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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> The Bahamas Telecommunications Company Ltd v. Public Utilities Commission & Anor (The Bahamas) [2008] UKPC 10 (12 February 2008) URL: http://www.bailii.org/uk/cases/UKPC/2008/10.html Cite as: [2008] UKPC 10

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The Bahamas Telecommunications Company Ltd v. Public Utilities Commission & Anor (The Bahamas) [2008] UKPC 10 (12 February 2008 )

Privy Council Appeal No 19 of 2007

The Bahamas Telecommunications Company Ltd Appellant

v.

(1) Public Utilities Commission

(2) System Resource Group Ltd Respondents

FROM

THE COURT OF APPEAL OF

THE BAHAMAS

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 12^th February 2008

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Present at the hearing:-

Lord Hope of Craighead

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Mance

Sir Christopher Rose

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[Delivered by Lord Hope of Craighead]

1. This is an appeal from a decision of the Court of Appeal of the Commonwealth of The Bahamas (Ganpatsingh JA, Burton Hall CJ and Osadebay JA). On 31 July 2006 it set aside an order made by Longley J on 5 September 2005 and struck out the appellant's originating summons in which various declaratory and other reliefs were sought against the first respondent as an abuse of the court's process. The appellant is The Bahamas Telecommunication Company Limited ("BTC"). The first respondent is the Public Utilities Commission ("PUC"). Longley J gave leave to amend the originating summons by adding System Resource Group Ltd ("SRG") as the second defendant in view of the effect that the reliefs sought, if granted, would have on that company. SRG is the second respondent to this appeal.

Background

2. The first respondent was established by statute to regulate the services rendered by public utilities in The Bahamas. Section 4(1) of the Public Utilities Commission Act 1993 provides that its duties include the promotion of effective competition consistently and in accordance with any policy established by the Government for that sector. The Telecommunications Act 1999 ("the 1999 Act"), to which assent was given on 28 January 2000, created a new legal framework for telecommunications in The Bahamas. Its purpose was to remove the monopoly rights of The Bahamas Telecommunications Corporation and to establish a licensing regime in place of that monopoly. Section 22 of the 1999 Act provided for the formation of BTC to acquire and take over the principal assets and activities of the Corporation. Section 4(e) of that Act included among the objectives of Part II which deals with regulatory authorities the introduction, maintenance and promotion of effective and sustainable competition in telecommunications services in The Bahamas, subject to any special rights granted to BTC in accordance with sector policy.
3. Section 5(1)(a) of the 1999 Act included among the functions of the Minister charged with responsibility for telecommunications services the determination, after consultation with the PUC, of the sector policy which was to be published in the Official Gazette. Section 6 dealt with the regulatory functions of the PUC. It provided, inter alia, as follows:

"(1) The functions of the Commission shall be –

(a) to advise the Minister generally in relation to the telecommunications sector;

(b) to implement the sector policy;

(c) to issue, modify, enforce and revoke licences in a manner consistent with sector policy;

…

(i) to facilitate, maintain and promote effective and sustainable competition in telecommunications services in The Bahamas in accordance with the objective set out in section 4(e)."

Section 9 made provision for the granting of licences by the PUC having regard to any current sector policy promulgated by the Minister, subject to such conditions as appear to the PUC to be appropriate having regard to the objectives of the Act as specified in section 4.

4. On 31 July 2001 the Government published its Telecommunications Sector Policy ("TSP 2001"). Prior that date the Corporation had enjoyed a universal monopoly over the provision of telecommunications networks and services in The Bahamas. In its introduction to TSP 2001 the Government stated that it recognised that the provision of a world-class telecommunications infrastructure was the key to the rapid economic and social development of the country, and that it accepted that privatisation and liberalisation of telecommunications was a critical pre-condition for achieving the necessary objectives for this development. In accordance with its policy of privatisation it was proposed that the Corporation should be privatised. This was to be achieved by vesting the Corporation's assets in a new company, BTC, to enable it to continue to operate the telecommunications network and offer services under a new licence. Details of the private sector participation were set out in sections 5.2 to 5.5.
5. Section 5.6 of TSP 2001 was in these terms:

