In the High Court of Justice JOE-ANN GLANVILLE DAVID WALCOTT AND HELLER SECURITY SERVICES 1996 LIMITED

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO In the High Court of Justice Claim No. CV JOE-ANN GLANVILLE DAVID WALCOTT Claimants AND HELLER SECURITY SERVICES 1996 LIMITED Defendant Appearances: Claimant: Defendant: Mr. David Walcott (in person) Mr. Martin George instructed by Ms. Shalini Sankar Before The Honorable Mr. Justice Devindra Rampersad Dated the 6 th day of April 2016 JUDGMENT

2 Introduction 1. The first claimant resides on Third Street Barataria with her extended family. 2. The second claimant is not a resident of the Barataria community but asserted that he was appointed to represent the interests of the Barataria Action K9 Removal Committee. It should be noted however that there was no application, and consequently no order, to appoint the claimant as a representative pursuant to Part 21 of the CPR. 3. The defendant is a neighbor of the first claimant and conducts a privately owned security company in a building which is located on the Eastern Main Road, Barataria and extends onto Third Street. The defendant s building adjoins the residence of the first claimant on Third Street. 4. The defendant has a canine division and houses dogs at its premises. As a result of the presence of those dogs, the claimants initiated this claim for nuisance and allege that the first claimant, members of her family and other residents in the community have had to endure extreme discomfort because of: 4.1. Noise pollution from the barking dogs; 4.2. An obnoxious stench emanating from the defendant s premises; 4.3. Insanitary conditions which has resulted in an influx of flies and rats; and 4.4. A fear for their personal safety because guard dogs have escaped previously. 5. Interim relief was granted to the claimants pending the determination of the claim. The relief was by way of a mandatory injunction which specified a date for completing certain actions. It is the claimant s application that the court s deadline was not met and as such the court ought to exercise its powers pursuant to pursuant to Parts 44, 45, 46 and 53 of the CPR to have the defendant s CEO, Mr. Dwight Williams, committed or an order confiscating the assets of the defendant due to an alleged failure to obey the order of the court. Background 6. The action was commenced on 23 August The claimants pleaded that the members of the Barataria community are in need of protection from what they deemed a wrongful invasion of their right to enjoyment of their property. In their pleadings the claimants described the defendant s premises as forming part of a community which was designed for residential premises and prayed that the court will grant them an order for the removal of the dogs or alternatively cause the defendant to engage in remedial exercises. The claimant also sought an order for damages. Page 2 of 9

3 7. By its defence, the defendant denied each and every allegation of fact contained in the claimants statement of case and maintained that the community of Barataria has long been a residential-commercial hybrid community. In addition, pleaded that the first claimant has gone to great lengths to discredit its name but has failed at every occasion as evidenced by the County Health Administration which investigated the complaints of the first claimant and concluded that the complaints did not constitute a public health nuisance. Further, the defendant asserted that neither claimant had locus standi to bring a claim of nuisance as they are not the owners of the adjoining property. 8. On 21 October 2014 interim relief was granted to the claimants by way of an interim injunction whereby it was ordered: 8.1. The Defendant do secure all air vents and holes, if any, on the walls and roofing on the Eastern, Southern and Western sides of the Defendant s building adjoining the premises of the First named Claimant by 17th November, 2014; 8.2. The Defendant do render the area in which its dogs are kept soundproof by 17th November, 2014; 8.3. With immediate effect, the Defendant is ordered to clean the public drain on Third Street, Barataria and keep same free from its animals waste on a daily basis, and; 8.4. The Defendant shall place large caution signs in prominent positions on the Defendant s property notifying the public that dangerous dogs are kept on the premises by November 14th, That order was not appealed. 10. On 8 December 2014 the claimants applied to the court for enforcement of the interim injunction pursuant to Part 44.9 of the CPR or alternatively, pursuant to Part 53 of the CPR. However, on 27 January 2015 the matter was stayed to facilitate a Judicial Settlement Conference. The matter next came up for pre-trial review on 15 April 2015 at which time the claimants application of 8 December 2014 was dismissed because Part 44.9 was not applicable, that Part being applicable to partnerships and the defendant is a limited liability company. Further, the requirements to move the court to initiate contempt proceedings pursuant to Part 53 were not met. 11. On 14 May 2015 the claimant again sought to have the injunction enforced and filed an application pursuant to Parts 44, 45, 46 and 53 of the CPR to have the defendant s CEO, Mr. Dwight Williams, committed or an order confiscating the assets of the defendant due to an alleged failure to obey the order of the court. On 18 June 2015 the defendants applied for a variation of the injunction to facilitate the acquisition of estimates in relation to having its premises soundproofed and the air vents sealed. It was contended that total compliance of Page 3 of 9

