Sun | Jul 5, 2020

JPS to pay part of court award for trespass, pending appeal

Published:Tuesday | June 26, 2018 | 12:00 AMMcPherse Thompson/ Assistant Editor - Business
The top floors of the JPS hedquarters in New Kingston bearing the marquee of co-parent companies, Marubeni Corp and Korea East West Power.

The Court of Appeal has ordered the Jamaica Public Service Company Limited, JPS, to pay $20 million, or just over a third of a $58.3 million judgment award against it for trespassing, pending the outcome of an appeal.

The claim arose from the construction of part of the power utility's 69 kilovolt Bogue-Orange Bay transmission line over property at New Milns in Hanover.

JPS was sued by Lethe Estate Limited, which owns the property, and Great River Rafting and Plantation Tour Limited, which has the right to develop it.

Negotiations for use of the land to install transmission lines for JPS' network began in November 1994. Lethe Estate and Great River Rafting alleged in a lawsuit in the Supreme Court that the transmission line was erected over the New Milns land without their agreement.

They also sought an injunction requiring JPS to remove its towers and wires, as well as an order from the court to stop the continuing trespass.

In a ruling handed down on February 23, this year, Supreme Court Justice Nicole Simmons awarded general damages of $58.15 million and special damages of $191,500 to Lethe Estate for trespassing. She found that Great River Rafting was not entitled to an award.

JPS filed an application in the Court of Appeal seeking a stay of execution of Justice Simmons' judgment pending an appeal. Appellate Justice Patrick Brooks who noted that the award to Lethe was a significant sum, said he would stay the Simmons judgement on condition that JPS pays a portion of the award.

The $20 million is payable by June 30.

Brooks' order also restrains Lethe from selling or leasing the land, and allows JPS to lodge a caveat against the titles pending the appeal.

At the Supreme Court hearing, according to the judgment, attorney Hugh Small QC argued on behalf of Lethe Estate that the continued presence of the JPS on the New Milns land could only be considered a trespass, the utility having failed to adhere to demands to remove the transmission line.

JPS' position is that it is not a trespasser.

Blaine Jarrett, one of the witnesses called by the JPS at the Supreme Court trial, told the court that the transmission line facilitates the movement of electricity to the western parishes and that its removal would have "dire" consequences.

His evidence was that its removal would result in power outages which could result in a "major system outage on the JPS transmission grid, possibly affecting thousands of customers in the western region of the island, which may also escalate to an entire system shutdown."

Having taking that evidence into consideration, Simmons ruled that while there was no breach of contract - saying it was clear to the court that there was no contract between Lethe Estate and the JPS - the utility had trespassed on the land.

As such it was the JPS, the defendant, who has "to write the cheque," she ruled.

mcpherse.thompson@gleanerjm.com