Natural Resources Conservation Authority v Seafood and Ting International Ltd; Natural Resources Conservation Authority v DYC Fishing Ltd [Consolidated Suits]

• Jurisdiction: Jamaica
• Judge: HARRISON, J.A.: , PANTON, J.A. (Ag.) , DOWNER. J.A.
• Judgment Date: 01 July 1999
• Neutral Citation: JM 1999 CA 37
• Judgment citation (vLex): [1999] 7 JJC 0101
• Court: Court of Appeal (Jamaica)
• Date: 01 July 1999

IN THE COURT OF APPEAL

COR:

THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE PANTON (AG.)

BETWEEN

NATURAL RESOURCES CONSERVATION AUTHORITY

APPELLANT

SEAFOOD AND TING INTERNATIONAL LIMITED

RESPONDENT

AND

NATURAL RESOURCES CONSERVATION AUTHORITY

APPELLANT

> DYC FISHING LIMITED

RESPONDENT

Lennox Campbell, Senior Assistant Attorney-General Nicole Foster, Assistant Attorney-General and Cheryl Lewis, Crown Counsel, instructed by Director of State Proceedings for the Appellant

R.N.A. Henriques, Q.C., and Carlton Melbourne instructed by Carlton Melbourne and Company for the Respondents

INJUNCTIONS - Interim - Prohibitory and mandatory - Whether appellant ought to grant the respondents permit to export - Unlawful interference with business

DOWNER. J.A.

1 INTRODUCTION

2 The respondents Seafood and Ting International Limited and DYC Fishing Ltd. who process conch for export sought and obtained an order for an Interim Injunction from Courtenay Orr, J. with prohibitory and mandatory features. The mandatory feature ordered the appellant to grant the respondents permits for export. Leave to appeal was granted to Natural Resources Conservation Authority, the appellant by this Court to appeal that order and this forms the first aspect of this appeal. The appellant sought to discharge the Interim Injunction but Orr, J. refused the application without hearing from the applicant and the second aspect of this appeal is to decide whether their prayer ought to have been granted. The third aspect of this proceeding concerns the grant by this Court at the inception of these hearings for a stay of proceedings of contempt of court instituted by the respondents against the appellant and its servants. The orders awarded on appeal will be accompanied by the necessary declarations of law which ought to be helpful to the parties as well as the Attorney-General. It should also be noted that the respondents have a pending action against the appellant so there is a Statement of Claim and this therefore is an interlocutory appeal.

3 The initial proceedings before Orr, J.

4 The importance of this is that if there are averments that the common law tort of interfering with the trade or business of another person by doing unlawful acts then the remedy awarded on appeal may make a trial superfluous if Orr's J. order is affirmed.

5 What is the law pertaining to interim injunctions which have both prohibitory and mandatory features?

6 In Elinor Inglis and William McCabe v Verne Granburg (1990) 27 J.L.R. 107, 109 this Court said:

"Interim injunctions belong to that exceptional category of remedies which are granted in the absence of the defendant. In exercising its discretion to grant such a remedy an essential prerequisite was that the matter was of such urgency that there was no time to serve the defendant. In exceptional cases the certainty of success at the interlocutory stage may persuade the Court to grant the remedy where urgency is not established, but this must be a rare event. Generally speaking, the time granted for these injunctions is between five and seven days. Seton, J., in March v. Campbell 3 J.L.R., p. 194 in refusing an interim injunction did so on the basis that the grounds to justify the remedies being granted ex parte were not sufficiently strong. This can be taken to mean that he dismissed the matter in limine. Rowe, P., in the course of argument, referred to the case of Bates v. Lord Hailsham [1972] 1. W.L.R. 1373 and Mr. Goffe relied on the following passage at page 1380A:

'If there is a plaintiff who has known about a proposal for 10 weeks in general terms and for nearly four weeks in detail, and he wants an injunction to prevent effect being given to it at a meeting of which he has known for well over a fortnight, he must have a most cogent explanation if he is to obtain his injunction on an ex parte application made two and a half hours before the meeting is due to begin. It is no answer to say, as Mr. Nicholls sought to say, that the grant of the injunction will do the defendants no harm, for apart from other considerations, an inference from an insufficiently explained tardiness in the application is that the urgency and the gravity of the plaintiff's case are less than compelling. Ex parte injunctions are for cases of real urgency, where there has been a true impossibility of giving notice of motion. The present case does not fall into that category. Accordingly, unless perhaps the plaintiff had had an overwhelming case on the merits, I would have refused the injunction on the score of insufficiently explained delay alone'."

