Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 2 of 2022

Leeward Water Services Ltd v Provo Water Co and the Attorney General (CL 2 of 2022) [2022] TCASC 16 (08 July 2022);

Media neutral citation
[2022] TCASC 16
Case summary:

This is a ruling on two preliminary summonses in proceedings concerning the appointment of water undertakers under the Water and Sewerage Ordinance ("the Ordinance"). The Plaintiff and the 1st Defendant have both been appointed water undertakers for the Leeward Area, by the Minister for Home Affairs, Public Utilities and Transportation. The Plaintiff seeks inter alia a declaration that except where section 34 of the Ordinance applies there can be only one water undertaker with respect to a particular geographical area. The two summonses before the Court were a) the Plaintiff’s summons under Order 24, rule 11 of the Civil Rules 2000, for inspection of documents ("the Inspection Summons") b) the 1st Defendant’s summons for directions dated 14 June 2022, seeking the determination of preliminary issues ("the Directions Summons").

On the Inspection summons, the Plaintiff argued that it should be awarded the costs incurred, both because of the lateness of the disclosure of the requested documents and because the reasons advanced by the 1st Defendant for withholding full inspection were without merit. The 1st Defendant in response, argued that the reasons for its initial refusal to provide unredacted copies of the documents were that they were commercially sensitive, however it decided to disclose them in order to move the matter along. The 2nd Defendant supported the 1st Defendant’s position, agreeing in particular, that the documents were commercially sensitive.

By the Directions Summons, the 1st Defendant applied for an order that the court conduct a preliminary hearing and give consequential directions to determine whether the Ordinance allows the appointment of more than one undertaker for a specific geographical area. The 1st Defendant contended that the first prayer for relief in the substantive claim (the declaration), is a discrete legal issue which can be decided on submissions.

Headnote and holding:

1) 1st Defendant pay the costs of the Inspection Summons.  2) Directions Summons dismissed 3) the Court of its own motion orders a hearing of the preliminary issue under Order 14A, and 4) no order as to costs on the Directions Summons.

On the Inspection summons the Court found that the Plaintiff requested full unredacted copies of the Documents and filed the Inspection Summons months prior.  The 1st Defendant decided to provide them but only a few days before the hearing. In those circumstances, the appropriate costs order would be that the 1st Defendant should pay the costs of the Inspection Summons [8].

On the Directions Summons, the Court found that Civil Rules Order 14A empowers the Court on its own motion to determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings, where it appears to the Court that such question is suitable for determination without a full trial of the action, and such determination will finally determine (subject only to any possible appeal) the entire case or matter or any claim or issue therein [13]. The Court was satisfied that a determination as to whether the Ordinance allows the appointment of more than one undertaker for a specific geographical area, turns solely on the interpretation of the Ordinance, and was suitable for determination without a full trial, and will finally determine the Plaintiff’s claim for the declaration [14].

 

IN THE SUPREME COURT

TURKS AND CAICOS ISLANDS

CL 2/2022

BETWEEN:                                                        

LEEWARD WATER SERVICES LTD.

Plaintiff

v.

PROVO WATER COMPANY LTD.

THE ATTORNEY GENERAL OF THE TURKS AND CAICOS ISLANDS

Defendants

__________________________________

JUDGMENT

__________________________________

 

CORAM:                               The Hon. Mr. Justice B. St. Michael Hylton QC (Ag)

 

Appearances:                        Mr. Conrad Griffiths QC for the Plaintiff

Mr. Jonathan Katan QC for the 1st Defendant

Ms Khalila Astwood-Tatem for 2nd Defendant

 

Hearing Date:                        5 July 2022

Venue:                                    Court No. 5, Graceway Plaza, Providenciales

 

Date Delivered:                     Friday, 8 July 2022

 

Brief Factual Background

  1. These proceedings concern the appointment of water undertakers under the Water and Sewerage Ordinance (“the Ordinance”[1]). The Plaintiff and the 1st Defendant have both been appointed water undertakers for the Leeward Area, by the Minister for Home Affairs, Public Utilities and Transportation. The Plaintiff seeks inter alia a declaration that except where s 34 of the Ordinance applies there can be only one water undertaker with respect to a particular geographical area.

The Summonses

  1. There are two summonses before the Court:
    1.  the Plaintiff’s summons under Order 24, rule 11 of the Civil Rules 2000, dated 4May 2022 for inspection of documents (“the Inspection Summons”); and
    2. the 1st Defendant’s summons for directions dated 14June 2022, seeking the determination of preliminary issues (“the Directions Summons”).

