 o commen 33 o commen 34 o commen 35 o commen 36 o commen 37 o commen 38 o commen 39 o commen 40 o commen 41 o commen 42 o commen 43 o commen 44 o commen 45 o commen 46 o commen 47 o commen 48 o commen 49 o commen 50 o commen 51 o commen 52 o commen 53 o commen 54 o commen 55 o commen 56 o commen 57 o commen 58 o commen 59 o commen 60 o commen 61 o commen 62 o commen 63 o commen 64 o commen 65 o commen 66 o commen 67 o commen 68 o commen 69 o commen 70 o commen 71 o commen 72 o commen 73 o commen 74 o commen 75 o commen 76 o commen 77 o commen 78 o commen 79 o commen 80 o commen 81 o commen 82 o commen 83 o commen 84 o commen 85 o commen 86 o commen 87 o commen 88 o commen 89 o commen 90 o commen 91 o commen 92 o commen 93 o commen 94 o commen 95 o commen 96 o commen 97 o commen 98 o commen 99 o commen 100 o commen 101 o commen 102 o commen 103 o commen 104 o commen 105 o commen 106 o commen 107 o commen 108 o commen 109 o commen 110 o commen 111 o commen 112 o commen 113 o commen 114 o commen 115 o commen 116 o commen 117 o commen 118 o commen 119 o commen 120 o commen 121 o commen 122 o commen 123 o commen 124 o commen 125 o commen 126 o commen 127 o commen 128 o commen 129 o commen 130 o commen 131 o commen 132 o commen 133 o commen 134 o commen 135 o commen 136 o commen 137 o commen 138 o commen 139 o commen 140 o commen 141 o commen 142 o commen 143 o commen 144 o commen 145 o commen 146 o commen 147 o commen 148 o commen 149 o commen 150 o commen 151 o commen 152 o commen 153 o commen 154 o commen 155 o commen 156 o commen 157 o commen 158 o commen 159 o commen 160 o commen 161 o commen 162 o commen 163 o commen 164 o commen 165 o commen 166 o commen 167 o commen 168 o commen 169 o commen 170 o commen 171 o commen 172 o commen 173 o commen 174 o commen 175 o commen 176 o commen 177 o commen 178 o commen 179 o commen 180 o commen 181 o commen 182 o commen 183 o commen 184 o commen 185 o commen 186 o commen 187 o commen 188 o commen 189 o commen 190 o commen 191 o commen 192 o commen 193 o commen 194 o commen 195 o commen 196 o commen 197 o commen 198 o commen 199 o commen 200 o commen 201 o commen 202 o commen 203 o commen 204 o commen 205 o commen 206 o commen 207 o commen 208 o commen 209 o commen 210 o commen 211 o commen 212 o commen 213 o commen 214 o commen 215 o commen 216 o commen 217 o commen 218 o commen 219 o commen 220 o commen 221 o commen 222 o commen 223 o commen 224 o commen 225 o commen 226 o commen 227 o commen 228 o commen 229 o commen 230 o commen 231 o commen 232 o commen 233 o commen 234 o commen 235 o commen 236 o commen 237 o commen 238 o commen 239 o commen 240 o commen 241 o commen 242 o commen 243 o commen 244 o commen 245 o commen 246 o commen 247 o commen 248 o commen 249 o commen 250 o commen 251 o commen 252 o commen 253 o commen 254 o commen 255 o commen 256 o commen 257 o commen 258 o commen 259 o commen 260 o commen 261 o commen 262 o commen 263 o commen 264 o commen 265 o commen 266 o commen 267 o commen 268 o commen 269 o commen 270 o commen 271 o commen 272 o commen 273 o commen 274 o commen 275 o commen 276 o commen 277 o commen 278 o commen 279 o commen 280 o commen 281 o commen </tr
```html 1 that if the consultation document was sufficient to satisfy s.7(1)(b) that it would follow that 2 there was no breach of 7(1)(a). The Defendant further argued that s.7(1)(a) does not require a 3 full draft of the determination to be published after consultation has been concluded as the 4 Plaintiffs contend. In this regard counsel for the Defendant referred the court to the practice of 5 the UK regulator OfCom.6 6 7 24. The conclusion on this aspect as set out in the Defendant's skeleton argument was: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24. The conclusion on this aspect as set out in the Defendant's skeleton argument was: “It is respectfully submitted that s 7(1)(a) should be interpreted so as to allow OfReg the flexibility either to issue a ‘full’ draft determination later in the process or a more concise draft determination earlier in the process (consistent with Ofcom's approach) as OfReg considers appropriate, depending upon the circumstances, subject only to the requirements of s 7(1)(b) and s 7(4). To impose a requirement to publish a ‘full’ draft determination in all cases (as contended for by the Plaintiff) will result in a ‘significant concentration of work both for [OfReg] and for stakeholders’ towards the end of the consultation process that in many cases will be unnecessary and may leave some stakeholders with insufficient time to comment, leading to delays and/or an inadequate consultation.” Secondly, the Defendant submitted that s.7(1)(a) does not lay down an absolute requirement that a draft administrative determination must be issued in every case. The Defendant contents that s.7(2) wherein the Defendant must publish its procedures for seeking comments which includes “guiding principles for determining when the Office may derogate from standard procedures”, should be read as anticipating that there may be circumstances where OfReg may derogate from standard procedures. It follows counsel states that if the issue of a draft administrative determination is part of the standard procedure that there may be circumstances in which the Defendant may make a determination without first issuing a draft. Counsel argued that this was especially so where there had been a consultation process as well as a Working Group ch allowed ‘ onsultatidac process whi‘sufficient 6 OfCom previously published a full draft of its proposed determination for comment but changed this practice in 2011 to publishing a document which set out for comment the main elements of Ofcom's provisional reasoning and assessment in relation to the matters in dispute. 7 Paragraph 31 of the Defendant's skeleton argument. ```