"Experience elsewhere has shown that the greatest gains in efficiency, cost reduction and quality and variety of services are achieved from competition, not merely privatising a monopoly. It is, therefore, the Government's policy to move towards liberalisation of all telecommunications services in The Bahamas. However, it recognises the need to be pragmatic. A short delay in introducing full competition in limited areas indicated below, will allow BTC time to prepare for a multi-carrier environment, to modernise and restructure, and to rebalance its tariffs while ensuring that BTC can continue to operate a sustainable business and therefore remain an attractive proposition for future investors. The Government has therefore decided that:

? competition in the provision of international, inter-island and local public voice services over fixed networks and the leasing of circuits for voice services will be deferred until 31 December 2003 ("the Exclusivity Period");

…

? after the expiry of the Exclusivity Period, the telecommunications sector will be opened fully to competition;

…"

Section 8.21 of TSP 2001 stated:

"Since BTC's Exclusive Rights will include voice telephony, irrespective of the network used, it will not be permissible for any company other than BTC to provide voice services over the Internet or voice over Internet Protocol Networks for the duration of the Exclusivity Period.

6. In September 2001, in the performance of its statutory functions as regulator, the PUC published a Call for Applications for licences to operate public fixed radiocommunications systems and to provide telecommunications services in New Providence, Grand Bahama and Abaco. Account was taken of the fact that the Exclusivity Period provided for by TSP 2001 was to expire on 31 December 2003, after which the telecommunications sector was to be opened fully to competition. It was stated in the introduction to the Call for Applications that voice telephony services were excluded until 1 January 2004. Applicants were expected to utilise state of the art technology and to provide details of their proposed systems including the technology to be employed. The Call for Applications included a copy of the draft licence which the PUC proposed to issue to the successful applicant in which it was stated that the licensee was to be prohibited from providing fixed voice telephony until 1 January 2004.
7. On 14 December 2001, in response to the Call for Applications, SRG submitted an application for licences to operate public fixed radiocommunications systems and provide telecommunications systems in a combined service area comprising New Providence, Grand Bahama and Abaco. Its application included a detailed description of the wireless network that SRG was proposing to build, utilising state of the art Voice over Internet Protocol ("VoIP") technology. It was stated that SRG would build an Internet Protocol ("IP") based broadband wireless network which would support data, voice and video applications. Attention was drawn to the potential that a new entrant into the voice market would enjoy to capture early market share from BTC, including the introduction of reduced tariffs for long distance, through the use of next generation packet switched networks instead of costly and aging circuit switched networks, the introduction of cost effective in-network and out-of-network domestic and inter-island services and the packaging of Internet and other IP services with voice services.
8. On 28 February 2002 the executive director of the PUC wrote to SRG congratulating it on its application having been evaluated as the most meritorious proposal. He said that the PUC would be contacting it within 10 working days to review all the relevant details to complete the processing of the licence to SRG. Articles reporting on SRG's successful application were published in The Tribune on 1 March 2002 and in The Nassau Guardian on 4 March 2002. The headline to the article in the Nassau Guardian was "SRG to compete with Batelco and Cable Bahamas." On 1 May 2002 the Minister responsible for telecommunications published a notice in the Official Gazette stating that he had determined, after consultation with the PUC, that the expiry date of the Exclusivity Period of 31 December 2003, delaying competition in the provision of international, inter-island and local public voice services over fixed networks and the leasing of circuits for voice services, was to be vacated until further notice.
9. In October 2002 the Government published a revised Telecommunications Sector Policy ("TSP 2002"). In the Preface to this version of the TSP it was explained that, as the sale of the Government's shares to a strategic investor had been delayed and because more work was needed to prepare BTC for full competition, the Government had decided that competition in the provision of international, inter-island and local public voice services over a fixed network and the leasing of circuits for voice services was to be deferred until the expiration of 24 months from the date of the completion of the sale. This period of deferment was referred to as "the Fixed Exclusivity Period". The intention was that the status of the telecommunications sector would be reviewed by the PUC with a view to opening up the sector to further competition after the expiry of the Fixed Exclusivity Period in accordance with section 6(1)(i) of the 1999 Act.
10. Section 5.6 of TSP 2002 contained a number of changes from the version of this clause as set out in TSP 2001. So far relevant to this case, it was in these terms:

