THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No CV 2017-04608 BETWEEN RHEANN CHUNG DEXTER ST LOUIS Claimants AND TRINIDAD AND TOBAGO TABLE TENNIS ASSOCIATION Defendant Before Her Honour Madam Justice Eleanor Joye Donaldson-Honeywell Appearances Dr. Emir Crowne, Mr. Mathew Gayle and Ms. Sheriza Khan for the Claimants Mr. Dinesh Rambally, Mr. Kiel Tacklalsingh and Mr. Stefan Ramkissoon for the Defendant Delivered on January 31, 2018 Ruling 1. The matters under consideration arising from issues raised at the last hearing are as follows: a. whether to continue the interim injunction previously granted herein preventing the Defendant from taking further steps regarding persons selected to represent Trinidad and Tobago in table tennis at the April 2018 Commonwealth Games; Page 1 of 11
b. whether to grant a further interim injunction mandating the Defendant to refer the dispute raised by the claimant s as to their non-selection to the TTOC to be arbitrated; and finally c. if arbitration cannot be mandated, what costs considerations arise from the Defendant s refusal to voluntarily refer the matter for arbitration. 2. An additional matter of concern is that in the Statement of Case the Claimant says the Defendant is an unincorporated association. The Defendant denies that at paragraph 6 of the Defence. It therefore remains to be clarified whether the Defendant is properly described and whether Pleadings should be amended as a result. 3. As to a) I am satisfied that for the reasons given when the interim injunction was first granted in addition to the undertaking in damages given by the Claimants that the injunction must be continued. The reasons were: i. There was a serious issue to be tried; ii. The balance of convenience was more in favour of the Claimant than the Defendant but as between the Claimant and the other players it was even as both sides would suffer from not being able to attend the Commonwealth Games. This is the reason that the undertaking in damages was requested and assisted in tipping the balance in their favour. Note is taken of the Defendant s mention in submissions of a cross-undertaking. However, they have not yet been requested to give a cross-undertaking in damages. 4. I have read the submission of the Defendant at page 30 which makes the point that an interim injunction cannot be granted without an undertaking but do not accept that that is a correct statement of law under the CPR in Trinidad and Tobago. The authority cited by the Defendant is based on UK law. The UK Practice Direction 25A.5.1 makes specific provision for an order for an injunction to contain, inter alia, an undertaking in damages: Any order for an injunction, unless the court orders otherwise, must contain: (1) subject to paragraph 5.3, an undertaking by the applicant to the court to pay any damages which the respondent sustains which the court considers the applicant should pay. Page 2 of 11
5. No such provision is included at CPR 17 for mandatory requirement of an undertaking. In all jurisdictions, whether provided for in law or not, it is a helpful aspect of the process of considering the balance of convenience to require an undertaking in damages. 6. Note is taken of the submission by the Defendant at page 29 that if the interim injunction remains in place the Trial can only take place after the games. This is not correct as at the first hearing of this matter when the interim injunction was granted considerations of urgency regarding the date of the games were expressed by both sides. Accordingly, an order of expedited Trial on March 5 th 2018 was granted. It cannot therefore be considered that this interim injunction would finally determine the present claim and the higher threshold of ultimate success at trial used in the case of Dwain Chambers v British Olympic Association [2008] EWHC 2028 (QB) cited by the Defendant would not be applicable in the present circumstances. 7. As to b) the application for a mandatory injunction that the Claimant s non-selection dispute be arbitrated follows on a letter sent to the Defendant by their Attorney on the same day the decision was made on November 14, 2017. The letter requested to be informed of reasons for the non-selection of the Claimants and also that the matter be referred for Arbitration. Reasons were not given in response to the letter and there was no action taken to refer the matter for arbitration. So after waiting over one month, the instant Claim was filed by the Claimants seeking damages for breach of contract or duty. At the same time a separate Application was made for Injunctive relief seeking inter alia the Court s intervention as a matter of Urgency to order the Defendant to refer the matter for Arbitration, so that selection issues can be resolved for participation in the April 2018 Games. 8. The Defendant, in response to the Application, has not agreed to refer the matter for Arbitration. Copious documentation including several lengthy Affidavits, a Defence and a Notice of Application were instead filed, essentially defending the selection process. As it relates to the reason for not referring the matter for arbitration, the Defendant pleaded at paragraph 16 of the Defence that despite having received the request for arbitration no Page 3 of 11
