The three member Court of Appeal rejected C&W’s attempts to contest a decision of the ICTA made on December 14th 2006, which rejected C&W’s application to challenge the contractually agreed Mobile Termination Rate (MTR) that exists between itself and Digicel.

MTRs are the rates that operators pay each other for terminating calls on their respective mobile networks.

In a 25 page judgment, the Court of Appeal unanimously ruled that C&W had no arguable case, and dismissed the company's proceedings in their entirety, Digicel revealed. Costs were awarded in favour of the ICTA and Digicel, which joined the legal proceedings as an Interested Party.

Assistant General Manger of Digicel Cayman, Sean Latty, welcomed the decision, stating that:

“Digicel is very pleased that the Grand Court and now the Court of Appeal has ruled in favour of Digicel and the Authority and has rejected C&W’s unmeritorious application which sought to challenge an agreement freely entered into between Digicel and C&W in July 2004 and one that C&W have relied on to their own ends on numerous occasions subsequently."

“Today’s judgment demonstrates that the days of monopoly where one provider can dictate the conditions of the market, are well and truly over. Cable & Wireless’ behaviour throughout this episode, as clearly recognized by the ICTA, the Grand Court and now the Court of Appeal, has been self-serving, unflattering and highly regrettable."

"This is a significant step in the right direction in ensuring that the each operator is working on a level playing field and that ultimately the people of the Cayman Islands can enjoy the benefits of a fully liberalized market".

According to Digicel, C&W’s application centred on an Agreement reached between C&W and Digicel in July 2004, in which a Mobile Termination Rate was agreed. In September 2006, C&W sought to amend the MTR payable between the Parties, notwithstanding that the rate applicable was subject to a binding contract and the fact that C&W had "itself on numerous occasions sought to rely on the binding nature of the Agreement to its own ends over the previous two year period".

Documents put before the Court of Appeal demonstrated that the July 2004 Agreement became less and less commercially advantageous to C&W as Digicel’s customer numbers rapidly grew after the launch of the Digicel service. Part of Digicel’s submission was that commercial considerations provided C&W’s principal motivation behind the firm's recently stated opposition to the Agreement.

C&W ultimately refused to pay the rate as contractually agreed, and Digicel was forced to initiate an Arbitration process with the International Chamber of Commerce.

This process is ongoing, with a hearing scheduled before an ICC Panel in London in June 2008.

“Unfortunately this is just another chapter in our history with Cable & Wireless Ltd who have continually raised barriers to true competition” added Latty.

Digicel currently has a claim in the English High Court against Cable and Wireless plc and various of its subsidiaries (including Cable & Wireless (Cayman Islands) Limited), arguing that it has been the victim of a co-ordinated effort on C&W’s part to prevent and delay Digicel launching competing mobile telephone networks in St Lucia, St Vincent & the Grenadines, Grenada, Barbados, the Cayman Islands, Trinidad & Tobago and the Turks and Caicos Islands.

The Caribbean company is seeking multi-million pound damages. These proceedings will be heard before the High Court in London in April next year.