Court denies JPS’s request for $6m security in Hope Pastures appeal

The Court of Appeal has quashed an application by the Jamaica Public Service (JPS) for residents of Hope Pastures in St Andrew to provide a $6-million security for costs ahead of their appeal of a ruling by the Supreme Court in June last year.

Justice Vivene Harris ruled last Thursday that JPS’s application be dismissed and awarded costs to the residents.

JPS, in its affidavit, had requested the security, arguing primarily that the residents were yet to cover costs as ordered by the Supreme Court after it ruled just under a year ago that the energy company was not obligated to foot the bill for replacing the underground power supply in the upscale St Andrew community.

Led by the Hope Pastures Citizens’ Association, householders embroiled in a decade-long dispute had sought a mandatory injunction from the court for JPS to restore and maintain the original underground supply that had been installed by a private developer more than half a century ago.

In its affidavit, the JPS said, among other things, that if it is successful in this appeal brought by the residents, it will not be able to recover the costs which will be incurred in mounting a defence.

‘Significant’ costs

The JPS maintained that “significant” costs had been incurred in the original matter in the Supreme Court, which, it said, the appellants will be liable to pay and which remain outstanding.

Further, the JPS said that many of the appellants represented by the first and second appellants are retirees, who are unlikely to be able to afford the costs of appeal.

The company said when it sought to introduce the pilot project for the overhead system in the community, many of the residents complained that they were not able to meet the cost of the pilot project, the cost to connect to their homes to receive overhead supply or afford the cost of a new underground system.

“If we are successful on the appeal, the residents will be required to pay for the replacement of the underground system. The history of the matter has been that some of the original claimants have died and/or elected to no longer participate in the matter. As such, with time, it is not unlikely that the number of appellants will be reduced,” the JPS affidavit said.

The power company further argued that if it is successful in the appeal, it may have difficulty enforcing its judgment against some of the individual appellants, who do not reside in Hope Pastures.

But Justice Harris, in her oral ruling, said that the JPS failed to persuade her that it was an appropriate case to require security for costs from the appellants.

The judge said that her reasons will be provided in a written judgment shortly.

“We believe that the judge’s ruling was correct based on the material and the arguments that were made when the matter was heard last week,” Jerome Spencer, one of the attorneys who represented the appellants, told The Gleaner on the weekend.

Georgia Gibson Henlin, KC, was lead counsel for the appellants.

Patrick Foster, KC, one of the attorneys who represented JPS, said that the team has accepted the decision of the court.

“Hopefully, it will move on to have the appeal heard as soon as possible and disposed of,” he said.

Symone Mayhew, KC, Ashley Mair were the other two attorneys who represented JPS.

kimone.francis@gleanerjm.com