legitimate dispute arose for determination between itself and the players for referral. This pleading reiterated what was stated in more detail at paragraphs 46 to 49 of the Affidavit of the Defendant s Management Committee General Secretary filed on January 11, 2018. 9. The TTOC s constitution provides at Article 31 that disputes raised by national associations, such as the TTTA may be arbitrated in accordance with the TTOC s constitution. The Article is as follows: 31. ARBITRATION I. All affiliated National Sports Organisations may submit to the Trinidad and Tobago Olympic Committee for settlement all disputes/conflicts within their Organisation, which such Organisation deems to be unresolved, subject to their respective constitutions and subject to the rules of their respective international Federations to which they are affiliated. II. The Council shall within 7 days of receipt of submission appoint such one or more of its members (not exceeding three) to sit as arbitrators to consider the representations of the parties to the dispute/conflict. III. IV The Committee shall invite the parties to appear before the arbitrator(s) and present their case in writing or verbally. The decision of the arbitrator(s) shall be delivered to the parties within 30 days of the date of receipt of the submission. V. Any decision made by the arbitrator(s) on behalf of the Council may be submitted exclusively by way of appeal to the Court of Arbitration for Sport in Lausanne, Switzerland, which will resolve the dispute definitely in accordance with the Code of Sports-related Arbitration. The time limit for appeal is twenty-one days after the reception of the decision concerning the appeal. [Emphasis Added] Page 4 of 11
10. The wording of the TTOC constitution is such that it leaves it to the discretion of member Associations whether to refer disputes for arbitration. Even though such disputes may involve individual sports persons there is no means for the individual sportsman or woman to raise a dispute with the TTOC directly as with all their other dealings with the TTOC, they must do so through their national association. 11. It is the Claimants submission that the relationship between sportsmen and their national associations is governed by the law of contract and the constitution of the association is where the principle terms are to be found - Lee v The Showmen s Guild of GB 2 QB [1950] 329. Counsel for the Claimants submits that at paragraph 7.2 of the Defence the Defendant accepts the existence of a contractual relationship between the parties and points (correctly the Claimant submits) to the Defendant s written constitution as the starting point. 12. The crux of the Claimants argument for the mandatory injunction is that the Court should imply a term mandating the Association to refer a legitimate dispute to arbitration in the contract between the Association and its members. 13. This point is specifically pleaded by way of paragraph 17 of the Claimants Statement of Case: It is an implied term of the agreement between the parties that any legitimate dispute arising between the Defendants and inter alia a player would be referred to the Trinidad and Tobago Olympic Arbitration Process ( TTOC ) pursuant to Article 31 of that body s Constitution. 14. According to the Claimants, the procedure provided for in Article 31 of the TTOC Constitution allowing a referral only from the Association is analogous to a disciplinary committee condemning a man unheard, which Denning LJ observed in Lee at 342 is not permissible. 15. They submit that it is incumbent on the Defendant as the national Table Tennis organization to provide a route of access to the dispute resolution method provided by the Trinidad and Tobago Olympic Committee and that it would offend legitimate public policy concerns to Page 5 of 11
allow the Defendant to fetter the right of access to the specialist sports tribunal in the way the Defendant professes to do. 16. Counsel for the Claimants cite the case of John Phillip Azar Jr (a minor) and Tennis Jamaica Limited HCV 04650 of 2014 which was consolidated with Emma Dibbs (a minor) and Tennis Jamaica Limited HCV 04652 of 2014 ( the Jamaican Tennis case ) in which the High Court in Jamaica intervened in a selection process at the injunctive stage mandating that fair trials be held. They argue that the Jamaica Tennis Case is persuasive authority for the proposition that this Court can rightly interfere with the decisions of the Management Committee and/or Selection Committee, by way of an Interlocutory Order, to prevent manifest injustice in the selection process. 17. It is submitted by the Claimant that the principles of natural justice dictate that there must be an implied term of the Agreement between the parties that the Defendant will refer disputes between them to Arbitration (as only the Defendant has the power to do so) pursuant to Article 31 of the Constitution of the TTOC. 18. In Lobb Partnership Ltd v Aintree Racecourse Co. Ltd [1999] All ER (D) 1300 it was held that the question whether an arbitration clause is unenforceable for ambiguity involves precisely the same constructional considerations as that question raises in relation to any other contractual provision. In the present case, however, the Claimants arguments concern the implication of a term by law due to fairness and natural justice issues as opposed to implication of fact due to ambiguity in terms. 19. Although the Claimants arguments are persuasive and appear to provide the most reasonable and fair procedure for arbitration referrals to the TTOC, the Court can only imply a term into a contract in limited circumstances. Halsbury s Laws of England (Vol. 22 (2012)) [368] put forward a strict test: Page 6 of 11