```html 1 principles of natural justice.” In such circumstances, “...a failure to provide a draft 2 administrative determination is not unlawful.” 3 4 26. Thirdly, that a breach of the requirement to publish a draft administrative determination does 5 not invalidate the determination, provided the determination, in other respects, satisfied the 6 statutory purpose of section 7 and the underlying common law principles to which it gives 7 effect. Counsel for the Defendant therefore submitted that even if a full draft needed to be 8 published and even if that requirement obtained in every case, the consultation procedure as a 9 whole was fair and therefore even a breach of s.7(1)(a) does not invalidate the determination. 10 11 27. Fourthly, the consultation process complied with s.7(1)(b) and s.7(4) and was fair.8 The 12 Defendant submitted that the process followed by the Defendant allowed persons with 13 sufficient interest a reasonable opportunity to comment as well as an opportunity to make 14 written representations on why the Defendant ought not to make such a determination. For that 15 reason, whether the breach of section 7(1) was material or not is not the only consideration. 16 Counsel referred the Court to the case of R v North and East Devon Health Authority, ex p 17 Couglan9 where Lord Woolf stated: 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747 748 749 750 751 752 753 754 755 756
```markdown ## THE PLAINTIFF'S REPLY

¶ [29] Counsel for the Plaintiff in reply addressed the Defendant's arguments and amplified her own assertions that: (i) The short consultation proposal set out in the Defendant's second consultation cannot in any way be read as a 'draft' of the Decision under challenge as an administrative determination comprises both the directions and the reasons in support of them to comply with s.6(4)(e) of the URC Law which requires that an administrative determination must set out the Defendant's reasoning. She contended that the consultation document focused on asking questions for the purposes of formulating a position, rather than providing reasons to justify a position already formulated. The consultation document contains barely any of the reasoning which is found in the actual administrative determination, i.e. the Decision. (ii) Counsel submitted that there was a difference in effect between a consultation and a draft determination in ordinary language and in law; (iii) Counsel pointed to the legislative history of the provision s.7(1). She invited the court to consider the previous legislative provisions 10 which permitted licensees to seek a reconsideration of certain regulatory decisions after a regulator had delivered its final decision, failing which a right of appeal against the reconsideration obtained. This was in contrast to s.7 of the URC which in essence replaced the structure of 'decision-reconsideration-appeal' with the scheme set out in s.7, namely, the publication of a draft decision, with an opportunity to comment, followed by a final decision. Counsel concluded this point as follows: "Thus, the draft determination process is intended to afford the subject of the determination an opportunity to persuade the Defendant to reconsider its (otherwise final) decision. 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```html 1 (iv) The legislation which had repealed the previous provisions which allowed for appeal against administrative determinations and which now provided instead for draft administrative determinations to be issued, did not come into force until 10 January 2017 by which date the consultation document had already been issued and the date for responses, 28 June 2016, had long past. She submitted thus: 6 “The Defendant could only establish that the document it issued on 27 April 2016 constituted a “draft determination” within the meaning of s 7(1) of the URC Law if that law could in some way have retrospectively turned the document into a “draft determination”. 10 However, it is an established principle of construction that “unless a contrary intention appears, an enactment is not intended to have a retrospective operation” 12 ...There is no such contrary intention in the URC Law.” 14 THE EVIDENCE 16 30. The Plaintiff filed the affidavit of Claire Stafford in support of the originating motion. Relevant to this ground of challenge, Ms. Stafford indicated that: “There are also a number of statements made by the Defendant in the Decision in regard to which, had the Decision been issued in draft, the Plaintiff would have commented.” Stafford went on to set out what these were: 20 21 22 23 “60... 