"5.6 Experience elsewhere has shown that the greatest gains in efficiency, cost reduction and quality and variety of services are achieved from competition, not merely privatising a monopoly. It is, therefore, the Government's policy to move towards liberalisation of all telecommunications services in The Bahamas. However, it recognises the need to be pragmatic. A short delay in introducing full competition in limited areas indicated below, will allow BTC time to prepare for a multi-carrier environment, to modernise and restructure, and to rebalance its tariffs while ensuring that BTC can continue to operate a sustainable business and therefore remain an attractive proposition for future investors.

5.6.1 Before and since the issue of the Telecommunications Sector Policy in July 2001, the Public Utilities Commission has undertaken a number of measures to implement that policy as required by it under section 6(1)(b) of the Telecommunications Act 1999. In particular:

? on 26^th February 2002, the Public Utilities Commission, after a competitive process, determined that it would award a Fixed Radiocommunications System Licence with the right to provide fixed voice telephony from 1 January 2004;

…

? under a Licence dated 1 October 2000 Cable Bahamas Limited was authorised to lease circuits and provide public Internet services in New Providence in direct competition to BTC, and this licence has now been extended to the whole of The Bahamas.

5.6.2 Because privatisation of BTC has been delayed and more work is needed to prepare BTC for full competition, the Government has decided that:

…

? any further competition in the provision of international, inter-island and local public voice services over a fixed network and the leasing of circuits for voice services will be deferred until the expiration of a period of twenty-four (24) months from the date of completion of the sale of shares in BTC to a strategic investor ("the Fixed Exclusivity Period");

? the status of the telecommunications sector will be reviewed by the PUC with a view to opening the sector to further competition after the expiry of the Fixed Exclusivity Period in accordance with section 6(1)(i) of the Act;

? in all other areas, including satellite, microwave and other wireless means of telecommunication, value-added services, customer premises equipment and Internet access (but not voice over IP or voice over the Internet as discussed in Section 8 below), competition will be introduced immediately.

…"

11. Notwithstanding the changes that had been made to section 5.6, section 8.21 of TSP 2002 was in the same terms as in TSP 2001. It stated:

"Since BTC's Exclusive Rights will include voice telephony, irrespective of the network used, it will not be permissible for any company other than BTC to provide voice services over the Internet or voice over Internet Protocol Networks for the duration of the Exclusivity Period."

Perhaps due to a drafting oversight, section 8.21 appears not to have recognised the licence granted to SRG which is referred to in section 5.6.1, and to have overlooked also the significance of the words "further competition" in section 5.62 [emphasis added] which may also be taken to indicate that the Government was aware when it published TSP 2002 that the PUC had decided to award a licence to SRG to provide telephony services with effect from 1 January 2004. As the Court of Appeal observed in para 10 of its judgment, this revised version of the TSP is at the centre of the dispute between the parties. Does it, or does it not, affirm the decision of the PUC in February 2002 to grant SRG a licence which allows for the use of the VoIP technology?

12. On 23 October 2002, in the exercise of powers conferred on it by sections 9 and 30 of the 1999 Act, the PUC issued the licence which had been sought by SRG to provide public fixed radiocommunications systems and telecommunications services of every description within the service area of New Providence, Grand Bahama and Abaco. In condition 2.3 of the licence it was stated that the licensee was prohibited from providing fixed voice telephony until 1 January 2004 but that other telecommunications services including portable data services might be provided at any time.
13. Questions were subsequently raised by members of the public about the legality of the provision of VoIP in competition with BTC. On 18 March and 5 April 2004 the PUC published a notice in the Official Gazette in which it stated:

"The Public Utilities Commission hereby informs the public that:

(a) The PUC considers Voice Telephony services over the Internet to be a functional equivalent of Voice Telephony in accordance with Section 8.21 of the Telecommunications Sector Policy;

(b) Only The Bahamas Telecommunications Company and Systems Resource Group have been licensed by the PUC, in accordance with Section 9 of the Telecommunications Act, to provide Voice Telephony Services."

