Tropicrop Mushrooms Ltd v St Thomas Parish Council, Alfred Samuel Edwards, Ian Harriott, Rupert Brown, Shane Brown, Patrick Patterson, Marcus Stewart and Sinclair McDonald

• Jurisdiction: Jamaica
• Judge: BROOKS, J.
• Judgment Date: 12 August 2008
• Judgment citation (vLex): [2008] 8 JJC 1202
• Date: 12 August 2008
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2008 HCV O663

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. 2008 HCV O663

BETWEEN

TROPICROP MUSHROOMS LIMITED

CLAIMANT

AND

SAINT THOMAS PARISH COUNCIL

DEFENDANT

AND

ALFRED SAMUEL EDWARDS

1 ^ST ANCILLARY CLAIMANT

AND

IAN HARRIOTT

2 ^ND ANCILLARY CLAIMANT

AND

RUPERT BROWN

3 ^RD ANCILLARY CLAIMANT

AND

SHANE BROWN

4 ^TH ANCILLARY CLAIMANT

AND

PATRICK PATTERSON

5 ^TH ANCILLARY CLAIMANT

AND

MARCUS STEWART

6 ^TH ANCILLARY CLAIMANT

AND

SINCLAIR McDONALD

7 ^TH ANCILLARY CLAIMANT

Practice and Procedure - Application to discharge injunction - Injunction restricting access to claimant's land - Issue whether road is a parochial road - Issue as to whether prescriptive rights secured over claimant's land - Whether injunction to be maintained

Practice and Procedure - Modes for Initiating Ancillary claims - Part 18 of the CPR

CIVIL PROCEDURE - Claim - Ancillary - Modes for initiating - Civil Procedure Rules Part 18

CIVIL PROCEDURE - Injunction - Restricting access to claimant's land - Application to discharge injunction - Whether road a parochial road - Whether prescriptive rights secured over claimant's land

BROOKS, J

1 Tropicrop Mushrooms Limited is the registered proprietor of two lots of land in an area known as Abbey Green Estate in the parish of Saint Thomas. In December 2007, Tropicrop erected an iron gate across a roadway on the Southern boundary of one of the lots. It also posted armed guards at the gate to prevent access to the property by others. The Saint Thomas Parish Council claims that the roadway is a parochial road and that it therefore falls under its jurisdiction. The Parish Council objected to the gate being erected and demanded its removal. In response to the demand, Tropicrop commenced this claim and secured an ex parte injunction preventing the Parish Council from interfering with the gate. Subsequently, the ex parte injunction was varied by and with the consent of the parties.

2 In the present application, the Parish Council has been supported by some of the farmers in the Abbey Green Estate area and it now wishes for the injunction to be discharged. The basis for the application is that the restriction of access to the roadway is burdensome on the farmers in the area who were accustomed to using that roadway across Tropicrop's land to get to their farms. According to the Parish Council, that burden has been increased by Tropicrop's failure to comply with a term of the injunction by which it was to have provided transportation across Tropicrop's land for the farmers' produce. The balance of convenience therefore, it says, lies in favour of the injunction being discharged or at least varied to allow more farmers greater access to use the disputed roadway.

3 Tropicrop resists the application on the basis that the parties have agreed on the terms of the injunction, as varied and that justice requires that it be maintained unaltered. It asserts that a discharge of the injunction, or a variation to allow more people access to its land for longer periods of time, for more days of the week, will cause it significant loss because of the exposure to praedial larceny.

4 The questions which the court must answer in resolving this issue are, firstly, what is the court order which is currently in place. Secondly, if there is an injunction in place, whether there has been any material change of circumstances which would cause the court to re-consider the order for the injunction. If any such change exists for reconsideration, whether that change is sufficient to warrant the discharge or modification of a consent order made by this court. As an alternative to the second question, if there is no injunction in place then the application for injunction may be considered anew.

5 It will also fall to be discussed, as a matter of procedure, whether a number of the said farmers are entitled (as they have sought to do) to become parties to the claim by simply filing and serving an Ancillary Claim Form and Particulars of Ancillary Claim.

6 What is the order which is in place?

7 The history of the injunctions granted in this claim starts with an injunction granted by Marsh, J. on 12 ^th February, 2008. That was the injunction which prevented the Parish Council from removing the iron gate. On March 11, 2008, the application for the further consideration of the injunction came on before Jones, J. Though Miss Wong, for Tropicrop, asserts that the order made at that hearing was a consent order, it was not so expressed in the formal order signed by the judge, and I have not seen a Minute of Order in respect of the hearing. The relevant part of the order made by Jones, J. was in the following terms:

"1. The injunction restraining the St. Thomas Parish Council from removing the iron gate be varied:

• a) The Applicant/Claimant shall allow access through the iron gate on each Monday, Tuesday and Thursday between 7:00 am and 5:00 p.m. to no more than fifteen persons each day from amongst the local farmers.

• b) The Applicant/Claimant shall transport the produce of the local farmers to the iron gate.

• c) Interim injunction extended to the 9 ^th of April 2008."

8 Miss Wong's submissions that the order made by consent were concluded with the statement that the "justice of the case requires a maintenance of the injunction as varied and agreed between the parties". There was no dissent from Mr. Jarrett, who represented the Parish Council and the farmers, to Miss Wong's assertions concerning the order having been made by consent. Despite the absence of the term "by consent", in the formal order, I shall treat the order as having been so made.

9 Since that order was made, the application for the extension of the injunction has come before Campbell, J. who, among other things, ordered that "the agreed varied injunction order made on March 11, 2008 continue until July 7, 2008". There does not seem to have been any other order made, subsequent to Campbell, J's., concerning the extension or variation of the injunction. It seems therefore, that when the application to vary or discharge the injunction, first came on before me on July 17, 2008, the interim injunction had already expired. It would seem then, that I am at liberty to consider the application anew, but not prevented from extending the previous order.

10 Analysis on the principles set out in American Cyanamid

11 In light of the expiry of the injunction I need not carry out an extensive examination of whether there has been any material change in the circumstances since the order of March 11, 2008 was heard. I shall therefore proceed to apply to the instant case, the principles set out in the case of American Cyanamid Co. v Ethicon Ltd. [1975] 1 All ER 504.

12 Is there a serious question to be tried?

13 The issues raised in the submissions, as indeed in the statements of case, are of serious import. Questions of...