24 (a) Paragraph 101 - the Defendant states that the reservation fees were initially introduced by CUC [CS-1, page 35]. Had the Decision been issued in draft, the Plaintiff would have ensured that the Decision was taken on a correct factual basis. As set out above, it was Infinity which proposed these fees, ostensibly to afford it the access to infrastructure needed to meet the authority's licence conditions for roll- 25 26 27 28 out. 29 (b) 107-Data uld ate that on 30 Paragraph Link shored reservation 31 DataLink's costs incurred as a result of keeping an attachment point reserved but ``` ```latex \documentclass{article} \usepackage{geometry} \usepackage{graphicx} \usepackage{hyperref} \usepackage{amsmath} \begin{table}[h] \centering \begin{tabular}{|p{0.2\textwidth}|p{0.8\textwidth}|} \hline 1 & (iv) The legislation which had repealed the previous provisions which allowed for appeal against administrative determinations and which now provided instead for draft administrative determinations to be issued, did not come into force until 10 January 2017 by which date the consultation document had already been issued and the date for responses, 28 June 2016, had long past. She submitted thus: \\ \hline 6 & “The Defendant could only establish that the document it issued on 27 April 2016 constituted a “draft determination” within the meaning of s 7(1) of the URC Law if that law could in some way have retrospectively turned the document into a “draft determination”. \\ \hline 10 & However, it is an established principle of construction that “unless a contrary intention appears, an enactment is not intended to have a retrospective operation” \\ \hline 12 & ...There is no such contrary intention in the URC Law.” \\ \hline 14 & \textbf{THE EVIDENCE} \\ \hline 16 & 30. The Plaintiff filed the affidavit of Claire Stafford in support of the originating motion. Relevant to this ground of challenge, Ms. Stafford indicated that: “There are also a number of statements made by the Defendant in the Decision in regard to which, had the Decision been issued in draft, the Plaintiff would have commented.” Stafford went on to set out what these were: \\ \hline 20 & \\ \hline 21 & \\ \hline 22 & \\ \hline 23 & “60...” \\ \hline 24 & (a) Paragraph 101 - the Defendant states that the reservation fees were initially introduced by CUC [CS-1, page 35]. Had the Decision been issued in draft, the Plaintiff would have ensured that the Decision was taken on a correct factual basis. As set out above, it was Infinity which proposed these fees, ostensibly to afford it the access to infrastructure needed to meet the authority's licence conditions for roll- \\ \hline 25 & \\ \hline 26 & \\ \hline 27 & \\ \hline 28 & out. \\ \hline 29 & (b) 107-Data \\ \hline 30 & Paragraph Link shored \\ \hline 31 & DataLink's costs incurred as a result of keeping an attachment point reserved but \\ \hline \end{tabular} \end{table} \textbf{DataLink Ltd v. Utility, Regulation and Competition Office. G 134 of 2017. Coram: Carter J (Actg.). Date: 17th July 2019} \textbf{Page 12 of 25} ```
```html 1 not occupied. In other words, DataLink should demonstrate that the removal of 2 reservation fees would result in a net loss for DataLink, when assuming such 3 attachment points could be otherwise occupied and generate revenues for DataLink 4 through pole attachment rental fees [CS-1， page 34]. 5 ... 6 The consultation did not invite DataLink to demonstrate that the removal of 7 reservation fees would result in a net loss. Had DataLink been asked to do so, 8 it would have submitted that it was not necessary at all for DataLink to demonstrate 9 losses and in the alternative, would have embarked on the complex analysis required 10 to show loss. 11 (c) Paragraph 137 - the Quarterly Reserved Space Payment is based on the total 12 number of poles owned by CUC, which exceeds the maximum number of poles 13 available for attachment in a given quarter and therefore constitutes a form of 14 infrastructure sharing charge which the Defendant considers is not reasonable. The 15 Defendant then goes on to say (at paragraph 138) that this in effect assumes that the 16 licensee would necessarily request access to all of CUC's utility poles, but that such 17 an assumption is not reasonable unless it is specifically asked for by the licensee, as 18 it ignores that licensees may have alternatives to CUC utility poles in some area (i.e. 19 underground ducts). The Defendant did not consider in making the Decision that 20 both Infinity and Logic did specifically request access to all of CUC's utility poles: 21 (d) In the email from Randy Merren on 13 December 2011 (referred to at paragraph 20 22 above)，Infinity stated that it was "essential that CUC's poles across Grand Cayman 23 lable for use 24 25 were avai". The L had faci ndant alse serve spats， endorse require e fact that Def o roll out re regard tot it as set out above. ``` This is a faithful transcription of the page, using Markdown for headings and paragraph structure, HTML for tables, and LaTeX for math. The content is extracted directly from the image provided.
