Evidence based on what CJ presented

(i) restraining the second-named Defendant and the third-named defendant Trevor Paul, Commissioner of Police whether by themselves their servants and/or agents or any other police constable or howsoever otherwise from taking any action, steps or proceedings to institute or cause to be instituted or to continue criminal proceedings against the Claimant in respect of or on the basis of allegations made against him annexed to the first named defendant’s letter of the 8th June 2006 (“the said allegations”) and from taking any action or steps or proceedings or serving or causing to be served any process in relation to any criminal proceedings already instituted in respect of the said allegations pending the hearing and determination of a Notice of Application to continue the injunction returnable on Tuesday the 18th day of July 2006.

(ii) restraining each and every member of the Police Service of Trinidad and Tobago and every other person empowered by law to exercise the powers of a police constable or to lay or to cause to be laid criminal charges from taking any action, steps or proceedings to institute or cause to be instituted or to continue criminal proceedings against the Claimant in respect of or on the basis of the said allegations and from taking any action steps or proceedings or serving or causing to be served any process in relation to any criminal proceedings already instituted in respect of the said allegations pending the hearing and determination of a Notice of Application to continue the injunction returnable on Tuesday the 18th of July 2006.

The injunctions were obtained on the basis of evidence deposed to by Attorneys on record for the Claimant to which evidence was exhibited a copy of a public statement made by the Third Defendant.

In his evidence the Attorney avers that he is of the belief that as a result of the said public statement there was a real risk that without the protection of the court a further attempt may yet be made by members of the Police Service to execute the said warrant of arrest on the Claimant and/or otherwise institute the process of the court in respect of the said allegations and to execute same on the Claimant. There has been nothe following injunctions: affidavit evidence filed on behalf of these two Defendants (hereinafter collectively called “the Defendants.”)

During the course of the application to continue the injunction on the 18th July 2006, on the application of the Claimant and on the Second and third Defendants by their Attorneys, without prejudice to their submissions made in this regard, consenting to the said application I amended the order to substitute the date, ‘2nd June 2006’ for the date ‘8th June 2006’. This amendment was to correct the date of the letter containing the allegations that formed the basis of the order for injunctions.

The Claimant seeks the continuation of the injunctions granted and submits that the injunctions have become necessary in aid of orders granted by this Court whereby it was ordered that leave be granted to the Claimant to apply for judicial review of a decision of the First Defendant and/or the Second Defendant made on or about the 10th day of July 2006 to institute criminal proceedings against the Claimant in respect of allegations made against him annexed to the First Defendant’s letter of the 8th June 2006 and the Court’s order:

“that all action or proceedings consequential upon the said decision or the implementation of the said decision pending the hearing and determination of the application for judicial review.”

It has now be drawn to the attention of the Court that the above orders insofar as they refer to a letter of the 8th June 2006 are incorrect and it is my intention to amend same at the appropriate time.

The Defendants’ objections to the continuation of the injunctions were based on both procedural and substantive grounds. With respect to the objections as to the procedure followed by the Claimants, these objections were made against the background of the Claimant approaching the Court without giving notice to the Defendants. It is therefore important that before I deal with the submissions in detail I make an observation on the law with respect to without notice injunctions.

Despite the change in the language used and the procedure to be followed in applications of this type the Civil Proceedings Rules 1998 as amended (“the CPR”) does not purport to change the law with respect to the obtaining of without notice injunctions. The law with respect to the obtaining of these types of orders remains the same as that which obtained on ex parte injunctions as they were previously called. For our purposes this law is in my view aptly encapsulated by the words of Isaacs J in the Australian case of Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 @681 when he states:

“There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard in defence. But instances occur when justice could not be done unless the subject matter of the suit were preserved, and, if that is in danger of destruction by one party or if irremediable or serious damage be imminent, the other may come to court and ask for its interposition even in the absence of his opponent, on the ground that delay would involve greater injustice than instant action.”

In the instant case the Defendants submit that in making his without notice application the Claimant did not comply with the rules in that he did not:

(I) place before the court any evidence to show why he has come before the court without notice;

(ii) contrary to Part 11 of the CPR, did not serve a copy of any application or any evidence used in support of the application on these Defendants together with the order of injunction; and

(iii) did not make and serve o the other side a note of the hearing.

The procedure for making interim applications is found in Part 17 of the CPR while Part 11 provides general rules about applications for court orders.

Part 17.3 provides:

(1) The court may grant an interim remedy on an application without notice if it appears to the court that there is a good reason for not giving notice.

(2) An application for an interim remedy must be supported by evidence.

(3) If the applicant makes an application without notice the evidence in support of the application must state the reason or reasons why notice was not given.

