Mauritius Telecom Ltd and 3 others (Respondents) v Emtel Ltd (Appellant) No 2 (Mauritius)
Case ID: JCPC 2022/0074
Jurisdiction: Supreme Court of Mauritius
Case summary
Issue
Whether Mauritius Telecom and Cellplus are liable for acts of alleged unfair competition for breaches of (i) the conditions of Cellplus' mobile phone services licence for operations in Mauritius and (ii) conducting a mobile phone services business prior to the issue of this licence.
Whether the Information and Communication Technologies Authority is jointly liable for tolerating these breaches or whether it cannot be held liable in tort as it has no distinct legal personality.
Facts
In 1989, the Mauritius Telecommunication Authority granted an exclusive licence to Emtel for a seven-year term to provide mobile phone services in Mauritius.
For the operation of the mobile network, Emtel needed to be connected to Mauritius's fixed telephone lines which were operated, during the relevant period, by Mauritius Telecom, a state-owned entity.
In March 1996, Mauritius Telecom incorporated a subsidiary, Cellplus, to operate a mobile phone service competing with Emtel and in September 1996 the Telecommunications Authority granted Cellplus a mobile phone licence on two conditions: (i) Mauritius Telecom had to offer the same interconnection terms (i.e. to the fixed line network) to Emtel as it offered Cellplus; and (ii) Mauritius Telecom was prevented from cross-subsidising Cellplus from profits generated from its monopoly fixed line service.
In June 2000, Emtel claimed damages against (i) the successor of the Telecommunications Authority (the Information and Communication Technologies Authority) (ii) Mauritius Telecom, (iii) Cellplus and (iv) the Ministry of Telecommunications, for acts of unfair competition contrary to Articles 1382 and 1383 of the Mauritian Civil Code.
Emtel alleged: (i) Cellplus provided unlicensed mobile phone services for a six-month period from March 1996 (when it was incorporated) until September 1996 (when it was granted a licence); and (ii) Cellplus had breached the conditions of its licence.
At first instance, the court held that both Mauritius Telecom and Cellplus had breached Article 1382 and the Information Communication Technologies Authority was also liable for tolerating these breaches (although the Ministry was not liable). It awarded damages to Emtel on this basis. The Court of Appeal overturned this decision on appeal.
Parties
Appellant
Emtel Ltd
Respondent
(1) The Information and Communication Technologies Authority
(2) Mauritius Telecom Ltd, Cellplus Mobile Communications Ltd
(3) The Ministry of Information Technology, Communication and Innovation
Appeal
Justices
Lord Reed, Lord Briggs, Lord Sales, Lady Rose, Lady Simler
Hearing start date
16 January 2024
Hearing finish date
17 January 2024
| Watch hearing | ||
|---|---|---|
| 16 January 2024 | Morning session | Afternoon session |
| 17 January 2024 | Morning session | Afternoon session |
Judgment details
Judgment date
22 April 2024
Neutral citation
[2024] UKPC 9