On 1 April 2004 an article was published in The Nassau Guardian which was headed "PUC warns of consequences of illegal VoIP Protocol." According to this article there had been a proliferation of advertisements offering reduced international telephone rates and the PUC had received increasing inquiries relating to VoIP. The PUC had said, however, that only BTC and SRG had been licensed by the PUC to provide public voice telephony services which included VoIP and Voice over Internet Protocol Networks.

The proceedings

14. On 22 September 2004 BTC sought, for the first time, to question the legality of the grant of the PUC's decision to issue a licence to SRG to provide VoIP services. Its Vice-President and Company Secretary, Ms Felicity Johnson wrote to Mr George Moss, the Executive Director of the PUC, referring to the public notices of 18 March and 5 April 2004 and the article in The Nassau Guardian of 1 April 2004. She sought clarification of the position, as it was BTC's understanding that it was the only carrier allowed to provide this service under section 8.21 of TSP 2002 and the protection of this exclusivity was of the utmost importance to it. In his reply dated 5 October 2004 Mr Moss said that the PUC considered that there had been an oversight when the policy was amended in 2002. This was because the amended policy recognised the award of a fixed radiocommunications licence with the right to provide fixed voice telephony from 1 January 2004, and because in that licence the description of the licensed services referred to telecommunications services of every description and voice telephony had been defined to include any service that was functionally and commercially substitutable therefor. In a further letter dated 15 November 2004 Mr Moss maintained his position that the issue of the licence to SRG had inadvertently not been addressed by section 8.21 of TSP 2002. He said that the PUC was satisfied that it had acted in accordance with the provisions of the policy.
15. On 30 November 2004 BTC filed an originating summons dated 22 November 2004 in which it sought a series of declarations which may be summarised as follows: (1) that section 8.21 of TSP 2002 provides for BTC to have the exclusive right to offer VoIP during the Exclusivity Period; (2) that section 5.6.2 of the TSP affords and grants to BTC the exclusive right and use of VoIP and that this service is not open for competition; (3) that the exclusive right and enjoyment of VoIP by BTC extends to the full duration of the Exclusivity Period which is still operable; (4) that the authority of the PUC in respect of its mandate, jurisdiction and powers is subject to the TSP; (5) that the statutory jurisdiction and powers of the PUC must be exercised in strict conformity with the TSP; (6) that the functions of the PUC do not extend to unilaterally altering, modifying, changing or amending the TSP; and (7) that the PUC can only exercise its powers in strict conformity with the TSP. It also sought an order to direct the PUC to publish by way of public notice that BTC has the exclusive and sole right to offer VoIP during the Exclusivity Period.
16. The PUC, in reply, applied by way of summons under Order 18 rule 19 of the Rules of the Supreme Court for an order that BTC's originating summons be struck out as an abuse of process. The essence of the argument which was presented on its behalf to Longley J and concurred in, for its interest, by SRG, was that BTC had adopted the wrong procedure. It was submitted that the only avenue for challenging the decision of the PUC to issue a licence to SRG to provide VoIP in competition with BTC was under section 7 of the 1999 Act. That section provides:

"(1) All decisions of the Commission made in the exercise of its functions under this Act shall be final, other than a decision –

(a) on a point of law and questions of law;

(b) to refuse to grant an individual licence;

(c) that a licensee is Dominant;

(d) to modify a licence in accordance with section 12(4)(d);

(e) to revoke an individual licence; or

(f) to impose a fine.

