Getting an Interlocutory Injunction (an order to do or not to do an act pending the outcome of the trial) in Jamaica

 

At the time of writing, this was the most recent case decided on the matter in the Supreme Court of Jamaica.

Algix Jamaica Ld. V J. Wray and Nephew Ltd. [2016] JMCC COMM. 2

Interlocutory Injunction – Nuisance – Ryland’s v Fletcher – Riparian RightsNatural Resources Conservation (Wastewater & Sludge) Regulations 2013- Whether Defendants breach of Regulations entitle Claimant to Injunctive Relief – Whether damages an adequate remedy – Balance of convenience

Judge: Batts, J.

BACKGROUND
This was an application for an interlocutory injunction (an order by the court to do or not do an act before the trial of the matter is completed), The Claimant sought to have the Defendant ordered not to spill effluent or waste into the Black River (Jamaica) beyond the standard allowed by law.

The Claimant, Algix Jamaica Ltd ( hereinafter refered to as AJL) contended that the Defendant’s Factory, J. Wray & Nephew, (hereinafter refered to as JWN), both located in and around Black River area, spewed Effluent or waste into the river which then flowed downstream and caused serious damage to it’s fish ponds.

LAW

In a situation as this, the Court must consider a few things in determining whether to grant the injunction; The Court has a duty to look at the the evidence and determine:

1. Does AJL have a cause of action, that is, is there a serious issue to be tried.
2. At the end of the day, will damages be an adequate remedy, on one hand and, would the JWN be adequately compensated by the undertaking as to damages on the other hand.
3. If there is doubt as to the adequacy of damages (damages in law refers to money, that is money compensation), in both cases, the court must also consider whether the balance of convenience favours the grant of an injunction.

This is to assess and decide what is likely to produce the most just result; granting or withholding the requested injunction.

In this particular case the court referred to a judgement by Lord Hoffman, where he said,

“In practice, however, it is often hard to tell whether either damages or the cross-undertaking will be an adequate remedy and the court has to engage in trying to predict whether granting or withholding an injunction is more or less likely to cause irremediable prejudice (and to what extent) if it turns out that the injunction should not have been granted or withheld, as the case may be. The basic principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other.

The court also refered to Lord Diplock speech in the well landmark case of American Cyanamid [1975] AC 396 , 408:  where he said,

“… various matters may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them.” 18. Among the matters which the court may take into account are:

• the prejudice which the plaintiff may suffer if no injunction is granted or the Defendant may suffer it if is;
• the likelihood of such prejudice actually occurring,
• the extent to which it may be compensated by an award of damages or enforcement of the cross-undertaking;
• the likelihood of either party being able to satisfy such an award; and
• the likelihood that the injunction will turn out to have been wrongly granted or withheld, that is to say, the court’s opinion of the relative strength of the parties case.”

Where there is doubt as to the adequacy of damages to either party or to both, then the question of balance of convenience arises.

In determining the balance of Convenience, the Court will look at factors such as:

• Is the Defendant (in this case JWN) ordered temporarily from doing something that he has not done before, in which case the only effect of the interlocutory injunction in the event of his succeeding at the trial, is to postpone the date at which he is able to embark upon a course of action.
• Contrast this with the situation where he has an established enterprise and his actions are interrupted or barred; in this case it would cause much greater inconvenience to him since he would have to start again to try and re-establish his business if he succeeds at the trial.

The decision to grant or to refuse an interlocutory injunction will cause to the party that is successful at the trial, some disadvantages which entitles him to damages.

The extent to which the disadvantages to each party would be incapable of being compensated in damages in the event of his succeeding at the trial is always a significant factor in assessing where the balance of convenience lies, and,

If the extent of the uncompensatable disadvantage to each party would not differ widely, then the court may take into account in tipping the balance, the strength of each party’s case as revealed by the affidavit evidence adduced on the hearing of the application. This, however, should be done only where it is apparent upon the facts disclosed by evidence as to which there is no credible dispute that the strength of one party’s case is disproportionate to that of the other party. The court is not to try the case at this point.

In the Present case, the Judge referred to some affidavits that were sworn and decided that there was indeed a triable issue and that the Claimant did in-fact have a real prospect of success.

The evidence included, among other things, a call from the Defendant stating that effluent had escaped, and water testing by a scientist who concluded that the water sample taken did not meet National Environment and Planning Agency (NEPA) trade effluent standards and that in his opinion fish kill was caused from contaminants which originated from trade effluent discharged by Appleton upstream.

JWN denied AJL’s allegations and suggested that other activities along the river, such as, the operations of a sausage factory might have contributed to his fish demise, the growth of algae in the fish-ponds was also suggested, JWN expert concluded that it was unlikely that the discharge from the Appleton Estate would have the damaging effect complained of by the claimant.

The Judge said that this was a case where damages was the only remedy possible, he noted AJL’s contention that there is a real possibility that JWN might repeat the incident, and that, being that they, AJL, are the largest operation of its kind in the English speaking Caribbean, the wiping out of it’s fish population would be lethal to fish farming in the region, which would result in the need for Jamaica to import fish, this AJL said shows that more than just the dollar value of fish lost was at stake.

JWN contended that an effective undertaking as to damages was not given, that a forced closure would be bad for the region as it is the main source of economic activity in the area, employing 650 persons plus others that are subcontracted, it mentioned the export of its sugar, molasses, its rum demand, and suggested that an injunction would adversely affect the company and the surrounding communities.

 

The court stated as a general principle, there is no rule that the court must require evidence as to a party‟s ability to give a cross-undertaking as to damages before an interlocutory injunction can be granted … The proper usual practice and law is, to require evidence both of a willingness and an ability to provide a proper undertaking as to damages … some authorities even suggest that where a company is concerned, financial statements, records or accounts should be placed before the court in order that the court can properly assess the adequacy of the remedy of damages to the Defendant and the Claimant’s financial ability to pay them.

CONCLUSION

On the evidence, the court found  that AJL’s ability to honour the undertaking was satisfactory, and that, on the whole the question of damages and the potential consequence to AJL and its industry if the Injunction is not granted on the one hand, with the potential injury to JWN and the sugar producing community on the other is evenly balanced. Damages in either case may not be an adequate remedy in the event either is ultimately successful at trial, which meant that:

whether or not an injunction is to be granted has to be determined by reference to the so-called balance of convenience or in the modern parlance by determining what is more likely to produce a just result.

As such the court considered, among other things,

• The evidence from NEPA
• The Claimant’s complaint of nuisance or negligence causing injury

And found the balance of convenience laid with AJL.

The Court ordered JWN to stop all discharge of effluent or waste beyond the standard allowed by law and  that the claimant give an undertaking for damages.

Cases refered to were:-

• Rylands v Fletcher
• London Borough of Islington v Margaret Elliott [2012] EWCA Civ 56 per Patten LJ @ para 29;
• University of the West Indies v. Mona Rehabilitation Foundation SCCA 17 and 21 of 20011 unreported judgment 31 July 2001 @ page 5 per Forte P;
• Lloyd V Symonds 1998 EWCA Civ 511 per Chadwick LJ as quoted in LBC of Islington case (above)
• Intercontex v Schimdt 1988 FSR 575 (a judgment of Peter Gibson J)
• TPL Limited v Thermo-Plastics (Jamaica) Ltd. SCCA 91/2012 [2014] JMCA Civ 50.
• Jones v Llanrwst Urban District Council [1908-10] All ER 922.