Sentry Services Security Company Ltd v The University of Technology Jamaica

• Jurisdiction: Jamaica
• Judge: Laing, J
• Judgment Date: 10 November 2016
• Court: Supreme Court (Jamaica)
• Docket Number: IN THE COMMERCIAL DIVISON CLAIM NO. 2016CD00353
• Date: 10 November 2016

[2016] JMCC Comm 31

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Laing, J

IN THE COMMERCIAL DIVISON CLAIM NO. 2016CD00353

Between

Sentry Services Security Company Limited

Claimant

and

The University Of Technology Jamaica

Defendant

Mr. Ransford Braham Q.C. and Mr. Jeffery Foreman instructed by Braham Legal for the Claimant.

Mr. Gavin Goffe and Mr. Jahmer Clarke instructed by Myers Fletcher & Gordon for the Defendant.

Injunction — Principles for grant

Contracts — Whether ‘month to month’ contract terminable by one month's notice

IN CHAMBERS

The application

1 The Claimant by Notice of Application filed 1 ^st November 2016 has sought injunctions preventing the Defendant from terminating its services in what the Claimant says is a breach of an agreement between the parties (“the Existing Contract”), the terms of which are contained in a letter from the Defendant to the Claimant dated 4 ^th February 2016. The Claimant has also sought various declarations and other relief.

The Background

2 The Claimant and the Defendant were parties to a contract dated 17 ^th October 2013 which in fact came into effect on 11 ^th November 2013 (“the Expired Contract”). It was expressly stated to be for aduration of 2 years and was terminated by effluxion of time. The Expired Contract provided for the Claimant to provide security services and systems to the Defendant.

3 It is common ground between the parties that the Expired Contract is at an end (save to the extent that its terms and conditions may have been incorporated by reference) and that the current contractual relationship between the parties is pursuant to the letter dated 4 ^th February 2016, the terms of which are set out hereunder:

“ As you are no doubt aware, the contract for Security Services by Sentry Services Security Company Limited has expired and as a consequence the provision of security services by your company to the University of Technology, Jamaica is based on a month-to-month agreement.

The Government of Jamaica requires that security services be acquired via the tender process.

This is to advise that until the process is concluded, your organization continues to provide security services to the University of Technology, Jamaica as per the terms and conditions of the expired contract.

I am sure that you are aware that this does not preclude your organization participating in the tender process.

Please sign the attached copy of this letter acknowledging your acceptance of the month-to-month contract on the aforementioned terms and conditions.”

4 By letter dated 10 ^th October 2016, (“the Termination Letter”) the Defendant gave notice to the Claimant that the month to month arrangements will cease effective 11 ^th November 2016. It is following this notice that this application for an injunction was brought.

The applicable principles

5 In determining the circumstances in which an interim injunction ought to be granted our courts have consistently been guided by the principles laid down American Cyanamid v. Ethicon [1975] A.C. 396 which for convenience have often been reduced to three main considerations, which in summary are:

1

Is there a serious issue to be tried?; 2. Would damages be an adequate remedy?; 3. Does the balance of convenience favour the granting of an injunction?

Serious issue to be tried

6 It is trite law that the application for interlocutory relief is not in itself a cause of action. The claim is for a breach of contract and the particulars of breach are set out in paragraph 9 of the particulars of claim as follows:

“ PARTICULARS OF BREACH

9.1 Serving notice of termination of the agreement prior to the completion of the public procurement process for the provision of security services;

9.2 Serving notice of termination of the agreement in breach of the termination provisions contained in the expired contract (dated October 17, 2013)

9.3 Failing to complete the public procurement process for the provision of security services;

9.4 If the public procurement process for the provision of security services is completed, failing to permit the Claimant to participate;

9.5 Failing to observe the terms and conditions of the expired contract (dated October 17, 2013);

9.6 Breach of statutory obligation to follow the Government of Jamaica public procurement rules as outlined in the Handbook of Public Procurement;”

7 Mr. Braham Q.C. submitted that the letter dated 4 ^th February 2016 has to be examined in its entirety in order to ascertain the terms and conditions of the Existing Contract. He argued that the use of the term “ month to month” is qualified by the statement that “ until the process is concluded, your organization continues to provide security services to the University of Technology, Jamaica as per the terms and conditions of the expired contract.” The natural and ordinary meaning of these words he argued, was that until the public procurement process is completed, the Claimant is required to provide security services to the Defendant according to the terms of the Expired Contract.

8 Mr. Braham Q.C. confirmed that he was not suggesting that the Defendant could not terminate the Existing Contract. He conceded that even if the Court accepted his construction and interpretation of the plain and ordinary meaning of the words referred to in the preceding paragraph, the Existing Contract is terminable and what is arguable is the length of the appropriate period of notice.

9 It was by submitted by learned Queen's Counsel relying on Halsbury's Laws of England, Landlord and Tenant, Volume 62 (2012) Weekly, Monthly and other Periodic Tenancies para 233, (as tailored and applied in the context of the relevant period under consideration), that a monthly or other periodic tenancy does not expire at the end of the month or period or at the end of each succeeding month or period, with a re-letting at the beginning of each month or period, but rather there is a springing or future interest which arises and which is determined only by a proper notice to quit.

10 Learned Queen's Counsel submitted that there was the importation of the terms and conditions of the Expired Contract (including the termination clause) into the Existing Contract by the letter dated 4 ^th February 2016. Accordingly, because the termination clause 9(h), provides that not less than three months notice of termination is effective, one effect of the importation of this clause is that the Defendant could not have properly terminated the Existing Contract by the Termination Letter dated 10 ^th October 2016 which purported to give only one month's notice. It is therefore useful to note from the outset, that on the Claimant's case for breach of contract, taken at its highest, the harm it may suffer as a result of the breach of which it complains is that it would be deprived of an additional two months notice. It is the compensation for the loss of these two additional months to which it would be entitled, if it is successful on its claim for breach of contract.

11 Mr. Goffe in response submitted that the use of the use of the term “ month to month” in the 4 ^th February 2016 letter meant that the Existing Contract can be terminated on one month's notice as in the case of a monthly tenancy. He argued further, that the specific provision of the Expired Contract which required three months notice was applicable only in the event that a party wished to terminate the Expired Contract before the term of the contract. Mr. Goffe sought to rely on the case of Thomas Hamilton& Associates Limited v Digicel (Jamaica) (Mossell) Limited 2016 JMCA Civ 22, but I agree with learned Queen's Counsel that it is of limited assistance because in that case it was common ground that the second contract had expired by effluxion of time and there was no issue as to what was the appropriate contractual period of notice for termination based on an imported termination clause, as in this case. Furthermore, that case was concerned to a large extent with the issue of legitimate expectation.

12 The Court is guided by Lord Diplock's cautionary statement in American Cyanamid v Ethicon Ltd. 1975 A.C 396 at 407 letter G as follows:

“ It is not part of the Court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at trial.”

13 Whereas I accept that there is an issue of construction raised as it relates to whether the 3 month termination notice provision is applicable to the Existing Contract (which purports to be ‘month to month’), this is not a case where the legal rights of the parties depend on disputed facts which will have to be, or are more appropriately, determined by the Court at trial. I find that the issue of construction which has been raised can be adequately examined based on the documents which are currently before the Court in order to determine whether there is a serious issue to be tried.

14 Having analysed the claim, the evidence before the Court and the arguments of counsel, I do not find that there is a serious...