(2) Any person aggrieved by a decision referred to in subsection (1) may appeal to the court on a point of law, on the ground that the decision was unreasonable in the light of the information available to the Commission at the time it made its decision or on the ground that it was unreasonable for the Commission to make a decision without ascertaining further information.

(3) On an appeal the court may –

(a) dismiss the appeal; or

(b) allow the appeal; and

(i) in relation to a point of law give such direction as the court thinks fit; and

(ii) in any other case remit the matter to the Commission for reconsideration generally or for such further consideration by the Commission as the court thinks fit, and may make such order as to costs including costs in the proceedings before the Commission and such other order as it thinks fit."

17. The PUC also submitted that an appeal against its decision under section 7 of the 1999 Act was subject to the provisions of Order 55 of the Rules of the Supreme Court, as rule 1(1) of that Order provides that it shall apply to every appeal which by or under any enactment lies to the Supreme court from any court, tribunal or person. Rule 4(2) of Order 55 provides that the notice of the motion by which an appeal to which the order applies must be served, and the appeal entered, within 28 days after the date of the judgment, order, determination or other decision against which the appeal is brought. BTC had been late in seeking to vindicate its rights. Had it observed the right procedure it ought to have brought the proceedings within 28 days of the decision complained of. As the limitation period had expired, it would have needed leave, the grant of which would not have been automatic but discretionary. Its attempt to challenge the PUC's decision by applying to the original jurisdiction of the court rather than its appellate jurisdiction was, it was submitted, an abuse of process.
18. Longley J said that it was clear that the proper interpretation of TSP 2002 was at the heart of the dispute, that the resolution of that issue might involve the adduction of evidence of a highly technical nature to assess how the PUC came to decide that VoIP is the functional equivalent of voice telephony. He indicated that in his opinion, as the remedy that was sought could not be obtained under section 7 which was more limited in scope, the process was one that legitimately sought to resolve a dispute and was not an abuse of process. He rejected SRG's argument that the court should not usurp the function of the PUC, as the PUC was in no better position than the court to say what the law was in any matter that was before it.
19. The Court of Appeal held that the judge was wrong to rule that the issues raised by BTC could be considered by the court in its original jurisdiction. In its view the question at the heart of the dispute was a regulatory question, and Parliament had mandated that any challenge to any determination of that kind by the PUC was to be by the use of the special appellate procedure. It noted that no complaint had been filed with the PUC under section 6(2)(b) of the 1999 Act about the operation of SRG's telecommunications service. If, as BTC had submitted, the PUC had acted outside the ambit of the TSP in approving SRG's use of the VoIP technology, this would have given rise to a question of law on the proper construction of the TSP. As it was, the reliefs prayed for directly challenged the determinations of the PUC in the exercise of its regulatory function. As they plainly affected BTC, they would have given it a right of appeal under section 7 of the 1999 Act when it received notice of them. The procedure which BTC had adopted instead was contrary to the expressed intention of Parliament that decisions of the PUC in the exercise of its regulatory function, other than those enumerated in section 7(1), were to be final.

