Mossel (Jamaica) Ltd v Michael Ian Thrush
| Jurisdiction | Jamaica |
| Judge | Sykes J (Ag) |
| Judgment Date | 29 September 2004 |
| Judgment citation (vLex) | [2004] 9 JJC 2901 |
| Court | Supreme Court (Jamaica) |
| Date | 29 September 2004 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
COMPETITION LAW - Restraint of trade - Ex parte interim injunction - Restraining of defendant from taking up employment with Telecommunications Services of Trinidad & Tobago Ltd. - Whether injunction should continue until trial - Whether there is a serious issue to be tried - Issue of non-disclosure - Remedy
RESTRAINT OF TRADE: INJUNCTION
The business context
1. This is an extremely urgent matter. It involves an attempt by Mossel (Jamaica) Limited (Mossel), the claimant, to enforce a restraint of trade clause which it says allows then to prevent Michael Thrush, the defendant, from taking up employment with Telecommunications Services of Trinidad and Tobago Limited (TSTT), a provider of telephone services in the Republic of Trinidad and Tobago. Cable and Wireless has a 49% stake in TSTT. The Government of Trinidad and Tobago has 51%. The matter is urgent because the period of restraint is twelve months which began August 24, 2004 and ends August 24, 2005. The case law makes it clear that although the American Cyanamid principles apply, if a trial is not possible early within the restraint period then it is proper for the court to consider the prospect of success. This additional consideration may mean that although the American Cyanamid principles are met an injunction until trial may not be granted. One month has already passed. There are eleven months to go and the matter is still at the interlocutory stage.
2. On August 25, 2004 Mossel was granted an ex parte interim injunction preventing Mr. Thrush from working with TSTT which is alleged to be the competitor of Mossel in Trinidad. This is now an inter partes hearing to determine whether the injunction should continue until the trial. In addition, the defendant has filed a notice of application for court orders in which he is seeking the following:
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a) the service of the claim form and particulars of claim dated August 25, 2004 as well as the injunction granted on August 25, 2004 be set aside under Rules 7.7 and 7.14(1) of the Civil Procedure Rules ( CPR) 2002;
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b) further or in the alternative a declaration that this court has no jurisdiction to try the claim or should not exercise any jurisdiction which it may have under rule 9.6(1) of the CPR and an order that the service of the documents referred to at (1) be discharged;
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c) alternative to (a) and (b) that the injunction granted on August 25, 2004 be set aside and the notice of application heard on August 25, 2004 be heard again under rule 11.6(1);
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d) alternatively to (c) that the injunction granted on August 25, 2004 be discharged.
3. These applications by the defendant will be dealt with much later at paragraphs 49 – 53.
4. Mossel seeks this pretrial remedy because it says that the contract it has with Mr. Thrush enjoins him from soliciting employees of Mossel (clause 2) while clause 9 prevents Mr. Thrush from " engaging in any activity of a business nature with the Company's competitors . "(my emphasis)
5. The contract has other features. The contract provides in clause one that any service provided must be under what is known as a Task Specification. It is by this Task Specification that Mr. Thrush would be asked to do specific kinds of work. He would be told, for example, the start date, the services to be provided and rates and details of compensation. The contract says at clause 8 that it comes into effect when signed by both parties and shall remain in effect until October 25, 2002 or it can be terminated earlier by each party giving 15 days written notice. The claimant says that this is not as bad as it seems because both parties have operated since 2002 on the basis that the terms and conditions of the 2002 contract governed the relationship. There is some merit to this argument since it is undeniable that the claimant and the defendant had a contractual relationship right up until August 24, 2004. Whether the postOctober-25-2002 period was governed by the service agreement is undoubtedly a matter to be resolved at trial.
6. Of course, even the dullest of cases have a context to say nothing of a vibrant case such as this. I need to state what the real story behind the claim is. I now set out that story.
