[1] Port Zante Merchants Association [2] Sol E Mar [3] Captain Jack [4] Square Duty Free [5] Diamond Island [6] Duty Free Plaza Applicants/Defendants v [1] Alex Decosta [2] Urban Development Corporation [3] Ministry of Tourism [4] Attorney General of St. Christopher and Nevis Respondents/Defendants [ECSC]
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Ramdhani J (Ag.) |
| Judgment Date | 23 October 2013 |
| Judgment citation (vLex) | [2013] ECSC J1023-1 |
| Date | 23 October 2013 |
| Court | High Court (Saint Kitts and Nevis) |
| Docket Number | CLAIM NO. SKBHCV 2013/0262 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
A.D. 2013
CLAIM NO. SKBHCV 2013/0262
The applicants, a number of merchants at Port Zante, the premier shopping mall in Basseterre, St. Kitts, claiming urgent pre-action relief under CPR Part 17, sought an interim injunction against a barbeque vendor who had been granted permission by the authorities, to operate a barbeque stall every Friday at the Port Zante Mall in close proximity of the applicants' stores. The applicants all complain that the four grills operated by the barbeque vendor, the 1st respondent, emit heavy smoke and soot and this was a nuisance causing losses and damages to their stores and their health, and affecting their customers generally. The evidence filed on their behalf disclosed that the profitability of the stores was being affected and that there was irritation to the eyes of two of the store owners, and that they were also coughing and their cheeks were being affected. There was no medical evidence to support this physical injury. Even though the matter was made inter parties without an order being granted, the applicants failed to file their substantive claim and continued to seek relief under Civil Procedure Rules (CPR) Part 17.
Held: Dismissing the Application:
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1. That affidavits supporting the application for an injunction disclosed that the applicants enjoyment of their stores were being substantially interfered with and even though challenged by the respondents were sufficient to show that there was a serious issue to be tried. In cases of this nature the court was not required to decide whether the applicants had a prima facie case or a strong prima facie case. It was sufficient that the applicants' affidavits provided the evidential backing for the court to form the view that there was a serious issue to be tried.
Applied: American Cyanamid Co. v Ethicon Ltd.; Tetrosyl Ltd. V Silver Paint and Lacqueur Co. Ltd [1979] C.A.T. No. 599 reported in New L.J. August 28, 1980
Other cases considered: Georgetown (Town Clerk) v Hughes and Others (1997) 56 W.I.R. 313Court of Appeal of Guyana; A.G v Wellingborough UDC (1974) 72 LGR 507 (1974) 72 LGR 507 C.A.; Mothercare Ltd. V Robson Books [1979] F.S.R. 466; Hall v Jamaica Omnibus Services Ltd 9 W.I.R. 344; Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] 3 QB 343; John A. Gumbs v The Attorney General of Anguilla Civil Appeal No. 9 of 2005
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2. That where on the affidavits, the evidence show that the damages and losses being complained of is capable of being remedied by 'damages' and that there is no claim that the respondents will be unable to make good those damages, an injunction will not be granted unless there were exceptional circumstances present. There were no exceptional circumstances in this case as what was being complained of was a negative impact on the profitability of the stores owned by the applicants; they not being in a position to represent other stores who were not a party to the action. Further, a mere statement that minor physical complaints such as eye and cheek irritations and coughing without any indication that they were having a real effect on the health of the applicants were not sufficient to ground a finding that damages would not be an adequate remedy.
Applied American Cyanamid Co. v Ethicon Ltd. [1975] AC 396 ; considered Polaroid Corporation v Eastman Kodak Co [1977] R.P.C. 379
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3. That an applicant who seeks relief under CPR Part 17 is only entitled to an exercise of discretion in a proper case. It would not be appropriate to exercise such discretion where on the initial hearing of the ex parte application, the court orders that the matter be made inter parties. At the very least the applicant should file his substantive claim by the date of the inter parties hearing as it would no longer be appropriate for the court to exercise this discretion.
