Weblinks Ltd v Cable and Wireless (West Indies) Ltd Et. Al

• Jurisdiction: Anguilla
• Judge: Webster, J.
• Judgment Date: 12 April 2001
• Neutral Citation: AI 2001 HC 4
• Docket Number: 14 of 2001
• Date: 12 April 2001
• Court: High Court (Saint Christopher, Nevis And Anguilla)

High Court

Webster, J. (Ag.)

14 of 2001

Weblinks Limited

and

Cable And Wireless (West Indies) Limited Et. Al

Appearances:

Mr. David Stern and Mr. Bruce Drurnmond (Instructed by Webster Dyrud Mitchell) for the plaintiff.

Mr. Javan Herberg, Mr. Philip Kite and Mr. Alex Richardson (Instructed by Harney Westwood & Riegels) for the first defendant.

Mr. Ivan Greene for the second defendant

Injunction - Interlocutory injunction — Plaintiff applied for an order to continue an injunction granted by the trial judge restraining the defendants from taking any action interfering with the plaintiff's lawful exercise of its business radio licence until trial of the action or further order — Whether the plaintiff had a cause of action against the defendant which could form the basis for granting interlocutory injunctive relief — Whether there were serious issues to be tried — The adequacy of damages — The balance of convenience — Finding that continuation of injunction would not result in substantial losses to the defendant and the plaintiff would be able to fund an undertaking in damages — Plaintiff's application granted.

1 Webster, J. (AG.): This is an application by the plaintiff (“Weblinks”) for-

• (a) an order to continue the injunction granted by Saunders, J. on February 27, 2001 restraining the first defendant, Cable and Wireless (West Indies) Limited (“Cable and Wireless”) its servants or agents from taking any action which would interfere with Weblinks' lawful exercise of its business radio licence, until the trial of this action or further order (“the negative injunction”); and

• (b) an injunction to compel Cable and Wireless to reconnect the 128 Kilobit internet connection line (“the Line”) leased to Weblinks pursuant to an agreement dated September 29,1999, which was disconnected by Cable and Wireless on February 23, 2001, AND to compel Cable and Wireless to provide necessary technical support and ancillary services thereto to enable Weblinks to operate as an internet service provider (“the mandatory injunction”).

2 At the conclusion of the hearing Weblinks withdrew their claim for the latter portion of the mandatory injunction relating to technical support and ancillary services.

BACKGROUND

3 Cable and Wireless is the sole provider of telecommunications in, to and from Anguilla pursuant to the terms of a telecommunications licence granted by the Government of Anguilla on October 21,1988 under the Telecommunications Ordinance, 1973.

4 Weblinks was formed on June 23, 1999 to provide information technology services in Anguilla. On the basis of an exchange of letters on September 29, 1999 Cable and Wireless and Weblinks entered into an agreement (“the Agreement”) for the provision of the Line at a rate of US $1,250 per month. At all material times the Agreement was subject to Cable and Wireless' standard Terms and Conditions. Weblinks used the Line to provide internet services in its e-commerce business. This includes, and Weblinks says was always intended to include, internet service to third parties. Cable and Wireless disagrees. Their position is that the parties never intended that Weblinks could offer its internet services to third parties.

5 On March 8, 2000 Weblinks was granted a Business Radio Licence by the Government of Anguilla for the 2.4 to 2.8 MHz frequency band (‘the Licence”). The Licence was renewed on February 6, 2001.

6 Weblinks set up a wireless local area network (WLAN) pursuant to the Licence and started supplying high speed wireless internet services to its customers. It is not clear when this started, but it appears to have been in the first half of the year 2000.

7 In November 2000 Cable and Wireless started tests with a view to setting up its own wireless system called NetSpeed. There is evidence from Weblinks, including the evidence of the expert Jim Geier, that the operation of NetSpeed interfered with Weblinks' wireless system. Mr. Sutcliffe Hodge, General Manager of Cable and Wireless, in his Third Affidavit, denied that the interference (if any) was caused by the operation of NetSpeed. However, he concedes that the system used by Cable and Wireless to operate NetSpeed (FHSS) can interfere with the Weblinks' system (DHSS), but the impact of one system on the other is not significant and can be minimised with cooperation between the parties. On this evidence I find that there is a serious issue to be tried regarding interference with the Weblinks wireless system by the operation of NetSpeed.

