Air Caribbean Ltd v Air Transport Licensing Authority et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Hosein, J.
• Judgment Date: 18 June 1998
• Neutral Citation: TT 1998 HC 84
• Docket Number: HCA No. 707 OF 1998
• Court: High Court (Trinidad and Tobago)
• Date: 18 June 1998

High Court

Hosein, J.

HCA No. 707 OF 1998

Air Caribbean Ltd.

and

Air Transport Licensing Authority et al

Appearances:

Mr. A. Alexander S.C. and Mr. A. Fitzpatrick for applicant

Mr. M. Daly S.C., Mr. E. Prescott, and Mr. R. Harnanan for respondent

Mr. E. Thorne Q.C. and Mr. J. Jeremie for Interested Party

Administrative law - Legitimate expectation — Applicant argued that the respondent represented to and agreed that it would be the sole operator and would have exclusive rights to all domestically generated passenger and freight traffic between Trinidad and Tobago and in reliance thereon it had expended the sum in excess of TT$15,000,000.00 — R. v. DCC ex parte Baker [1995] 1 All E.R. 73 considered — Court held that no representation was made and those that were made were not clear and unambiguous.

Hosein, J.

1 The Facts

2 In the year 1991 the government of Trinidad and Tobago appointed a committee which became known as the Airbridge Committee. The Airbridge Committee was comprised of several senior public servants, as well as Mr. Frank de Matas and Dr. Alison Williams. Mr. de Matas was subsequently appointed chairman of the Airbridge Committee and was the chairman of the respondent for the period 1986 to January 1995. Dr. Williams is now the chairman of the respondent. The Airbridge Committee was mandated to invite proposals for the operation of a scheduled passenger and cargo service between Piarco and Crown Point Airports, to evaluate such proposals and to make recommendations to the Cabinet. To this end the Airbridge Committee issued a Request for Proposals.

3 The request for proposals invited proposals from persons who were interested in being designated as the “the domestic operator”. It was written in language that was far from satisfactory. It however contemplated the selection of a domestic operator which could e been Trinidad and Tobago BWIA International Airway Corporation (“BWIA”), or a combination of BWIA and another airline, or an airline other than BWIA, in its own right. In the event that a proposal was accepted that did not include the participation of BWIA, then that proposer and BWIA were required by the request for proposals to negotiate, under the joint supervision of the respondent and the Airbridge Committee a harmonized schedule. In such a case BWIA was to be excluded from participating in flights that originated at Piarco and terminated at Crown Point and vice versa (Tobago domestic flights) and restricted to ferrying passengers to and from Piarco and Crown Point an its international flights only (Tobago international flights).

4 BWIA was represented on the Airbridge Committee. It did not submit a proposal. The absence of a submission by BWIA of a proposal reduced its participation under the request for proposals to negotiating a harmonized schedule with the applicant under the supervision of the respondent and the Airbridge Committee.

5 On the 8 ^th July 1991 Mr. Leslie Lucky Samaroo, a promoter of the applicant, submitted on its behalf a proposal to the Airbridge Committee. On the 26 ^th November 1991 the applicant was incorporated as a private limited liability company with the principal object of providing an air service between Trinidad and Tobago. The proposal submitted on behalf of the applicant clearly contemplated that the applicant would be the sole provider of air passenger services on the Tobago domestic flights.

6 The total air passenger traffic to and from Piarco and Crown Point in 1990 was in the vicinity of 345,000 passengers. In its proposal the applicant, estimated that it was likely to attract some 276,000 passengers representing same 80 percent of the total traffic which it proposed to carry in on Tobago domestic flights. The applicant also proposed that BWIA should have the benefit of 15 percent of the total traffic which should be accommodated on its Tobago international flights and another airline LIAT would be allowed 5 percent of the total traffic.

7 In 1991 representatives of BWIA and the Airbridge Committee orally represented to the applicant that BWIA and the government of Trinidad and Tobago were desirous of BWIA discontinuing its flights which originated and terminated at Piarco and Crown Point respectively. By letter dated the 31 ^st January 1992, the Permanent Secretary in the Ministry of Works and Transport informed the applicant that the government had agreed that “steps be taken to enter to negotiations” with the applicant “with a view to concluding a contract for the provision of a domestic air service” between Piarco and Crown Point.