The Inspection Summons.

  1. Order 24, rule 11 provides that where a party objects to the production of any document for inspection, the Court may on an application of the party entitled to inspection, make an order for inspection. The Inspection Summons concerns:
    1. An Instrument of Appointment dated 6 December 1996;
    2. A Variation of Appointment dated 3 April 2006; and
    3. A Second Variation of Appointment dated 15 June 2012.

(collectively “the Documents”).

 

  1. The Documents were disclosed and copies provided for inspection, but they contained redactions. The 1st Defendant asserted that the redactions related to commercially sensitive information and that in any event, the redacted sections are not relevant to the issues in the action. Dissatisfied with this response the Plaintiff applied by the Inspection Summons for an order for inspection of the full, unredacted Documents.

 

  1. On 30 June 2022, two working days before the hearing of the Inspection Summons, the 1st Defendant disclosed unredacted copies of the Documents. At the hearing, the parties agreed that consequently, the Inspection Summons was rendered academic, save as to costs.

 

  1. The Plaintiff argued that it should be awarded the costs incurred by the Inspection Summons, both because of the lateness of the disclosure and because the reasons advanced by the 1st Defendant for withholding full inspection were without merit. The Plaintiff denied that the Documents contained commercially sensitive information and contended that the Documents were relevant public documents, which ought to be published on a register, under s 100 of the Ordinance.

 

  1. The 1st Defendant in response, maintained that the reasons for its initial refusal to provide unredacted copies of the Documents were valid, however it decided to disclose them in order to move the matter along. The 2nd Defendant supported the 1st Defendant’s position, agreeing in particular, that the documents were commercially sensitive.

 

  1. At this stage of the proceedings, it is not necessary (and it would arguably be inappropriate) for me to make a ruling as to the relevance or commercial sensitivity of the previously redacted parts of the Documents. However, the fact is that the Plaintiff requested full unredacted copies of the Documents and filed the Inspection Summons months ago.  The 1st Defendant decided to provide them but only a few days before the hearing. In those circumstances, in my view the appropriate costs order would be that the 1st Defendant should pay the costs of the Inspection Summons.

Disposal of Inspection Summons

  1. In the circumstances, I order that 1st Defendant pay the costs of the Inspection Summons. 

The Directions Summons

  1. By the Directions Summons, the 1st Defendant applied for an order that the court conduct a preliminary hearing and give consequential directions to determine whether the Ordinance allows the appointment of more than one undertaker for a specific geographical area. The 1st Defendant contends that the first prayer for relief in the substantive claim (the declaration), is a discrete legal issue which can be decided on submissions.

 

  1. The 1st Defendant further argues that a preliminary hearing ought to be conducted as, in answer to a Summons filed by the Plaintiff on 27 January 2022, it gave an undertaking to not install pipelines, service connections or take any other preparatory steps to supply water to the Leeward Area. If the preliminary issue is determined in the affirmative, the 1st Defendant will be able to act as an undertaker while the substantive claim is determined.

 

  1. In response, the Plaintiff accepts that the preliminary issue turns on a question of law, which can be determined in advance of the trial, but says it should be pursuant to an order under Order 14A. Counsel for the Plaintiff also informed the Court that it intends to amend the Writ of Summons, however such amendments would not affect the declaration (save for it being a declaration under the amended Summons).

 

  1. Order 14A provides:

 

“1. (1) The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that-

(a) such question is suitable for determination without a full trial of the action, and

(b) such determination will finally determine (subject only to any possible appeal) the entire case or matter or any claim or issue therein.

 

(2) Upon such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just.”

 

  1. I am satisfied that a determination as to whether the Ordinance allows the appointment of more than one undertaker for a specific geographical area, turns solely on the interpretation of the Ordinance, is suitable for determination without a full trial, and will finally determine the Plaintiff’s claim for the declaration[2].

Disposal

  1. In the circumstances, the Court will; 1) dismiss the Directions Summons, 2) of its own motion order a hearing of the preliminary issue under Order 14A, and 3) make no order as to costs on the Directions Summons.

 

 

The Hon. Mr. Justice B. St. Michael Hylton QC (Ag)

Judge of the Supreme Court

8 July 2022

 

[1] CAP 8:03.

[2] As contained in its current Writ of Summons (un-amended).