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Court green-lights contractor to appeal judgment favouring Digicel

Published:Friday | July 10, 2015 | 7:00 AMMcPherse Thompson

The Court of Appeal has refused to strike out a challenge against a Supreme Court judgment in favour of Digicel Jamaica in a claim brought by electrical engineering contractor Thomas Hamilton and Associates against the telecommunications provider.

Digicel contended that Thomas Hamilton and Associates has been tardy in its prosecution of the appeal, in that it filed the petition more than three years ago but has not taken the requisite action to ensure that it proceeded.

Thomas Hamilton and Associates, through its lawyer Keith Bishop, argued that the notes of evidence have not been produced by the registrar of the Supreme Court and that has deprived them of the opportunity to file the full grounds of appeal.

In refusing Digicel's application to strike out the appeal, president of the Court of Appeal, Justice Seymour Panton, who delivered the oral decision on behalf of the three-member panel, said they were not satisfied that there has been any dereliction of duty on the part of Thomas Hamilton and Associates and hence, there was no basis to prevent the appeal from going forward.

Rather, Justice Panton said the fault was squarely at the door of the registrar of the Supreme Court.

Digicel had applied to strike out Thomas Hamilton and Associates' appeal against the order of Justice Raymund King, made on October 26, 2011 in the Supreme Court in its favour.

Breach of contract

The matter before the Supreme Court was a suit by Thomas Hamilton and Associates against Digicel for breach of contract, Justice Panton noted.

According to the particulars of claim, in June 2004 Thomas Hamilton and Associates and Digicel signed a written contract for the electrical contractor to provide routine maintenance and refuelling of generators at various cell sites in Jamaica.

The contract ended on March 31, 2005 and was renewed for a year, from April 1, 2005 to March 2006.

To effectively perform the contract, Thomas Hamilton and Associates said it was required to employ and train additional employees, open offices and provide accommodation for its workers in Montego Bay and other regions, purchase and maintain refuelling tanks at strategic locations and buy at least three specialised vehicles to manage the rugged terrain leading to some of the cell sites.

At the end of the first contract year, the electrical contractor was required to carry on its duties until a new contract was signed. The new contract was signed in June 2005, and, in the intervening period, Thomas Hamilton and Associates said it performed the duties as if it was extended and it was paid according to the provisions of the contract.

At the end of the second period of contract, Thomas Hamilton and Associates said it had a legitimate expectation to have its contract renewed and, as a result, purchased the required spare parts and made contractual arrangement with its workers to continue for another year.

The company contended that it was also encouraged by agents of Digicel to continue to perform the contract.

However, on May 29, 2006, Digicel wrote to the company requiring it to terminate the contract on June 1, 2006, without giving it the agreed two months' notice.

Thomas Hamilton and Associates is claiming a total of $37.94 million with interest for spare parts it acquired pursuant to the contract, office and lodging expenses, loss of income, salary for workers, insurance premium, and the cost for fuel and storage tank.

In the sole ground of appeal filed up to the time of the telecoms application to strike, Thomas Hamilton and Associates contended, inter alia, that in ruling in favour of Digicel Justice King erred in finding that the words 'legitimate expectations' can only be used in public law and never used in private law.

Legitimate expectation

Research shows that the notion of legitimate expectation has been used as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a person. Public law affects society as a whole, while private law affects individuals, families, business and small groups.

Justice Panton said that although the appeal was filed more than three years ago, "we have not had the benefit of the notes of evidence that the learned judge may have recorded; nor do we have the benefit of his reasons for judgment."

In between the hearing of Digicel's application, efforts were made to contact the now retired Justice King, but that has failed.

Digicel's attorney, Maurice Manning, referring to what he said was Thomas Hamilton and Associates' tardiness in prosecution of the appeal, submitted that the administration of justice requires a cooperative approach, and that the filing of an appeal, then doing nothing else, was not good enough.

Bishop submitted that the delay in the prosecution of the appeal was due to the failure of the Supreme Court to respond to the registrar of the Court of Appeal about the notes of evidence and hence Thomas Hamilton and Associates ought not to be penalised for that failure.

Justice Panton noted that the Court of Appeal Rules require that upon the notice of appeal being filed from the Supreme Court, the registry must arrange for the court below to prepare a certified copy of the record of the proceedings and a transcript of the notes of evidence and of the judgment.

He noted that the clerk informed the panel that the registrar of the Court of Appeal wrote no less than seven times to the registrar of the Supreme Court seeking to obtain the requisite documents.

"The indication we have had from the Supreme Court is that the notebook in which the evidence was recorded is not in the possession of the registrar," said Justice Panton.

"The state of affairs is unfortunate because the Judicature (Supreme Court) Act requires the registrar of the Supreme Court to keep a record of all proceedings in the Supreme Court," he said.

"So, strictly speaking, at the end of a trial where there is an appeal, the registrar of the Supreme Court ought to have in her possession the notes recorded by the learned judge. If this practice had been followed, even without the reasons for judgment, we would have had an idea of what had transpired before the learned judge. We trust that the registrar of the Supreme Court will take the necessary corrective action so as to ensure that she complies with the requirements of the legislation," the Court of Appeal president added.

Having refused the application to strike out the appeal, the Court of Appeal made an order dispensing with the requirement for the notes of evidence and written judgment, ordered that the record of appeal be filed by June 30, 2015, and that the appeal be listed for hearing during the week starting December 14, 2015.

mcpherse.thompson@gleanerjm.com