The rest of the story
7. The 1990's saw the rapid development of telecommunications technology and with it a change in the policy of many governments of the region. They sought to encourage competition. Prices have fallen and there is a phone for just about every imaginable type of consumer. The phones boast so many features that sophisticates and philistines alike are able to find a phone and a service package that suits his taste and pocket. The ring tones range from Beethoven to Anthony Moses Davis (Beenie Man). Those who fancy their composing skills can even compose their own melodies.
8. This new policy precipitated the arrival of a new wave of international investors to our shores. In this case, one of that new breed hails from the Republic of Ireland. He is Mr. Dennis O'Brien. In Jamaica he has taken the corporate form of Mossel (Jamaica) Limited. Many of Mossel's directors are Irish. Michael Ian Thrush, the defendant, comes from across the channel - from England.
9. The claimant alleges that when Mr. O'Brien turned his entrepreneurial eyes and fixed them on the Caribbean, he viewed the whole region as a single market. The different islands, some of which are independent, are only parts of the same market and not different markets. To put the matter starkly: the fact that some islands are nation states while others are either dependents territories or overseas departments of European nations does not change the view that the Caribbean is a single market. In the eyes of Mr. O'Brien and his fellow investors the Caribbean telecommunications market is small not only terms of population size but also small in terms of effective market, that is the persons who will purchase cell phones. Thus pricing and marketing assume even greater significance. If the pricing is wrong this can spell the end of a telecommunications provider. The margin for error is very small. It is in this context that the skills of Mr. Thrush rise to great significance. He is a pricing and marketing specialist. He is one of those persons who assists telecommunications providers to develop the right combination of prices for goods and services that are offered to the public. Mossel claims that Mr. Thrush has its trade secrets that he might disclose to Cable and Wireless through TSTT. It is here that the story while quite simple to tell begins to generate complex issues of law.
10. Mr. O'Brien's perception straddles different nationalities, cultures, language groups and it ignores borders to say nothing of the Caribbean Sea that separates the islands. The claimant submits that (and this is the first complex point of law) that forming different companies in different islands was more in the nature of a business strategy rather than a desire to create separate independent legal entities. Therefore, says Mossel, the court should look at the reality and not pay too close attention to the legal principle that states that each company is a separate person. This will be explained in detail at paragraph 18.
11. The claimant says that because the region is one market and Trinidad and Tobago is a segment of that market the fact that it does not yet have a licence in Trinidad is no bar to it getting an interlocutory injunction. The fact is that Mossel has a presence in Trinidad through two companies that are incorporated there. I now come to the second complex issue of law which is this: whether the two companies are agents of Mossel so that it has a presence in Trinidad so as to be regarded as a competitor of TSTT even though TSTT is the only company licensed to provide telephone services in Trinidad and Tobago. Let me expand on this so that the breadth of the claimant's proposition can be appreciated.
12. The claimant is saying this: despite the fact that it does not have a license to operate in Trinidad and Tobago it is a competitor of TSTT because the two companies registered there are its agent.
13. The defendant regards these propositions as legal apostasy. The propositions have departed too far from orthodoxy to be acceptable. Since it is well known that an injunction is not a cause of action but a remedy it is appropriate at this juncture to deal with the cause of action.
The claim
14. Mossel in the claim form says that it is a limited liability company with registered offices at 10-16 Grenada Way, Kingston, Jamaica. The claimant says that it "is and was at all material times, inter alia, a wireless telecommunications provider with operations in the Caribbean region including Jamaica" (my italics). Mossel says at paragraph three of its claim that "the Defendant agreed to supply consulting services to the Claimant for the initial period June 15, 2002 to October 25, 2002 and thereafter to the 24 th day of August 2004 on the same terms". It is necessary to examine whether there is anything to protect since if there is not then that would be the end of the matter.
Is there anything to protect?
15. It is well established in this area of law that it is trade secrets that are protected. The previous employer cannot immunize himself from competition but he can protect his secrets. Mr. Morrison submitted that pricing/marketing is not "rocket...
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