It is not in dispute that the evidence in support of this application did not state the reason why notice was not given.

Part 11.14 states:

(1) After the court has disposed of an application made without notice, in addition to serving a copy of any order made, a copy of the application and any evidence in support must be served on all parties.

(2) When such an application is made the applicant must file sufficient copies of the application and evidence in support for service on all other parties who may be affected by the order.

(3) Where an urgent application is made without notice and the applicant undertakes to file evidence after the hearing he must serve copies of the application and evidence on all other parties affected by the order.

The English rule is materially different and provides that:

“Where the court makes an order, whether granting or dismissing an application, a copy of the application notice and any evidence in support must, unless the court orders otherwise be served with the order on any party or other person —

(a) against whom the order was made; and

(b) against whom the order was sought.

It would seem therefore that the Defendants’ submission with respect to the service of the documents together with the order is based on the English rule rather than that rule which applies in this jurisdiction. On my interpretation of our rules there was no requirement for a copy of the notice or the evidence in support to be served at the same time with the order on the Defendants.

In support of their third submission the Defendants rely on the following learning in Commercial Litigation Pre-Emptive Remedies 4th edition.

A1-381 “It is also the duty of the applicant’s counsel and solicitors to ensure that a full note is prepared of the hearing with expedition. A copy should be provided to any party who would be affected by the relief sought. Such a note must record what had occurred, the basis and material on which the order had been made so that an informed application for discharge can be made. Failure to do so can result in an order for indemnity costs in favour of the party affected.”

It is not in dispute that the Claimant did not provide the Defendants with any note of the proceedings as described in the above paragraph.

The authority cited in support of the above mentioned statement is the case of Interoute Telecommunications (UK) Ltd vs Fashion Gossip Ltd. The Times 10.11.99 (Ch D) in which the statement was made by Mr Justice Lightman when granting indemnity costs in favour of a non party to proceedings related to an ex parte application for a Mareva injunction. No report of this case was provided the court by the Defendants neither have I been able to obtain a full copy of the case. It is therefore difficult to ascertain the basis for the statement attributed to Mr Justice Lightman. In those circumstances it is difficult not to agree with the submission of the Claimant that perhaps this refers to a practice that has developed in England. I know of none nor have I been pointed to such a practice in this jurisdiction. In any event if it were applicable, and I find it is not, it would seem that the remedy for such a failure far from being the discharge of the injunction is one in costs.

Insofar as the procedural objections are concerned the only one of merit is that which addresses the failure of the Claimant to state in his evidence in support of the application for the injunction the reason why notice was not given to the Defendants.

Part 11.14 does not specify what are the consequences of such a failure.

Part 26.8 deals with the court’s general power to rectify matters where there has been an error of procedure and provides:

(1) This rule applies only where the consequences of failure to comply with a rule, practice direction or court order has not been specified by any rule, practice direction or order.

(2) An error of procedure or failure to comply with a rule, practice direction or court order does not invalidate nay step taken in the proceedings, unless the court so orders.

(3) Where there has been an error of procedure or failure to comply with a rule, practice direction, court order or direction the court may make an order to put matters right.

(4) The court may make such an order on or without an application by a party.

The English rule in this regard, although not in the same terms, provides:

“Where there has been an error of procedure such as a failure to comply with a rule or practice direction —

(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b) the court may make an order to remedy the error.”

The learning on the English rule found in Civil Procedure volume 1, The White Book Service 2005 reads:

“The court has a discretion as to whether to remedy the error and, if so, on what terms including terms as to costs. Alternatively, the court may make a dispensing order waiving the error. In many cases the way the discretion is exercised will depend on whether it appears that the other parties have suffered prejudice as a consequence of the error, but the rule gives the court the widest possible discretion and the court can look at all the circumstances. Hence though prejudice or lack of prejudice to the other party will often be the all important factor in the exercise of the discretion it will not always be so.”

No prejudice has been alleged by either Defendant with respect to this failure, indeed it would be difficult to conceive of circumstances in which prejudice can be alleged. Further, at least with respect to the Second Defendant, there was evidence before me of the inability of the Claimant’s Attorneys to locate him. In the circumstances I am of the view that the failure by the Claimant to state in his evidence in support of his application for an injunction the reasons why he did not give notice on the Defendants is not fatal to the grant of the injunction nor is it necessary in my view under our rules for me to make an order to put matters right. However out of an abundance of caution I order that the requirement that the Claimant state in his application for the injunctions the reasons for his failure to give notice to the Defendants is not necessary and is hereby waived.

