Lisa Gordon v Jamaica Public Service Company Ltd

• Jurisdiction: Jamaica
• Judge: SYKES J
• Judgment Date: 16 September 2011
• Judgment citation (vLex): [2011] 9 JJC 1601
• Date: 16 September 2011
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO HCV 4635 OF 2011

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO HCV 4635 OF 2011

BETWEEN

LISA GORDON

CLAIMANT

AND

JAMAICA PUBLIC SERVICE COMPANY LIMITED

DEFENDANT

IN CHAMBERS

Rose Bennett Cooper and Sidia Smith instructed by Bennett and Beecher-Bravo for the claimant

Katherine P.C. Francis and David Fleming for the defendant

INTERLOCUTORY INJUNCTION - STATUTORY INTERPRETATION - WHETHER SERIOUS ISSUE TO BE TRIED - WHETHER STATUTE PREVENTS DEFENDANT FROM RECOVERING ARREARS - RESTITUTION - CHANGE OF POSITION

SYKES J

1 [1] Mrs. Lisa Gordon, the claimant, has been sent what has been described as an adjusted statement of account in the sum of JA$1,845,814.40, by the Jamaica Public Service Company Limited (“JPS”) who is the defendant. JPS is a monopolist and currently has an exclusive licence granted under the Electric Lighting Act (“the Jamaican Act”) to provide electricity to all persons in Jamaica who wish to receive this vital service. Indeed, the civilization in Jamaica is premised on the availability of this commodity. The sum stated is said to be the amount owed by her because she had at her house an improperly functioning meter which underbilled her. She has resisted paying the bill. She has sought to resolve the matter through the dispute mechanism set up by the Office of Utilities Regulation (“OUR”), the body established by law to regulate the providers of public utilities. The JPS says to her, “You have used the electricity. You must pay.” The OUR tells her the same thing. She is outraged and now comes to court seeking, in this application, an injunction restraining JPS from disconnecting her electricity supply pending the full hearing of her application for a declaration that JPS is barred from collecting any arrears owed by her. The injunction was granted and these are the reasons.

The background

2 [2] This matter first came before this court on Monday, August 15, 2011 and was set down for hearing for Tuesday, August 16, 2011. What the court has set out comes from the affidavits filed by Mrs. Gordon and JPS. The basic facts are not in dispute.

3 [3] Mrs. Gordon and her husband, Mr. Cary Gordon, purchased property at 11 Hopefield Close, Lot 6, Kingston 8, in the parish of St. Andrew in 2000. She applied for and received metered electricity service from JPS for the property. Since that time she has received and paid all bills sent to her by the JPS. To the best of her knowledge, the meter had not been changed or tampered with since she became the registered proprietor.

4 [4] On March 10, 2010, JPS went to the property. It noticed a number of irregularities with the meter that led to the meter being removed (see the affidavit of Mr. Vaden Williams sworn to August 15, 2011). The technical team left with Mrs. Gordon a document called notice of irregularity in service.

5 [5] JPS took the meter to the Meter Testing and Calibration Centre at 113 Washington Boulevard, Kingston 20 - a facility operated by the JPS. At this facility meters are examined to determine whether they should be replaced. From the evidence, it does not appear that the OUR has any facility to test any meter in the event of a dispute, about the meter, between the customer and the JPS. On the face of it, any decision arrived at by the JPS has to be accepted unless the customer can produce an expert to challenge the JPS's conclusion. It is said that the facility has met the standards set by the International Organisation Standards (see the affidavit of Mr. Donovan Carson sworn on August 15, 2011). The implication being, that if JPS says that the meter is malfunctioning then it is malfunctioning. The Bureau of Standards is the local assessment body which guarantees the JPS's facility is compliant with the international standards.

6 [6] The meter in question was examined and according to the JPS's Meter Testing and Calibration Centre (there being no independent confirmation at this stage), the meter was recording only fifty percent of the energy which passed through it. On further examination, it was found that the mal-adjustment identified in this specific meter occurred because some person deliberately altered the meter so that it would record a lower supply of electricity than what was actual supplied. The result of this, it is said, was that Mrs. Gordon was paying only fifty percent of what was actually supplied to her.

7 [7] JPS, relying on its assessment of the meter, sent a bill going back from March 6, 2010 to April 2, 2004. It is observed that JPS assumes that this fifty percent reduction of recorded provision of electricity is constant going back six years. The evidence produced to date does not make this conclusion inevitable.

8 [8] An important concession was made by the JPS. Mr. David Fleming, an attorney at law and legal officer of JPS, makes this statement at paragraph 18 of his affidavit dated August 12, 2011:

It is not the defendant's contention that the claimant carried out this unauthorised third party (human) intervention of the meter resulting in the meter under-registering. However the claimant benefitted from the under-registration of the meter as the defendant provided electricity to the claimant which was consumed, however the defendant was not able to properly bill the claimant for the total electricity being provided and consumed. The claimant has thus deprived the defendant of revenue which it is entitled to.

9 [9] Mrs. Gordon is not being accused of personal dishonesty. If Mrs. Gordon is not being accused of tampering with the meter, it is not entirely clear why it is being said that Mrs. Gordon deprived the JPS of revenue to which it was entitled. Perhaps what was meant was that Mrs. Gordon did not pay the full amount for the electricity actually consumed.

10 [10] The dialogue between OUR and Mrs. Gordon is interesting. The OUR, like JPS, makes the assumption that the fifty percent reduction in recorded supply of electricity applies for the entire period. It has to be an assumption because the OUR did not carry out its own examination of the meter and formed its own independent conclusion. It simply adopted JPS's position. In a letter dated July 11, 2011 to Mrs. Gordon's lawyer, the OUR writes:

In addition, you noted in your letter that your client inherited the meter that was at her premises when she purchased the property some time ago. While we understand your statement, the fact is that the meter was tampered with by a third party as evidenced by the increased consumption being registered on the meter after the meter changed. In addition your client would have benefitted from the tampered meter since she purchased the property as her total consumption was not registered.

11 [11] For good measure, the OUR added:

Also, you quoted the JPS' Standard Terms and Conditions which you believe should be the basis for adjusting your client's account. However the OUR approved Back Billing Policies & Procedures states, “In all cases of fraud, deliberate acts of dishonesty or willful interference with JPS equipment or device, JPS shall be entitled to recover the correct charges due and owing subject to any statutory limitation.”

12 [12] It is important to observe that the OUR is talking about fraud and deliberate acts of dishonesty in a context where the JPS has not accused Mrs. Gordon of any such activity. Presumably the OUR must be saying that it does not matter whose committed the fraud or even whether Mrs. Gordon was aware of the fraud. Once there is fraud, Mrs. Gordon must pay even if she is not responsible or had any knowledge of the fraud. Mrs. Gordon asked the OUR to review its position. This position as confirmed in clear and unambiguous terms by the OUR in a letter dated August 8, 2011:

The focus is therefore not on who may...