```markdown (e) In the email from Mike Edenholm to DataLink on 17 April 2013 (referred to at paragraph 44 above), Logic stated that it "will require reservation to 100% of pole assets". (f) Paragraph 141 – the reservation fee was set as a percentage of the Annual Attachment Fee, without reference to DataLink’s actual costs. This means it is not possible to assess whether the reservation fees determined in such way are directly related to DataLink’s costs incurred as a result of keeping an attachment point reserved but not occupied [CS-1, page 48]. As set out in paragraph 53(b) above, this point did not form part of the consultation process and is something which DataLink would wish carefully to analyse and make representations upon.”

¶ [31] In her second affidavit filed in this matter on the 17th November 2017, Ms. Stafford also raised additional issues with the position taken by the Defendant that the consultation was indeed the draft determination. She related the differences in the Section 7 approach to that which obtained previously relating to different regulated industries.

¶ [32] She also related the position expressed by other relevant parties on the effect of the Section. At paragraph 12 of that affidavit: "On 23 September 2016, Caribbean Utilities Company, Ltd (CUC) submitted comments on the URC Bill to the Electricity Regulatory Authority [CS-3, page 3-15]. On 29 September 2016, the Ministry responded to those comments [CS-3, page 16]. In relation to clause 7 of the URC Bill, the Ministry stated: ‘This provision affords a basis for the Office to reconsider its position prior to issuing a final Decision, noting that the Office shall give due consideration to those comments.’" ``` **DataLink Ltd v. Utility, Regulation and Competition Office. G 134 of 2017. Coram: Carter J (Actg.). Date: 17th July 2019** Page 14 of 25 ```
The Ministry is of the view that this procedure affords affected parties sufficient opportunity to proffer arguments for reconsideration and that the logical next step would therefore be judicial review."

¶ [33] She referred to s.7(2) of the URC law which requires the Defendant to publish its procedures for seeking comments, which shall include how the Office will issue draft administrative determinations under subsection as well as how consultations will be published. Ms Stafford noted that these Guidelines set out a usual timeframe for consultations, and then stated: ``` "none of the circumstances in paragraph 38 of the Consultation Procedures Guidelines for including a draft determination within a consultation document appear to apply, and the Defendant has not contended otherwise. I also note that the Guidelines state that, if the Defendant proposes to depart from them, it 'will set out its reasons for doing so' (para 11). No reasons were provided by the Defendant for departing from the Guidelines in this case."

¶ [34] The affidavit of Russell Richardson was filed in support of the Defendant’s case. In his first affidavit of the 20th of October 2017, Dr Richardson gave some background relating to the Defendant’s concern about “the slow development of efficient and competitive ICT services, particularly high-speed internet broadband, across Grand Cayman.” Based on these concerns the ICT Authority put together an internal working group to consider the problem. When an investigation arose into the C3-Datalink dispute, the ICT Authority staff considered in greater detail the pole attachment agreements and made a number of requests for information from DataLink and the Licensees.

