Theresa Marcellin as Executrix of the estate of Joseph St. Rose (Deceased) v Saint Lucia Electricity Services Ltd (Lucelec)
| Jurisdiction | St Lucia |
| Judge | Cenac-Phulgence J,Kimberly Cenac-Phulgence,High Court Judge |
| Judgment Date | 04 October 2018 |
| Judgment citation (vLex) | [2018] ECSC J1004-2 |
| Docket Number | SLUHCV2016/0233 |
| Court | High Court (Saint Lucia) |
| Date | 04 October 2018 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(Civil)
The Hon. Mde. Justice Kimberly Cenac-Phulgence High Court Judge
SLUHCV2016/0233
Mrs. Lydia Faisal for the Claimant
Mr. Deale Lee for the Defendant
The claimant filed a fixed date claim for an order to remit and/or set aside the award of arbitrator, Ms. Shan Greer (“the Arbitrator”) dated 16 th March 2016. The specific relief claimed in the statement of claim is as follows: (a) the award of the Arbitrator be set aside and (b) the issues of trespass, nuisance, notice, and the date for calculating the value of the land in question be determined by the court before the matter is remitted to the Arbitrator for further consideration and (c) costs. The claim is made pursuant to sections 18 and 19 of the Arbitration Act1 (“the Act”).
Sometime in or about the year 2000, the defendant, Saint Lucia Electricity Services Limited (“LUCELEC”) erected a 66,000 volt structure comprising power lines and utility poles along the western boundary of property registered as Block and Parcel 1453B 268 (“the property”) which belongs to the claimant. As a result, the claimant alleged that 6,375 square feet of the property was rendered useless.
The claimant filed a claim in the High Court against LUCELEC in 2010 seeking compensation for trespass, nuisance and personal injuries allegedly caused by the erection of the 66 KV electricity lines over the portion of his property.
By order of the Court dated 31 st March 2011, Wilkinson J noted in the preamble to the order that the Court was informed by counsel for the defendant that there was agreement that the matter ought to go to arbitration.
The Court then ordered that Ms. Shan Greer be appointed arbitrator of the dispute pursuant to section 22(2) of the Electricity Supply Act2 (“ESA”).
The claimant's statement of claim alleged that the matter was referred to arbitration along with the claim in trespass and nuisance.
The terms of reference agreed by the parties in relation to the arbitration were as follows:
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(a) Whether the claimant is entitled to damages for trespass and nuisance caused by the company to the claimant's land situate at Monchy, Gros Islet more fully
described as Block 1453B Number 286. -
(b) Whether the claimant is entitled to personal injuries (pain and suffering) caused by the company to the claimant on the claimant's premises.
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(c) Whether the claimant is entitled to be relocated at the respondent's expense to a similar or suitable piece of land to cease his exposure to the radiation caused by the 66KV cables and to be compensated the value of his property to the extent of $400,000.
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(d) Whether the claimant is entitled to payment in full or part of his medical and travel expenses incurred by virtue of his cancer.
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(e) The claimant having pleaded same is entitled to interest and costs on all sums awarded.
The claimant met his demise in May 2015 and thereafter, the personal injuries aspect of the claim was withdrawn and the arbitration proceeded on the remaining terms of reference. The parties agreed that the matter would be dealt with by the Arbitrator on written submissions.
The contentions of LUCELEC are set out below.
LUCELEC denied that there was any misconduct of the proceedings by the Arbitrator. They said that the Arbitrator concluded on the issue of notice after careful consideration of all the evidence before her including the witness statement of the claimant, the notice exhibited by LUCELEC, the correspondence between the claimant and LUCELEC and the notes of meetings with the claimant. They said that the claimant never filed any objection at all during the first five years of the lines being erected. They therefore argued that the Arbitrator reasonably concluded on the evidence available that no trespass had been committed.
LUCELEC averred that the claimant having withdrawn his claim for personal injuries the only matters for the Arbitrator to decide were whether LUCELEC'S actions in erecting the lines constituted a trespass or nuisance; damages payable if a trespass or nuisance had been committed and compensation payable under the ESA. The Arbitrator could not consider relocation as this is not an available remedy for trespass or nuisance. Compensation for the entire property was inappropriate given that the Arbitrator found that only 6,118.50 square feet of the property was affected by the 66KV lines.
