Hope Pastures residents take fight to Appeal Court in underground electricity battle

Stung by the 2022 Supreme Court ruling that the Jamaica Public Service (JPS) could not be forced to maintain the 60-year-old underground electricity system in the upper middle class community of Hope Pastures in St Andrew, the residents are now taking the fight to the Appeal Court in a bid to have the decision overturned.

In June last year, the Supreme Court ruled that the JPS was not obligated by law to cover the replacement cost for the underground electricity supply in the suburb.

Through the Hope Pastures Citizens’ Association, the residents sought a mandatory injunction from the court for the JPS to restore and maintain the original underground supply installed by a private developer nearly 60 years ago. But the court ruled against them and ordered the association to pay the cost.

Pursuant to the pending appeal, however, JPS – with whom the residents say they have had an acrimonious relationship for several years on a number of issues – wants the court to order that a multimillion-dollar Security for Costs fund be established by the Hope Pastures residents, to ensure that the power company is able to recover costs in the event that the citizens are ordered to pay.

That position was taken, according to JPS’s attorneys, because the company is yet to recover costs awarded in its favour following last year’s Supreme Court ruling.

The Sunday Gleaner was told that the court has not yet decided on how much the residents should pay.

Undaunted, the Hope Pastures Citizens’ Association said they are pushing forward, confident that they have strong grounds for appeal and that the decision will be overturned.

However, not all of the residents are on board with continuing a battle with the power company that has been ongoing for several years.

Crushed by last year’s ruling, some of the owners and children of owners told The Sunday Gleaner that they have accepted the decision and have now outfitted their houses with overhead electricity, while others have gone fully solar.

Several houses are still connected to the underground system, while a hybrid of underground and overhead is maintained by others.

Many lament that the absence of what they termed “unsightly overhead electrical poles” was what attracted their parents to purchase property in the community decades ago.

Telephone and cable wires are maintained underground in the area.

Nearly 100 signatures were received in support of the litigation that sought to have the light and power company maintain the system, which the company said was old, a potential danger to life and property, expensive to maintain, and should be replaced.

STRONG GROUNDS FOR APPEAL

Jerome Spencer is one of the attorneys representing the citizens on appeal, which is expected to be heard in the first half of this year.

Spencer explained to The Sunday Gleaner, “I do believe that by virtue of earlier positions which found their way in the Court of Appeal and orders made there, that it provides perhaps the strongest base for my clients’ ability to successfully pursue this appeal.

“The Court of Appeal, a few years ago, ruled that the JPS was under obligation to provide the system, by way of underground wires, and that should not be interfered with. So essentially, having regard to that unchallenged Court of Appeal decision, the decision made last year by Justice Brown Beckford must be incorrect.”

Addressing JPS’s demand for the establishment of a Security for Costs fund before any further court action, the attorney said, “if that is ordered, we intend to oppose it”.

“The law allows for such an order to be made and the court will determine in the circumstances whether it is fair to require it and if so, on what terms,” he explained.

According to him, the JPS has filed documents stating the sum they are seeking for security, which is being challenged by the residents.

“The $6 million represents their estimate of the projected cost of defending the appeal. It is because the appeal has been filed and served why the demand for a fund is there,” he told The Sunday Gleaner.

JPS NOT BLOCKING APPEAL

King’s Council Patrick Foster, who represents the JPS, told The Sunday Gleaner that JPS was not blocking the appeal, as some of the residents believe, because of the company’s demand for the establishment of the multimillion-dollar Security for Costs fund.

“We are not blocking their appeal. They have a right to appeal. But having won the case before the Supreme Court, we got an order for costs and there is no indication that they can pay the legal costs of JPS. They have filed their appeal and we have merely said to them, ‘you have to give us some security for any costs we may get if we succeed on appeal’,” Foster explained on Friday.

“We have filed an application to the court under the rules for Security for Costs, meaning if we win, there is a fund that will be set aside to cover our costs. And if we lose, you get back your money from out of the fund … So they are not being blocked,” the senior attorney said.

Foster was of the view that the residents do not have a “very strong prospect of success”, so it was on this basis that the deposit is being required, as well as the outstanding costs from the Supreme Court’s award, which he said was a substantial figure.

The issue of whether the underground system had to be replaced or whether it could be repaired was crucial to the proceedings when the matter went to court.

The residents charged that JPS was negligent for not maintaining the system, which was the cause of the decrepit state. They contended that the JPS caused them to suffer loss and damage, as both the attractiveness and value of their properties had diminished because of the unsightly overhead utility poles and wires.

However, Foster said an overseas expert, an engineer with knowledge of such systems, gave evidence that it was to the credit of the JPS that the system lasted that long.

The Hope Pastures Citizens’ Association brought no expert witness.

Dr Jennifer Mamby-Alexander, one of the conveners of the association, gave testimony that she spent $5.1 million to provide electricity for her house using a generator and solar power.

JPS said it was forced to provide some residents with the overhead supply, as the underground network had become unsafe, unreliable, and dysfunctional.

Patrick Foster, KC, Symone Mayhew, KC, Ashley Mair, and Jacob Phillips represented the JPS in the lower court.

The Hope Pastures residents were represented by Anthony Gifford, KC, Emily Shields and Maria Brady.

erica.virtue@gleanerjm.com