Whether or not the broad approach referred to above is adopted, it is clear that terms are not lightly to be implied in fact. If a contract does not expressly provide for what is to happen when some event occurs, the most usual inference in such a case is that nothing is to happen and if the event has caused loss to one or other of the parties, the loss lies where it falls. In this respect there remains a fundamental difference between interpretation and the implication of terms in fact. The court has no discretion to create a new contract for the purpose of doing what seems to it just and reasonable. 20. Indeed, in the House of Lords decision of Malloch v Aberdeen Corporation (1971) 2 All ER 1278 considered the following in relation to an employer-employee contract: it seems to me that the term is getting close to alleging that the rules of natural justice should apply between employer and employee to the extent that the employer should not be entitled to make a decision which may substantially affect the employee without first informing the employee that the decision is about to be made. I do not consider it right to import the rules of natural justice, which are connected with judicial decisions and some administrative decisions, into the purely contractual relationship of employer and employee. There is no precedent for it, and indeed the argument that any such rules should be applied appears to me to be inconsistent with the observations in the House of Lords 21. Further, in Attorney General of Belize and others v Belize Telecom Ltd and another [2009] UKPC 10, Lord Hoffman, delivering the judgment of the Privy Council, had this to say about the process of implication of terms: [16] Before discussing in greater detail the reasoning of the Court of Appeal, the Board will make some general observations about the process of implication. The court has no power to improve upon the instrument which it is called upon to construe, whether it be a contract, a statute or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. It is the meaning which the instrument would convey to a reasonable person having all the background knowledge which would reasonably be available to the audience to whom the instrument is addressed: see Investors Compensation Scheme Ltd. Page 7 of 11
v. West Bromwich Building Society [1998] 1All ER 98 It is this objective meaning which is conventionally called the intention of the parties, or the intention of Parliament, or the intention of whatever person or body was or is deemed to have been the author of the instrument [21] It follows that in every case in which it is said that some provision ought to be implied in an instrument, the question for the court is whether such a provision would spell out in express words what the instrument, read against the relevant background, would reasonably be understood to mean. It will be noticed from Lord Pearson s speech2 that this question can be reformulated in various ways which a court may find helpful in providing an answer the implied term must go without saying, it must be necessary to give business efficacy to the contract and so on but these are not in the Board s opinion to be treated as different or additional tests. There is only one question: is that what the instrument read as a whole against the relevant background, would reasonably be understood to mean? [Emphasis added] 22. In the present case, it is clear from the wording of Article 31 of the TTOC constitution that it is in the sole discretion of the Associations to refer matters for arbitration. Although this leaves ample scope for potentially unfair decisions by Associations not to arbitrate, it is clearly and expressly provided for in the contract between the TTOC and its members. The terms of S.31 of the Constitution of the TTOC can only be reasonably understood to mean that the Defendant has the power of referral and it is a discretionary power. 23. Although in comparison to the High Court process, arbitration of the matter may result in a much quicker and more cost-effective determination of the matter by a specialised tribunal, the expressed procedure in S.31 does not impede an aggrieved person s access to justice. Potential Claimants still have recourse to the courts for determination of their dispute. The present circumstances, therefore, are insufficient to establish that there must of necessity be an implied term for mandatory referral to arbitration so as to avoid breach of natural justice where the Association refuses to refer a matter to arbitration. 24. I have also considered the Claimant s alternate submission that the Court has jurisdiction under CPR 26.1(1) (u) and the Court s inherent jurisdiction to order the Defendant to refer this matter for arbitration. Although the CPR rule cited states that the Court can give control of Page 8 of 11