The issues

20. Dr Barnett submitted that a summons to strike out should only be granted in rare cases, and that this was not one of them. He pointed out that, in terms of section 4(e) of the 1999 Act, the statutory objective of promoting competition in telecommunications services in The Bahamas was subject to any special rights granted to BTC in accordance with the sector policy. There had been no relevant decision under section 7 of the Act because the PUC when making its decision to issue a licence to SRG to offer VoIP had not complied with the procedural preconditions for the making of decisions of that kind as set out in section 6(5) of the Act. The licence had not been issued to SRG until after the Minister had announced the Government's decision to vacate the expiry of the Exclusivity Period. So the PUC's decision had not only been reached without carrying out the right procedure. It was contrary to the sector policy. As the PUC had not been exercising its functions under the Act, the limitations on the right to challenge its decisions which were prescribed by section 7 did not apply. In any event it was within the powers of the judge under section 5 of the Supreme Court Act to allow a mistake in the choice of procedure to be corrected. Order 80, rule 1 RSC, which provides for applications under it to be made by originating motion, was more appropriate to appeals against determinations by the PUC as it was a government department within the meaning of that rule. He also submitted that the PUC did not make its position clear until Mr Moss did so in his letter of 15 November 2004. So there had been no unreasonable delay.
21. For the PUC Mr Bethell submitted that the notice of 18 March 2004 was a decision by the PUC in the exercise of its functions and powers under the 1999 Act within the meaning of section 7(1). So the proper course for BTC to have taken was to take that decision to appeal under section 7(2), failing which it should have applied for judicial review within the relevant time limit. He stressed, as did Mr Moree in his helpful submissions for SRG, that the only point at issue was the ambiguity that was created when section 8.21 was read with section 5.6.1 of TSP 2002. He said that an application of the kind made in this case, unfettered by any time limit, would undermine the functions of the regulator in a dynamic industry which depended for its success on certainty and finality. Expanding on those submissions, Mr Moree said that it was enough for time to begin to run against it that BTC was made aware of the PUC's decision by means of the notice of 18 March 2004. At the latest it started running on 1 April 2004. Weight had to be given to the decision by Parliament to place decisions of this kind in the hands of regulator and to provide a statutory procedure by which its decisions, in so far as they were not final, could be brought before the court. The present proceeding were an abuse of process because BTC was seeking to overcome the time limits that applied to the alternative means of challenge that it ought to have adopted.

