The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands - Judgment

¶ CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 1 Neutral Citation Number: [2026] CICA (Civ) 15 IN THE CAYMAN ISLANDS COURT OF APPEAL ON APPEAL FROM THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION (CIVIL APPEAL NO CICA 14 of 2025) (formerly CAUSE NO G 0154 of 2023) BETWEEN (1) THE UTILITY REGULATION AND COMPETITION OFFICE APPELLANT -AND- THE KING ON THE APPLICATION OF INFINITY BROADBAND LIMITED (TRADING AS C3 PURE FIBRE) RESPONDENT -AND- THE ATTORNEY GENERAL OF THE CAYMAN ISLANDS (AS THE REPRESENTATIVE OF THE CAYMAN ISLANDS GOVERNMENT) INTERVENER Before: The Right Hon. Sir John Goldring, President The Hon. Sir Richard Field, JA The Hon. Sir Michael Birt, JA CACV2025-0014 2026-09-10 Digitally signed by Advance Performance Exponents Inc. Date: 2026.09.10 10:52:51 -05:00 Reason: Document Certification Location: Court Document Management System CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 2 Appearances: Mr Sam Grodzinski, KC, Ms Anna Peccarino and Ms Amanda Minto of Travers Thorp Alberga for the Appellant Mr Chris Buttler, KC and Ms Sally Bowler of McGrath Tonner for the Respondent Sir James Eadie, KC and Mr Michael Smith of the Attorney General’s Chambers for the Intervener Heard: 5-6 May 2026 Draft circulated: 25 August 2026 Judgment delivered: 10 September 2026 JUDGMENT Sir Michael Birt, JA Introduction

¶ [1] In 2002, by means of the Information and Communication Technology Act (“the ICT Act”) the Cayman Islands liberated the information, communication and technology (“ICT”) market by enabling ICT providers to apply for a licence to operate in the Cayman Islands. S.30(1) of the ICT Act provided that the regulator should determine the fees payable by licence holders and the regulator determined in 2003 that the annual fee should comprise two elements. The first (“the Regulatory Fee”) was calculated as a licence holder’s pro-rata share of the regulator’s costs of regulating the ICT sector and the second (“the Royalty Fee”) was fixed at 6% of the revenue (as defined) of the relevant licence holder. These fee levels were published in 2003. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 3

¶ [2] The Respondent (“Infinity”) was granted a licence in 2004, i.e. after the fee levels had been fixed and published as described above. The licence itself also contained full details of the Regulatory Fee and Royalty Fee payable by Infinity.

¶ [3] Despite having held a licence since 2004 and paid the annual licence fees for a number of years, in circumstances described below, Infinity has challenged the legality of the fees. By way of judicial review proceedings instituted in 2023, it contends that s.30(1) of the ICT Act does not authorise the charging of the Royalty Fee and that, in relation to the Regulatory Fee, that fee has never been prescribed by regulations as, it is submitted, is required.

¶ [4] In a judgment dated 28 August 2025 (“the Judgment”), Kawaley J (“the judge”) granted the application for judicial review and declared that Infinity was not liable to pay the Royalty Fee or the Regulatory Fee.

¶ [5] The Appellant now appeals against that decision. On 20 January 2026, the Attorney General applied for leave to intervene in the appeal on the ground that the decision of the judge would have broader impacts into other contexts and legislative schemes and engaged the interests of the Government and also the public interest. On 27 January 2026, the President granted the Attorney General’s application and the court has had the benefit of written and oral submissions on behalf of the Attorney General as well as the Appellant and the Respondent. The Attorney General supports the contention of the Appellant that the judge erred in his conclusion.

¶ [6] Finally, by way of introduction, I would mention some points concerning the terminology used in this judgment: (i) The legislature of the Cayman Islands was in 2002 known as the Legislative Assembly whereas it is now known as Parliament. I shall use the latter CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 4 expression even in respect of periods before the change of name unless the context makes it preferable to refer to the Legislative Assembly. (ii) Similarly, statutes in 2002 were referred to as Laws whereas nowadays they are referred to as Acts. Pursuant to s.4 of the Citation of Acts of Parliament Act 2020, all enactments prior to the commencement of that statute are amended so as to refer throughout to ‘Acts’ rather than ‘Laws’. Again, I shall use the current terminology even in respect of enactments which were originally called Laws unless the context makes it preferable to use the old terminology. (iii) When the ICT Act was enacted, the nominated regulator was the Information and Communications Technology Authority (“the Authority”). In January 2017, the Utility Regulation and Competition Act (the “Utility Regulation Act”) was enacted and established the Appellant (“the Office”), which took over the statutory functions of the Authority under the ICT Act. Again, for convenience, I shall refer to the Office even in respect of the period before 2017 (when actions were in fact taken by the Authority), unless the context makes it preferable to refer to the Authority. (iv) A number of the statutes to which it is necessary to refer have been updated and revised periodically. I shall for the most part refer to the latest revision for convenience where the relevant section has not been subject to material alteration, but I shall refer to an original or earlier version where this is necessary. (v) All references to $ are to CI$. The factual background

¶ [7] From 1966 until 2003, Cable & Wireless (Cayman Islands) Limited (“C&W”) was a monopoly provider of telecommunications services in the Cayman Islands. It CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 5 operated pursuant to an agreement which it entered into with Government pursuant to s.3 of the Telephone Act which provided that it was lawful for the Government to enter into an agreement with any company to provide and operate a telephone system in the Islands. According to the affidavit of Sonji Myles, the interim CEO of the Office, the agreement provided for payment by C&W to the Government of a sum equal to 8% of its revenue.

¶ [8] The sum paid to the Government formed part of Government revenue and was disclosed each year to Parliament as part of the annual budget process under the heading “Cable & Wireless licence”. The 2001 Budget document showed income from the C&W licence of $5.4m for 2000 and estimated income of $7.3m for 2001.

¶ [9] In 2001, a decision was made to liberalise the ICT market and this resulted in the enactment in May 2002 of the ICT Act. The Act created the Authority as regulator and envisaged the grant by the Authority of licences to offer ICT services to various different operators. References hereafter to the various sections of the ICT Act are to the 2019 Revision (unless otherwise stated) on the basis that there has been no material alteration to the wording of the relevant section. I shall consider the various provisions of the ICT Act in more detail later in this judgment but for present purposes the key provision is that in s.30(1) which provides (and has always provided): “A licence granted under this Act shall be subject to the prescribed licence fees which shall be determined by the Authority.”

¶ [10] On 5 August 2003, the Cabinet agreed to the setting of the Royalty Fee based on 6% of each licensee’s gross revenue. This was subsequently approved by the acting Governor. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 6

¶ [11] Shortly afterwards, on 1 October 2003, the Authority published a notice in the Gazette under s.23(2) of the ICT Act which referred to ICT services of various kinds and stated “licensees of these services are subject to a royalty fee based on a percentage of annual gross revenue”.

¶ [12] On 12 November 2003, the Authority published guidelines entitled “Licence Fees for Long-term ICT Licenses – Guidelines for Licensees” (“the Guidelines”) which set out in detail how licence fees would be calculated. The Guidelines included the following statement: “The quarterly licence fee will comprise of: (1) a royalty fee to be calculated as 6% of the Licensee’s quarterly revenues; and (2) a regulatory fee to be calculated based on the Authority’s quarterly on-going expenditures for the regulation of the ICT networks and ICT services….multiplied by the Licensee’s revenues for the ICT networks or ICT services….for the quarter immediately preceding the quarter for which licence fees are due, divided by all Licensees’ revenues for the ICT networks or ICT services…for the same quarter.” These Guidelines were placed on the Authority’s website and revised versions of the Guidelines have since been placed periodically on the Office’s website, including those published on 17 January 2013. There has been no material change in the Guidelines concerning the licence fees to be charged as described above.

¶ [13] Infinity applied for a licence, which was granted on 13 December 2004. The terms of the licence were in the standard form applicable to all similar licences. Condition 3 stated that the licence fees payable for the operation of the licenced ICT networks and services were as specified in Annex 2, which in turn set out in detail the Royalty CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 7 Fee and the Regulatory Fee as described above. Thus the Royalty Fee was expressed as 6% of quarterly revenue, which was in turn defined as the quarterly turnover less payments to other licensees and non-recurring extraordinary items of receipt not made in the ordinary course of business.

¶ [14] In accordance with s.34 of the ICT Act, which obliges the Office to maintain a public register of licences, all ICT licences, including those granted to Infinity, have been published on the website of the Office.

¶ [15] Occasionally, the Office would propose to amend the terms of ICT licences and would consult licensees under s.31 of the ICT Act to obtain their agreement in writing. For example, on 5 September 2013, the Office wrote to all ICT licensees notifying them of proposed amendments to Annex 2 of their licence concerning the definition of turnover for the purposes of the calculation of fees. On the same date, Infinity confirmed in writing that it had no objection to the proposed changes to Annex 2 of its licence.

¶ [16] On 1 April 2021, a new licence was granted to Infinity on terms which, for present purposes, were similar in all relevant respects to the licence granted in 2004. Details of the Royalty Fee and the Regulatory Fee payable by Infinity were again set out in Annex 2 of the 2021 licence.

¶ [17] The fact that substantial income was being derived from annual fees for ICT licences has regularly been notified to Parliament. Thus: (i) On 15 February 2005, the Authority provided a report entitled “The first two years: a report on the ICT Authority’s performance and finances for the period from 8th May 2002 to 30th June 2004”. The report included the following passage: CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 8 “Subsequent to 30 June 2003, the Authority issued Guidelines in November 2003 on how the licence fees will be calculated. Each Licensee’s fees will be comprised of a royalty fee and a regulatory fee. The royalty fee, which is set by the Government, will be 6% of each Licensee’s revenues and paid to the Government. The regulatory fee is based on the Authority’s operating costs for the regulation of the ICT Networks and ICT Services and will be paid to the Authority.” The report went on to make clear that the 6% Royalty Fee payments were immediately transferred to Government and did not pass through the books of the Authority. (ii) Annual financial statements of the Office are laid before the Parliament under s.43 of the Utilities Regulation Act and refer expressly to the 6% Royalty Fee. For example, the 2021 financial statement stated: “As part of the services provided to the Government, the Office collected, verified and remitted the 6% Royalty Fee from ICT licensees as follows…”. (iii) The 6% Royalty Fees form part of the Government’s annual budgeting process which is approved each year by Parliament under the relevant finance legislation. The plans and estimates lodged by the Government as part of this process itemise various sources of income under the heading “Coercive Revenue” and include under that heading the income from “ICTA Licences”. The plans and estimates before us disclose the income received from ICTA Licences for 2005, 2016, 2018 and 2020. The figure varies between $7.3m in 2005 and $7.89m in 2020.

¶ [18] Infinity did not in fact start providing ICT services for many years with the consequence that its annual licence fees only became payable from May 2015. According to the affidavit sworn on behalf of the Office, between 2015 and 2023, CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 9 Infinity paid some $593,042 in respect of both the Regulatory Fee and the Royalty Fee.

¶ [19] However, it ceased payment of the Royalty Fee in the fourth quarter of 2019 and the Regulatory Fee in the fourth quarter of 2022. It has not paid any fees since then. According to the affidavit of Randy Merren on behalf of Infinity, the non-payment was originally because of dissatisfaction on the part of Infinity with the manner in which the Office was carrying out certain of its regulatory functions.

¶ [20] On 18 August 2023, the Office issued an Enforcement Notice under s.91 of the Utility Regulation Act determining that Infinity had failed to pay outstanding Royalty Fees and Regulatory Fees in the amount of $506,047 (including interest). The proceedings

¶ [21] On 29 August 2023, Infinity issued its application for leave to apply for judicial review and also appealed under s.91(11) of the Utility Regulation Act against the Enforcement Notice. In its application for judicial review, Infinity sought a declaration that it was not liable to pay either the Royalty Fee or the Regulatory Fee, an order quashing the Enforcement Notice and an order for restitution of all licence fee payments which it had made.

¶ [22] In outline, it argued that the Royalty Fee amounted to a tax and that s.30(1) of the ICT Act did not confer authority to levy a tax as opposed to a fee. It further argued that the licence fee (whether Royalty Fee or Regulatory Fee) could only lawfully be levied by means of regulations made by the Office and no such regulations had been made. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 10

¶ [23] Following an inter partes hearing, in a judgment dated 1 December 2023, the judge considered that the case raised a matter of law and that he was in a position to determine the correct legal position as he had heard full argument. He refused leave to apply for judicial review. In summary, he held that s.30(1) had conferred the necessary authority on the Office to levy both the Royalty Fee and the Regulatory Fee and that, although regulations were required, the licence itself, which in accordance with the requirements of s.34 of the ICT Act had been published by the Office on its website, constituted regulations for this purpose.

¶ [24] Infinity appealed to this court and, by its judgment dated 29 November 2024, this court allowed the appeal and granted leave to apply for judicial review. The court said that it was expressing no view on whether Infinity’s arguments would ultimately be successful but they were arguable grounds which met the threshold for granting leave to apply for judicial review. The matter was therefore remitted to the Grand Court.