8 Shortly thereafter, Cabinet appointed a committee which it purported to authorise, to negotiate with the applicant a contract for the provision of domestic air services between Piarco and Crown Point. This Cabinet committee was also comprised of senior public servants and included Mr. de Matas and Dr. Williams. Representatives of the applicant met with the Cabinet committee n the 16 ^th April 1992. At that meeting the applicant for the first time requested the exclusive right to ferry all domestically generated passenger and freight traffic. The applicant therefore expanded on the scope of the request made in its proposal to the Airbridge Committee. The applicant justified this new request on the grounds of BWIA(s disinterestedness in continuing on the domestic route as well as financial viability of the applicant could be achieved only if it was granted exclusive rights on the route.

9 Following on the meeting, by letter dated the 8 ^th July 1992 the applicant was given the assurance by the Cabinet committee that the negotiations would be conducted “in accordance with the provisions of the request for proposals” and on “the basis of exclusive domestic cabotage rights for scheduled passenger and freight between the two airports”. By letter dated the 5 ^th January 1993 under the hand of the then Minister of Works and Transport the applicant was designated “as the carrier for domestically generated cargo and passenger traffic between Piarco International Airport and Crown Point International Airport for a period of seven (7) years i.e. from March 9 ^th, 1993 to March 8 ^th, 2000”.

10 Thereafter the applicant expended a sum of money which it says is in excess of T.T. $15,000.000 in establishing its operations. Meanwhile, by letter to the Permanent Secretary Ministry of Works and Transport dated the 4 ^th March 1993, the applicant requested confirmation that it had “exclusive rights to all domestically generated passenger and freight traffic between Piarco International Airport and Crown Point International Airport(.

11 By letter dated the 15 ^th March 1993 the Permanent Secretary, Ministry of Works and Transport advised the applicant that Cabinet on the 17 ^th June 1992 noted that “the domestic air service between Trinidad and Tobago be provided by an appropriate carrier with suitable short range aircraft dedicated to the route, the said carrier to be guaranteed a suitable majority percentage of the passenger traffic necessary for financial viability of the route”. The letter also indicated that Cabinet had already noted that the “financial viability of Air Caribbean Limited's proposal for provision of a domestic air service was dependant on a guarantee of a minimum of 80 percent of passenger traffic on the route” and (Cabinet's approval has already been obtained with regard to the guaranteed percentage of traffic or the airline” and the “the information available indicated that the locally generated traffic is 80 percent of all traffic on the route”.

12 Under cover of a letter dated 1 ^st July 1993 the applicant forwarded to the respondent an application for a licence and drew its attention to the “terms that have been agreed to by Air Caribbean and the government of Trinidad and Tobago”. The letter also noted that the applicant “shall have exclusive rights in respect of passenger traffic and cabotage and to the scheduled service on the domestic route between Trinidad and Tobago”. The respondent granted to the applicant two licences, to operate scheduled air services, the first dated the 5 ^th August 1993 and the second dated 14 ^th August 1995. Both licences were issued subject to conditions which were set out in their overleaf. However neither of them made any reference to the issue of exclusivity which engaged the attention of the Airbridge Committee and the Cabinet Committee.

13 Since the issuance of the licences by the respondent the applicant has vigilantly protected what it perceived to be its rights on the route. Prior to commencing its service on the 8 ^th August 1993 as well as thereafter the applicant made written representations to the respondent, in respect of BWIA, which had been granted certain extensions to operate on the domestic route to Piarco and Crown Point respectively. In one instance by letter dated the 27 ^th August 1993 it went to the extent of confirming to the respondent that it had no objection to BWTA operating until the 7 ^th November 1993 subject to certain stated conditions. In addition, on two occasions it commenced proceedings in High Court Actions nos. 3743 and 895 of 1994 respectively to enforce its claims in respect of the route. In High Court Action no. 3743 the applicant's application for interim injunctive relief was refused. On another occasion in High Court Action no. 895 the applicant succeeded in obtaining an injunction requiring the respondent to suspend the permission granted to BWIA to operate flights between Piarco and Crown Point. Bath of these matters were settled by consent orders, which did not resolve the issues central to this dispute.

14 Thereafter in the latter part of 1997, the respondent, in the face of strenuous objection by applicant, granted to another airline LIAT a licence to operate between Piarco and Crown Point. However, the respondent orally informed the applicant that LIAT...