With respect to the substantive grounds for discharging the injunction the Second Defendant submits that the first injunction ought never to have been granted against him as there is no evidence before the Court to support such an injunction and that in any event the terms of the second injunction granted are wide enough to include him. Further both Defendants submit that the injunctions obtained restrains the prosecution based on allegations contained in a letter of the 8th of June 2006. On the evidence they submit there is no letter of the 8th June 2006 but rather a letter of the 2nd June 2006.

The Claimant concedes that the Second Defendant could be adequately restrained under the terms of the second injunction granted and that the date in question ought to be the 2nd June 2006 rather than the 8th June 2006. I agree with the submissions in this regard. With respect to the date of the letter in my opinion this is not a consideration relevant to the continuation of the injunction granted. If I determine that any of the injunctions granted ought to be continued it is open to the court to vary the terms of the injunction to meet the justice of the case.

In support of their submission that the injunctions ought not to be continued both Defendants rely on the case of Smith and Inner London Education Authority (1978) 1 AER 410 and submit that the proper test in cases such as this is not whether there is a serious question to be tried but rather the Claimant is required to show that he has a real prospect of success. As well, they submit, in considering the balance of convenience the court is required to take into account the interest of the public in general to whom duties are owed by the persons seeking to exercise statutory powers.

The Claimant on the other hand submits that the injunction was obtained in aid of the stay of proceedings granted by this Court and not to continue the injunction would in effect allow the Defendants to frustrate the orders of the Court already granted in favour of the Claimant. He submits that, as set out in American Cyanamid Co vs Ethicon (1975) AC 396, (1975) 1 All ER 504, all the Claimant needs to show at this stage is that there is a serious question to be tried in the judicial review proceedings. The Claimant further submits that by holding that there is an arguable case this court has already determined this issue in favour of the Claimant.

This court having granted the injunctions “to preserve the subject matter of the suit” the question for the court at this stage is whether these injunctions ought to be continued? The dilemma faced by the Court at this stage is not a new or easy one.

“A decision to grant or withhold interim relief in the protection of disputed rights at a time when the merits of the dispute cannot be finally resolved must always involve an element of risk. If at the end of the day the Claimant succeeds in a case where interim relief has been refused, he will suffer an injustice. If, in the end, he fails in a case where interim relief has been granted, injustice will have been done to the other party. The objective that underlies the principles by which the discretion is to be guided must always be to ensure that the court shall chose the course which, in all the circumstances, appears to offer the best prospect that eventual injustice will be avoided or minimised.”

Per Lord Bridge in R v Secretary of State for Transport, Ex parte Factortame Ltd and Others (No 2) 3 WLR 818 @ 858 B-D

In the instant case, on the one hand, the unchallenged evidence is that if the injunction is discharged there is a real likelihood that the Third Defendant would proceed to arrest and prosecute the Claimant on charges formulated on the basis of allegations made in the letter of the 2nd June 2006 and thereby frustrate the substantive proceedings. On the other hand, the Defendants are being restrained from doing that which they undoubtedly have the statutory right to do.

I accept the submissions of the Defendants that in dealing with the balance of convenience the guidelines laid down in the American Cyanamid Co v Ethicon Ltd (1975) 2 WLR 316 case must be read in the light of the subsequent decisions of Smith and Others v Inner London Educational Authority (1978) 1 All ER 410 and the case of Regina v Secretary of State for Transport, Ex parte Factortame Ltd and Others (No 2) referred to above.

The principle as I understand it is this, in circumstances where a court, pending a final determination of proceedings, is considering whether or not to continue an interim injunction granted without notice or in circumstances of an application for such an injunction with notice against a body or person seeking to exercise its statutory powers, when considering the balance of convenience, the Court should generally have regard to the Claimant’s prospect of success and take into consideration the interests of the public in general to whom duties are owed by that body or persons seeking to exercise statutory powers.

The head note to the Factortame case in part reads:

“. . . in considering the balance of convenience the court had to take into account the interests of the public in general to whom the authority owed duties; that there was no rule that a party challenging the validity of the law sought to be enforced had to show a strong prima facie case that it was invalid, and the matter was one for the discretion of the court; but that the court should nevertheless not restrain the public authority from enforcing the law unless it was satisfied that the challenge to its validity was sufficiently firmly based to justify that exceptional course being taken.”

On the particular facts of that case an interim order was granted which had the effect of staying the operation of the domestic law pending a determination of its validity under the European Treaty. The court held that the applicant’s challenge to the validity of the provisions was prima facie a strong one and that the substantial detriment to the public interest that would have occurred if they eventually failed in their challenge was not sufficient to outweigh the obvious and immediate damage that would continue to be caused to them if interim relief were not granted and they were ultimately successful.

