Appeal court gives JPS 14 days to hand over report on 2015 coffee farm fire

The Court of Appeal has ordered Jamaica Public Service Company  (JPS)to disclose an internal investigation report into a 2015 fire that devastated a St Andrew coffee farm, resulting in losses operators said valued at about $16 million.

The court Friday dismissed the electricity provider's appeal against a 2023 Supreme Court order order compelling specific disclosure of the investigative report and all related materials, including photographs, correspondence with the investigator, and the investigator's identity and contact details.

In a unanimous ruling, the panel comprising Justices Nicole Foster-Pusey, David Fraser and Evan Brown, said JPS failed to establish that the document was shielded from disclosure by legal privilege. JPS has 14 days from today's judgment to comply with the disclosure order.

The case arose from a fire on June 29, 2015, at the Greenwich Estate in St Andrew, owned and operated by Greenwich Coffee Company Limited (GCC).

GCC alleged that a fault in a JPS supply line caused the blaze, which destroyed 780 mature coffee trees - more than 30 per cent of the estate's total - and resulted in significant financial loss. 

GCC filed a lawsuit in April 2018 alleging negligence and breach of statutory duty, seeking damages of US$125,283.08 or ($16 million, based on the exchange rate at the time). 

JPS denied liability, pleading in its defence that it had investigated the incident and the investigation revealed no negligence on its part.

When GCC sought production of that investigative report, JPS refused, asserting litigation privilege, the legal doctrine that protects documents prepared for the dominant purpose of anticipated or pending litigation.

The Court of Appeal found that assertion unsustainable on the evidence. At the heart of the ruling was the court's finding that JPS had a pre-existing regulatory obligation, imposed by the Office of Utilities Regulation under its Guaranteed Standards, to investigate customer complaints and respond within 30 working days.

The court said that obligation existed independently of any litigation threat.

The court drew a direct parallel with the landmark House of Lords decision in Waugh v British Railways Board, in which privilege was denied over an accident investigation report because the board was required to conduct such investigations for railway safety purposes regardless of litigation. Similarly, the court found JPS would have been required to investigate the Greenwich fire whether or not legal proceedings were contemplated.

Compounding JPS's difficulty was the quality of the evidence it placed before the court.

The judges noted that the sole affidavit supporting the privilege claim was sworn by JPS's internal legal counsel, David Fleming, who asserted, without supporting contemporaneous documentation, that the investigation was commissioned solely in anticipation of litigation.

The appeal court found that assertion was no more than a "bare assertion," noting that Fleming's affidavit was "not contemporaneous" but "a retrospective view."

"Paras 10 and 11 of Mr Fleming's affidavit are really legal submissions indicating the conclusion to which JPS hopes the court will arrive," the judgment stated. "They do not add to the factual base that the court is to examine."

The court also noted that JPS's own defence had expressly referenced the investigation as a response to GCC's request, an admission that reinforced the conclusion that regulatory compliance, not litigation preparation, was at least an equal if not dominant purpose.

JPS has been ordered to pay GCC's legal fees.

The court also acknowledged, and apologised for, considerable delay in delivering the decision. The case was listed for consideration on paper on December 4, 2023, meaning there were no oral arguments and the court used only written submissions to arrive at its decision.

Livingston, Alexander & Levy represented JPS while GCC's case was led by DunnCox.

GCC's lawsuit against JPS is now expected to proceed. 

The orders JPS must comply with: 

JPS is directed to specifically disclose and, where applicable permit inspection of:

a. The name, address, and contact information for the investigator engaged by JPS to conduct an investigation into the incident that is the subject matter of the claim;

b. Any report or other documents containing the findings of the investigator engaged by JPS in relation to the incident that is the subject matter of the claim;

c. All correspondence sent to and received from the investigator engaged by JPS, insofar as that correspondence relates to, speaks about, or addresses the incident that is the subject matter of the claim;

d. All photographs, drawings, diagrams, Titles, images, extracts, or other supporting documents provided to, utilised by, or produced by the investigator engaged by JPS in relation to the incident that is the subject matter of the claim.

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