4 the order was financially impossible as the estimated cost was likely to be approximately $220, The contempt proceedings were dealt with by written submissions based on the affidavits before the court. On 20 November 2015 the court conducted a site visit in an attempt to ascertain the state of the premises as part of the trial of the substantive claim. The Application 13. The claimants recited broadly those Parts of the CPR which deals with the court s power to enforce judgments and order. However, the relevant part the court is concerned with is Part 53 of the CPR which deals with the power of the court to commit a person to prison or to make an order confiscating assets for failure to comply with an order requiring him to do an act within a specified time. 1 The relevant rules are as follow: Committal order or confiscation of assets order against an officer of a body corporate 53.4 Neither a committal order nor a confiscation of assets order may be made against an officer of a body corporate unless (a) a copy of the order requiring the judgment debtor to do an act within a specified time or not to do an act has been served personally on the officer against whom the order is sought; (b) at the time that order was served it was endorsed with a notice in the following terms: NOTICE: If (name of body corporate) fails to comply with the terms of this order it will be in contempt of court and you (name of officer) may be liable to be imprisoned or have your assets confiscated. ; and (c) where the order required the judgment debtor or do an act within a specified time or by a specified date, it was served on the judgment debtor in sufficient time to give him a reasonable opportunity to do the act before the expiration of that time or before that date.. Making committal order or confiscation of assets order when judgment or order not served 53.6 (1) This rule applies where the judgment or order has not been served. (2) Where the order requires the judgment debtor not to do an act the court may make a committal order or confiscation of assets order if it is satisfied 1 Or not to do an act see rule 53.1 of the CPR Page 4 of 9

5 that the person against whom the order is to be enforced has had notice of the terms of the order by (a) being present when the order was made; or (b) being notified of the terms of the order by facsimile transmission or otherwise. (3) The court may make an order dispensing with service of the judgment or order under rule 53.3 or rule 53.4 if it thinks it just to do so. Application for committal order or confiscation of assets order 53.8 (1) The application must specify (a) the precise term of the order or undertaking which it is alleged that the judgment debtor has disobeyed or broken; and (b) the exact nature of the alleged breach or breaches of the order or undertaking by the judgment debtor. (2) The application must be verified by an affidavit. (3) The applicant must prove (a) service of the order endorsed with the notice under rule 53.3(b) or rule 53.4(b); (b) if the order required the judgment debtor not to do an act, that the person against whom it is sought to enforce the order had notice of the terms of the order under rule 53.3(b) or rule 53.4(b); or (c) that it would be just for the court to dispense with service. 14. The claimants application did not specify what aspect/s of the order the defendant had breached. Instead, the first claimant s affidavit in support of the application merely asserted that the defendant had failed or refused two important aspects of the order. However the defendant s application to vary the injunction sought a variation to secure estimates for sealing the air vents and soundproofing the premises. Along with the claimants application for enforcement was an affidavit of service of the order and the application. The court notes that service of the order was thus executed after the date for completion. The Law on Contempt 15. It is contempt to disobey a judgment or order which requires the performance of a specified act within a given time or to abstain from doing a specified act. Borrie and Lowe: The Law of Contempt, Chapter 6 Civil contempt explains that the administration of justice can only be effective if it has the means to enforce court judgments or orders. For this reason it is well established that orders made by the Page 5 of 9

6 courts must be obeyed unless they are set aside and a failure to obey an order cannot be defended on the ground that it ought not to have been made. As Romer LJ put it in Hadkinson v Hadkinson [1952] P 285 at 288: ''It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.'' 16. Lord Donaldson MR in Johnson v Walton [1990] 1 FLR 350 at 352 reiterated: ''It cannot be too clearly stated that, when an injunctive order is made or when an undertaking is given, it operates until it is revoked on appeal or by the court itself, and it has to be obeyed whether or not it should have been granted or accepted in the first place.'' 17. While, in Howitt Transport v Transport and General Workers' Union, Sir John Donaldson explained: ''orders of any court must be complied with strictly in accordance with their terms. It is not sufficient by way of answer to an allegation that a court order has not been complied with for the person concerned to say that he "did his best". But if a court order requires a certain state of affairs to be achieved the only way in which the order can be complied with is by achieving that state of affairs.'' 18. The principle that an order of the court must be strictly enforced until such time as it may be set aside has been approved in the Privy Council decision in Isaacs v Robertson [1984] 3 All ER 140. The House of Lords held that an order made by a court of unlimited jurisdiction, such as the High Court of Saint Vincent, had to be obeyed by the person against whom it was made unless and until it had been set aside by the court. It has thus been held that the motive for the breach is irrelevant as unless and until the time comes when the law is that a person may disobey an order of the court or the laws as much as he likes if he does it conscientiously the question of motive is immaterial Borrie and Lowe: The Law of Contempt, Chapter 6 Civil contempt highlights that the penal sanctions that apply to civil contempt has been said to 'partake of a criminal nature' 3 and many of the rules that normally apply when seeking to prove an accused guilty of a criminal offence apply when seeking to show that the defendant has committed civil contempt. As such, breach of the court s order must be proved beyond all reasonable doubt and courts are reluctant to exercise their powers and will do so only in the clearest cases. Thus, although persons are under a duty to comply strictly with the terms of an injunction, the courts will only punish a person for contempt upon adequate proof of the following matters. First, it must be established that the terms of the injunction are clear and unambiguous; second, it must be shown that the defendant has had proper notice of such terms; and third, there must be clear proof that the terms have been broken by the defendant. 2 See R v Poplar Borough Council (No 2) [1922] 1 KB 95 at 103 per Lord Sterndale MR 3 See Re Bramblevale Ltd [1970] Ch 128 at 197 Page 6 of 9

