Competition watchdog calls for new court in Jersey

Tuesday 18 May 2021

The leaders of Jersey's competition watchdog have suggested that cases they previously lost were not handled properly by the Royal Court, as they called for a specialist commercial court to be established in the island instead.

Chair of the Jersey Competition Regulatory Authority (JCRA) Stephanie Liston, and CEO Tim Ringsdore, also told the Economic Affairs Scrutiny Panel on Friday that they would like to see an "expert" judge appointed to deal with highly technical cases.

In 2018, the Royal Court set aside the regulator's decision that ATF had abused a dominant market position at the Airport fuel farm by refusing to provide an operator with fuel for resale. 

It was the fourth time the Royal Court had quashed a JCRA decision, with the regulator having previously lost against Clear Mobitel in 2011 and in 2013 and 2017 against JT.

Pictured: The Royal Court's judgment in relation to ATF was the fourth time it had quashed a decision of the regulator.

Referring to the high-profile and publicly-funded case, Scrutiny Panel Chair Deputy David Johnson asked whether Ms Liston and Mr Ringsdore believed a commercial court, or experts in the field, would help deal with future cases.

Speaking to Express, Deputy Johnson said it would be helpful if it was the norm for a special commissioner to be appointed for specific subjects.

"We wouldn't be transferring jurisdiction as they would still be acting under the umbrella of the court," he explained. "But both parties would be confident that the complex subject is being dealt with properly. It’s a very simple common sense suggestion for complex cases which are outside the norm. it’s clearly sensible to have the best mind for the job.

"It would be a simple step to appoint a commissioner for certain cases. The upside then is that both have certainty that their arguments will be understood and viewed accordingly."

During the hearing, Mr Ringsdore said JCRA would support such a suggestion. “We’d like to think that court is the last resort and certainly we have no intention of going there if we can avoid it. We are trying to use our soft and hard powers but if we ever got to that point where you needed to go to court, it would be appropriate that the correct commercial judge or the appropriate judge was there to listen to the complexities of any particular case.”

Pictured: Stephanie Liston is the Chair of the Jersey Competition Regulatory Authority (JCRA).

Ms Liston also supported the idea, suggesting the Royal Court decision had not given proper attention to the issue of competition.

“I think it’s good to have an expert judge if you’ve got a very technical case, and I think competition is a complex area of the law, which based on my reading was not necessarily dealt with by the Courts of Jersey in the way that it should have been,” she said.

“The judges had the opportunity to bring in that expertise and chose not to.”

She went on to say the JCRA aims to “solve issues and achieve the outcomes”, including a “culture of compliance," without having to go to court. 

“If they’re complying, we are not going to have a dispute so I am cautiously optimistic that with the approach we are taking to the stakeholders in Jersey that we can achieve great outcomes for the Jersey economy and for all the stakeholders in the right way without a litigation,” she said.

“If we have to use hard powers and we have to go to court based on behaviours that we think are inappropriate, we are not going to be shy and do that it’s just not going to be our first point of call.”

Pictured: Tim Ringsdore, the CEO of JCRA.

During the same hearing, Ms Liston explained this approach was different from the one adopted by the Guernsey Competition Regulatory Authority (GCRA). She said the JCRA hoped to be able to work closely on issues that are fundamental to the Channel Islands as a whole, including the release of radio spectrum for 5G.

“[The JCRA) are keen to use both soft powers as well as hard powers and we’re very focused on what outcomes we are able to achieve as opposed to being in fighting mode all the time,” she explained. “I think that’s the slight difference in tack between the GCRA and the JCRA.

“I think that one of the things we are focusing on in Jersey, is Jersey and the economy of Jersey and the citizens of Jersey as well as consumers and businesses and one example of that is the failure of emergency services for four months at various times, which we took a very hard line on. 

“We are trying to get some good outcomes associated with what we do on the 12 July outage, which is being treated separately.

“I think that taking those approaches is a good one. We also have a competition case that was ongoing with CICRA with respect to some collaboration on 5G between JT and Sure. We’ve taken a different approach that the GCRA has taken, they are taking a much more aggressive approach with respect to that.”

The JRCA and GCRA were officially established as separate entities last year following the break-up of the 10-year-old Channel Islands Competition and Regulatory Authority (CICRA) in July 2020. It followed a shock request from Jersey’s Economic Development Minister, Senator Lyndon Farnham, to his Guernsey counterpart in February 2020, for the islands to go their separate ways.

While Guernsey's Deputy Charles Parkinson said his committee believed any perceived issues with the regulator could be ironed out, he said Economic Development Minister Senator Lyndon Farnham, who has political responsibility for competition, felt the shared path could be followed no further.

The break-up decision was officially announced two months later.