CURE heads to Privy Council
Barbara Gayle and Jerome Reynolds, Gleaner Writers
THE RULING yesterday by the Court of Appeal that the Jamaica Public Service's (JPS) all-island electric licence to transmit electricity is valid, is heading for the United Kingdom Privy Council.
Attorney-at-law Hugh Wildman disclosed that, next week, the lobby group Citizens United to Reduce Electricity (CURE) will be applying for leave to challenge the court's decision.
Wildman said, after the judgment was handed down, he consulted a senior Queen's Counsel in England to represent CURE. He said he was assured by the lawyer that CURE has a very good chance of winning the case before the Privy Council, because the Electric Lighting Act does not allow for the grant of monopoly licence. Wildman said the case was of exceptional public importance, and CURE will be contending that the Court of Appeal misconstrued the Act.
In handing down its decision, the court said, in its unanimous decision, that "on the issues raised by the respondents, JPS and the attorney general, it is concluded that, on a fair interpretation of the Electric Lighting Act in its context, it does not prevent the minister granting an exclusive all-island licence".
The president of the Court of Appeal Justice Seymour Panton, Mrs Justice Norma McIntosh and Justice Patrick Brooks held that the granting of an exclusive licence does not prevent the energy minister from considering other applications for licences. It said also that CURE did not provide any evidence that the minister had adopted an approach that no other applications for licence would be considered on merit.
CURE was ordered to pay the legal costs of JPS, the attorney general and the Office of Utilities Regulations (OUR) in both the Supreme Court and the Court of Appeal. The OUR was accused of recommending the minister's grant of the exclusive licence, but Justice Bryan Sykes had found that was not so.
JPS and the attorney general had appealed the July 2012 ruling by Justice Sykes that the monopoly licence granted to JPS to distribute electricity was invalid. Justice Sykes ruled that the energy minister did not have the power to grant a licence on terms which prevent other applicants from having their applications being considered genuine. The judge also said the minister did not have the power to grant a licence upon terms that bar the possibility of any other person entering the market for the transmission of electricity.
Following the ruling, the JPS filed an appeal on the grounds that the judge was wrong when he ruled that the light and power company's all-island exclusive licence was invalid. The JPS, which was represented by Michael Hylton, QC, and Sundiata Gibbs and the attorney general, who was represented by Solicitor General Nicole Foster Pusey, QC, and attorney-at-law Althea Jarrett, challenged the judge's ruling that Section 3 of the Electric Lighting Act does not permit the minister to grant a licence on an exclusive basis.
CURE, which is representing dissatisfied JPS customers, contended that there was no basis for exclusivity of the licence and asserted that the statute does not allow for an all-island licence. The respondents were Dennis Meadows, Betty-Ann Blaine and Cyrus Rousseau.