8 Cable and Wireless protested when they became aware that Weblinks was providing internet services to third parties. Both parties tried to agree terms of an Internet Reseller Agreement. The negotiations were not successful. On February 22, 2001 Cable and Wireless wrote to the Solicitors for Weblinks informing them that: “….your clients must agree to the terms and conditions of our Internet Reseller Agreement and close the use of ifs own telecommunications facilities by 12 noon tomorrow or we will proceed as we have been advised is appropriate to protect our rights.”

9 Weblinks did not comply with the Cable and Wireless demands and on February 23, 2001 Cable and Wireless disconnected the Line.

10 On February 27, 2001 Weblinks initiated these proceedings by Writ of Summons indorsed Statement of Claim. On the same day Weblinks applied for and obtained the negative injunction. The ex parte Summons also sought an order for specific performance of the Agreement, which in substance is the application for the mandatory injunction. Saunders, J. did not deal with this part of the Summons.

11 Cable and Wireless launched NetSpeed on February 27, 2001. The injunction was served on February 28, 2001. They ceased operating NetSpeed on March 6, 2001 when the Government informed them that they did not have a licence to operate the system. The reason for stopping is set out in paragraph 33 of Mr. Hodge's First Affidavit “CCWl has decided, as a matter of prudence, to cease operating its NetSpeed services while the matter is resolved with Government. This was confirmed in a letter to Mr. Banks in CCWl's letter of 8 March”

12 Apparently the decision to stop had nothing to do with the injunction that was served six days earlier.

13 The current position is that Weblinks is operating as an internet service provider using its wireless system without interference by Cable and Wireless. The Line is needed to provide a back up service and the grant of the mandatory injunction will provide this. Cable and Wireless is operating its usual internet service, but cannot offer NetSpeed.

14 The Attorney General has not filed any evidence, and at the commencement of the hearing on April 2, 2001 counsel for the Attorney General informed the court that the Attorney General does not object to the court granting both injunctions.

THE ISSUES

15 The following issues arise in considering Weblinks' application for the negative and mandatory injunctions:

• (a) Does Weblinks have a cause of action against Cable and Wireless which can form the basis for granting interlocutory injunctive relief? Counsel for Weblinks submitted that Weblinks has the following causes of action against Cable and Wireless:

  • (i) Breach of contract by reason of:

    • (1) breach of the Constitution of Anguilla and the guarantee of freedom of expression; and/or

    • (2) breach of an express or implied term of the Agreement that Cable and Wireless would offer its services and perform its obligations and duties thereunder pursuant to the 1988 Licence

  • (ii) Tortious interference with business

  • (iii) Nuisance

  • (iv) Tort simpliciter(breach of duty of care)

• (b) Whether there are serious issues to be tried in relation to the negative injunction

• (c) The adequacy of damages

• (d) The balance of convenience

16 The causes of action of tortious interference, nuisance and tort simpliciter are not pleaded in the Statement of Claim. However, I am satisfied that Cable and Wireless has had adequate opportunity to deal with these issues, especially in the context of an urgent application for interlocutory injunctive relief. Counsel for Weblinks also gave this Court an undertaking to file a re-amended Statement of Claim in due course setting out the causes of action on which he is relying for the purposes of this application. I will therefore deal with all the causes of action that were canvassed at the hearing.

BREACH OF CONSTITUTION

17 It is trite law that a court will not grant injunctive relief unless the applicant can demonstrate a cause of action which, if established at the trial, would support the grant of final injunctive relief: Siskina (Cargo Owners) v. Distos S.A. [1979] A.C. 210; Koch v. Chew (1979) 1 OFLR 537 (BVI Civil Suit No. 237 of 1995 — Georges, J.)

18 Weblinks' claims that it has a cause of action against Cable and Wireless for breaches of the Constitution of Anguilla by virtue of Cable and Wireless' conduct in:

• (a) disconnecting the Line; and

• (b) interfering with Weblinks' wireless service.

19 Weblinks claims that this conduct amounts to a denial of its constitutionally guaranteed right of freedom of expression which is enshrined in section 11 in the following terms: “…no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this section the said freedom includes the freedom to hold opinions and to receive and impart ideas and information without interference.”

20 Redress for the alleged breaches of section 11 is sought under section 16 of the Constitution which provides that: “If any person alleges that any of the provisions of sections 2 to 15 (inclusive) of the Constitution has been, or is being, contravened in relation to him… then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress.”

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