Gotel Communications Ltd and Index Communications Network Ltd c Cable and Wireless (Jamaica) Ltd

• Jurisdiction: Jamaica
• Judge: SYKES J
• Judgment Date: 30 June 2006
• Judgment citation (vLex): [2006] 6 JJC 3004
• Date: 30 June 2006
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

BETWEEN

GOTEL COMMUNICATIONS LIMITED

FIRST CLAIMANT

AND

INDEX COMMUNICATIONS NETWORK LIMITED

SECOND CLAIMANT

AND

CABLE AND WIRELESS (JAMAICA) LIMITED

DEFENDANT

IN CHAMBERS

Miss Gillian Mullings instructed by Patrick Bailey and Company for both claimants

Miss Hilary Phillips Q.C. and Mrs Denise Kitson instructed by Grant, Stewart, Phillips & Company for the defendant

INJUNCTIONS - Ex parte - Application to discharge

1 APPLICATION TO DISCHARGE EX PARTE INJUNCTION

SYKES J

2 1. On an ex parte application Straw J. on June 7, 2006, granted the claimants, Index Communications Network Limited and Gotel Communications Limited (collectively referred to as Gotel) an injunction against the defendant, Cable and Wireless (Jamaica) Limited ("C&W") in the following terms:

• a. The defendant, its servants and/or agents is prohibited from blocking any and/or all calls originating from the Claimants' telephone network until the 30 ^th June 2006.

• b. This matter is set for the 30 ^th day of June at 11:30 a.m., or as soon thereafter as Counsel may be heard, for further consideration.

• c. The claimant gives the usual undertaking as to damages.

3 2. C & W sought to set aside the injunction, also by an ex parte application on Friday, June 16, 2006. C & W alleged that there were very serious and material omissions. I set the matter down for an inter partes hearing on June 20, 2006, with directions that the claimants should be served with C & W's application and affidavit in support. At this hearing Miss Gillian Mullings applied for an adjournment on the basis that she was served with the affidavit and notice on Friday, June 16, 2006, after 4:00 p.m. and needed time to receive instructions to reply to the affidavit. In the normal course of things this would not necessarily be an unreasonable request and ordinarily would have been granted. I refused the adjournment, discharged the injunction and ordered an enquiry into whether the defendant has suffered any damage because the injunction was granted.

4 Non-disclosure

5 3. The defendant alleged that there were very material non-disclosures committed by the claimants on their application before Straw J. I now set out briefly the affidavit of George Neil who deponed on behalf of the claimants. He outlines the history of the contractual arrangements between the claimants and the defendant. He next states that the relationship was "volatile" (his word) (see para. 9). He mentioned that there was a suit between Gotel and C & W. This was Suit number HCV 00244 of 2004. He ends by saying that the defendant is preventing the claimant from effectively operating its service. The tone of the affidavit paints C & W as an abusive monopolist which is seeking to eliminate the claimants from the market. When presented in this way Straw J. was persuaded to grant the injunction.

6 4. At the hearing before me it was admitted by Miss Mullings and Mr. Undel Williams, Chief Operations Officer for both claimants that Straw J. was not told that:

• a. the claimants admitted that they were using the circuits in breach of the contract between themselves and C & W;

• b. the claimant admitted the breach of contract and consequently entered into an agreement with C & W to pay for use;

• c. the claimants did not honour the agreement to pay C & W and this led C & W to file Suit No. HCV 00244 of 2004, which ended with judgment being entered against Gotel on May 26, 2004 in the sum of JA$48,306,193.39 and US$494,383.56;

• d. the judgment was served on Gotel by registered post in July 2004;

• e. C & W applied for and received on or around August 25, 2004, an order for Seizure and Sale of Gotel's goods;

• f. Gotel created a mortgage over its property on September 16, 2004, in favour of Capital Solutions Limited in the sum of $60,000,000.00;

• g. the bailiff could not execute the writ of seizure and sale because of the charge created over Gotel's property;

• h. on June 16, 2005, Brooks J. ordered Gotel to pay C & W US$50,000;

• i. a cheque in the sum of US$50,000 paid to C & W was returned for insufficient funds but a subsequent cheque was honoured;

• j. the judgment has not been satisfied;

• k. on July 21, 2005, Gotel applied to have the default judgment set aside and that application has been adjourned to January 8, 2007;

• l. C & W petitioned to wind up Gotel and this application was adjourned to February 23, 2007 (see Claim No. HCV 1802 of 2005).

7 5. On March 16, 2005, the attorneys for Gotel wrote to C & W's attorneys in the following terms regarding the judgment debt:

We refer to Judgment [i.e. Claim No HCV 00244 of 2004] herein in favour of your client Cable and Wireless Jamaica Limited.

Please note that the Defendants (sic) are experiencing an enormous cash flow challenge at the moment.

Nonetheless, due to the resolve of the Director to have the Companies rebound, assiduous efforts are being made to inject new capital in the Defendant Companies. Both companies are determined to honour their indebtedness to your client (and others). (My emphasis)

In fact, our clients have instructed us to offer a monthly payment of $200,000.00, in the first instance, towards the liquidation of the subject indebtedness.

It is expected that in or around October 2005 the monthly payment will be increased substantially.

Please be good enough to seek instructions, as our clients desire to make the first payment under its proposal, immediately. (Same as original)

8 6. Gotel did not honour the agreement. C & W was forced to file suit and obtained a judgment in the sums indicated. These sums are still outstanding. The March 16, 2005, letter admitted the judgment debt as well as...