proceedings to any person it thinks fit I am not persuaded that the Court can therefore override the express contractual arrangements between parties that provide that only matters referred in the discretion of an Association can be arbitrated by the TTOC. For the same reason I do not agree that the Court s inherent jurisdiction is applicable in the instant circumstances. The Court has an inherent jurisdiction to stay proceedings however as it relates to arbitration section 7 of the Arbitration Act makes clear that this can only be done if provided for by an Arbitration Agreement. There is merit in the Defendant s submission that Even if the Honourable Court concluded that there was an agreement to arbitrate these disputes, it is submitted that the Claimant has not satisfied the Honourable Court of certain pre-requisites to do so. I have determined in any event that there is no Agreement express or implied between the parties to Arbitrate. 25. It is to be noted, however, that I accept the Claimants submissions that from all that is before the Court and the Parties actions prior to filing of this matter, there is a genuine and real dispute to be resolved. The Association has admitted taking into account factors that are not relevant in the selection process [Ian Joseph Affidavit 11/1/18 at paragraph 11] i.e. sending a more youthful team; see selection criteria attached as A.E.21. They have also admitted to selecting an all-male team citing an advantage without any evidence of such an advantage, particularly as against selecting a female team. In any event each of the Claimants would fall into one of the categories and therefore, this justification by the Defendant does not appear to hold much weight. Furthermore several other concerns as to impropriety in the selection process including bias are raised by the Claimant. 26. In fact, even within the Defendant s own selection and management committee there appears, from the Affidavits filed, to have been a degree of uncertainty with respect to selection [see Ian Joseph Affidavit 11/1/18 at paragraph 17; Aleena Edwards Affidavit 11/1/18 at paragraph 45; Simon Spicer Affidavit 11/1/18 at paragraph 23]. This selection process has further been called into question by the apparent interests of the Defendant s Management Committee Officers, Mr. Ian Joseph, Mr. Simon Spicer and Ms. Aleena Edwards in defending the selection of players other than the Claimants. Page 9 of 11
27. Unfortunately, due to the express terms of the TTOC Constitution, no terms requiring the referral of a dispute by the Association can be implied. As a result, the Claimants application for an injunction mandating the Association to refer the present dispute to arbitration should be dismissed. 28. However in addressing the third matter identified as c) above and as indicated previously, the Court has the discretion pursuant to CPR Part 26.1(3) (d) to order that a party pay all the costs of proceedings. It is patent that all of the legal costs incurred by both sides to date could have been largely avoided had the Defendant simply opted for Arbitration in November 2017 when the request was made by the Claimants, since one would generally be estopped from suing in the Courts on an issue that one has submitted to arbitration. As a result, the Defendant s decision to refuse to refer the matter to arbitration will have an impact on costs regardless of the final outcome of this case. Order 29. It is hereby ordered that: i. The interim injunction reinstated on January 24, 2018 is to continue until further order. ii. The application for an order that the Defendant refer the question of the defendant s selection of Trinidad and Tobago s representatives for the 2018 Commonwealth Games to arbitration by the TTOC as provided for in Article 31 of the TTOC constitution is dismissed. iii. Notice is hereby given to Attorneys at law for the Defendant pursuant to CPR 66.9 (1) that the issue as to whether at the conclusion of the trial on March 5, 2018 a wasted costs order should be made in favour of the Claimants is being considered. iv. The grounds on which the said order is being considered, as provided for at CPR 66.6 (6) (b) are that the Defendant refused unreasonably to try an alternate dispute resolution procedure of arbitration, although said method may have been more expeditious, less costly and equally, if not more effective in achieving a just result based on specialization of the tribunal in sports practice and law and that by the said refusal the Defendant may have caused all parties to incur costs and delays unnecessarily. Page 10 of 11
v. Attorneys at law for the Defendant are to attend on a date to be determined after March 5, 2018, to show cause why the wasted costs order should not be made. vi. Defendant and Claimants are to file affidavits by exchange sworn to by the parties and not their attorneys- at- law concerning the issue of wasted costs. Factors to be addressed therein must include, but are not limited to, the following: a) A comparative analysis setting out the costs, time and specialized knowledge advantages of litigation as opposed to trying arbitration; b) How are costs to be met by the Defendant Association? i.e. is it by members fees; c) Has the TTTTA ever referred any other dispute to be arbitrated prior to refusing to try arbitration in relation to the instant dispute? If so was there anything about the way the matter was dealt with that caused the Defendant to hold the view that litigation is a better option in terms of time, cost and specialization of tribunal. vii. The said Affidavits are to be exchanged on March 5, 2018. viii. All directions herein as well as orders given on January 24, 2018 are to be complied with in preparation for Trial on March 5, 2018 unless prior to that date the matter is voluntarily referred by the Defendant to Arbitration. Delivered 31 st January 2018 Eleanor Joye Donaldson-Honeywell Judge. Assisted by: Christie Borely, JRC I Page 11 of 11