West v Miller

• Jurisdiction: Jamaica
• Judge: Palmer Hamilton, J.
• Judgment Date: 06 July 2017
• Neutral Citation: [2017] JMSC Civ 105
• Docket Number: CLAIM NO. 2017HCV00630
• Court: Supreme Court (Jamaica)
• Date: 06 July 2017

[2017] JMSC Civ. 105

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Hamilton, J. (Ag.)

CLAIM NO. 2017HCV00630

Between

Junior West

Claimant/Applicant

and

Gerald Miller

Defendant/Respondent

Mr. Garnett Spencer for the Claimant/Applicant.

Ms. Ashtelle Steel for the Defendant/Respondent.

Interim Injunction — Factors to be considered in granting Interim Injunction — Guiding principles under American Cyanamid Case — Delay — Applicability of Human Rights Law

IN CHAMBERS

CORAM: Palmer Hamilton, J. (Ag.)

Introduction

1 The Applicant, Mr. Junior West, states that he was a promoter and co-owner with Olga Taylor, his mother, of a property at New Banks District in the parish of St. Ann. Mr. West also claims that he was given an “interest” in land at New Banks District by his mother, Olga Taylor, in 1998. He also claims that the Respondent, Mr. Gerald Miller, caused a chain link fence with razor wire to be erected which is attached to his house which impeded him, the reasonable user from access to his land. Of note, a survey was subsequently conducted, which disclosed that a part of his house was on land which was owned by the Respondent. Since 2015 there have been constant disputes between the Respondent and/or his agents and himself.

2 The Respondent, Mr. Gerald Miller, on the other hand, stated that he has been in possession of his land, which annexes the Applicant's land, since 1984 and that Olga Taylor moved unto her property about the late 1990's, and further, that the Applicant, Mr. West, did not live on the property until around 2013. In essence, Mr. Miller has not contradicted Mr. West with respect to him erecting a fence that is attached to the house in which the Applicant lives. However, on all other aspects, the two sides are diametrically opposed.

3 Hence, this inter-partes application was brought by Mr. West by way of a Notice of Application for Court Orders for (1) an interim injunction restraining the Defendant/Respondent and/or agents from interfering with the Claimant's use of premises at New Banks District in the parish of St. Ann within 15 feet of the Claimant's house, and (2) an order that the Defendant/Respondent removes a fence erected by his servants and/or agents which now interferes with the Claimant's use of premises at New Banks District in the parish of St. Ann within 15 feet of the Claimant's house. Both parties deposed with Mr. Miller being supported by Affidavits; one from his wife and one from his neighbour.

4 The Claim Form will be dealt with at a trial on the merits, and I will not concern myself with the substantive matter pertaining to the Claim Form at this time.

Submissions

5 In the Applicant's oral submissions, Counsel, Mr. Spencer, argued that the Applicant acquired an interest in the property based on his “open and undisturbed” possession of the property and relied on the case of American Cyanamid Co. And Ethicon Ltd., [1975] AC 396. He further submitted that one should examine the balance of convenience and look to its applicability in circumstances, such as what obtains in the current situation, which are untenable for the Applicant who is practically fenced in. Counsel also relied on the Privy Council decision of National Commercial Bank Jamaica Ltd., v Olint Corp. Ltd., [2009] 1 WLR 1405. He submitted that the reason for pursuing this application two (2) years later, was that the Applicant experienced some financial challenges but that position has now been favourably altered. He further submitted that the Applicant's use of his property is significantly hampered and impeded by the fence and barbed wire whereas in contradistinction, the Respondent would not be adversely affected in any way were he to be ordered by the court to remove the fencing.

6 The Respondent, through his Counsel, Ms. Steele, argued that the orders for injunction sought were both prohibitory and mandatory in nature and as such the Applicant must demonstrate that he has an “unusually strong case” and that there must be a high degree of assurance that the course undertaken will be “vindicated” when the issues come to be decided at trial. Counsel relied on the cases of Erica Francis-Griffiths v Patricia Griffiths, [2016] JMSC Civ. 68; and Info Channel Ltd. v Cable and Wireless Jamaica Ltd., (2000) 62 WIR 176.