¶ [25] In due course, the matter came back before the judge for the hearing of the judicial review application. On this occasion, for the reasons set out in the Judgment, the judge reached the opposite conclusion from that which he had reached on the previous occasion. I would summarise his conclusions as follows: (i) S.30(1) of the ICT Act authorised the Office to prescribe licence fees, but it did not empower the Office to collect “coercive revenue” as part of such fees. Clear words were required to confer on a statutory body, not charged under its governing statute with collecting coercive revenue, authority to do so through the mechanism of licencing fees. Furthermore, the natural and ordinary meaning of the term “fees” did not, without more, connote anything other than fees “in the usual quid-pro-quo sense” (see [86]-[88] of the Judgment). CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 11 (ii) The approval of the Royalty Fee by the Cabinet and the Governor in 2003, and subsequently each year by Parliament in the annual budget pursuant to the relevant finance legislation, also did not provide lawful authority for such fee. (iii) The licence fees under s.30(1) (both the Royalty Fee and the Regulatory Fee) could only lawfully be collected if the obligation to pay them was set out in subordinate legislation (“regulations”). Contrary to the submission of the Office, neither Infinity’s licence itself nor the Guidelines constituted “regulations” despite the wide meaning of that term in s.3(1) of the Interpretation Act (1995) Revision. Furthermore, there was a requirement for regulations to be published in the Gazette and this had not occurred. (iv) Applying the principles of R v Soneji [2006] 1 AC 340, the failure to make regulations meant that fees had been collected without the required legislative authority and Parliament would not have intended that this could be overlooked and not result in invalidity. (v) In summary therefore, the judge held that there was no power to charge the Royalty Fee and that, while s.30(1) entitled the Office to impose the Regulatory Fee, the necessary subordinate legislation had not been passed with the result that the Regulatory Fee could also not be lawfully charged.

¶ [26] I should add that the court was informed at the hearing of the appeal that no Certificate of Order reflecting the judge’s decision had yet been issued. The parties had submitted a draft certificate, which was mostly agreed but which required a decision from the judge on one issue. Although the draft certificate had been submitted to the judge for his consideration on 21 November 2025, no certificate had yet been issued and it was not known what the view of the judge was in relation to the outstanding issue. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 12

¶ [27] It has to be said that this is highly unsatisfactory, but the parties were content to proceed with the appeal on the basis that the essential nature of the judge’s decision was known as a result of the Judgment and accordingly could be determined by this court by way of appeal. The issues

¶ [28] Based upon the parties’ submissions, it seems to me that the following issues arise for decision. 1. Does s.30(1) authorise the collection of the Royalty Fee? 2. Do licence fees under s.30(1) need to be prescribed in regulations? 3. If so, does the licence granted to Infinity constitute the necessary regulations? 4. If the licence does not constitute necessary regulations, should the fees nevertheless not be invalidated applying the principles established in Soneji? 5. If Infinity would otherwise be entitled to succeed, should relief nevertheless be refused on the ground of delay? Issue 1 (a) Principles of statutory interpretation

¶ [29] Issues 1 and 2 are both matters of statutory interpretation. In relation to issue 1, the question is whether the expression “licence fees” in s.30(1) authorises the Royalty Fee.

¶ [30] The principles of statutory interpretation are well-established and those established in the United Kingdom are equally applicable in this jurisdiction. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 13

¶ [31] The aim is to ascertain the meaning of the words used in the legislation. This is an objective assessment. The words used are the primary source by which the meaning is ascertained. Thus, in O & Project for Registration of Children as British Citizens v SSHD [2022] UKSC 3, [2023] AC 255, Lord Hodge, in a judgment agreed by his fellow Justices, said as follows at [29]-[31]: “29. The court in conducting statutory interpretation are ‘seeking the meaning of the words which Parliament used’: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 per Lord Reid. More recently, Lord Nicholls of Birkenhead stated: ‘Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.’ (R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 396). Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, p 397: “Citizens, with the assistance of their advisors, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.” 30. External aids to interpretation therefore must play a secondary role. Explanatory Notes, prepared under the authority of Parliament, may CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 14 cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission Reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty…. But none of these external aids displace the meanings conveyed by the words of the statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity….. 31. Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme….in an important passage stated: “The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House…. Thus, when courts say that such-and-such a meaning ‘cannot be what CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 15 Parliament intended’, they are saying only that the words under consideration can not reasonably be taken as used by Parliament with that meaning.””

¶ [32] When construing the meaning of the words used, the purpose of the legislation and its historical context are of central importance. Thus, in R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28, [2023] 1 WLR 2594 at [41], Lord Sales (with the agreement of Lord Reed, Lord Leggatt and Lord Stephens) said this: “41. As was pointed out by this court in Rossendale Borough Council v Hurstwood Properties (A) Ltd [2022] AC 690, para 10 (Lord Briggs and Lord Leggatt JJSC), there are numerous authoritative statements in modern case law which emphasise the central importance in interpreting any legislation of identifying its purpose. The examples given there are R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687 and Bloomsbury International Ltd v Department for Environment, Food and Rural Affairs [2011] 1 WLR 1546. In the first, Lord Bingham of Cornhill said (para 8): “Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.” In the second, Lord Mance JSC said (para 10): CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 16 “In matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance… In this area as in the area of contractual construction, ‘the notion of words having a natural meaning’ is not always very helpful (Charter Reinsurance Co Ltd v Fagan [1997] AC 313, 391c per Lord Hoffmann), and certainly not as a starting point, before identifying the legislative purpose and scheme.” The purpose and scheme of an act of Parliament provide the basic frame of orientation for the use of the language employed in it.” [emphasis added]

¶ [33] Drawing these aspects together, in Bilta (UK) Ltd v Tradition Financial Services Ltd [2025] 2 WLR 1015, Lord Hodge and Lord Briggs (with the agreement of Lord Hamblen, Lord Burrows and Lord Richards) summarised the position concisely as follows: “20. The court’s approach to statutory interpretation is well- established in our case law. The court derives the meaning of a legislative provision from the words which Parliament has used in that provision having regard to the context of the statute as a whole and the historical context in which the statute was enacted as the context may reveal the mischief which the provision addresses and shed light on its purpose. In R (Quintavalle) v Secretary of State for Health…, Lord Bingham of Cornhill warned against giving a literal interpretation to a particular statutory provision without regard’ to the context of the provision in the statute and the purpose of the statute.” [Emphasis added] CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 17 (b) Approach to tax legislation

¶ [34] As described below, a key pillar of Mr Buttler’s submission on issue 1 is that the Royalty Fee is in effect a tax and that clear statutory authority is needed before the citizen can be taxed.

¶ [35] In this context, he refers to the well-known case of Attorney General v Wilts United Dairies (1921) 37 TLR 884 (Court of Appeal) and [1922] All ER Ext 845 (House of Lords). That case concerned the Food Controller’s powers under the Defence of the Realm Acts. Under those Acts, the Food Controller was empowered to make orders regulating the supply of milk, including by setting milk prices. To manage supply, he set prices that were higher in less productive areas of the country and lower in more productive areas. That created a risk that milk would be purchased by wholesalers from more productive areas to be sold in less productive areas, thereby undercutting local producers. To address that risk, the Food Controller made a further order that licences were needed to purchase milk on a wholesale basis. He then imposed a condition on such licences to pay a charge of 2d per gallon on milk that was purchased from more productive areas for sale in less productive areas. That money went to the Government. Wilts Dairies agreed to a licence which contained a condition requiring payment of the 2d charge but subsequently refused to pay. The question in the proceedings was whether there was power for the Food Controller, on behalf of the Government, to impose the charge as a condition of the licence.

¶ [36] The Court of Appeal and the House of Lords held that clear statutory authority was required for the levying of money for the use of the Crown and there was no such authority in that case. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 18

¶ [37] Mr Buttler drew the court’s attention to several passages from the judgments which it is useful to quote at this stage. At 885, Scrutton LJ said: “The question in the present case is whether he had power to require the subject to pay money to the Crown as a condition of granting him a licence to trade. It is conceivable that Parliament, which may pass legislation requiring the subject to pay money to the Crown, may also delegate its powers of imposing such payments to the Executive, but in my view the clearest words should be required before the Courts hold that such an unusual delegation has taken place. As Chief Justice Wilde said in Gosling v Veley, 12 QB, at p. 407: “The rule of law that no pecuniary burden can be imposed upon the subjects of this country, by whatever name it may be called, whether tax, due, rate or toll, except upon clear and distinct legal authority established by those who seek to impose the burden, has been so often the subject of legal decision that it may be deemed a legal axiom, and requires no authority to be cited in support of it”. Particularly where the sums to be paid to the Crown are to be paid as a condition of obtaining a licence to exercise the ordinary rights of a subject should the clearest words be required.”

¶ [38] Atkin LJ identified the same question of law as Scrutton LJ, namely whether the Food Controller had any legal authority for requiring Wilts Dairies to agree to pay the sums in question as a condition of the licence required.

¶ [39] He said at 886: “The present charge is in respect of money claimed on behalf of the Crown by the Food Controller as a condition of a grant of a licence. It could not be disputed that the Food Controller could only acquire the right to make CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 19 such a charge by statutory authority. No power to make a charge upon the subject for the use of the Crown could arise except by virtue of the prerogative or by statute, and the alleged right under the prerogative was disposed of finally by the Bill of Rights.”

¶ [40] Atkin LJ went on to say: “In these circumstances, if an officer of the executive seeks to justify a charge upon the subject made for the use of the Crown (which includes all the purposes of the public revenue), he must show, in clear terms, that Parliament has authorised the particular charge. The intention of the Legislature is to be inferred from the language used, and the grant of powers may, though not expressed, have to be implied as necessarily arising from the words of a statute; but in view of the historic struggle of the Legislature to secure for itself the sole power to levy money upon the subject, its complete success in that struggle, the elaborate means adopted by the Representative House to control the amount, the conditions and the purposes of the levy, the circumstances would be remarkable indeed which would induce the Court to believe that the Legislature had sacrificed all the well-known checks and precautions, and, not in express words, but merely by implication, had entrusted a Minister of the Crown with undefined and unlimited powers of imposing charges upon the subject for purposes connected with his department.”

¶ [41] Atkin LJ continued at 886-887: “….no limit was suggested which appeared to afford any logical basis. There seems no reason why the Food Controller should have limited his charge to 2d. He might have indirectly prohibited transactions by making the charge 3d or more; he might have put a duty on milk transferred from CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 20 one county to another to be collected at the county boundary; he might have imposed a duty on the profits of those licenced, either on the profits derived from the licenced dealings or generally. In none of these matters would Parliament have had any voice in the time or manner of the levy of the money; and for that reason, in my opinion, all such imposts would have been illegal.”

¶ [42] Finally, Atkin LJ said this at 887: “The Solicitor General urged that while it was true that a licencing authority may not require a money payment for public uses, in excess of amounts fixed in accordance with statute, as a condition of its licence, yet here the subject had no right to a licence, and therefore the Food Controller might make his own conditions. The answer is that he may not if one of those conditions amounts to levying money for or to the use of the Crown. It makes no difference that the obligation to pay the monies is expressed in the form of an agreement. It was illegal for the Food Controller to require such an agreement as a condition of any licence….”

¶ [43] In the House of Lords, Lord Buckmaster, with whom the remaining Lords of Appeal agreed, said at 848: “The powers so given [to the Food Controller] are no doubt very extensive and very drastic, but they do not include the power of levying upon any man payment of money which the Food Controller must receive as part of a national fund and can only apply under proper sanction for national purposes. However the character of this payment may be clothed, by asking your Lordships to consider the necessity for its imposition, in the end it must remain a payment which certain classes of people were called upon to make for the purpose of exercising certain privileges, and the result is that the CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 21 money so raised can only be described as a tax the levying of which can never be imposed upon subjects of this country by anything except plain and direct statutory means.”

¶ [44] Mr Buttler also relied on the observation of Lord Wilberforce in Vestey v Inland Revenue Commissioners [1980] AC 1148 at 1172 where he said: “Taxes are imposed on subjects by Parliament. A citizen cannot be taxed unless he is designated in clear terms by a taxing Act as a taxpayer and the amount of his liability is clearly defined. A proposition that whether a subject is to be taxed or not, or, if he is, the amount of his liability, is to be decided (even though within a limit) by an administrative body represents a radical departure from constitutional principle. It may be that the revenue could persuade Parliament to enact such a proposition in such terms that the courts would have to give effect to it: but, unless it has done so, the courts, acting on constitutional principles, not only should not, but cannot, validate it.” The issue in that case was whether the revenue had a discretion about which beneficiaries of a trust should have to pay income tax.