7 As for Interlocutory Mandatory Injunctions the court will also lay down rigid conditions before they are granted. Here is how it was put in Locabail International Finance Ltd. v Agroexport and others The Sea Hawk [1986] 1 All ER 901 at 906 by Mustill L.J.:

"I shall deal first with the question of the test which is to be applied. In my judgment this is correctly stated in 24 Halsbury's Laws (4th edn) para 948 in a passage headed 'Mandatory injunctions on interlocutory applications'. That passage reads:

"A mandatory injunction can be granted on an interlocutory application as well as at the hearing but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff... a mandatory injunction will be granted on an interlocutory application'."

8 Then the learned Lord Justice continued thus:

"One of the cases cited in support of that passage is the decision of Megarry J in Shepherd Homes Ltd v Sandham [1970] 3 All ER 402, {1971] CH 340; in the course of his judgment Megarry said ( [1970] 3 All ER 402 at 412, [1971] Ch 340 at 351):

'Third, on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory Injunction. In a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction'."

9 So if the case on an interlocutory application is clear and ought to be decided at

10 once then the grant of a mandatory injunction is permissible. As the exparte injunction granted in this case was for a period of 15 days it has now expired. But the fact that it existed has certain legal effects which makes this case exceptional. Contempt proceedings can be and have been instituted because there was no compliance with the mandatory order to award export permits. It must be emphasised that to grant an interlocutory injunction may enable the plaintiff to have his grievance redressed without a trial. In the case of an exparte injunction it would enable him to get the injunction without hearing from the other side. Hence the caution stressed by Carey J.A. in W.D. Miller and W. Parkes v O'Neil Cruickshank (1986) 23 JLR 154 at 160 where he said:

"Indeed as Cayne v. Global Natural Resources plc [1984] 1 All E.R. 225 demonstrates:

'Where the grant or refusal of an interlocutory injunction will have the practical effect of putting an end to the action, the court should approach the case on the broad principle of what it can do in its best endeavour to avoid injustice, and to balance the risk of doing an injustice to either party. In such a case the court should bear in mind that to grant the injunction sought by the plaintiff would mean giving him judgment in the case against the defendant without permitting the defendant the guidelines requiring the court to look at the balance of convenience when deciding whether to grant or refuse an interlocutory injunction do not apply in such a case, since, whatever the strengths of either side, the defendant should not be precluded by the grant of an interlocutory injunction from disputing the plaintiff's claim at a trial'."

11 Against this background of law what were the basic facts and issues before Orr, J? Firstly, as to the facts the judge's bundle for Seafood and Ting International (Sea Food) comprised seventy seven pages. That for DYC Fishing Ltd. (DYC) was one hundred and twenty seven pages. Secondly, the issue of law which ultimately convinced this court emerged quite late in Mr. Henriques' Q.C. submission. It was not mentioned in the skeleton argument or in the very able submissions of Ms. Nicole Foster for the appellant. In her reply she neither challenged the principle or the applicability of the law governing the tort in issue. Thirdly, the issue of law relied on was a tort that could hardly be described as well known and the principle had to be applied to novel circumstances. What was put before Orr, J. was that there was no legislation governing the issue of permit and that there was no contract between the appellant and the respondents.

12 As for the facts they need only be mentioned briefly at this stage. Both respondents process conch for export. Before Jamaica's accession to the Convention On International Trade In Endangered Species Of Wild Fauna And Flora (the "Convention") they processed and exported conch without let or hindrance subject to a National Quota being established. It is true that they obtained a licence from Jamaica Promotions Ltd (JAMPRO) but that was granted as a matter of course.

13 In this instance the appellant has refused to grant the Convention in International Trade in Endangered Species (CITES) permit which is mandatory by international law if the export of conch is marketed in countries which are signatories to the Convention. There is a distinction between the...