7 Counsel for the Respondent further submitted that the Claimant/Applicant should not have brought this Claim without his mother being joined as a Claimant as well. It was further argued that the issue as to co-ownership was being dealt with in the Resident Magistrate's Court in which Olga Taylor is the Claimant against her son, Junior West (the Applicant herein). Counsel further submitted that there was no serious issue to be tried and the case for the Claimant/Applicant was not an unusually strong one. Additionally, the mere fact that the Applicant took two (2) years to bring this Claim indicated that there was no urgency and as such they could ask for an early trial date. It was Counsel's view that if the fence were to be removed as a result of the granting of this injunction, then the Respondent would stand to lose a very good tenant, whose child, prior to the fence being erected, had a morbid fear of the dogs owned by the Applicant that would venture over to the Respondent's property.

The Law

8 I will deal briefly with the line of cases relied on as I see them, in determining the issue to be addressed, that is, whether an interim or interlocutory injunction should be granted at this stage in these particular circumstances as outlined.

9 The purpose of an interlocutory injunction is to prevent a litigant/party from losing by a delay, the fruit of his litigation. As was expressed by the Privy Council in National Commercial Bank Jamaica Ltd., v Olint Corporation Ltd. (Jamaica), [2009] 1 WLR 1405, its purpose is “to improve the chance of the court being able to do justice after a determination of the merits at the trial.” Over the years we have come to understand that interlocutory injunctions may be prohibitory, mandatory or quia timet.

10 Normally, such types of injunctions remain in force until the trial of the action, but may be granted for some shorter specified period. This is evident in Rule 17.4 (4) and (5) the Civil Procedure Rules – 2002 which states:

• (4) “The Court may grant an interim order for a period of not more than 28 days (unless the Rules permits (sic) a longer period) under this Rule on an application made without notice if it is satisfied that:-

  • (a) in a case of urgency, no notice is possible; or

  • (b) that to give notice would defeat the purpose of the application

• (5) On granting an order under paragraph (4) the court must –

  • (a) fix a date for further consideration of the application; and

  • (b) fix a date (which maybe later than the date under paragraph (a) on which the injunction or order will terminate unless a further order is made on the further consideration of the application.”

11 Although rule 17.4(4) speaks to an ex-parte (without Notice) application, a specified time limit is equally applicable to an inter-partes application for an interlocutory injunction. An interlocutory injunction is discretionary and is never granted as of right or course.

The Guiding Principles under American Cyanamid Co. And Ethicon Ltd ;

12 American Cyanamid case, the locus classicus, highlights firstly that the court must be satisfied that the Claimant's case is not frivolous or vexatious, for such claims will fail at the threshold. Simply put, the Claimant must show that there is a serious question to be tried, in other words, the Applicant must have a real prospect of success at the trial.

13 Secondly, the balance of convenience was seen as the governing consideration. The inadequacy of damages is a significant factor in determining the balance of convenience, and the Court should consider the adequacy of damages to each party, namely whether damages would adequately compensate the Claimant for any loss caused by the acts of the Defendant prior to the trial. If the Claimant fails at the trial, the Court should consider whether any loss caused to the Defendant by the granting of the injunction could be adequately compensated by the Claimant's undertaking in damages. This undertaking in damages is given to the court, so that non-performance is a contempt of Court and not a breach of contract, it therefore follows that enforcement with respect to a breach of this undertaking is at the Court's discretion.

14 I took no issue with the application nor the affidavits in support with respect to an undertaking as to damages because one was in fact given and supported by an affidavit from the Claimant's wife. My role in considering this application is not to embark on anything resembling a trial of the action. Generally, at the interlocutory stage it is not part of a judge's function to resolve conflicts of evidence on affidavit or to resolve difficult questions of law. These are matters for the trial. At the interlocutory stage certain facts were disputed such as when the fence was erected, among other things, and there was no cross-examination, as is the norm, at this stage. It is merely an interlocutory application, and the courts discretion would be stultified if, on untested and incomplete evidence, it could only grant the injunction if the Claimant had shown that he was more than 50% likely to succeed at trial. (See Hanbury & Martin on Modern Equity, 19 ^th ed., chap.25).

15 Although the balance of convenience is the governing consideration in applications for interlocutory injunctions, if the balance of convenience does not clearly favour either party, then the preservation of the status quo will be decisive. “ Only as a last resort is it proper (my emphasis)...