¶ [45] Whilst the principle that there must be clear statutory authority for the Crown to levy a tax remains good law, the approach to the interpretation of tax statutes has developed since Wilts Dairies (and indeed Vestey). The present approach was helpfully summarised by Lord Steyn in Inland Revenue Commissioners v McGuckian [1997] 1 WLR 991 at 999: “Towards the end of the last century Pollock characterised the approach of judges to statutory construction as follows: “Parliament CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 22 generally changes the law for the worse, and the business of the judges is to keep the mischief of its interference within the narrowest possible bounds:”…. Whatever the merits of this observation may have been when it was made, or even earlier in this century, it is demonstrably no longer true. During the last 30 years there has been a shift away from literalist to purposive methods of construction. Where there is no obvious meaning of the statutory provision the modern emphasis is on a contextual approach designed to identify the purpose of a statute and to give effect to it. But under the influence of the narrow Duke of Westminster doctrine [1936] AC 1, 19 tax law remained remarkably resistant to the new non-formalist methods of interpretation. It was said that the taxpayer is entitled to stand on a literal construction of the words used regardless of the purpose of the statute…. Tax law was by and large left behind as some island of literal interpretation…. …the intellectual breakthrough came in 1981 in the Ramsay case, and notably in Lord Wilberforce’s seminal speech which carried the agreement of Lord Russell of Killowen, Lord Roskill and Lord Bridge of Harwich. Lord Wilberforce restated the principle of statutory construction that a subject is only to be taxed upon clear words…. To the question “What are clear words?” he gave the answer that the court is not confined to a literal interpretation. He added “There may, indeed should, be considered the context and scheme of the relevant Act as a whole, and its purpose may, indeed should, be regarded”. This sentence was critical. It marked the rejection by the House of pure literalism in the interpretation of tax statutes.”

¶ [46] In my judgment, Sir James Eadie KC, on behalf of the Attorney General, accurately summarised the present approach as clarified in McGuckian by saying that the CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 23 requirement for clear words to authorise a tax means ‘clear words purposively interpreted’. (c) Statutory provisions relevant to issue 1 (i) The ICT Act (2019 Revision)

¶ [47] Under s.2 ‘licence fees’ are defined as meaning ‘the initial, annual or renewal fees for a licence payable to the [Office] by an applicant or a licensee’.

¶ [48] S.9 sets out the powers and functions of the Office and includes as a principal function at s.9(3)(f): ‘to collect all fees, including licence fees, and any other charges levied under this Law…. or regulations made thereunder’.

¶ [49] S.14, as originally enacted, described the revenue of the Authority as including ‘fees received by virtue of this Law’ together with any amounts borrowed and miscellaneous receipts and, having spelt out what the revenue could be spent on, went on to say, at s.14(5): ‘Any balance of account in favour of the Authority in excess of its estimated operating budget shall be paid into the general revenue of the Islands’.

¶ [50] S.30 is in the following terms: “(1) A licence granted under this Law shall be subject to the prescribed licence fees which shall be determined by the Office. (2) The licence fees referred to in subsection (1) shall be payable directly by the applicant to the Office at such time or times as may be prescribed by the Office.” Subsection (2) was amended to its current form in 2003, i.e., before Infinity was granted its licence. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 24

¶ [51] Subsection (2) was originally in different form and provided: “(2) The licence fees referred to in subsection (1) shall be payable directly by the applicant to the Authority prior to commencement of operation by the licensee of the ICC network or the provision by the licensee of the ICT services, which are the subject of the licence in question.” (ii) Public Authorities Act (2020 Revision)

¶ [52] S.14 has been repealed. In effect, it has been replaced by s.7 of the Public Authorities Act which was enacted in 2017. That Act deals with public authorities, of which the Office is one. Section 7 of the Act describes the principal objectives of public authorities and includes the following: “7(1) The principal objectives of a public authority are to: (a) ….. (b) …. (c) supply outputs to entities or individuals other than the Cabinet for payment on a break-even basis or preferably at a profit, and in accordance with agreements with those entities or individuals; (d) …. (2) It is the duty of a public authority to conduct its affairs in a responsible financial manner and accordingly, a public authority shall operate as a profitable and efficient business and contribute to the revenue of core government or, at least, break even in its operations.” CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 25

¶ [53] S.3 of the Public Authorities Act provides: “3. In the event of any inconsistency between the provisions of this Act and the operation of any other law, the provisions of this Act shall prevail to the extent of the inconsistencies.” (iii) Public Management and Finance Act (2020 Revision) (“PMF Act”)

¶ [54] This was originally enacted in September 2001 (i.e. before the ICT Act) but was not brought into effect prior to the enactment of the ICT Act in 2002 and the determination of the Royalty Fee and the Regulatory Fee in 2003. Nevertheless, there is an important provision which is to be found at section 6 (using the current numbering) of the 2020 Revision in the following terms: “6(1) No coercive revenue may be collected and no changes to rates of coercive revenue may be made except by authority of [an Act].” ‘Coercive revenue’ is defined in s.2 as ‘revenue earned by the core government using the coercive power of the State and for which no direct exchange of service occurs’. (iv) The 2009 Constitution

¶ [55] S.16 of the 2009 Constitution deals with non-discrimination and provides at s.16(1) that the government shall not treat any person in a discriminatory manner in respect of the rights under the Constitution. Subsection (4) then goes on to say: “(4) Subsection (1) shall not apply to any law so far as that law makes provision: (a) for the appropriation of revenues or other funds of the Cayman Islands or for the imposition of taxation (including the levying of fees for the grants of licences).” CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 26

¶ [56] As will be seen, both sides in this dispute consider that this provision is of assistance to their case.

¶ [57] The judge also referred to s.15 of the 2009 Constitution, but the parties were agreed before us that this section did not take the matter any further.

¶ [58] S.111(1) provides: “The Legislature shall have the authority to levy or change the rates of revenue unless otherwise provided by law.” However, in the context of this case, this provision does not add anything to the effect of s.6(1) of the PMF Act. Contentions

¶ [59] Although the Attorney General and the Office both submitted skeleton arguments setting out their reasons as to why they submitted that the judge was wrong in his interpretation of s.30, they agreed to divide their oral submissions between them. Thus, Sir James Eadie KC, on behalf of the Attorney General, presented the oral submissions on issue 1 and Mr Grodzinski KC, on behalf of the Office, presented the oral submissions on all the other issues. I shall therefore for convenience refer only to counsel making a particular submission, but such submission is to be taken as being made on behalf of both the Attorney General and the Office.

¶ [60] As emphasised in the authorities referred to at paras 30-33 above, an important aspect of statutory interpretation is to consider the purpose of the legislation, which in turn requires, amongst other matters, consideration of the historical context of the legislation. A key submission on behalf of the Attorney General is that in the CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 27 Judgment the judge did not consider the purpose and historical context of the ICT Act and this had led him into error. Consideration of the context and purpose of the legislation read in respect of the Cayman Islands, coupled with the natural meaning of the words used, led to the conclusion that the Royalty Fee was authorised by s.30(1).

¶ [61] Mr Buttler’s starting point, on the other hand, was that the Royalty Fee is a tax and is also ‘coercive revenue’ as defined in s.2 of the PMF Act. If the construction placed upon s.30(1) by the Attorney General and the Office was correct, the effect was that Parliament had delegated the power to tax the holders of ICT licences to the Office. He submitted that the expression ‘licence fees’ could not authorise a tax on ICT licensees which was unrelated to the cost of regulating the ICT sector. I would summarise the essential elements of Mr Buttler’s submissions as follows.

¶ [62] First, he accepted that as with other statutes, taxing statutes were to be purposively construed as described in McGuckian (see paragraph 45 above). However, Wilts Dairies and Vestey remained good law and established that an intention to impose a tax had to be clearly shown. The court could not read in a tax liability because it would be fair or reasonable for Parliament to have done so.

¶ [63] Secondly, if s.30(1) had the meaning contended for by the Attorney General and the Office, there was no limit on the taxing power which Parliament had conferred upon the Office. S.30 did not define any limit to the power. Parliament would therefore have conferred an ‘undefined and unlimited’ power to tax ICT providers which, per Atkin LJ, would require a ‘remarkable’ set of circumstances and, per Scrutton LJ, would require the ‘clearest words’ (see the extracts quoted at paras 37 and 40 above). To like effect was the observation of Lord Wilberforce in Vestey that such a step would be ‘a radical departure from constitutional principle’. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 28

¶ [64] Mr Buttler accepted that it was theoretically possible that Parliament could delegate to the Office a discretion to determine whether and at what rate to impose a tax on ICT providers, but, consistently with the above observations, it would have to be spelt out in the clearest terms. He submitted that s.30(1) did not do this.

¶ [65] Thirdly, it was relevant to consider the purposes of the Act. During the debate when the ICT Act was adopted, Hansard showed that the Minister read out the objectives of the Act as listed in the Memorandum of Objects and Reasons, which was a high level description of the objects of the Act. In summary, these were (i) to replace certain existing legislation; (ii) to establish an independent regulatory authority for the supervision of ICT services; (iii) to enable the introduction of competition for the provision of ICT services; and (iv) to protect the interests of consumers in certain specified respects. Mr Buttler pointed out that there was no mention of levying a tax on the ICT sector, let alone delegating Parliament’s power to set taxes to the Office. This would be expected for such a major constitutional step.

¶ [66] Fourthly, the key reference in s.30(1) was to ‘licence fees’. The ordinary meaning of ‘fee’ is a payment for services and the only services being provided for this fee were the regulatory activities of the Office. Thus, the natural meaning of ‘fee’ in this context was payment for the costs of the Office in carrying out its functions.

¶ [67] In support of this submission, Mr Buttler referred, as he had before the judge, to Bennion, Bailey and Norbury on Statutory Interpretation and Jowitt’s Dictionary of English Law (6th edition). Bennion at section 3.11 quotes Wilts Dairies as continuing authority for the proposition that a public authority has no power to charge without clear authority, express or implied. Most relevantly, Bennion goes on to state under the heading ‘Scope of fee-charging powers’ the following: CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 29 “Express powers to impose fees, or to authorise the imposition of fees, are common. The word ‘fee’ carries with it connotations of cost recovery. So where there is a power to impose ‘fees’, in respect of the provision of a service, the amount may be expected to bear a reasonable relationship to the direct or indirect cost of providing that service. If the intention is to set fees at a level that includes an element of profit or cross-subsidisation, it is usual for the enabling power to say so expressly….”

¶ [68] To like effect, when considering the meaning of ‘fee’, Jowitt states: “Statutes frequently authorise the charging of a fee in respect of a service, sometimes including a ‘service’ or process such as registration that a person is obliged to submit to as a condition precedent for carrying out a particular kind of undertaking. The word ‘fee’ in that context has connotations of recovery of costs, direct or indirect, incurred in the provision of the service or with the administration of the process. There is therefore a presumption that the amount of a fee will relate in some recognisable way to those costs, and not be merely an excuse for levying a tax. If the intention is to set a rate of fee that will make a profit for use on some other activity, or to permit a significant degree of cross-subsidisation of the service offered to one person by the fee charged to another, express provision will generally be taken.”

¶ [69] Mr Buttler accepted that s.14(5) (see para 49 above) as originally enacted and s.7(2) of the Public Authorities Act envisage the possibility of a public authority such as the Office making a profit. He submitted that this is consistent with Bennion and Jowitt which simply state that there needs to be a ‘reasonable relationship’ to the CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 30 cost of providing the service or that the fee will ‘relate in some recognisable way to those costs’. Furthermore, the provisions did not assist in the present case because the Royalty Fee was not treated as part of the income of the Office; it was remitted to the Government and was not accounted for as part of the revenue of the Office.

¶ [70] In summary, on a purposive reading of the ICT Act, Parliament did not intend to delegate to the Office the power to set taxes for the ICT sector. Even if the court had any doubt about that, it certainly could not be said that Parliament had spelt out in the clearest terms that it was delegating its power of taxation, as would be required if one followed the principles described in Wilts Dairies and Vestey.

¶ [71] Fifthly, Mr Buttler referred to a number of external aides to the interpretation of s.30. (i) He pointed out that under para 37 of the 1972 Constitution, which was in force in 2002 when the ICT Act was enacted, Parliament could not consider any Bill which, in the opinion of the presiding officer, made provision for imposing or increasing any tax except upon the recommendation of the Governor. Although the Governor clearly assented to the Bill after it had been passed by Parliament, there was no evidence that the Governor had recommended the Bill. This suggested that it was not thought at the time that the Bill made any provision for a tax. (ii) It was possible to refer to Hansard to supply context or identify the mischief at which legislation is aimed; see Bennion at 24.12 quoting as authority the decision of the Privy Council in Presidential Insurance Co Ltd v Resha St Hill [2012] UKPC 33 at [23]-[24] and of the UK Supreme Court in Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: Reference by the Council General for Wales [2015] UKSC 3; [2015] AC 1016 at [55]. An CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 31 examination of Hansard showed that at no stage did the Minister suggest in the debate that Parliament was being asked to authorise a tax, let alone being asked to delegate its powers of taxation. The only reference to the level of fees was a question by one member who thought it would be helpful for members to be made aware of the proposed fee structure, to which the Minister in reply simply said that the position was covered satisfactorily in clauses 26(1) (concerning application and renewal fees) and 30. (iii) Although Parliament could be taken to be aware from the annual budget reports that the revenue earned from C&W was substantial and had been estimated to be some $7.3m in 2001, there was nothing in Hansard to suggest that Parliament was aware of the details of the agreement with C&W or considered those terms relevant to what it was being asked to do in relation to the ICT Bill. In any event, the Royalty Fee was not decided upon until 2003, so Parliament could not have been aware of it when it considered the Bill.

