Appeal court agrees JPS trespassed on New Milns land, but $58m penalty overturned

The Court of Appeal has upheld a ruling that the Jamaica Public Service Company (JPS) trespassed in constructing a transmission line on private property in Hanover almost two decades ago. However, it overturned the $58-million penalty, ordering a reassessment of damages.

The case revolved around whether JPS had a valid agreement with Lethe Estate to use the property and whether its installation of the 69 kilovolt Bogue-Orange Bay transmission line over property at New Milns constituted trespass.

At the heart of the matter was a 1996 agreement between JPS and former politician and businessman Francis Tulloch, the former property owner who died in 2022.

The agreement was not registered on the title, and Lethe Estate, a development company that acquired the land later, contended that the arrangement did not bind it.

However, the appeal court said the lower court judge was wrong to agree with Lethe Estate. It said if a proper analysis was done, the judge “would have concluded that Lethe Estate held the property in trust for Tulloch”.

Lethe Estate and another company filed a lawsuit in 2011. Tulloch signed the filings as CEO of the entities.

In 2018, the trial judge, then Supreme Court Justice Nicole Simmons, ruled in favour of Lethe Estate, awarding general damages of $58.15 million. Simmons is now on the appeal court.

However, the Court of Appeal on Friday overturned the award, concluding that the damages assessment was flawed and that compensation should be reassessed.

Justices Nicole Foster-Pusey, Marcia Dunbar Green, and Georgiana Fraser heard the appeal in November 2023, with Foster-Pusey writing the 69-page unanimous judgment.

Negotiations for the use of the land to install transmission lines for JPS’s network began in November 1994 and concluded in 1996.

The Court of Appeal found that the agreement for the use of the property between JPS and Tulloch was valid, though it acknowledged shortcomings. It agreed with the Supreme Court’s judgment that “having found that there was no agreement on the complete route of the transmission line on the New Milns land, the agreement between Tulloch and [JPS] would without more be incomplete”.

However, the court ruled that this did not necessarily mean JPS had no right to use the land. It said that since JPS had constructed and operated the transmission lines for years, the agreement had been effectively executed.

Lethe Estate contended that the transmission lines and towers were placed in locations beyond what was contemplated in the original agreement and that the placement disrupted its development plans for tourist attractions.

The Supreme Court agreed that JPS had exceeded the original scope and determined that a form of trespass had occurred.

The court had also heard evidence that the 1996 agreement included $5 million paid by JPS as compensation for the easement to traverse and impact three subdivision lots. An easement is a legal right that allows someone to use another person’s land for a specific purpose.

“As six lots were directly impacted, and not three as was agreed, the learned judge erred when she did not make an award compensating Lethe Estate for the three additional lots that were impacted,” said Foster-Pusey.

However the appeal court justice also concluded that the trial judge made a mistake in awarding compensation for the lots that were not directly impacted by the transmission towers and lines. She noted that compensation for that indirect impact was included in the $5 million that JPS provided Tulloch, and which was handed over to Lethe Estate.

“The transmission lines and towers impacted a total of six lots, three more than the compensation covered, which would be the trespass for which compensation ought to be awarded,” argued Foster-Pusey. She said the trial judge “was placed in a difficult position to assess damages”.

A critical element of JPS’s successful appeal against the $58.15 million awarded was its challenge to the valuation report submitted by Lethe Estate’s expert, Gordon Langford.

JPS argued that Langford’s valuation methodology lacked proper comparables and that his conclusions were unsupported.

JPS had cross-examined Langford and highlighted several weaknesses in his approach, including the lack of reference to comparable property values.

Foster-Pusey pointed to Langford’s “failure” to provide concrete evidence on the comparative values of relevant properties that he took into account, placing the court in a position “where it relied on his bare ipse dixit, (that is, he himself said it) on the question of property values”.

“I agree with counsel for JPS that, in this regard, his report was inadequate and unreliable,” she said.

Ultimately, the Court of Appeal found that the trial judge had relied too heavily on Langford’s flawed assessment and that damages should be reassessed.

The court has instructed Lethe Estate to submit damage calculations by March 28, 2025, with JPS responding by April 22, after which the court would finalise compensation.

Lethe Estate’s counter-appeal was dismissed, and no costs were awarded on that matter.

JPS’s case was led by two King’s Counsel, Michael Hylton and Symone Mayhew, and attorney Ashley Mair, instructed by Mayhew Law.

Dr Lloyd Barnett, Weiden Daley and Shaydia Sirjue, instructed by Hart Muirhead Fatta, argued for Lethe Estate.

editorial@gleanerjm.com