According to Lord Goff at page 870 letter G to page 871 letter A where a party is a public authority performing duties to the public

“particular stress should be placed upon the importance of upholding the law of the land, in the public interest, bearing in mind the need for stability in our society, and the duty placed upon certain authorities to enforce the law in the public interest. This is of itself an important factor to be weighed in the balance when assessing the balance of convenience. So if a public authority seeks to enforce what is on its face the law of the land, and the person against whom such action is taken challenges the validity of that law, matters of considerable weight have to be put into the balance to outweigh the desirability of enforcing, in the public interest, what is on the face of it the law, and so justify the refusal of an interim injunction in favour of the authority, or to render it just or convenient to restrain the authority for the time being from enforcing the law.”

and at page 871 letters E to H:

“I myself am of the opinion that in these cases, as in others, the discretion conferred upon the court cannot be fettered by a rule; I respectively doubt that there is any rule that, in cases such as these, a party challenging the validity of a law must — to resist an application for an interim injunction against him or to obtain an interim injunction restraining the enforcement of the law — show a strong prima facie case that the law is invalid. It is impossible to foresee what cases may yet come before the courts; I cannot dismiss from my mind the possibility (no doubt remote) that such a party may suffer such serious and irreparable harm in the event of the law being enforced against him that it may be just or convenient to restrain its enforcement by an interim injunction even though so heavy a burden has not been discharged by him. In the end it is one for the discretion of the court, taking into account all the circumstances of the case. Even so, the court should not restrain a public authority by interim injunction from enforcing an apparently authentic law unless it is satisfied, having regard to all the circumstances that the challenge to validity of the law is, prima facie, so firmly based as to justify so exceptional a course being taken.”

In the Factortame case, unlike this one, all the relevant facts were ascertained and the only unresolved issues were issues of law. The court there was also in the enviable position of having assistance from other decisions from the European Court of Justice which suggested the thinking of that court in similar situations.

This is not a situation in which this Court can avail itself of the opportunity of examining the case in detail in order to arrive at any firm conclusion as to the strength of the Claimant’s case. It cannot be, however, that in these circumstances the Court must therefore decline to consider the exercise of its discretion in this regard. In my opinion the instant case is one of the cases which Lord Goff describes as remote; where a party may suffer such serious and irreparable harm in the event of the law being enforced that it may be just and convenient to restrain the enforcement of the law against him even though he may not necessarily have shown a strong prima facie case.

The matter does not however end here I must now consider the public interest. The Third Defendant submits that apart from the considerations referred to in Factortame this Court must also consider that if the injunction against him continues he may in these proceedings be forced to place before the court statements obtained by him, which statements may contain inadmissible evidence prejudicial to the Claimant. To my mind that potential difficulty can be dealt with by orders of the court made at the case management stage. Of more fundamental concern to me are the matters raised by Lord Goff, that is, the importance of upholding the law of the land: “bearing in mind the need for stability in our society and the duty to be placed upon certain authorities to enforce the law in the public interest.” It is these considerations and any other as to the public interest that I must have in the forefront of my mind when weighing the balance of convenience. Of as equal importance to me is the duty of the court to protect its own process. In my opinion this presents another consideration to be taken into account when considering the public interest. In my view the public has a right to ensure that the process of the Court and the intent and spirit of orders of the Court are not frustrated particularly in circumstances where to do so may render a party’s petition to the Court futile. This is even more so where the cases concerns a consideration of the provisions of the Constitution. I agree with the sentiments as expressed by Lord Goff that ultimately “the matter is one for the discretion of the court, taking into account all the circumstances of the case.”

In the circumstances in considering the balance of convenience on the facts of this particular case I am satisfied that the challenge of the Claimant is sufficiently firmly based to justify this exceptional course being taken. I am of the view that in the circumstances it is necessary for there to remain in place injunctions which will have the effect of preventing any further steps being taken to prosecute the Claimant with respect to the allegations made against him and conveyed to him by letter of the 2nd June 2006 pending the determination of the matters before the Court. In my opinion this is the course of action that at the end of the day “appears to offer the best prospect that eventual injustice will be avoided or minimised.”

That said I am of the view that the terms of the injunctions obtained on the 16th July 2006 are too wide. I intend therefore to seek the assistance of Attorneys for all the parties to these proceedings in their capacity as officers of the court in the drafting of the necessary orders to reflect the intention of this Court. This I shall do at the Case Management Conference fixed for today. In the circumstances and to ensure that in the interim the orders for a stay of proceedings which I referred to earlier are not frustrated, while discharging the first order of injunction as against the Second Defendant, I will continue the other injunctions in the terms as granted. I will deal with the question of costs at the Case Management Conference.

Dated this 24th day of July 2006.

Judith A D Jones

Judge