7 20. In relation to notice it was once thought that notice could only be waived in relation to probative orders as provided for by rule 53.6(2). As such, when it came to mandatory orders, such that exists in this matter, merely showing that the defendant had notice by being present in court at the time of the order was previously held not to be sufficient. 4 However, the Court of Appeal of the United Kingdom has since moved away from that position after examining past authorities and the rules in relation to the requirement for service. Thus, in Davy International Ltd v Tazzyman [1997] 1 WLR 1256 the Court of Appeal held that the discretion conferred on the High Court by R.S.C., Ord. 45, r. 7(7) to dispense with service of a copy of an order is exercisable in respect of a mandatory order not only prospectively, but also retrospectively. That rule is similar to rule 53.6(3) of the CPR. In that case the order was served on the defendant after the date for completion of the order. 21. Davy International v Tazzyman was cited with approval in the case of Benson v Richards [2002] EWCA Civ 1402 and applied in the case of Hydropool Hot Tubs Ltd v Roberjot and a company [2011] EWHC 121. In Hydropool the Chancery Judge held it just to dispense with service because the defendants were well aware of the contents of the order and had legal representation. 22. Interlocutory injunctions have the same force as a final order and so the same principles and the need for strict adherence apply. 5 Further, it has been held that in a case of a civil contempt the court has the power to impose a lesser penalty than committal, namely, a fine. 6 Is the defendant in breach of the court s order 23. It is clear from the records and subsequent application by the defendant that the court s interim injunction was not fully complied with by the date set for completion. The extent of the non-compliance needs to be determined. 24. At the hearing on 15 April 2015 the defendant raised the point about the financial constraints in obeying the order. The defendant was invited at that time to make an application to have the terms varied if necessary because that evidence was not before the court. However, no such application was forthcoming until 18 June 2015, after the claimants filed to initiate contempt proceedings. 25. From the application to vary it appears that as of that date the defendant had not yet complied with the court s order to secure all air vents and holes and to soundproof the premises. 4 See Re Tuck, Murch v Loosemore [1906] 1 Ch 692 at 696 per Cozens Hardy LJ 5 See Eastern Trust Co v McKenzie Mann and Co Ltd [1915] AC 750, 31 WLR 248 per Sir George 6 See Phonographic Performance Ltd v Amusement Caterers (Peckham) Ltd [1964] Ch 195, [1963] 3 All ER 493 Page 7 of 9

8 26. At the site visit, the court did note a resonating and echoing sound when the defendant s dogs were prompted to bark which obviously came from the fact that the defendant s property was a large cavernous property blocked on all sides which would obviously resonate and echo the sound. Based on the late application to vary and the observations of the court it is obvious that this aspect of the court s order was not complied with. The defendant s director has not submitted any evidence to the contrary aside from a meager comment during cross-examination on 2 December 2015 to the effect that the premises were soundproofed, evidence of which should have been passed on to the court. There is however no such evidence before this court. Analysis & Conclusion 27. In its submissions filed 28 September 2015 the defendant submitted that its director tried to abide by the injunction to the best of his abilities. In the application for the variation the defendant further averred : 5. The interim relief granted by the Honourable Mr. Justice Rampersad amounts to final relief which could only have been granted at the final determination of this matter and as such should not and could not legally and lawfully, have been awarded to the Claimants as a temporary relief since compliance with the said Interim Order would amount to a permanent relief and disposition of the matter without a final rather than interim relief. 28. The court does not challenge the defendant s position of the cost the company would have incurred had the order been executed. However, this is information which ought to have been brought to the court s attention before the date specified for completion of the terms outlined in the order. As outlined above, the court s order, whether improperly made or not, must be obeyed until such time as it is discharged, varied or appealed. There was no appeal to the court s order. There was no application to vary before the completion date. There was however a failure of the defendant to execute the court s order within the time specified for same. The court is therefore empowered to take action pursuant to Part 53 of the CPR. Though not raised by the defendant, the failure of the claimants to prove notice of the court s order is waived and personal service thereof dispensed with in light of the fact that the claimant was represented by competent instructing and advocate attorney. 29. The case against the defendant stands dismissed because the claimants did not possess the requisite locus to bring an action in nuisance. In light of that and the taking into the consideration the circumstances of the case the court does not think a committal order or a confiscation order is appropriate. Instead the court is minded to fine the defendant for non-compliance with the court s order. Page 8 of 9

9 Order 30. Accordingly, having failed to comply with the order of the court and to make a timeous application to vary the court s order, the court imposes a fine in the sum of $15,000 to be paid by the defendant company by 30 May 2016 and, in default, that the defendant s CEO, Dwight Williams, be committed to 7 days simple imprisonment. 31. The defendant shall pay to the claimants the costs of this application to be quantified by a master in chambers on a date to be fixed in default of agreement. /s/ Devindra Rampersad Devindra Rampersad Judge Assisted by Charlene Williams Attorney-At-Law Judicial Research Counsel Page 9 of 9