¶ [35] Dr Richardson noted at Paragraph 19 of his affidavit: ``` "Thirty prepared paper as a collaborative effort with industry parties. The objective to the issues at hand was to consult with the ICT Authority and to arrive at a resolution of the issues in the industry parties' subject to the responses received from the industry parties" ``` DataLink Ltd v. Utility, Regulation and Competition Office. G 134 of 2017. Coram: Carter J (Actg.). Date: 17th July 2019 Page 15 of 25
```html 1 36. Further in his affidavit, Dr. Richardson stated: "In Consultation 2016-2, Part A, the Authority 2 37. set out its preliminary view that the Reservation Fees contravened the ICT Laws in a number 3 38. of respects."11 4 39. Dr. Richardson went on to say that "Although these preliminary conclusions are not labelled 5 40. as "draft Determinations" for the purposes of s 7(1) of the URC Law (which was not in force 6 41. at the time it did not come into force until 16 January 2017), ...I believe that this is their 7 42. effect."12 8 43. Dr Richardson explained the thinking behind the setting up of the Working Group: 9 44. "51. 10 45. We (the staff of the ICT Authority looking at this) found the responses to the 11 46. Consultation to be unsatisfactory for a number of reasons including that some 12 47. parties did not respond as fully we would have liked (for example, Logic did not 13 48. respond at all). Also, we wanted to give Licensees the opportunity to try and 14 49. resolve the matters under Consultation themselves. Therefore, we agreed the 15 50. setting up of a Working Group to consider further with Licensees the various 16 51. proposals which were the subject of the Consultations." 17 52. ... 18 53. The letter [to the persons invited to be part of the Working Group] went on to note, 19 54. at para 30, that the Authority was currently consulting on most of the above Issues, 20 55. as set out in its ICT Consultation 2016-2, and that 'In order to allow the Licensees 21 56. themselves an opportunity to resolve the matters being considered by that 22 57. consultation process, the Authority puts that consultation process on hold for the 23 58. duration of the Industry Working Group (subject to paragraph 31 below)'. Para 24 59. 31 explained how the process would be confidential, except that the Working 25 60. Group members would be invited to produce position papers which would be 26 61. published on the ICTA website." 27 62. ... 28 63. Dr Richardson noted that at the stage where the Working Group was disbanded that the issues 29 64. raised in Consultation 2016-2 remained outstanding and for this reason it was decided that the 30 65. consultation would continue. The 31 66. ICT announcement separately due 32 67. to addr. B and C ed 33 68. ination would be Defend 34 69. ant Consulta set that "The dis 11 See Paragraph 22 of the Richardson affidavit 12 See paragraph 24 of the affidavit DataLink Ltd v. Utility, Regulation and Competition Office. G 134 of 2017. Coram: Carter J (Actg.). Date: 17th July 2019 Page 16 of 25 ```
```html 1 determinations or additional questions for consultation as appropriate. Richardson noted that: 2 "None of the consultees, including DataLink, responded with a request that OfReg issue any 3 determination in draft." 4 5 40. Later in his affidavit Dr. Richardson commented further: 6 144. Accordingly, it is plain that through the Consultation and the Working Group 7 process DataLink had ample opportunities to comment upon, and to influence 8 OfReg's thinking in relation to, the issues surrounding Reservation Fees, including 9 commenting on the submissions of the other key participants; that they were given 10 an opportunity to make representations as to the procedure OfReg should take 11 after the conclusion of the Working Group; and that they urged OfReg to take an 12 immediate decision, not to issue a further draft determination." 13 14 COURT'S ANALYSIS AND CONCLUSIONS ON GROUND 1 15 16 41. There is no dispute between the parties that s.7(1) creates a statutory duty to consult. It is agreed 17 that the extent of the consultation was as follows: "Prior to issuing an administrative 18 determination which it reasonably considers to be of public significance, OfReg must consult 19 those with a sufficient interest or who are likely to be affected on the proposed determination 20 by issuing a draft Administrative Determination." 21 22 42. The Plaintiff does not take issue with the Consultation or that the process that obtained once it 23 was issued was fair. It is correct that the principles of fairness as outlined in R v Brent London 24 Borouge xp Gunniorth and East Devon H h Council, eg13, and R wealth Autho 13[1985] 84 LGR 168 (see also R (Moseley) v London Borough of Haringey [2014] 1 WLR 3947 14[2001] QB 213, para 108 DataLink Ltd v. Utility, Regulation and Competition Office. G 134 of 2017. Coram： Carter J (Actg.). Date： 17th July 2019 Page 17 of 25 ```
