A judge has ruled that Digicel did not contract KT Engineering Consultants to help install a subsea fibre optic cable link for Montserrat.
The local company claimed they had entered into a binding agreement with the telecommunications giant to provide engineering and contract work, before it was given to another firm.
However, Digicel has always denied that any agreement with the claimant was reached.
Litigation on the matter began in 2020, and culminated in a one-day trial in the Montserrat High Court on 22 February.
In his judgment on 27 May, Justice Dale Fitzpatrick explained that the Government of Montserrat had retained Digicel to install a subsea to land link to provide a fibre optic network for the island.
The telecoms provider then created a ‘request for proposal’ for invited contractors to bid for the works.
Fitzpatrick said material communications between parties were all in writing – namely by email sometimes with attachments – over a period of about one month in early 2020.
An email exchange
The trial evidence focused on the contents of the written communications between William Keith Thomas of KT Engineering Consultants and Digicel.
On 10 January, 2020, Thomas issued a bid of US$1,385,000 to Digicel for the works, the acting high court judge said.
Digicel’s programme manager Krystle Francis then emailed him seeking revised pricing. In response, Thomas issued a second bid of US$1,399,900 on 30 January.
Digicel’s head of procurement Annette Griffiths this time responded on 31 January saying “We see your company with high potential to secure this bid…”
She suggested, however, their price should be a minimum of 10% lower at a final price of US$1.25 million.
“We sincerely hope you will consider our counter offer as this will put us one step closer to closing this deal with your company,” she wrote.
Thomas agreed to the lower price, however following a short email exchange, Griffiths wrote to say that another company had been selected for the works.
In response Thomas wrote back that he was shocked as he had “realistic and reasonable expectations that I would be awarded the contract”.
A reasonable person
Fitzpatrick said, in his judgment, that the focused issue before the court was whether the parties, through their written communications, had entered into a binding agreement.
“The determination of this issue is on the objective standard, namely how would an objective person (the ‘reasonable person’) interpret the communications,” the judge added.
In his conclusion he wrote that there is “no doubt” the language that Griffiths used in her 31 January email, in particular her use of ‘counter offer’, could have been better chosen.
“That said, the use of a phrase does not alone determine the content of communications. The whole communications of the parties must be interpreted objectively,” he said.
The judge said the claimant failed to prove the case on the civil standard and he dismissed the claim. He said the parties should attempt to resolve the costs between them.
A fibre optic network is a telecommunications infrastructure that uses strands of glass or plastic fibres to transmit data as light signals.
These networks are known for their high speed and capacity, making them a crucial component of modern communication systems.