Considered: Martin v Channel Four Television Corp [2009] EWHC 2788 (QB) (06 November 2009); Capital One Developments Ltd v Customs and Excise Commissioners 2002 WL 45401 Chancery Division
Ramdhani J (Ag.) By a Notice of Application dated the 3rd October 2013, the applicants, before commencing proceedings under Part 8, sought an injunction by way of interim relief pursuant to Part 17 of CPR 2000. They have filed a Certificate of Urgency and have also stated in their application that it is in the interest of justice that they be granted interim relief prior to the filing of their substantive claim. Two Affidavits, filed on behalf of the 2nd and the 6th applicants supported the application.
Very early into the hearing on an application made by Ms Grey the 1st applicant was removed as a party to these proceedings. The remaining applicants in this matter are all merchants who own shops at 'Port Zante' the premier shopping center in Basseterre, St. Kitts, and one of the first shopping areas visited by many tourists, especially cruise ship passengers. The applicants sell among other things, a variety of tourist-oriented merchandise inclusive of cigars and clothing.
The 1st respondent is the owner and operator of four barbeque grills who has been given permission to prepare and sell barbeque meats every Friday at Port Zante in the vicinity of the shops owned by the applicants. The 2nd applicant, the Urban Development Corporation who together with the 3rd respondent is the Ministry of Tourism has collaborated to grant permission to the 1st respondent. The 4th respondent, The Hon. Attorney General is joined in these proceedings as Government's representative.
The application cameex parte before the court on the 9th October 2013, but the Court considering that an inter partes hearing would not operate to cause the applicants injustice1, declined to make an ex parte Order and directed that application and supporting documents be served on all the Respondents and the matter was heard inter partes on the 15th October 2013. After fully hearing the matter on that day, the Court reserved its ruling. This decision was delivered on 23rd October 2013.
The smell and the smoke associated with barbeque often evoke a variety of pleasant thoughts inclusive of the joyful expectations of the arriving weekends and happy moments. But this is not so in this case. The applicants, merchants at Port Zante, however, are completely unhappy with the smell and smoke of the four barbeque grills of the first respondent who has been granted permission by the authorities to prepare and sell barbeque meats every Friday near the shops of the applicants. They ground their claim in nuisance. They complain that the smoke and the smell substantially interfere with their use and enjoyment of their stores, and are causing damage to their merchandise and to their health.
By their Notice of Application, the applicants primarily seek by way of interim relief:
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"1. An Order restraining the Respondents by themselves by themselves, their servants, and or agents or persons subject to their control, authority or direction or howsoever otherwise from causing or permitting the 1st Respondent or his servants or agents from operating a barbeque grill or
any other item which emanates charcoal smoke in the direct vicinity of the Applicants' stores until the hearing of this action or until further order of this Honourable Court. -
2. An Order that the Respondents take all reasonable steps to return the immediate surroundings of the Applicants' stores to the status quo prior to the date when the 1st Respondent took up his vending in the present area".
The applicants have noted in their grounds supporting this application, that this is a matter of extreme urgency. They claim that they all have an interest in the use and enjoyment of their individual stores that are directly affected by the 1st respondent's conduct. They contend that when they became aware of the nuisance, they sought to get the 1st respondent to cease his barbeque activities, but to no avail.
They state that the charcoal smoke which emanates from the grills is causing a substantial interference with the applicants' quiet enjoyment of their stores and that as a direct result of the nuisance, not only are they losing business, but that they are incurring losses and both they and their customers have been experiencing physical discomfort being forced to endure unhealthy and hazardous conditions.
The affidavit of Mr. Sunil Gehani sworn to on the 3rd October 2013 in support of the application provides some evidence in support of the grounds. He is the owner of 'Duty Free Plaza' that is located at Building No. 9, Unit A in Port Zante. He states that when he started his business there in 2007 there were no food vendors in the area. He states that the 1st respondent began operating the barbeque grills on or about the beginning of August 2013 every Friday from about 10 a.m. to 6 p.m. selling fish, chicken among other things.
He states that the grills are close to his store and that the charcoal smoke from the grills which is often very 'heavy', fills his store and leaves a smoke fume which lingers for hours. His staff and his customers have complained, and his customers, he states, have actually left his store because of the smoke. He statesthat the smoke has caused him to cough constantly and he has problems breathing and that it has affected his eyes by causing redness and other irritations.
He states that he has seen tourists cover their noses when they pass his store and...
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