Two broadband providers have locked horns in court in a long-running row over access to fibre optic cables and a cable station.
A judicial review hearing in Grand Court heard that Flow and C3 Pure Fibre had deadlocked over the latter’s plan to run a sub-duct through Flow’s infrastructure.
It was claimed by C3 that Flow had been unreasonable and halted the work.
C3 was backed in an earlier ruling by telecommunications regulator, the Utility Regulation and Competition Office of the Cayman Islands, known as OfReg or URCO, after it complained Flow had obstructed its legal right to run a duct through Flow’s MAYA-1 cable.
OfReg also said that C3 had been blocked, on the ground of lack of space, from carrying out related work at the subsea cable’s landing station at High Rock Road in East End.
It ruled that Flow should make space available at the station for C3 equipment.
C3 also alleged Flow had charged inflated prices for a variety of work, including duct surveys, clearance and preparatory work.
The 2019 OfReg ruling said that Flow, despite delays by both sides, had responded promptly to requests for quotes from C3.
It added that although it accepted the use of a larger than agreed sub-duct by C3, it was not material and not grounds for breach of contract.
OfReg said that Flow had charged C3 inflated prices for work it had done and for the regular use of duct infrastructure and that compensation was due.
No compensation for cable
OfReg ruled Flow did not have to compensate C3 for any unused sub-duct and associated fibre cable because it had used an unathorised sub-duct.
The ruling said Flow had not done duct clearance or completed preparatory work in an acceptable timeframe.
OfReg told the company that it was not justified in halting the duct clearance and that the work must be completed.
But Flow went to court on Monday, 20 Oct. in a bid to overturn the ruling in a hearing before Justice Jalil Asif KC.
Hector Robinson KC, who appeared for Flow, told the court that C3 had breached the original agreement not to install a sub-duct at Spotts Dock on Shamrock Road to the High Rock station.
He said it was “not in dispute” that the sub-duct cable installed by C3 was bigger than agreed.
Robinson said, “C3 in places installed a duct that was larger than one inch.”
He insisted the question was whether C3 should remove the duct or pay extra for a larger duct.
He added the OfReg decision in 2022 had been unfair to Flow.
Robinson said, “It has resulted in Flow being allowed to charge an amount that is significantly lower than Flow should be allowed to charge.”
Asif told the court that he was not “at this stage” convinced that two times the price of a one-inch duct was appropriate.
Submissions
Robinson said, “We will be making submissions … with respect to some of the decisions OfReg took into consideration – irrelevant matters – and failed to take into consideration matters that were relevant to the matter.”
He added the case was an appeal and that “the court should treat it as such.”
But Monica Carss-Frisk KC, of London’s Blackstone Chambers, said, “We say that these grounds of appeal don’t have merit.”
She insisted that Flow’s arguments did not get over the “high hurdle” to showing irrationality or illegality.
Carss-Frisk added that even in cases where appeals against the decisions of expert regulators were allowed “a degree of deference” was given to the original decision.
She highlighted a judgment by former Chief Justice Sir Anthony Smellie, who ruled in another case that “the test of irrationality was a high and stringent test”.
Carss-Frisk added that the original contract estimated it would take “60 non-consecutive days for Flow to complete” its part of the work.
She said it was not clear when the work started, as early March 2018 was the earliest date, but that it may not have begun until 4 Sept. or 6 Dec. that year.
But Carrs-Frisk said there was no dispute that work had ceased by March 2019.
She added that more than a year was “not a reasonable time to take” for Flow to fulfil its side of the bargain.
She said Flow had shown “a lack of urgency” and that there had been “a lack of detailed information” given.
The hearing continues.
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Flow pocket is DEEP so they think they can do wrong, disregard very good sense of OfReg, the Chief Justice et al and fight in court. Perhaps will find a loop hole to win? Strange mindset.
There are people who know they have not been fair to the Other Operators in terms of sharing Duct and other infrastructure space since their monopoly was broken.
It is also known they have done a lot to delay their delivery to Other Operators.
It has always been a strategy to delay their progress,. They often denied duct space when they had duct space.
That’s why Logic et al went and did their own ducting around George Town.
Then their prices have been always exorbitant.
That is NOT competition. It’s arrogance.