¶ [72] Sixthly, Mr Buttler sought to derive assistance from the Information and Communication Technology (Amendment and Validation) Act 2025 (“the 2025 Validation Act”). He referred to Bennion at section 24.19 which contains the following passages: “Where it appears that an enactment proceeds on a particular view of an earlier Act, the question may arise whether this may be relied on when construing the earlier Act. Later legislation will not lightly be taken to override the clear legislative intention expressed in the words of an earlier Act. Here it is necessary to remember that, except when legislating, the legislator generally has no power authoritatively to interpret the law. That function belongs to the judiciary CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 32 alone. The legislator may, with binding effect, legislate to amend the law. Legislation may even declare what the law is considered to be or to have been. But a mere indication that the legislator has mistaken the nature or effect of some legal rule does not in itself amount to a declaration that the rule is other than what it is…. Where, however, the legal meaning of an enactment is doubtful, a later Act may be treated as of persuasive authority if it indicates that the legislator took a particular view of the existing law. Similarly, where an Act is passed which on one (but not the other) of two disputed views of the existing law is unnecessary, this may be taken to suggest that the other view is correct… The courts have consistently repeated the need for ambiguity before reliance may be placed on later legislation. ‘Ambiguity’ here is used to mean that the earlier provision must be ‘open to two perfectly clear and plain constructions’ or ‘fairly and equally open to diverse meanings’. This test for ambiguity is a high one. It has been said that it is not enough to show simply that there is more than one arguable construction. It must be shown that they are both equally tenable.”

¶ [73] Mr Buttler also referred to the observations of Lord Hamblen and Lord Burrows at [59] and of Lord Leggatt at [121]-[122] in News Corp UK & Ireland Limited v Revenue and Customs Commissioners [2024] AC 89 as being consistent with what is stated in Bennion, which I accept.

¶ [74] The relevant provisions of the 2025 Validation Act for present purposes are as follows: CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 33 (i) The long title to the 2025 Validation Act states that it is “An Act to amend the [ICT Act] to amend the definition of “licence fees”: to provide for administrative fees and types of annual licence fees; to clarify the requirement to provide for licence fees to be prescribed….”. (ii) S.3 then deletes the definition of ‘licence fees’ in the ICT Act and replaces it at s.3(g) by defining ‘licence fee’ as: “(a) …. (b) a regulatory fee that is payable to the Office on a quarterly basis by a licensee for the general regulatory services of the Office in respect of a licence: (c) a royalty fee that is payable to the Office by a licensee in respect of a licence which equates to six per cent of the licensee’s gross revenue as defined in the licence and which is charged and collected by the Office on a quarterly basis and subsequently paid to the Government….” (iii) S.30 of the ICT Act is repealed and replaced with the following: “(i) An applicant for a licence or a licensee under this Act shall pay the licence fee for the licence as is prescribed. (ii) The licence fee referred to in subsection (i) shall be payable directly by an applicant or a licensee, as applicable, to the Office at such time or times as prescribed by regulations.” (iv) Finally, s.10 provides that all fees charged under the ICT Act are validated and taken to have been lawfully charged “…as if the Authority or the Office, as applicable, was empowered under the [ICT Act] to charge and collect those fees” although, by virtue of s.14, s.10 does not apply to the fees charged to Infinity and which are the subject of the present proceedings. (v) On 13 December 2025, the Office made the Information and Communications Technology (Licence Fees) Regulations 2025 (“the 2025 Regulations”) pursuant to s.97(3)(a)(i) of the ICT Act setting out the Royalty CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 34 Fee and the Regulatory Fee, followed by appropriate publication in the Gazette.

¶ [75] Applying the principles as outlined in Bennion to the 2025 Validation Act, Mr Buttler made the following points: (i) The Act states that it is amending the definition of licence fees. The amendment now provides for the Royalty Fee and the Regulatory Fee. This would suggest that, prior to the amendment, it did not provide for the Royalty Fee. (ii) If the meaning of ‘licence fees’ in the original ICT Act is regarded as ambiguous, the fact that Parliament has legislated to itself authorise the Royalty Fee suggests that there was no power to charge the Royalty Fee under the original provision; if the original provision was sufficient to authorise the Royalty Fee the amendment was unnecessary. This would point towards Parliament being of the view that the original provision did not authorise the Royalty Fee. (iii) S.10 validates the fees charged to date ‘as if’ the Office had the necessary power under the original legislation. The use of ‘as if’ must refer to a situation which did not in fact exist and amounts to explicit recognition on the part of Parliament that the original provision did not authorise the Royalty Fee. Discussion

¶ [76] Mr Buttler made his submissions skilfully and persuasively. However, I am unable to accept them essentially for the reasons developed by Sir James Eadie on behalf of the Attorney General. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 35

¶ [77] I should begin however by accepting Mr Buttler’s submission that the Royalty Fee constitutes ‘coercive revenue’ for the purposes of s.6(1) of the PMF Act and can therefore only be levied if authorised by an Act. In his skeleton, the Attorney General suggested that the Royalty Fee was earned as a result of a ‘direct exchange of service’, namely the right to conduct ICT business pursuant to its licence, and that therefore it did not amount to coercive revenue.

¶ [78] I cannot accept that submission. Whilst the regulation of the ICT sector could be said to be the provision of a ‘service’ (so that the Regulatory Fee would not amount to coercive revenue), I do not consider that simply allowing a person to conduct ICT business by the grant of a licence amounts to the provision of a service. If this argument were right, it would seem that any charge made for the grant of a licence allowing a person to do something which requires a licence could never amount to ‘coercive revenue’. This would certainly come as a surprise to Scrutton and Atkin LJJ as outlined in the passages from Wilts Dairies above.

¶ [79] In his oral submissions, Sir James did not press the argument (although he did not abandon it) and was content to proceed on the assumption that the Royalty Fee did amount to coercive revenue. His argument was that s.30(1) authorised the levying of the Royalty Fee so as to comply with the requirements of s.6(1) of the PMF Act.

¶ [80] As is made clear in the cases referred to above at paras 31-33 (see in particular the observations of Lord Bingham in Quintavalle and Lord Mance in Bloomsbury International quoted at para 32 above), a central aspect of the process of construing a statutory provision is to consider the purposes of the statute, which involves looking closely at the historical context in which the statute was passed. As Lord Sales said in PACCAR when summarising the position, “the purpose and scheme of the Act provides the frame of orientation for the use of the language employed in it”. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 36

¶ [81] The first point of context is that this case is concerned with Cayman Islands legislation, not that of the United Kingdom. The Cayman Islands do not impose direct taxation such as income tax, corporation tax, capital gains tax or inheritance tax. The Government derives its revenue from other sources. Thus, the 2001 budget document showed that the estimated income for 2001 was $373m, of which $130m was from duties (including import duties), $26m from charges (to use a neutral expression) for licences (including some $9.6m from ‘Bank and Trust Licences’ as well as $7.3m from the ‘Cable and Wireless Licence’) and $85m from fees (including $38m from company fees). Similarly, for example, the budget plans and estimates for 2018 show revenue from “bank and trust licences” for 2015 of $31.5m.

¶ [82] As Sir James submitted, s.16(4) of the 2009 Constitution, albeit in the context of non-discrimination, provides specifically that in the Cayman Islands the levying of fees for the grant of licences is included as taxation. Mr Buttler submitted that this provision did not assist the Attorney General’s argument as the inclusion of the passage in brackets was only necessary because, in the absence of that provision, a fee granted for a licence would not be a matter of taxation. I have to say that I prefer Sir James’ construction, which is also consistent with the position in practice as described in the preceding paragraph.

¶ [83] The next aspect of context is to consider the position at the time the ICT Act was enacted. As described at para 7 above, C&W had since 1966 been the monopoly provider of services under an agreement with the Government. The revenue from C&W was included in the 2001 budget (and no doubt annually) under the heading “Licences” and was described as “Cable and Wireless Licence”. As already mentioned at para 8 above, the revenue from C&W was $5.4m for 2000 and was estimated to be $7.3m for 2001. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 37

¶ [84] Mr Buttler made the point that there was no evidence that Parliament was aware of the exact terms of the C&W contract or that C&W was paying at the rate of 8% of turnover. He also made the point that the Minister did not specifically say that Parliament was being asked to delegate its power to determine taxation of the ICT sector to the Office. That is correct as far as it goes. However, it is clear that Parliament was well aware of the C&W arrangement. Thus, during the debate, every single member who spoke referred to a greater or lesser extent to the fact that C&W had hitherto been the sole provider. Furthermore, as just discussed, Parliament knew the amounts being received from the C&W arrangement and that it was classified as receipts as a result of a licence granted to C&W. Indeed, during the debate, the Minister proposing the Bill referred to the fact that an audit was being carried out in respect of the amounts received from C&W which he expressed in the following terms: “Honourable Members may recall that this audit is being conducted so that we (and the public) can be assured that Cable & Wireless has accurately calculated the licence fees due to Government since 1992.” [emphasis added]

¶ [85] Another member, Mr McKeeva Bush, said: “The legislation breaks up the monopoly existing today, and because this Law will be put in place, the Treasury of this country will get more revenue because of expansion through competition.”

¶ [86] I acknowledge the point made by Mr Buttler at para 71(i) above, namely that there is no evidence that the Governor recommended the Bill, which was a requirement under para 37 of the 1972 Constitution if the presiding officer considered that the Bill imposed taxation. However, the requirement at para 39 was purely a procedural requirement for Parliament and I do not consider that any failure to obtain the recommendation of the Governor, if it occurred, can outweigh the many CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 38 other factors pointing towards the correct construction of s.30(1). Similarly, I do not consider that the point made by Mr Buttler described at para 71(iii) above (namely that the level of the proposed Royalty Fee was not known at the time the ICT Bill was before Parliament) assists him. The issue is whether, by means of s.30(1), Parliament delegated the authority to determine the level of licencing fees to the Office. If it did, it was for the Office to determine the level of fees following the enactment of the ICT Act. I do not see that the fact that the Royalty Fee was not fixed at the time when Parliament considered the ICT Bill assists one way or the other.

¶ [87] In summary, the context in which the ICT Act was passed was that Parliament was fully aware that the ICT market was a valuable asset. C&W had been willing to pay a substantial annual sum for a licence, which sum the Minister described as a licence fee. The purpose of the ICT Act was to end the monopoly and liberalise the market but the context suggests that the intention of Parliament was not to engineer a reduction in the revenue to be earned by the Government from the market.

¶ [88] On Mr Buttler’s analysis, by using the word ‘fees’ in s.30(1) – being the only provision in the ICT Act which enabled money to be extracted annually from companies who obtained ICT licences – Parliament was to be taken to have intended that in future, the only revenue which would be earned from this valuable market would be related to the costs of the regulator, thereby bringing in little or nothing for the Government. It would be a drastic change from the previous position which for 2001 was estimated to produce some $7.3m for the Government, i.e. a sum which would clearly have been in excess of any possible costs.

¶ [89] A further factor to note when considering the context and purpose of the ICT Act is to note the nature of the licences to be issued under the Act. They are not licences CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 39 which need to be applied for by members of the public to carry out some ordinary activity where in reality there is no choice but to apply. The licences in this case relate to a commercial and voluntary market. It is entirely a matter of choice whether a company wishes to apply for a licence to undertake ICT activities in the Cayman Islands. In deciding whether to apply, that company knows that it will have to pay the Royalty Fee and the Regulatory Fee and it knows the levels of such fees, which will also be spelt out in its licence. It can decide therefore whether, in the light of those fees, it is commercially worthwhile to apply. It is an entirely voluntary act on the part of an applicant company to decide whether to undertake ICT activities in the Cayman Islands and to pay the stipulated fee. Whilst that does not eliminate the need for clear Parliamentary authority for the Royalty Fee, it is relevant to consideration of what Parliament intended when using the expression ‘fees’.

¶ [90] One must of course go on to consider the words used by Parliament, but the historical context strongly suggests that it is highly unlikely that the purpose of the ICT Act was that the Government should receive substantially reduced sums from providers of ICT services as compared with the then existing position.

¶ [91] Turning to the language used, the meaning of ‘fee’ must depend upon its context. In itself it is a word which simply means a payment or a charge.