Discussion

22. Their Lordships are willing to accept that section 7 of the 1999 Act does not provide the only possible way of bringing a determination of the PUC before the court on the ground that it is contrary to law because it is inconsistent with the sector policy. Its decision to issue a licence to SRG which enabled it to offer VoIP with effect from 1 January 2004 was, on the face of it, an exercise of its regulatory function. As the Court of Appeal observed in Cable Bahamas v Public Utilities Commission, 10 November 2003, not reported, the courts are not always best equipped for the determination and resolution of disputes of a technical nature such as those relating to the provision of telecommunications services. Questions of fact of that kind are best resolved by a specialist body whose decisions are informed by experts in the relevant technology. So their Lordships wish to emphasise that it will seldom be appropriate for decisions by such a body to be challenged otherwise than under the procedure which Parliament has laid down. But where it is submitted that the regulatory body has acted entirely outside the limits of its powers under the statute, as Dr Barnett submits the PUC has done it this case, judicial review may offer an alternative to the statutory procedure. That however is not the procedure that has been adopted in this case.
23. The procedure that BTC has adopted gives rise to a variety of objections which, in their Lordships' opinion, are insurmountable. The first is that the declarations sought, in so far as they are not so vague as to merit being struck out on that ground, were all capable of being dealt with by means of judicial review of the PUC's decision to issue the licence to SRG. The declarations that are sought do not mention SRG, but there is no doubt that the issue of the licence to it is the focus of BTC's complaint. There is no suggestion that the PUC have issued, or intend to issue, a licence to anyone else to offer VoIP services in competition with BTC. In essence BTC's claim is an attack on the PUC's decision to permit SRG to offer VoIP during the Exclusivity Period. Assuming in BTC's favour that the challenge that they seek to make is more appropriate for judicial review than an appeal under section 7 of the 1999 Act, the question remains – why was that procedure not adopted?
24. Then there is the issue of delay. The decision to approve SRG's application was taken in February 2002. The fact that it had been taken was public knowledge, as the articles in The Tribune of 1 March 2002 and The Nassau Guardian indicate. Although the scope of the proposed licence was fully explained in the Call for Applications, their Lordships are also prepared to assume in BTC's favour that it may not have been aware of the full implications of that decision at that stage. But the reason for the delay in issuing the licence, as explained by Mr Moree for SRG and not disputed by Dr Barnett, cannot have escaped its notice. SRG were told on 28 February 2002 that the PUC would be contacting it within 10 working days to review all the relevant details to complete the licensing process. That process was interrupted by an unsuccessful application for judicial review of the decision by a disappointed applicant on various grounds, including allegations of fraud, corruption and conflict of interest. At the very latest, however, BTC were fully informed of the implications by 1 April 2004 when the article in The Nassau Guardian drawing attention to the notice of 18 March 2004 was published. By that stage it was clear, if was not before, that there was an issue as to whether a licence which enabled SRG to provide VoIP with effect from 1 January 2004 was in conflict with section 8.21 of TSP 2002. Yet it was not until 30 November 2004, eight months later, that these proceedings were brought.
25. By that stage the three month limit for bringing proceedings by way of judicial review had expired. In exceptional cases the court may permit an application for judicial review to be brought which is out of time, but the circumstances of this case indicate that such latitude would be wholly inappropriate. The delay, for which no satisfactory explanation has been given, is in itself inexcusable. But account must also be taken of the surrounding circumstances. This was a decision taken by the body on which the regulatory function had been conferred by Parliament. It was consistent with the sector policy at the time when it was taken, because at that stage the expiry date of the Exclusivity Period was 31 December 2003. The fact is that SRG was issued with a licence, in reliance on which it has invested very substantial amounts of money in the purchase and installation of state-of-the-art equipment to enable it to provide a fully modernised telecommunications system. Revocation of the licence in these circumstances, which is what a successful application for judicial review would have led to, would have severe implications not only for SRG but also for the reputation and credibility of the regulatory system in The Bahamas as a whole. These factors show how important it is that proceedings by way of judicial review in such case are brought within the time limit.
26. Account must also be taken of the nature of the issue that lies at the heart of this dispute. It is, in essence, a short point. Read in isolation, section 8.21 of TSP 2002 declares that BTC has the exclusive right to offer VoIP during the Exclusivity Period, which is still running. A licence to SRG which enables it to offer those services with effect from 1 January 2004 would appear, on this basis, to be in conflict with that element of the sector policy. But when TSP 2002 is read as a whole a different conclusion appears to be open. Section 5.6.1 records the fact that on 26 February 2002 the PUC, after a competitive process, had determined that it would award a licence with the right to provide fixed voice telephony from 1 January 2004. Although SRG was not mentioned by name, this is plainly a reference to the determination that the PUC communicated to SRG by its letter of 28 February 2002. Section 5.2.6 reinforces the point that this step had already been taken by the insertion of the word "further" before the word "competition". The inference that these passages in the re-worded section 5.6 were overlooked when the original wording of section 8.21 was allowed to remain unaltered is strengthened further by the fact that it retains the words "the Exclusivity Period" although an expanded formula – "the Fixed Exclusivity Period" – has been adopted in the revised section 5.6.2 and is referred to also in the preface to this version of the TSP. The issue is not one that can be resolved in these proceedings. The point, although touched on, was not fully argued. But it is one which was eminently capable of being resolved quickly by means of an appeal under section 7 of the 1999 Act or by judicial review.
27. These proceedings are not subject to any time limit, unlike proceedings by way of an appeal under section 7 or judicial review. The contrast with those alternatives, both of which were available as a means of bringing the central issue of law before the court, is stark. If they were to be allowed to continue a prolonged litigation would be likely to ensue. This would be wholly incompatible with what was contemplated when the regulatory system that the 1999 Act lays down was enacted. The technology in the field of modern telecommunications is complex and fast moving. Investment is the key to success. But this in turn depends on winning the confidence of the investor that the benefits of his investment will be realised. Dr Barnett submitted that it was open to the court to excuse an irregularity in the choice of procedure. But the situation that is disclosed by this case goes far beyond a mere irregularity. It is not one which the Board, having regard to the general public interest, can excuse. It should be added that their Lordships cannot accept Dr Barnett's submission that Order 80 applies to this case. The PUC is not a government department. It is an independent regulator, whose powers and functions are defined by statute.

Conclusion

28. Their Lordships agree with the Court of Appeal that the originating summons should be struck out as an abuse of the court's process. They will humbly advise Her Majesty that the appeal should be dismissed.