Blair (Carlton) v Alcoa Minerals of Jamaica Inc. and Clarendon Alumina Production Ltd

• Jurisdiction: Jamaica
• Judge: HARRISON, P :
• Judgment Date: 20 December 2005
• Neutral Citation: JM 2005 CA 74
• Judgment citation (vLex): [2005] 12 JJC 2007
• Court: Court of Appeal (Jamaica)
• Date: 20 December 2005

IN THE COURT OF APPEAL

BEFORE:

THE HON MR JUSTICE HARRISON, P (Ag.) THE HON MR JUSTICE BINGHAM, J.A THE HON MR JUSTICE SMITH, J.A

BETWEEN:

CARLTON BLAIR

APPELLANT

AND

ALCOA MINERALS OF JAMAICA INCORPORATED

1 ^st RESPONDENT

AND

CLARENDON ALUMINA PRODUCTION LTD.

2 ^nd RESPONDENT

Maurice Frankson and Richard Rowe instructed by Gaynair and Fraser for appellant

Emile George, Q.C., John Vassell, Q.C., and Shena Stubbs instructed by Dunncox for respondents

CONSOLIDATION OF ACTIONS - Order

HARRISON, P :

1 This is an appeal from the judgment of Pitter, J on March 8, 2002, dismissing a motion for judgment with costs to the respondents. We heard the arguments of both parties and on July 8, 2003, we dismissed the appeal with costs to the respondents to be agreed or taxed. On the latter date, we delivered an oral judgment. These are our reasons in writing. We do regret the delay.

2 The relevant facts are that the instant case was one of a number of cases filed against the respondents complaining of damage particularly to the roofs of their houses over a period of years. This was caused by corrosive emissions of sulfur dioxide from the respondents' bauxite refinery plant at Hayes in the parish of Clarendon. A consolidation order in respect of the 40 cases was made by the Master in Chambers on November 1, 1990. The attorneys-at-law of all parties were present. When the consolidated matters came up for trial on October 7, 1991, before Theobalds, J., the learned trial judge selected one of the cases, namely, then, Herbert Broderick v Alcoa Minerals of Jamaica Incorporated et al. C. L. 1990/B 096 to proceed to trial, as a single case. Counsel for the respondents, Emile George, Q.C., objected to the trial of one only of the cases regarding it as an act of de-consolidation. Counsel for the plaintiff Broderick, attempted, initially, to commence with 3 of the cases, by an application to de-consolidate the latter. A record of the dialogue which transpired then before Theobalds, J on October 17, 1991, and exhibited to the affidavit of Maurice Frankson, dated February 14, 2002, at page 19 of the record reads as follows:

• "EG Till there is an Order de-consolidating Court cannot decide to hear 1 case - ask that you adjourn so we can test Order in effect we have come to meet a particular case and we are hearing something else.

• J I'm starting now.

• EG Despite application to take it further. We stay but under protest.

• J Which is the first case?

• ME J I'd like to start with Broderick. Why?

• ME Anderson not here - Broderick is.

• J Any objections?

• EG Don't see why order shouldn't be maintained.

• ME We had indicated that we had indicated 2 cases to the other side.

• EG Are you making an Order for deconsolidation. May we have the terms of the Order?

• J No."

3 The case of Herbert Broderick against the respondents was heard by Theobalds, J., and judgment was entered for the plaintiff against the respondents on the issues of liability and damages on December 19, 1994. The respondent's appeal to the Court of Appeal was dismissed on November 11, 1994. The case was described then as being:

"... in the nature of a test case as there are several others pending in the Supreme Court."

4 The...