¶ [92] The question therefore is whether, in the context of the ICT Act, the words ‘licence fees’ in s.30(1) carry the implied limitation suggested by Mr Buttler. He draws support from the extract from Bennion and Jowitt referred to at paras 67 and 68 above. However, no authority is quoted in either of these textbooks for the principle which they describe and, when questioned by the court, Mr Buttler accepted that he was unable to point to any case in which the principle had been set out or applied. It is also not clear where, if it does apply, the boundary between a lawful and CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 40 unlawful fee is to be set. At what point does a fee cease to bear a ‘reasonable relationship’ or ‘relate in some recognisable way’ to the costs of administration?

¶ [93] Furthermore, given the large amount raised from fees for a variety of licences granted for the carrying on of profitable activities in the Cayman Islands as shown in the budget plans and estimates, it is by no means clear that the presumption referred to by Bennion and Jowitt is applicable in the Cayman Islands.

¶ [94] However, assuming that there is a presumption as described by Bennion and Jowitt, it is only a presumption and whether it is rebutted depends on the context. In my judgment, the context of the ICT Act points strongly against the application of such presumption in this case and against the implication of the suggested restriction on the level of fee.

¶ [95] Mr Buttler also submitted that, if the Attorney General was correct, Parliament had delegated to the Office an undefined and unlimited power to raise coercive revenue or, as he would put it, tax, and this would be ‘remarkable’ (per Atkin LJ) or ‘a radical departure from constitutional principle’ (per Lord Wilberforce) and would require the clearest words.

¶ [96] I accept that, if the Attorney General is right, there is as a matter of theory no limit on the level of fees which the Office could determine to set. However, Parliament must be taken to have been aware of the nature of the licences to be granted and that they would relate to a commercial market which would be driven by market forces. If the Office were to set the licence fee at too high a level, companies would simply not apply for licences as they would not be able to make sufficient profit to make it worthwhile. This would therefore reduce the income earned by the Government from the Royalty Fees. Thus the market would set a practical limit on the level of fees. There would of course also be the normal public law restriction CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 41 on the exercise of a delegated power in terms of Wednesbury unreasonableness etc. In reality therefore, the power delegated to the Office was not unlimited and undefined.

¶ [97] I acknowledge Mr Buttler’s point concerning s.14(5) of the ICT Act as originally enacted and s.7(2) of the Public Authority Act, namely that these provisions were not directly applicable as the Royalty Fee does not pass through the books of the Office. However, the existence of these provisions is relevant to the extent that it shows that, in the Cayman Islands, public authorities (such as the Office) are encouraged to make a profit and to contribute to the income of the Government. It therefore certainly raises a question as to whether Parliament intended s.30(1) to be restricted to the Regulatory Fee, which would not contribute to the income of the Government.

¶ [98] Similarly, I do not think that, as applied to the facts of this case, Wilts Dairies carries the weight which Mr Buttler seeks to place upon it. In that case, there was simply no authority to levy a licence fee and accordingly no issue arose as to the level of any licence fee and whether there was some implicit limitation on that level. In this case, s.30(1) provides express power for the Office to determine and charge a fee and the only question is whether there is some limitation (by reference to regulatory costs) on the level at which the Office may set such a fee. The ratio of Wilts Dairies therefore has no application in the present case.

¶ [99] I accept that there are dicta which counsel caution before construing a provision to the effect that the UK Parliament has delegated its exclusive power to levy taxation, but the exercise remains one of construction of the relevant statute, bearing in mind those words of caution. Both Wilts Dairies and Vestey accept that Parliament in the United Kingdom could delegate its power subject to clear words (see the CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 42 extracts quoted at paras 37 and 44 above). That is equally the position in the Cayman Islands.

¶ [100] Putting these matters together, I would summarise my reasons for upholding the validity of the Royalty Fee as follows: (i) The wording of s.30(1) is unambiguous; Parliament has delegated to the Office the power to set the level of licence fees. (ii) There is no express limitation in the level of fees which the Office may set. (iii) The word ‘fees’ is certainly capable, as a matter of ordinary language, of including coercive revenue payable to the Government and, in the Cayman Islands context, this is specifically envisaged by s.16(4) of the 2009 Constitution. (iv) The question therefore is whether there is an implicit limitation restricting the Office to a fee related to the costs of regulating the ICT sector. To determine whether this so, the historical context and purpose of the ICT Act is of central importance. (v) It is clear that, although there is no evidence that Parliament was aware that C&W were paying a fee of 8% of turnover, it was certainly aware that C&W was paying substantial sums for its licence as disclosed in the annual budget reports. Parliament was therefore aware that the ability to grant a licence to commercial operators for the provision of ICT services was a valuable resource which had produced substantial sums for the Government in the case of C&W and which could be expected equally to do so following liberalisation under the ICT Act. (vi) Parliament cannot be taken to have intended that this valuable resource should in effect be given away to commercial operators in exchange for a fee related merely to the costs of the Office. The intention of Parliament to be CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 43 derived from the context is that it intended that the Government should continue to receive substantial revenue from the ICT sector, the only difference being that it would now come from several providers rather than one monopoly provider. (vii) Against that background, Parliament clearly intended that the fees to be set by the Office should not be restricted to covering regulatory costs but should be set at a level which the market would bear and which would continue to provide substantial revenue for the Government. (viii) The context also supports an intention by Parliament to delegate the power to raise coercive revenue to the Office. This was not the case of a licence being granted to ordinary citizens to carry out everyday activities. It related solely to a licence to provide ICT services. The applicants would therefore be limited in number and would be commercial companies seeking to make a profit from their activities. The Office was therefore an appropriate entity to determine the level of fees which would be both attractive to the market and produce revenue for the Government. (ix) Thus, s.30(1) does, in my judgment, in clear terms authorise the Royalty Fee. It follows that the requirements of s.6(1) of the PMF Act (which provides that coercive revenue may only be collected by authority of an Act) are satisfied.

¶ [101] As to Mr Buttler’s reliance on the 2025 Validation Act, I do not consider that s.30(1) is ambiguous in the sense described in the last paragraph of the citation from Bennion quoted at para 72 above. I therefore do not derive any assistance from the 2025 Validation Act. Furthermore, I can well understand why that Act adopted what might be called a belt and braces approach to the problem. By the time of the Act, the judge had delivered the Judgment setting out the reasons why he considered s.30(1) did not authorise the Royalty Fee. It is not surprising therefore that Parliament took an approach which specifically addressed the alleged defects CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 44 which he had identified and sought to correct, clarify or amend them. Parliament was clearly most concerned at the possible loss of revenue and wished to address all possible avenues of challenge.

¶ [102] As Bennion makes clear, it is for the courts to interpret an Act. Having come to the conclusion that the meaning and effect of s.30(1) is clear, I do not consider that assistance is to be derived from the 2025 Validation Act.

¶ [103] Accordingly, in relation to issue 1, I would hold that the levying of the Royalty Fee is authorised by s.30(1) and accordingly, subject to consideration of issue 2, has been lawfully levied.

¶ [104] Before turning to issue 2, I should address briefly an alternative argument raised by the Office. It submitted before the judge (and renewed the submission before this court) that Parliament’s approval each year pursuant to s.21 of the PMF Act of the plans and estimates (which included the ICT Royalty Fees as an item of ‘coercive revenue’) in the annual budgeting process was sufficient statutory authority for the levying and collection of the Royalty Fees. No further primary legislation was required because, on the assumption that the Royalty Fee was coercive revenue, no change was being made to the types or rates of coercive revenue measures.

¶ [105] The judge rejected that submission and in my judgment he was right to do so. It is a matter of fundamental constitutional principle that taxation (or coercive revenue as it is referred to in this jurisdiction) may only be levied with the authority of an Act of Parliament. This was resoundingly established in Wilts Dairies as quoted earlier in this judgment. The fact that the 1972 Constitution and the relevant finance legislation then in force, (the Public Finance and Audit Law) did not, unlike s.6(1) of the PMF Act), specifically say so is beside the point. The original approval of the Royalty Fee by the Cabinet and the acting Governor amounts to approval by the CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 45 Executive, but the Executive has no power on its own to levy taxation. Furthermore, the fact that Parliament has subsequently approved, as part of the budget process, plans and estimates which include the Royalty Fee cannot amount to the clear legislative authority as envisaged in Wilts Dairies and well-established constitutional principle. Although s.6(1) requires the authority of an Act for changes to rates of coercive revenue and there has been no change in the rate of the Royalty Fee, that is no answer. S.6(1), in accordance with the constitutional principle referred to above, also requires the authority of an Act for any coercive revenue to be ‘collected’. The Office has been collecting the Royalty Fee payable by Infinity since 2015. The only statutory authority which can properly be relied upon is s.30(1); if, contrary to the view which I have expressed above, s.30(1) does not confer such authority, then there is no legislative authority for the Royalty Fee. Issue 2

¶ [106] Issue 2 is also a matter of statutory interpretation. It raises the question of whether s.30(1) of the ICT Act requires the licence fees (both Royalty Fee and Regulatory Fee) to be prescribed by means of regulations made by the Office. The judge held that it does and Infinity supports that conclusion. The Attorney General and the Office, on the other hand, submit that there is no such requirement and that it is sufficient for the fees to be determined by the Office. (a) Relevant statutory provisions

¶ [107] It is convenient to repeat s.30 at this stage: “30(1) A licence granted under this Act shall be subject to the prescribed licence fees which shall be determined by the Office. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 46 (2) The licence fees referred to in subsection (1) shall be payable directly by the applicant to the Office at such time or times as may be prescribed by the Office.”

¶ [108] S.9 deals with the powers and functions of the Office and at s.9(3) provides: “Without prejudice to subsections (1) and (2), the principal functions of the Office are: …. (f) to collect all fees, including licence fees, and any other charges levied under this Act or the Electronic Transactions Act (2003 Revision) or regulations made thereunder….”

¶ [109] S.26 deals with the procedure for the grant or renewal of a licence and s.26(1) provides: “(1) A person who wishes to apply for a licence or the renewal of a licence shall, in accordance with a procedure determined by the Office submit an application for consideration by the Office, and the application shall be in the prescribed form and accompanied by such fees as may be determined by the Office.”

¶ [110] S.31 deals with the modification of a licence and s.31(1) provides: “(1) A licence may be modified where the Office and the licensee, by agreement in writing, agree to modify the licence.”

¶ [111] The power to make regulations is conferred by s.97. Different powers are conferred upon the Cabinet and the Office in the following terms: “97(1) Without derogating from the powers to make regulations conferred elsewhere in this Act, the Cabinet may make regulations: CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 47 (a) prescribing matters required or permitted by this Act to be prescribed; (b) facilitating – (i) the investigation of; or (ii) the bringing of criminal proceedings in respect of the operation of an ICT network or provision of ICT services or use of the frequency spectrum that may be, or is, an offence under this or any other law. (c) on the recommendation of the Office, prescribing matters for the better carrying out of the duties and powers of the Office or (d) for carrying the purpose and provisions of this Act into effect. (2) …. (3) The Office – (a) after consultation with the Minister, may make regulations relating to – (i) licence fees; (ii) critical ICT infrastructure; and (iii) radio and television content obligations; and (b) may make regulations relating to - (i) infrastructure sharing; (ii) the numbering system; (iv) quality standards; and (v) such other measures as the Office considers necessary for the carrying out of its duties under this Act.” (b) Contentions

¶ [112] The Office and the Attorney General submit that the word ‘prescribed’ in s.30(1) is simply a reference to the fees set by the Office. The core part of s.30 is that “fees…shall be determined by the Office”. That sets out how they are to be set. Once they are so determined they become, under s.30 and without more “the prescribed fees”. Put another way, the prescribed fees in s.30 are in effect defined as meaning the fees which, pursuant to the duty imposed on it, are determined by the Office. That, they submit, is evident from the structure of s.30 and the link CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 48 made in it by the word “which”. In effect, the word ‘prescribed’ simply means the fees decided upon, laid down or set out (all different ways of saying the same thing) by the Office.

