Urban Development Corporation v Monica Casserly, Elgin Swapp, Gavin Clarke, Sharon Heholt

• Jurisdiction: Jamaica
• Judge: DOWNER J.A.
• Judgment Date: 30 July 2004
• Judgment citation (vLex): [2004] 7 JJC 3008
• Date: 30 July 2004
• Court: Court of Appeal (Jamaica)

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE WALKER, J.A

BETWEEN:

URBAN DEVELOPMENT CORPORATION

1 ^ST APPELLANT

URBAN MAINTENANCE (1977) LTD.

2 ^ND APPELLANT

AND:

MONICA CASSERLY

1 ^ST RESPONDENT

ELGIN SWAPP

2 ^ND RESPONDENT

GAVIN CLARKE

3 ^RD RESPONDENT

SHARON HEHOLT

4 ^TH RESPONDENT

INJUNCTIONS - Free parking facilities - Charging of fees - Interlocutory injunction - Whether injunction ought to have been refused - Whether claim frivolous and vexatious - Whether serious issue to be tried - American Cyanamid guidelines

DOWNER J.A.

1 Introduction

2 This is an important interlocutory appeal from the order of Hibbert J. in the Supreme Court. It is necessary to set out the Order of the learned judge so as to grasp the extent of the interlocutory injunction awarded. It reads as follows at page 140–141 of the Record:

• "1. The Defendants by themselves, their servants and/or agents be restrained from preventing the Plaintiffs and/or the lawful occupiers of the Plaintiffs' properties, (all part of Proprietors Strata Plan Number 79) and/or the Plaintiffs' lawful visitors from parking their vehicles and/or any vehicles lawfully brought on to the said properties by any of the persons aforesaid on the roof (5 ^th floor) of the multi storey car park being the strata Lot numbered 58 of Proprietors Strata Plan 79 and being the Strata Lot registered at Volume 1128 Folio 711 of the Register Book of Titles pending the outcome of the matter herein.

• 2. That the Defendants by themselves, their servants and/or agents be restrained from taking any steps to establish any physical or other barrier whatsoever or otherwise obstructing the free passage and parking of vehicles upon the 5 ^th floor of the multi storey car park being the lot numbered 58 of Proprietors Strata Plan Number 79 pending the outcome of the matter herein.

• 3. That the existing status quo as regards parking within and on the roof of the said multi storey car park be preserved pending the outcome of the matter herein."

3 Further, there were also the following consequential orders:

• "4. The Plaintiffs give the usual undertaking as to damages

• 5. Costs to be costs in the cause

• 6. Leave to appeal granted."

4 Although the appeal is interlocutory there is no requirement for leave to appeal. See section 11 (1)(f) (ii) of the Judicature (Appellate Jurisdiction) Act.

5 Is there a serious issue to be tried?

6 In his careful and economical reasons Hibbert J. posed the issue thus at page 138 of the Record:

"The first question which has to be determined is whether or not there is a serious issue to be tried.

The Plaintiffs say that there is, on the basis of an entitlement to park on the 5 ^th floor. The Defendants say that there is no such entitlement but a permission given amounting to a licence.

I have looked at the Affidavits filed in support with exhibits attached, including the Affidavit of Sonia Dowding, on behalf of the Defendants. What is noticeable in all of these is the use of the word "entitlement". It is used in exhibits to both Affidavits. Therefore, my view is that this presents a serious issue being, is there an entitlement or a licence."

7 The learned judge also added at page139 of the Record:

I rely on Authorities cited by Counsel Miss Clarke in support of my decision."

8 Presumably one case cited below and certainly cited in this Court was Plimmer v Mayor of Wellington (1884) 9 App. Cas. 699 where the identical issue arose. The case was decided by the Privy Council on the basis of a special case stated by the Compensation Court to the Supreme Court, the Court of Appeal and thereafter to the Privy Council. The learned judge below grasped the essentials. Either at the interlocutory stage or at a trial on the merits, the decisive issue as to whether there is an entitlement or a licence will be one of law. This is so because the respondents are relying on the unchallenged documentary evidence emanating from the appellants to establish their case.