```html 1 final decision with all the background facts and reasoning. What is required is that the 2 consultation contain sufficient reasoning to comply with the Gunning criteria but not 3 necessarily the intended final reasoning. The Plaintiff has not challenged the fairness of the 4 initial consultation process. 5 43. The question for this court is whether the fairness of the consultation was sufficient to absolve 7 the Defendant from having to issue a draft administrative determination or whether this fairness 8 of the consultative process was sufficient to in essence absolve the Defendant from its duty to 9 issue a draft administrative determination, thereby equating the effects of the consultation with 10 the objects of the legislation in stipulating that a draft be issued prior to the final determination. 11 44. There is no provision in the URC Law to prevent the issuance of a draft administrative 13 determination at the same time as an initial consultation. The Consultation Procedure 14 Guidelines issued by the Defendant allow for a draft administrative determination to be issued 15 at the same time as an initial consultation. The Defendant clarified this position during the 16 consultation on the issuance of those Guidelines and in its OF1-Determination on the 17 Consultation Procedure Guidelines of the 7th of July 21078 OfReg stated as follows: 18 19 20 21 “The Office notes Digicel's comments regarding the inappropriateness of including a 22 draft determination with an initial consultation document without affording parties a full 23 and proper opportunity to comment. The Office considers such concerns are misplaced. 24 Toy, sharing warties the s pecifics of ti 2 apnsistent with enc address sp in 25 the contrarithe Office's p the Office's proposed 3 proach is co transparable pecific issues 26 the proposal, confirm its appropriateness, or suggest viable alternatives.” DataLink Ltd v. Utility, Regulation and Competition Office. G 134 of 2017. Coram: Carter J (Actg.). Date: 17th July 2019 Page 18 of 25 ```
It is apparent from the paragraph above that the Defendant was concerned to ensure that relevant parties understood that the consultation contained its proposed approach, that there was still an opportunity for the parties to address the specific issues in the proposal, to confirm its appropriateness or suggest viable alternatives to the draft administrative determination. I am not persuaded by the argument that this approach can provide support for the issuance of a draft administrative determination and an initial consultation as the same document. It is evident that when the Defendant issued the two together that it was careful to ensure that the relevant parties understood that it was a draft administrative determination and a consultation that was being issued simultaneously. The striking difference between the approaches/processes relating to the Consultation Procedure Guidelines and that in the instant matter being that at no point during the Consultation or during the Working Group Process was the Plaintiff and the other interested parties informed that this is how they should view the Consultation, that it should be viewed as a consultation and also the draft administrative determination. In any event the Defendant’s submission that the consultation is in effect the draft administrative determination does not stand up to scrutiny for a number of reasons. i. Factually, at the time that the Consultation was issued s.7(1) of the URC Law was not yet law. ii. Throughout Dr. Richardson’s evidence it is evident that the Defendant did not contemplate in that the consultation was a draft administrative determination. As paragraph 24 above indicates, there are administrative determinations and consultations and the two are distinct. DataLink Ltd v. Utility, Regulation and Competition Office. G 134 of 2017. Coram: Carter J (Actg.). Date: 17th July 2019 Page 19 of 25
```html 1 indication that the Defendant was still wanting to have comments and suggestions as to 2 how the issues identified in the consultation could be addressed. 3 iii. The Defendant continued throughout to treat the consultative process for what it was， a 4 process designed to receive views on the identified issues before making a determination. 5 There is nothing recorded in the Richardson affidavit that there was something other than 6 a consultation. Even at the stage where the working group was disbanded， Richardson 7 states at paragraph 74 of his affidavit of... 74. On 30 June 2017， the Office notified the parties that it was recommencing 10 the consultation process in order to make determinations in respect of the 11 issues which were not resolved by the Working Group process and placing 12 the final position papers and reply comments submitted at the conclusion 13 of the Working Group on the record of ICT Consultation 2016-2." 15 48. I am not persuaded that because， arguably， the Defendant's final determination was not 16 significantly different from what was identified initially as the pertinent issues and upon which 17 comments were sought， that this fact could transform the consultation into a determination 18 without more. This is not a matter of form but of substance. It is here that the principle of 19 fairness must inform the Court's decision. The Plaintiff was entitled to know what the 20 Defendant had concluded after the consultation process was its final determination on the 21 issues. The Plaintiff was entitled to know that the consultative process had produced an 22 outcome and to be able to specifically address that outcome at that latter stage as contemplated 23 by Section 7(1)(b). The initial consultation is to that extent bereft of the full explanation for 24 the Defendant's final determination. It is that full explanation that the Plaintiff was entitled 25 by law to have before it offered its final comments. 26 27. Had the after the con 27 49. Defendant， sultation con 28 final decision， at the very least the Defendant should have informed the Plaintiff that they 29 intended to treat the consultation as its draft administrative determination as required by s.7(1). DataLink Ltd v. Utility， Regulation and Competition Office. G 134 of 2017. Coram： Carter J (Actg.) Date： 17th July 2019 Page 20 of 25 ```