The finding that no award in relation to aggravated damages could be made was based on the authority relied on by the claimant which indicated that the remedy for trespass included aggravated damages in the appropriate circumstances.
The Arbitrator at paragraph 37 of the Award clearly stated the reason for using the 2005 valuation as opposed to the 2015 valuation which she stated was in accordance with established legal principles.
Finally, that the Arbitrator addressed all the issues raised by the claimant in accordance with established legal principles. In every instance, the Arbitrator acted within the limits of her jurisdiction. The claimant did not establish any basis for the contention that the Arbitrator misconducted the proceedings or that the award should be remitted or set aside.
The issues to be determined are:
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(a) Whether the Arbitrator misconducted herself within the meaning of section 19 of the Act and the award should be set aside.
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(b) Whether there are grounds to remit the Arbitrator's award.
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(c) Should the award be remitted, should the following matters be determined prior to the award being remitted, to wit: (i) whether LUCELEC is liable for trespass or nuisance; and (ii) the date from which the value of the property affected should be calculated.
Section 18(1) of the Act states:
“In all cases of reference to arbitration the Court may from time to time remit the matters referred, or any of them, to the reconsideration of the arbitrators or umpire.”
Section 19(2) of the Act states:
“Where an arbitrator or umpire has misconducted himself or herself or the proceedings, or an arbitration or award has been improperly procured, the Court may set the award aside.”
The Act does not define misconduct and so one must look to case law to determine whether there has been misconduct on the part of an arbitrator in the given circumstances of a case. The Privy Council in National Housing Trust v YP Seaton & Associates Company Limited3 in relation to the term misconduct stated as follows:
“As Atkin J remarked with regard to the word “misconduct” in Williams v Wallis and Cox [1914] 2 KB 478, 485: “That expression does not necessarily involve personal turpitude on the part of the arbitrator, and any such suggestion has been expressly disclaimed in this case. The term does not really amount to much more than such a mishandling of the arbitration as is likely to amount to some substantial miscarriage of justice.”
Or as Russell on Arbitration (20th ed (1982)) put it at p 409:
“Misconduct' is often used in a technical sense as denoting irregularity, and not any moral turpitude. But the term also covers cases where there is a breach of natural justice. Much confusion is caused by the fact that the expression is used to describe both these quite separate grounds for setting aside an award; and it is not wholly clear in some of the decided cases on which of these two grounds a particular award has been set aside.”
There must be more than a mere error of law or fact. As Sir John Donaldson MR in Moran v Lloyd's (A Statutory Body)4 put it:
“For present purposes it is only necessary to say, … that the authorities established that an arbitrator or umpire does not misconduct himself or the
proceedings merely because he makes an error of fact or law. …”
In the Jamaican case of R.A. Murray International v Brian Goldson, 5 the Court said:
“…“the expression “misconduct” is of wide import and does not necessarily connote that the arbitrator has been guilty of moral turpitude. It ranges from a fundamental abuse of his position, i.e. “on the one hand, that which is misconduct by any standard, such as being bribed or corrupted, to “mere ‘technical’ misconduct, such as making a mere mistake as to the scope of the authority conferred by the agreement of reference. That does not mean that every irregularity of procedure amounts to misconduct”. Our Act does not define misconduct, and it is tolerably clear that it is difficult to define exactly what this term means.” (my emphasis)
In the case of Belize Natural Energy Ltd. v Maranco Ltd.6 Mr. Justice Anderson spoke to the nature of arbitration. He stated as follows:
“Parties to an arbitration agreement make the conscious decision to prefer the prompt, expedient, and final settlement of their disputes through the arbitral process rather than the often protracted process of court adjudication. As it is sometimes put, they choose finality over legality. …
The courts do retain residual responsibility for guaranteeing the integrity of the arbitral process in ensuring, for example, the application of the principles of natural justice but court involvement should be as minimal as possible. The margin of judicial discretion to intrude into an arbitral award is exceedingly narrow. …” 7
The Act does not specify the grounds on which an arbitration award may be remitted and on its face the power given to the court under section 18(1) is very wide. 8 A court should be slow to remit, and ought not to do so, unless there is good reason for the remittal. In Belize Natural Energy, Mr. Justice Anderson...
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