¶ [113] I would summarise Mr Buttler’s key submissions to the contrary effect as follows: (i) S.3 of the Interpretation Act (1995 Revision) provides that in all Acts, unless there is something in the subject or context inconsistent with such construction, or unless it is therein otherwise expressly provided, the word ‘prescribed’ means ‘prescribed by the Act in which the word occurs or by any regulations made thereunder….’. (ii) There is nothing in the ICT Act or its context to disapply the meaning of ‘prescribed’ as set out in the Interpretation Act. (iii) The argument put forward by the Office and the Attorney General is that the word ‘prescribed’ in s.30(1) simply means as ‘laid down’ or ‘set out’ by the Office. That would mean that the word ‘prescribed’ is otiose. It would be sufficient if s.30(1) read simply: ‘A licence granted under this Act shall be subject to the licence fees which shall be determined by the Office’. In matters of statutory interpretation, there is a presumption that every word in an enactment is to be given meaning; see Bennion at section 21.2. (iv) There is also a presumption that words have the same meaning throughout a statute. S.72 deals with quality of service and at s.72(3) provides: “The Office may prescribe quality standards for the provision of ICT services and ICT networks in relation to all ICT service providers and ICT network providers.” The reference to ‘prescribe’ is here clearly a reference to the power to make regulations in connection with quality standards conferred on the Office by s.97(3)(b)(iv) (see para 111 above). (v) Similarly, s.65(6) provides: “Without prejudice to subsection (5), the Office shall prescribe the cost and pricing standards and other guidelines on which the reasonableness of the rates, terms and conditions of the interconnections or infrastructure sharing will be determined.” CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 49 Again, the reference to ‘prescribe’ here is clearly a reference to the power to make regulations in connection with infrastructure sharing conferred on the Office by s.97(3)(b)(i) (see para 111 above). (vi) S.97(1) provides that ‘the Cabinet may make regulations – (a) prescribing matters required or permitted by this Act to be prescribed’. This indicates that where the ICT Act provides for matters to be ‘prescribed’, it is doing so in the Interpretation Act sense of the term. (vii) Assistance is also to be obtained from the Information and Communications Technology (Validation) Act 2024 (“the 2024 Validation Act”) and the 2025 Validation Act in accordance with the principles described at paras 72 and 73 above. Thus: (a) S.3(2) of the 2024 Validation Act provides that the licence fees charged by the Office shall be validated and taken to have been lawfully charged ‘as if’ the licence fees had been prescribed in regulations which were made under s.97(3)(a) and published in the Gazette. That wording clearly indicated that that was what Parliament understood the ICT Act to require. (b) The 2025 Validation Act adopts a different approach and amends the definition of licence fees and repeals s.30. It replaces s.30 with a substitute provision. However, for present purposes, the relevant provision is at s.10 which again validates the fees collected in the past ‘as if’ the Office was empowered to charge and collect the fees and ‘as if’ the fees, where applicable, had been prescribed in regulations and published in the Gazette; and indeed this had been carried out by means of the 2025 Regulations. (viii) In summary, in order for the licence fees for the purposes of s.30(1) to be ‘prescribed’, the Office had to make regulations (i.e. subordinate legislation) under s.97(3)(a)(i). Having failed to do so, neither the Royalty Fee nor the Regulatory Fee could be lawfully levied. Discussion

¶ [114] Mr Buttler again made his submissions forcefully and clearly. However, I am persuaded that, on its true construction, s.30(1) does not require the licence fees as determined by the Office to be set out in regulations made under s.97 of the ICT CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 50 Act. There are a number of arguments which, as put forward by Mr Grodzinski on behalf of the Office, have persuaded me to that view.

¶ [115] First, the construction put forward by Infinity does not fit with the terms of s.26(1) of the ICT Act. As stated in para 109 above, that subsection provides that a person who wishes to apply for a licence or the renewal of a licence shall apply in accordance with a procedure ‘determined by the Office’, that such application shall be in the prescribed form and shall be accompanied by such fees ‘as may be determined by the Office’.

¶ [116] It is quite clear from that subsection that the application and renewal fees do not have to be prescribed; they merely have to be determined by the Office.

¶ [117] As set out at para 47 above, the definition of ‘licence fees’ in s.2 of the ICT Act specifically includes the initial, annual and renewal fees paid by an applicant or a licensee. Accordingly, on its face, s.30(1) applies to application fees and renewal fees, as well as to annual fees. If Infinity is correct in its submission that the licence fees determined under s.30(1) have to be set out in regulations, it would mean that there is an inconsistency between s.30(1) and s.26(1). Under the former, application and renewal fees (as well as annual fees) have to be set out in regulations, whereas under s.26(1), application and renewal fees specifically do not. Conversely, if the Office is correct in its submission that s.30(1) does not require licence fees of any description to be set out in regulations, there is no such inconsistency.

¶ [118] Mr Buttler submitted that, in the light of this apparent conflict, s.30(1) must be referring only to the annual fees because of its reference to ‘a licence granted under this Act’ being subject to the prescribed licence fees. However, it seems to me that this construction is difficult to reconcile with the use of the expression ‘licence fees’ CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 51 in the subsection, which expression specifically includes application and renewal fees, as well as annual fees. If Mr Buttler’s construction is right, one would have expected s.30(1) to have referred only to annual fees, leaving s.26(1) to deal with application and renewal fees.

¶ [119] Secondly, there are a number of provisions in the ICT Act where, in contrast to s.30, the provision expressly refers to making regulations. Thus: (i) S.24 states “The Cabinet may by regulations prescribe for any specified class or classes of ICT service…”, and then goes on to specify a number of matters which may be so prescribed. (ii) S.56(4) envisages that broadcasting standards will be contained in regulations made by the Office. (iii) S.59(1) states that any Universal Service Fund established by the Office shall be managed in accordance with regulations made by the Cabinet after consultation with the Office. (iv) S.61 provides that, on the recommendation of the Office, the Cabinet may make regulations about categories of universal services to be provided. (v) S.71(1) provides that the Office shall establish and manage a national plan for the allocation of telephone numbers amongst licensees and that this should be done in accordance with regulations made in that respect under the Act by the Cabinet.

¶ [120] Thirdly, there is in my view a clear inconsistency or conflict between s.97 and s.30 if Infinity’s argument is correct. Thus, s.30(1) is quite specific; it provides that the licence fees “shall be determined by the Office”. There is no requirement in s.30 for the Office to consult with anyone else before determining the licence fees. Conversely, the regulation making power of the Office in s.97(3)(a) concerning licence fees may only be exercised ‘after consultation with the Minister’. On the face of it this produces a material inconsistency. S.30 says that the Office shall CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 52 determine the fees but s.97 provides that the necessary regulations may only be made after consultation with the Minister. Conversely, if the Office’s argument is correct, there is no such conflict. The Office can determine the licence fees unilaterally under s.30. It may if it wishes make regulations relating to licence fees (e.g. on matters other than their level) under s.97(3), but does not have to do so.

¶ [121] Mr Grodzinski referred to Infinity’s argument that the licence fees have to be ‘prescribed’ by the Office in regulations under s.97(3) and pointed out that under s.97(1) it is the Cabinet which may make regulations “prescribing matters required or permitted by this Act to be prescribed”. That was clearly not applicable to s.30 as the Cabinet has no role under s.30. In contradistinction to the Cabinet, s.97(3) does not give the Office a power to make regulations prescribing matters required to be prescribed. The Office’s only power is to make regulations ‘relating to’ licence fees and other matters. He submitted that that difference in language militated against Infinity’s argument that the Office had to ‘prescribe’ the licence fees by regulations under s.97(3).

¶ [122] However, I do not consider that this argument assists Mr Grodzinski as both s.65(6) and s.72(3) confer a power on the Office to prescribe certain infrastructure sharing matters (s.65(6) and quality standards (s.72(3)) and this clearly is intended in each case to be done by regulations under s.97(3)(b)(i) and (iii) respectively. However, this emphasises the distinction with s.30(1). Regulations to prescribe matters set out in s.65(6) and s.72(3) are specifically catered for in s.97(3)(b)(i) and (iii). Regulations under s.97(3)(b) do not require prior consultation with the Minister unlike regulations relating to licence fees under s.97(3)(a). Accordingly, s.65(6) and s.72(3) are entirely consistent with s.97 whereas, on Infinity’s argument, there is, as stated above, a clear inconsistency between s.30(1) and s.97(3)(a). This all militates strongly against Infinity’s construction of s.30(1). CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 53

¶ [123] Fourthly, as Mr Grodzinski pointed out, there is nothing in s.30(1) which requires standard licence fees; it would be open to the Office to determine different licence fees for different licence holders. This would not amount to discrimination because of the terms of s.16(4) of the 2009 Constitution discussed earlier.

¶ [124] It seems inherently unlikely that Parliament would have thought that regulations (i.e. subordinate legislation) were necessary if licence fees could vary between applicants; far more sensible to rely on the requirement under s.34 that there be a public register of licences which would provide sufficient public knowledge as to what licence holders were paying.

¶ [125] Fifthly, s.30(2) provides that licence fees shall be payable to the Office ‘at such time or times as may be prescribed by the Office’. Again, it seems inherently unlikely that a matter as minor as the timing of payments by a licence holder – and these could of course vary from licence holder to licence holder – should be spelt out in subordinate legislation. I therefore think it unlikely that the word ‘prescribed’ in s.30(2) means prescribed in regulations. It is far more likely that in this context the word carries its non-technical meaning of ‘established’ or ‘laid down’.

¶ [126] Where words are used in the same section, there is a presumption that they have the same meaning. If I am right in thinking that ‘prescribed’ in s.30(2) does not carry the meaning that the timing must be prescribed in regulations, that is clearly strongly supportive of the word ‘prescribed’ in s.30(1) having the same meaning.

¶ [127] Sixthly, as set out at para 110 above, s.31 of the ICT Act provides that a licence may be modified by written agreement between the Office and the licensee. Such modification may include changes in respect of annual fees; indeed, as described at CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 54 para 15, this has taken place in respect of Infinity’s licence, as the definition of turnover for the purposes of calculation of fees was changed.

¶ [128] There is no requirement anywhere in the ICT Act that any modification to a licence has to be prescribed or to be set out in regulations; all that is required is a written agreement between the Office and the licensee. If Infinity’s construction is correct, whilst licence fees have to be set out in regulations, any variation to those fees does not. On the face of it, there does not seem any logical reason to make such a distinction and it is hard to attribute such an intention to Parliament.

¶ [129] Indeed, as Mr Grodzinski pointed out in oral submission, Infinity’s construction leads to apparent inconsistency of s.30 with both s.26(1) and s.31. On Infinity’s interpretation, application fees, renewal fees and any modified fees do not have to be prescribed in regulations but annual fees (before any modification) can only lawfully be levied if set out in regulations. This is not an obviously logical outcome despite Mr Buttler’s submission that application and renewal fees are likely to be comparatively modest compared with annual fees. Conversely, on the Office’s construction, as supported by the Attorney General, the position is the same for all types of fees. They do not have to be established by means of regulation; they simply have to be decided upon by the Office and then published in accordance with s.34.

¶ [130] Seventhly, Mr Buttler placed considerable weight upon the definition of ‘prescribed’ contained in s.3 of the Interpretation Act; see para 113(i) above. However, I do not consider that s.3 bears the weight which he seeks to place upon it: (i) As the introduction to s.3 makes clear, the definition set out in the section applies “…unless there is something in the subject or context inconsistent with such construction…”. In my judgment, for the reasons set out above, I CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 55 consider that there are a number of matters in the context of the ICT Act which lead to the conclusion that the definition is inconsistent with the context of the Act insofar as it is suggested that the definition requires regulations. (ii) Even if the word ‘prescribed’ has the meaning in s.3, this does not lead to the conclusion that the fees must therefore be prescribed by regulations made under the ICT Act. That is because the definition states that ‘prescribed’ means “prescribed by the Act in which the word occurs or by any regulations made thereunder…”. I accept Mr Grodzinski’s submission that the licence fees are prescribed by the ICT Act itself because s.30 states that the licence fees shall be determined by the Office. The Act itself therefore prescribes how licence fees are to be fixed.

¶ [131] In summary, having regard to the above matters in totality, I do not consider that, when using the word ‘prescribed’ in s.30(1), Parliament intended that the Office could only determine the licence fees by means of regulations made under s.97(3)(a).

¶ [132] I acknowledge that the point made by Mr Buttler as described at para 113(iii) above has some force, but it is outweighed by the various pointers I have summarised above. In my view, as submitted by the Office and the Attorney General, in the context of s.30(1), the reference to ‘prescribed’ is simply a reference to the fees as set out or laid down by the Office. As Mr Grodzinski submitted, this is not a surprising outcome. In a commercial matter such as ICT services, Parliament is likely to have intended that it would be sufficient that the licence fees would be specified and set out in the licence itself. Mr Buttler submitted that, on this analysis, the Office could decide the level of fees without adequate public knowledge, but that concern is met by the requirement of s.34 for a public register. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 56

¶ [133] I accept that this means that references to ‘prescribed’ are not using the word to have the same meaning as in ‘prescribe’, when used elsewhere in the ICT Act. But in my view this emerges clearly from the different uses of the word. Where the Act intends matters to be prescribed by regulations, it makes this very clear by imposing a duty or a power on the Office or the Cabinet (as the case may be) to ‘prescribe’ something. Thus: (i) S.24 provides that the Cabinet ‘may by regulations prescribe’ certain matters relating to classes of ICT service. (ii) S.64(1) provides that the Cabinet ‘may…prescribe’ certain matters concerning the universal service fund. (iii) S.65(6) provides that the Office ‘shall prescribe’ certain matters concerning interconnection. (iv) S.72(3) provides that the Office ‘may prescribe’ quality standards.

¶ [134] Thus, where Parliament intends that the relevant body should prescribe something by regulation, it makes it very clear by providing that the relevant body shall or may ‘prescribe’. I accept that in these sections, the prescribing would be done by regulations under s.97(1) or (3), as the case may be.