```html 1 That it was material is not in doubt. The Defendant should have been vigilant to ensure that it 2 was in compliance with its statutory duty. The difference between the consultation and what 3 is required by s.7(1) of the URC Law is that the statute requires the draft administrative 4 determination to contain the intended final reasoning. It is here that the two, consultation and 5 draft administrative determination, diverge and differ. 6 7 50. I would venture to state that if the Defendant had arrived at the view, as above, after the 8 consultation had ended, the working group disbanded and all final position papers received, at 9 the very least the Defendant should have informed the Plaintiff that they intended to treat the 10 initial consultation as its draft administrative determination as required by s.7(1) and allowed 11 any further comments as required by the other provisions in Section 7. Such a course may have 12 assisted the Defendant’s arguments. 13 14 51. On the facts however, the fairness of the consultation was not sufficient to satisfy the obligation 15 to issue the draft administrative determination and it is not sufficient to sufficient to satisfy 16 7(1)(b) and (c) of the URC Law. 17 18 52. In the case of Mitu v Camden LBC15, the Court of Appeal was concerned with procedures 19 under the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999. 20 The appellant had appealed to the authority for assistance to secure accommodation. The 21 authority decided that the appellant was intentionally homeless and did not have a priority need. 22 The Appellant requested a review of this decision. The reviewing officer decided, contrary to 23 the origin, that the ap 24 not haveeed. Regulion a reviewelrd that he 25 original decisionpellant w 15[2011] EWCA Civ 1249 DataLink Ltd v. Utility, Regulation and Competition Office. G 134 of 2017. Coram: Carter J (Actg.). Date: 17th July 2019 Page 21 of 25 ```
```html 1 was a deficiency in an original decision but who was minded nevertheless to make a decision 2 which was against the interest of an appellant "shall notify the applicant" of what he was 3 minded to do and the reasons why and further allow the applicant to make representations to 4 the reviewer. 5 6 53. The court held that the appellant should have been given notice under Regulation 8(2) of the 7 reviewer's decision. Lewison L.J. referred to the issue as being a procedural rather than a 8 substantive question. He referred to the dicta of Rimer L.J in Lambeth LBC v Johnston. 9 10 23. In Lambeth LBC v Johnston16, Rimer L.J said [51] 11 "Reg.8(2) is not a discretionary option that the review officer can apply or disapply 12 according to whether or not he or she considers that the service of a 'minded to find' notice 13 would be of material benefit to the applicant. Regulation 8(2) imposes a dual, mandatory 14 obligation upon the review officer. First, to 'consider' whether there was a deficiency or 15 irregularity in the original decision or in the manner in which it was made. Secondly, if 16 and if the review officer is nonetheless minded to make a decision adverse to 17 the applicant on one or more issues - to serve a 'minded to find' notice on the applicant 18 explaining his reasons for his provisional views. In my judgement, there is no discretion 19 on the review officer to give himself a dispensation from complying with either of those 20 obligations. As regards the first part of it, I have referred to the fact that it is not a purely 21 subjective exercise but that failure to arrive at the right 'consideration' can be challenged 22 on usual public law grounds. As regards the second part, the language of reg. 8(2) is 23 unambiguously mandatory - 'the reviewer shall notify ...'." 24 25 54. Lewison L.J. further emphasized that: 26 27 28 29 30 "On the facts of that case the applicant knew what was in issue and had in fact had the 31 55. Lewison L.J found that: 32 33 34 35 36 ad had advare was minde discretion see. 37 hacanity to persud to reach the in l id that theho if Mr. Mitu hace notice that decision, he 38 39 40 41 di ne di n exercise 42 and the opportuade Mr. at he would 43 44 45 46 his favour." Bor uld have ed 16 [2008] EWCA Civ 690 DataLink Ltd v. Utility, Regulation and Competition Office. G 134 of 2017. Coram: Carter J (Actg.). Date: 17th July 2019 Page 22 of 25 ```