9 It is important to raise this issue at the outset because there ought to be a sharp distinction between a case where the evidence is in dispute, and a case where the evidence is not in dispute or where, as in this case, the respondents are relying on the documentary evidence coming from the appellants. Lord Diplock in the case of American Cyanamid v. Ethicon Ltd. [1975] A.C. 396 at page 406 stated it thus:

"My Lords, when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff's legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the existence of the right or the violation of it, both, is uncertain and will remain uncertain until final judgment is given in the action."

10 Then His Lordship continues thus on the same page:

"In those cases where the legal rights of the parties depend upon facts that are in dispute between them, the evidence available to the court at the hearing of the application for an interlocutory injunction is incomplete. It is given on affidavit and has not been tested by oral cross-examination. The purpose sought to be achieved by giving to the court discretion to grant such injunctions would be stultified if the discretion were clogged by a technical rule forbidding its exercise if upon that incomplete untested evidence the court evaluated the chances of the plaintiff's ultimate success in the action at 50 per cent or less, but permitting its exercise if the court evaluated his chances at more than 50 per cent."

11 Continuing on this trend Lord Diplock further stated at page 407:

"It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavits 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 the trial."

12 Counsel for the appellants as well as for the respondents relied on American Cyanamid so it is useful to cite another passage from this important judgment. It runs thus at page 409:

"I would reiterate that, in addition to those to which I have referred, there may be many other special factors to be taken into consideration in the particular circumstances of individual cases. The instant appeal affords one example of this."

13 In the later case of N.W.L. Ltd. v. Woods [1979] 3 All E.R. 614 at 625

14 (d), Lord Diplock said:

" American Cyanamid Co v Ethicon Ltd. [1975] 1 All ER 504, [1975] AC 396, which enjoins the judge on an application for an interlocutory injunction to direct his attention to the balance of convenience as soon as he has satisfied himself that there is a serious question to be tried, was not dealing with a case in which the grant or refusal of an injunction at that stage would, in effect, dispose of the action finally in favour of whichever party was successful in the application, because there would be nothing left on which it was in the unsuccessful party's interest to proceed to trial."

15 That interlocutory proceedings may dispose of the issues is also illustrated in Robert Honiball and George A. Brown v. Christian Alele (1993) 30 J.L.R. 373 at 382 where Lord Oliver said:

"Secondly, Mr. Mahfood has submitted that since there were no affidavits from the valuers verifying their respective reports, the respondent's evidence as to this was mere hearsay which did not call for answer. If that objection had been taken in Mr. Brown's affidavit, it might carry more weight. But it was not; and, in any event, the objection is misconceived. Whilst it is true that, in the end, the Court of Appeal treated the hearing as one which finally determined the rights of the parties, inasmuch as they directed the Registrar of Titles to issue a certificate in the name of the respondent, the proceedings in their inception and form were interlocutory proceedings aimed simply at setting aside an order which was alleged to have been wrongly obtained and restoring the parties to the position as it was in the action before the order was made. Affidavit evidence of information and belief, disclosing the source of the information was therefore, permissible. It was not, as their Lordships have already observed, an ideal method of supporting an allegation of fraud but, on any analysis, it required an answer and a full answer. To this day, Mr. Brown has never sought to verify the opinion to which he deposed, to justify his valuation or to tender any explanation at all of how his affidavit came to be sworn. Whatever the explanation for the other extraordinary and unsatisfactory features of the proceedings, the valuation of no more than $3,500 was so ludicrously low as to be evidence of fraud and the Court of Appeal drew, as regard this evidence, the only inference that could reasonably be drawn."

16 The circumstances of the instant case are such that when the relevant documentary evidence is construed and the doctrine of Proprietary Estoppel applied, then the merits of the case may well be decided in favour of the party who was granted the interlocutory injunction.

17 It is against this background that it is important to pose the important issue of law which this Court has to decide thus: Where the respondents are relying on the unchallenged documentary evidence of the appellants to establish a claim for Proprietary Estoppel and the learned judge's interpretation of the law is correct on this issue, ought his discretion to grant an interlocutory injunction be disturbed?

18 The initia1 task is to examine the affidavits of the...