¶ [135] This is a very different use of language from simply referring to something having been ‘prescribed’ as is the case in s.30(1) and s.26(1). If Parliament had intended that the Office should make regulations to prescribe the licence fees, it would surely, in order to be consistent with the use of language elsewhere, have specifically provided that the Office should ‘prescribe’ the level of licence fees in the same manner as in the four instances mentioned above. The different language in s.30(1) suggests Parliament did not have the same intention and that the word ‘prescribed’ (as opposed to ‘shall or may prescribe’) is being used simply to describe something which has been set out or laid down by the Office, as submitted by the Office and the Attorney General. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 57

¶ [136] Mr Buttler again sought to derive assistance from the fact that Parliament has enacted the 2024 Validation Act and the 2025 Validation Act, as well as the 2025 Regulations. However, for similar reasons as in relation to issue 1, I do not think that this is a case where assistance can be derived from a subsequent Act.

¶ [137] By the time of the 2025 Validation Act, Parliament was aware of the Judgment and of the fact that the judge had found that regulations were necessary. In those circumstances it is not surprising that, in order to deal comprehensively and effectively with the challenges to the validity of the licence fees, Parliament chose to proceed by addressing the deficiencies found by the judge, including passing the regulations which he had found were necessary.

¶ [138] Although the 2024 Validation Act preceded the Judgment, it was enacted after the judicial review proceedings were issued and at a time when it was known that Infinity was contending that licence fees could only lawfully be levied if they were prescribed in regulations. In the particular context of the present proceedings and the situation in this jurisdiction, coupled with the clear intention of Parliament to do all it could to seek to protect the public purse, I do not derive any assistance from the 2024 or 2025 Validation Acts when ascertaining the correct construction of s.30(1).

¶ [139] Accordingly, for the reasons given above, I find that s.30(1) does not require either the Royalty Fee or the Regulatory Fee to have been set out in regulations made under s.97(3)(a). It follows that they have both been lawfully levied.

¶ [140] That is sufficient to dispose of this appeal. The result is that the appeal must be allowed and the judicial review application by Infinity dismissed. However, in case the I am wrong on either issue 1 or issue 2, I shall consider briefly the arguments on the remaining issues described at para 28 above. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 58 Issue 3

¶ [141] Before the judge, the Office submitted that if, contrary to its submission, regulations were required in order to prescribe the licence fees, the licence issued to Infinity, alternatively the Guidelines, constituted the necessary regulations. The judge rejected that argument. Before this court, the Office, supported by the Attorney General, has renewed the submission in respect of the licence granted to Infinity but has abandoned the contention that the Guidelines constituted the necessary regulations. I shall therefore only address the submissions concerning the licence.

¶ [142] The starting point for consideration of the point is s.3(1) of the Interpretation Act. The introduction to s.3(1) states: “In this Act and in all Orders in Council, Acts, proclamations, regulations, rules, bye-laws, orders, directions, notices, forms and other instruments of a public character relating to the Islands now in force or hereafter to be made, the following words and expressions shall have the meanings hereby assigned to them respectively, unless there is something in the subject or context inconsistent with such construction, or unless it is therein otherwise expressly provided….”

¶ [143] Regulations are then defined in the following terms: “’Regulations’ include rules, bye-laws, proclamations, orders, schemes, notifications, directions, notices and forms.”

¶ [144] The ICT Act itself does not take the matter any further because it provides simply at s.2 that “’Regulations’ mean regulations made under this Act”. The power to make regulations under the Act is that contained in s.97. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 59

¶ [145] I would summarise Mr Grodzinski’s arguments as follows: (i) The definition of regulations in s.3(1) is extremely wide and non-exhaustive because it refers to ‘include’. If a ‘scheme’ or ‘notification’ or ‘form’ could amount to regulations, there is no reason why a licence could not do likewise. (ii) The key requirement in s.3(1) is that the instrument is of a public character. A licence meets that requirement because, pursuant to s.34 of the ICT Act, licences are published in full on the website of the Office. The licence contains all the information concerning licence fees which would need to be set out in any regulations. The sole result of holding that the licence does not constitute regulations would be to require the Office to issue a virtually identical document describing the licence fees but with the heading ‘Regulation’ rather than ‘Licence’. (iii) Although, as outlined in s.28 of the Interpretation Act, some regulations are subject to an affirmative or negative resolution by Parliament, it was common ground that it did not apply in the case of regulations made under s.97. Accordingly, there was no prejudice in this respect from the fact that the Infinity licence had not been placed before Parliament. (iv) The only prior requirement for regulations to be made by the Office under s.97(3)(a)(i) is for consultation with the Minister. It was common ground that this requirement was satisfied because it was the Minister who had recommended the licence fees to Cabinet and secured the approval of the Cabinet on 5 August 2003.

¶ [146] I am unable to accept that the licence granted to Infinity constitutes regulations under s.97. I would summarise my reasons as follows: (i) Despite the wide variety of instruments referred to in the definition of ‘regulations’ in s.3(1), they are all examples of subordinate legislation. This is emphasised by the requirement in s.29 of the Interpretation Act (referred to in more detail below) that regulations must be published in the Gazette. (ii) The fact that s.3(1) envisages a variety of subordinate legislation as falling within the definition of regulations is not surprising. Bennion at section 3.3 states “There are no restrictions on the terminology that may be used in an enabling Act to describe the instrument by which delegated legislation is made”. He goes on to say “A bewildering array of names have been used in Acts of Parliament to describe the instrument by which delegated legislation CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 60 is made, reflecting the gradual and piecemeal development of the use of delegated legislation”. Bennion then gives examples of expressions which have been used. It is of note that all those mentioned in the definition of ‘regulations’ in s.3(1) are mentioned by Bennion except for ‘notifications’ and ‘forms’. Bennion does not refer to ‘licences’ as a form of subordinate legislation and they are of course not included in s.3(1). (iii) The various instruments included as regulations are all instruments of general application within the area which they cover. This is not the position with a licence. The Infinity licence binds no one but Infinity and the Office. (iv) There is nothing in the ICT Act to suggest that a licence could constitute regulations under s.97. On the contrary, licences and regulations are treated as very different things. Thus:- (a) They are defined as different things. S.2 defines ‘licence’ as ‘a licence granted under this Act’ whereas ‘regulations’ are defined as ‘regulations under this Act’. This clear difference is borne out by the fact that licences are granted under s.23 of the Act whereas the power to make regulations is contained in s.97. These are different powers in respect of different things. (b) Licences are dealt with in part III which is entitled ‘Licensing’. Part III includes provisions for the grant of a licence to individuals and the procedure for the grant of a licence, the assignment or transfer of a licence, and the modification in writing of a licence by agreement without any formality other than a written agreement between the Office and the licensee. It is hard to see in particular how subordinate legislation can be assigned or transferred or modified by private agreement.

¶ [147] There is an additional reason for concluding that the Infinity licence does not constitute regulations.

¶ [148] S.29(1) of the Interpretation Act is in the section of the Act headed ‘Provisions as to regulations’ and provides: CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 61 “(1) All regulations made under any Act or other lawful authority and having legislative effect shall be published in the Gazette and unless it be otherwise provided shall take effect and come into operation as law on the date of such publication. (2) The production of a copy of the Gazette containing any regulations shall be prima facie evidence in all courts and for all purposes of the due making and tenor of such regulations.”

¶ [149] The Infinity licence has not been published in the Gazette and there has accordingly not been any compliance with s.29(1) if the Infinity licence otherwise constitutes regulations.

¶ [150] As an alternative to publishing the whole of a set of regulations in the Gazette (which in the case of lengthy regulations could be very cumbersome), s.61 of the Interpretation Act provides that a Government Notice stating that a regulation has been made and where it can be found will suffice. Thus s.68 provides: “Where any regulation or other instrument of a public character is required either expressly or by implication to be published or notified in the Gazette, a Government Notice that such regulation or other instrument has been made and of the place where copies thereof can be purchased or perused shall be sufficient compliance with such requirement.”

¶ [151] The expression ‘Government Notice’ is not defined but s.6(c) of the Official Gazette Act (1997 Revision) provides: “6. The Gazette shall be published fortnightly on alternate Mondays, and upon such other occasions as may be ordered by the Governor and shall contain inter alia -…. (c) such official advertisements and notices as are required or authorised by any law to be published in the Gazette or as Government….Notices.”

¶ [152] Putting these provisions together, the effect is that (i) regulations must either be published in the Gazette under s.29 or (ii) a Government Notice, stating that the CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 62 regulations have been made and where they may be purchased or perused, is published in the Gazette.

¶ [153] In his skeleton argument, Sir James Eadie submitted that s.29(1) is of no application as the Infinity licence does not constitute a regulation “having legislative effect” as it is of no general effect and is specific to Infinity. However, I cannot reconcile that submission with the general submission by the Office and the Attorney General that Infinity’s licence constitutes regulations under s.97. As stated above, it is clear in my judgment that s.97(1) and (3) are clearly establishing a power to make regulations in the form of subordinate legislation which will have legal effect.

¶ [154] Mr Grodzinski submitted that s.61 applies only where a regulation is “required either expressly or by implication to be published or notified in the Gazette”. He pointed out that there is no express requirement in s.97 for any regulations made thereunder to be published in the Gazette. He contrasted this with s.23(2) of the ICT Act which provides that the Office shall specify the ICT services and networks which are required to be licenced “by notice published in the Gazette”.

¶ [155] I do not accept that submission for two reasons: (i) It ignores s.29 of the Interpretation Act which provides that all regulations shall be published in the Gazette. There is accordingly no need for any particular Act to state that regulations made under it must be published in the Gazette; s.29 is of general effect. (ii) S.23(2) of the ICT Act is not concerned with regulations under s.97. It is dealing with a notice to be issued providing information as to which ICT services and networks need to be licenced. It is an informative document which is of no legislative effect and therefore would not otherwise require publishing in the Gazette. It is not therefore surprising that, Parliament having decided that such notices ought to be published in the Gazette, it was necessary to specifically say so. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 63

¶ [156] Finally, Mr Grodzinski submitted that, assuming s.61 was applicable, it was complied with because s.34 of the ICT Act states that the Office must keep a public register and the register, with the inclusion of the Infinity licence, constitutes the Government Notice under s.61.

¶ [157] I cannot accept that the register under s.34 constitutes a Government Notice for the purposes of s.61. They are two completely different things. Even if it did, the requirement under s.6(c) of the Official Gazette Act is that a Government Notice must be published in the Gazette. That has not occurred in this case as publication in the register under s.34 does not constitute publication in the Gazette.

¶ [158] Putting all these matters together, I am of the clear opinion that if, contrary to my view, annual licence fees (i.e. the Royalty Fee and the Regulatory Fee) have to be prescribed in regulations made under s.97(3), a licence granted under s.30(1), such as the Infinity licence, does not constitute the necessary regulations. Issue 4 – application of R v Soneji

¶ [159] As is well known, the leading authority of R v Soneji establishes that, when considering the consequences of a failure to comply with some step required by statute before a power is exercised, the court should focus on the consequences of non-compliance and whether, taking into account the consequences, Parliament intended the outcome to be total invalidity of the act in question. This replaced the previous distinction between mandatory and directory requirements.

¶ [160] The Office, supported by the Attorney General, raises two arguments in reliance on what I shall call the Soneji approach. First, it makes a broad submission, namely that if regulations are required to prescribe licence fees and if the Infinity licence CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 64 does not itself constitute the necessary regulations, this should not result in the invalidity of the licence fees, i.e. the Regulatory Fee and the Royalty Fee.

¶ [161] As an alternative narrower approach, it submits that if regulations are required and if the Infinity licence otherwise constitutes valid regulations, but there has simply been a failure to publish the regulations or a Government Notice in the Gazette, this failure should not result in invalidity.