```html 1 56. Similarly in the instant matter, it is not for the Defendant to say that further representations 2 2 would have made no difference to the final Decision. There were further matters that the 3 3 Plaintiff could have drawn to the Defendant's attention as detailed in the Stafford affidavit and 4 4 referred to above. Counsel for the Plaintiff stated in her submission to this court that even the 5 5 matters that inform the other grounds of review would have been relevant and could have been 6 6 put before the Defendant for its consideration at that stage of the process. 7 8 57. The Defendant objected to the Plaintiff's reference in argument to the Hansard Reports 9 9 concerning the repeal of aspects of the earlier legislation and its replacement with the URC 10 10 Law. Whether or not this court can refer to the Hansard reports, there is no argument that the 11 11 Court can have regard to the previous sections of the repealed legislation and compare it with 12 12 the sections at issue on this hearing. Under the ICT Law the procedure obtained wherein the 13 13 Defendant would issue a decision and an interested party could seek a reconsideration of such 14 14 decision. If they remained unsatisfied with the Defendant's decision after reconsideration the 15 15 party could appeal the decision. Section 7(1) replaced that procedure and instead adopted the 16 16 procedure in s.7 of the URC Law and as discussed herein. 17 18 58. It is therefore quite relevant to note that upon the publication of a final administrative 19 19 determination there is no provision in the URC law for an interested party who had had sight 20 20 of a draft administrative decision and had had the opportunity to comment upon it to appeal the 21 21 decision of the Defendant. The fact that the draft administrative determination must be issued 22 22 when it concerns a matter of public significance brings into prominence the need to comply 23 23 with thuty to issue s do otherwise the reason and the decision ans 24 24 the statutory duch a draft. ive an interest 25 opportunity to understand therefor a 25 25 Tested party 4 therein to appeal to the Defendant by its comments to look at its decision again, there being 26 26 no other statutory means to accomplish this. There is no sense from the Richardson evidence DataLink Ltd v. Utility, Regulation and Competition Office. G 134 of 2017. Coram: Carter J (Actg.). Date: 17th July 2019 Page 23 of 25 ```
```html 1 that that there had been any consideration of the effect of the change which took away the right 2 to seek a reconsideration. If such a matter had been considered it may well have informed the 3 Defendant's approach to the issue. 4 5 59. 6 The URC Law provides that the Defendant can set out issues for consultation. It is those issues 7 which involve a matter of public significance wherein the extra consultation is contemplated. 8 The Legislature must have determined that for such matters, an extra period of interaction 9 between the parties after the Defendant come to a decision was necessary. On a matter of 10 public significance, it is not within the remit of the Defendant to unilaterally determine that it 11 can disregard the statutory procedure. The provisions of the section are prescriptive. 12 60. 13 Counsel for the Defendant has described Ground 1 as dealing with a hard-edged issue. I agree. 14 The Defendant's breach of its statutory duty to issue the draft administrative determination has 15 the effect of making that decision unlawful. 16 61. 17 The other grounds of challenge all relate to the vires of the decision. For the reasons I have set 18 out here, having found that the Defendant acted ultra vires in issuing the decision as it did, I 19 will not go on to deal with those grounds that seek to impugn the decision for other reasons 20 having determined that the issue of the decision itself was unlawful. 21 62. 22 I have considered whether this is a matter in which the court should exercise its discretion to 23 look at the facts and make the decision itself. The nature of the matters which would inform 24 such a decision, as is the discretion. workin 25 particular industry knowledge is essential. In arguments before the court Counsel referred to 26 the margin of discretion that the court should be mindful of when reviewing the various reasons DataLink Ltd v. Utility, Regulation and Competition Office. G 134 of 2017. Coram: Carter J (Actg.). Date: 17th July 2019 Page 24 of 25 ```
```html 1 for the decision itself. The matters raised by the Plaintiff upon which they would seek the 2 Defendant's further consideration are complex and industry specific in their effect. The 3 Defendant's responses to these matters are not such as to satisfy me make that it would be 4 inevitable that the Decision would be the same even if s.7 were to be complied with now after 5 this Court's Order. 6 63. Accordingly, the decision is quashed and remitted back to the Defendant to comply with the 8 letter of s.7(1) of the URC Law. 9 10 11 Dated this the 17th July 2019 12 Carter J 13 Acting Judge of the Grand Court 14 15 16 17 ``` ```latex \documentclass{article} \usepackage{geometry} \usepackage{graphicx} \usepackage{hyperref} \section*{Court Decision} The matters raised by the Plaintiff upon which they would seek the Defendant's further consideration are complex and industry specific in their effect. The Defendant's responses to these matters are not such as to satisfy me make that it would be inevitable that the Decision would be the same even if s.7 were to be complied with now after this Court's Order. Accordingly, the decision is quashed and remitted back to the Defendant to comply with the letter of s.7(1) of the URC Law. \begin{flushright} \textbf{Carter J} \\ Acting Judge of the Grand Court \end{flushright} \begin{flushleft} Dated this the 17th July 2019 \end{flushleft} \begin{flushright} \includegraphics[width=0.3\textwidth]{caymanislands-court-seal} \end{flushright} \begin{flushleft} DataLink Ltd v. Utility, Regulation and Competition Office. G 134 of 2017. Coram: Carter J (Actg.). Date: 17th July 2019 \end{flushleft}