¶ [162] A useful summary of the Soneji approach is to be found in the judgment of Lord Briggs and Lord Sales (with the agreement of Lord Hamblen, Lord Leggatt and Lord Stephens) in A1 Properties Limited v Tudor Studios RTM Co Limited [2024] 3 WLR 601; [2024] UKSC 27. It is convenient to quote the following passages from that judgment as they summarise the correct approach following on from Soneji: “58. As Lord Steyn held in his speech (with the substance of which the other members of the Appellate Committee agreed) the correct approach to a failure to comply with a provision prescribing the doing of some act before a power was exercised was to ask whether it was a purpose of the legislature that an act done in breach of that provision should be invalid… 59. Lord Steyn pointed out (para 14) that “a recurrent theme in the drafting of statutes is that Parliament casts its commands in imperative form without expressly spelling out the consequences of a failure to comply”, which had been the source of a great deal of litigation. The courts had evolved a distinction between mandatory requirements, breach of which would invalidate the procedure, and directory requirements, breach of which would not. But this distinction was conclusory rather than explanatory and did not provide helpful guidance. Lord Steyn referred (para 15) to a new perspective on the problem provided by Lord Hailsham of St Marylebone LC in London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182, 189-190 which “led to the adoption of a more flexible approach of focusing intensely on the consequences of non-compliance, and posing the question, taking into account those consequences, whether Parliament intended the outcome to be total invalidity”; as Lord Steyn said, “In framing CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 65 the question in this way it is necessary to have regard to the fact that Parliament ex hypothesi did not consider the point of the ultimate outcome. Inevitably one must be considering objectively what intention should be imputed to Parliament”….. It was no longer appropriate to use the rigid mandatory and directory distinction. Instead, a more flexible approach was required, and “the emphasis ought to be on the consequences of non- compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity” to follow from non-compliance with a statutory requirement; and this “is ultimately a question of statutory construction”: para 23. …… 61. The point of adoption of the revised analytical framework in Soneji was to move away from a rigid category-based approach to evaluating the consequences of a failure to comply with a statutory procedural requirement and to focus instead on (a) the purpose served by the requirement as assessed in light of a detailed analysis of the particular statute and (b) the specific facts of the case, having regard to whether any (and what) prejudice might be caused or whether any injustice might arise if the validity of the statutory process is affirmed notwithstanding the breach of the procedural requirement….. …… 65. ….The confiscation orders in Soneji affected property rights, but that did not lead ineluctably to the conclusion that the statutory requirement had to be strictly observed in order for the orders to be valid. It remained relevant to investigate the extent of any prejudice that the individuals might suffer if the orders were upheld. It also remained relevant to balance any prejudice suffered by the individuals against the general public interest intended to be promoted by the operation of the statutory regime.”

¶ [163] This court was also referred to the judgment of the Court of Appeal of England and Wales (Criminal Division) in R v Lalchan [2022] EWCA Crim 736. In that case, the appellant was convicted of an offence which, pursuant to s.27(1) of the Public Order Act 1986 required the consent of the Attorney General before proceedings were instituted. This consent had not been obtained prior to commencement of the CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 66 proceedings but was only obtained after conviction and before sentence. The issue therefore was whether the conviction could be upheld.

¶ [164] The court held that it could not. The wording was clear and Parliament could not have intended that a conviction in breach of the clear requirement should be valid. There appears to have been some debate during the hearing as to whether the requirement for the Attorney General’s prior consent and the failure to obtain it was a procedural failure or a jurisdictional failure, with the appellant arguing for the latter and the Crown for the former. The court did not determine which of these submissions was correct but at [39] emphasised that, even if it was a procedural failure, the court had to undertake the test described in Soneji and assess what the Parliamentary intention was to be taken as having been in the event of non- compliance.

¶ [165] In both Soneji and A1 Properties, the requirements (proceeding to confiscation within a certain timescale in Soneji and serving all the intermediate landlords in A1 Properties) were clearly procedural requirements. On the hypothesis upon which we are considering the issue in the present case in relation to the broad submission of the Office, Parliament has provided that licence fees must be prescribed by regulations under s.97(3), but no such regulations have been made (on the basis that the Infinity licence does not constitute regulations). In common with the judge, I do not see that the Soneji approach is readily applicable in such circumstances. On this hypothesis, the ICT Act has provided that licence fees must be established by means of subordinate legislation, but no such subordinate legislation has been passed. There is therefore no basis in law to demand the licence fees. As discussed earlier in relation to issue 1, there has to be a statutory basis for a claim to coercive revenue such as licence fees. In the absence of regulations under s.97, there is no legal basis for the Government or the Office to claim any licence fees. Even if it is CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 67 a question of determining whether Parliament would have intended total invalidity, it seems to me inevitable that, in circumstances where the Office and the Government are seeking to claim licence fees which have not been prescribed in subordinate legislation as required by the ICT Act, Parliament would not have intended that such licence fees could be validly demanded.

¶ [166] The narrower submission made by Mr Grodzinski is less straightforward. The question only arises if (i) regulations under s.97(3) are required to prescribe the licence fees; (ii) the Infinity licence otherwise constitutes such regulations; but (iii) s.29 and/or s.61 of the Interpretation Act have not been complied with because there has been no publication of the Infinity licence or a relevant Government Notice in the Gazette. Thus, the only defect is the non-publication of otherwise valid regulations in the Gazette as stipulated under s.29 or alternatively s.61.

¶ [167] Mr Grodzinski submits that Parliament could not possibly have intended invalidity in such circumstances. The s.34 register kept and published by the Office contains all the information concerning the licence fees which would have been published in the Gazette if s.29 and/or s.61 had been complied with and therefore the public is not prejudiced in any way by the failure.

¶ [168] Similarly, there can be no conceivable prejudice to Infinity (or any other licence holder) by reason of such failure. Infinity knew before it applied for a licence that it would have to pay the Royalty Fee and the Regulatory Fee and the terms of its licence set out such fees in detail; indeed Infinity has agreed to a modification of the method of calculation of the fees (as discussed earlier) and has also applied for a new licence in 2021 in full knowledge of the fees which it would have to pay. It has therefore suffered no prejudice whatsoever as a result of the failure to publish the licence fees in the Gazette. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 68

¶ [169] Conversely, there would be considerable prejudice to the public interest if the licence fees were declared invalid, as the Office and the Government would find that fees which had been knowingly agreed to by Infinity and which had been authorised by otherwise valid regulations could not in fact be validly levied simply because of the failure to publish the regulations in the Gazette. Any such failure was a procedural defect of the most technical variety and Parliament could not have intended the total invalidity of the claim to licence fees simply because of the failure to publish in the Gazette.

¶ [170] These are powerful arguments. However, as Mr Grodzinski pointed out, the judge did not address this secondary aspect of the Office’s submissions in his judgment and accordingly this court does not have the benefit of any views from the Grand Court. Furthermore, one can envisage the question of the legal effect of a failure to publish the details of otherwise valid regulations in the Gazette pursuant to s.29 or s.61 arising in other circumstances, which may be far removed from the present circumstances where the regulations apply only to a very limited class of commercial enterprises who have voluntarily applied for a licence. Any decision therefore as to the effect of non-compliance with the publication requirements concerning regulations in this case may have implications for other cases.

¶ [171] Not surprisingly, argument before this court on this point has also been fairly limited. The parties quite naturally focused their main submissions on issues 1, 2 and 3.

¶ [172] In circumstances where, on the basis of our conclusion on issues 2 and 3, the issue on the secondary narrower aspect does not in fact arise, where there has been limited argument and where any decision might have implications for other very different cases, I would prefer to defer consideration of the question until it arises on the facts of a particular case. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 69 Issue 5 – delay

¶ [173] GCR, O.53, r.4 provides: “(1) An application for leave to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

¶ [174] Infinity’s licence was granted in 2004 and it first paid annual licence fees in 2015. The application for leave to apply for judicial review was commenced in August 2023. Even assuming (without deciding) that the grounds for judicial review did not arise until payments began in 2015, there has clearly been a substantial delay since then which is well outside the three month period.

¶ [175] The Office argued before the judge that if, contrary to its submission, Infinity was otherwise entitled to succeed, relief should be refused by the court on the ground of delay. The judge dealt with this briefly at [126] of the Judgment in the following terms: “126. For the avoidance of doubt, but subject to hearing counsel if required, I would summarily reject the delay defence for present purposes. The Applicant has successfully appealed the initial refusal of leave to the Court of Appeal and has been permitted by that Court to pursue a full hearing on the merits. It is surely not properly open to this Court at the conclusion of that full hearing to decline even declaratory relief on the grounds of delay, in light of the Applicant’s success on the legal merits [of] its claims.”

¶ [176] I have to say that in my judgment the judge erred in thinking that this court’s decision to grant leave meant that it was not properly open to him to decline relief on the ground of delay. The issue of delay was not raised before this court during the appeal against the judge’s refusal to grant leave to apply for judicial review. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 70 Furthermore, it is well-established that delay can be a ground for declining relief at the substantive hearing even where leave has been granted; see for example the observation of Lord Lloyd-Jones speaking for the Privy Council in Maharaj v National Energy Corporation of Trinidad and Tobago [2019] 1 WLR 983 at [41] where he said: “In any event, even if leave is granted without full consideration of issues of prejudice and detriment resulting from delay, these may still be a bar to relief at the substantive hearing.”

¶ [177] It is well-established that the court may in its discretion decline to grant relief on the ground of delay, particularly where to grant relief would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. The position was conveniently summarised by Ackner LJ in R v Dairy Produce Quota Tribunal for England and Wales Ex p Caswell [1989] 1 WLR 1089 at 1325 as follows: “…we have concluded that whenever there is a failure to act promptly or within three months there is ‘undue delay’. Accordingly, even though the court may be satisfied in the light of all the circumstances, including the particular position of the applicant, that there is good reason for that failure, nevertheless the delay, viewed objectively, remains ‘undue delay’. The court therefore still retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

¶ [178] This passage was specifically approved by Lord Goff (with whom the other Lords of Appeal agreed) when that case subsequently came before the House of Lords; see Caswell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738 at 746. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 71

¶ [179] Mr Grodzinski renewed the submission made before the judge that there was no good reason for the delay in this case, which had clearly caused prejudice and detriment such that relief should be refused. He summarised his submissions at [101] of his skeleton argument as follows: “(i) There was no good reason for Infinity’s delay in bringing its challenge, in particular given that the legal basis for charging the licence fees had been the same from the outset. (ii) Infinity’s delay in bringing its challenge was clearly detrimental to good administration, in particular since on its case, many years’ worth of fees would now have to be repaid. If its application for judicial review had been brought promptly then (assuming it was well-founded, contrary to the above submissions), the matter could easily have been remedied years ago by the making of any necessary further legislation. (iii) Furthermore, it is relevant that Infinity has had the commercial benefit of the ICT licence for many years yet would (on its case) now be able to retain that benefit without ever having had to pay any fees at all.”

¶ [180] Mr Grodzinski did however accept that, if the court was of the view that the Royalty Fee and the Regulatory Fee were not lawfully levied, there could be no objection to allowing the appeal in respect of the Enforcement Notice as the appeal against the Enforcement Notice had been brought within the relevant time limit.

¶ [181] Mr Buttler raised an initial point of objection to Mr Grodzinski’s submissions. He referred to [126] of the Judgment where the judge had expressed his conclusion about summarily rejecting the delay defence as being “subject to hearing counsel if required”. He asserted that the Office had never sought any further hearing and accordingly it was not now open to it to appeal on the ground of delay. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 72

¶ [182] I reject that preliminary objection. The fact that the Office was appealing the judge’s decision on delay was set out in the memorandum and grounds of appeal and in the Office’s skeleton argument. At no point prior to his oral submissions did Mr Buttler suggest that it was not open to the Office to appeal on this ground; nor was any Respondent’s notice ever filed. Given that the Office’s position has been clear from the outset in relation to this ground of appeal, I see no grounds for holding that the point is not open to it.

¶ [183] Mr Buttler’s main argument was that the question of any restitutionary claim, although included in the application for judicial review, was not before the judge as the hearing before him had been limited to the lawfulness of the Royalty Fee and the Regulatory Fee (see [2] of the Judgment). All the judge had decided at [125] of the Judgment was that there should be a declaration that Infinity ‘is’ not liable to pay the Royalty Fee and the Regulatory Fee. It was thus concerned only with the position going forward.

¶ [184] I appreciate that the question of restitution was not before the judge. Nevertheless, I consider that the arguments raised by Mr Grodzinski against granting any relief which would require repayment of fees charged to Infinity prior to the application for leave for judicial review to be overwhelming. But I see no objection to granting relief confined to the position going forward. If this court had agreed with the judge and been of the view that it was not lawful to charge the Royalty Fee and/or the Regulatory Fee, I cannot see that the delay on Infinity’s part would amount to a good reason for not making clear by way of declaration that Infinity was not liable to pay the fees as from the date of its application for leave (or perhaps three months earlier). Accordingly, if that had been the case, I would have been willing to grant declaratory relief tailored to make it clear that it was limited to the position going forward from that date. I would also have allowed the appeal against the Enforcement Notice, as that appeal was brought within time. CACV2025-0014 2026-09-10 CICA (Civil) Appeal 0014 of 2025 – The Utility Regulation and Competition Office v The King and Infinity Broadband Limited and the Attorney General of the Cayman Islands 73

¶ [185] However, none of this arises given the court’s conclusion that the Royalty Fee and the Regulatory Fee have been lawfully charged.

¶ [186] In its grounds of appeal and skeleton argument, the Office also raised an argument based on estoppel, namely that Infinity was estopped by convention from denying that the relevant licence fees had been lawfully charged to it. However, during the course of the hearing, Mr Grodzinski confirmed that he was not proceeding with this ground as he did not consider that it added anything to the argument on delay and accordingly I say no more about it. Conclusion

¶ [187] For the reasons given above, I would allow the Office’s appeal and dismiss Infinity’s application for judicial review, as well as dismissing its appeal against the Enforcement Notice. Sir John Goldring President

¶ [188] I agree. Sir Richard Field JA

¶ [189] I also agree. CACV2025-0014 2026-09-10