The Court of Appeal has partly upheld Casa Grande hotel’s challenge to the disconnection of its water supply, ruling that a High Court judge erred in law in dismissing its judicial review application, but declining to order unconditional reconnection or award damages on the present record.
In 2018, the Barbados Water Authority (BWA) disconnected the water supply to the Oldbury, St Philip, hotel after finding that pipes had been fitted to supply water to Knitwear Limited’s adjoining premises. Casa Grande’s BWA account was not in arrears.
Casa Grande applied for judicial review on the grounds that the BWA had no power or jurisdiction under the Act or the Regulations to disconnect its supply in the circumstances; that the decision was unlawful and unreasonable; that the BWA had taken irrelevant matters into account; and that it had misinterpreted the law and the regulations.
Now-retired Justice Sonia Richards found that the BWA had the legal authority to disconnect the supply under Regulation 13(4) and (5) of the Barbados Water Authority Regulations, which prohibited water use for purposes other than those for which it was supplied and authorised disconnection for the duration of the contravention.
The trial judge ruled that the BWA’s decision to shut off the water supply was neither unlawful nor unreasonable, dismissed the application and awarded costs to the utility company.
On Friday, retired Chief Justice Sir Patterson Cheltenham and Justices of Appeal Margaret Reifer and William Chandler concluded that the trial judge had correctly held that Regulations 5(2) and 18, the provisions on which the BWA had relied to authorise the disconnection, did not authorise it. However, the trial judge had erred in dismissing the application on the basis of Regulation 13 without giving the parties an opportunity to address that provision.
“That was a procedural impropriety and an error of law. The appeal must therefore be allowed to that extent,” the decision read.
The panel noted that the remaining question was the appropriate relief, stating that the trial judge had made a factual finding, based on the evidence, that the business was supplying water to Knitwear.
In the 53-paragraph decision, the panel stated: “That finding has not been shown to be plainly wrong. It materially affects the relief which should be granted. It does not deprive the appellant of all public law relief, but it does bear strongly against any order compelling immediate reconnection or awarding damages on the present record.”
The panel ruled: “The appeal is allowed in part. We set aside the order of Richards J dismissing the application for judicial review. We declare that Regulations 5(2) and 18 of the Barbados Water Authority (Water Services) Regulations, 1982 did not authorise the respondent to disconnect the appellant’s water supply on the basis advanced in the proceedings below.
“We further declare that the judge erred in law and acted contrary to procedural fairness by dismissing the application on the basis of Regulation 13 without inviting submissions from the parties on that provision,” Sir Patterson said.
The appellate court, however, declined to order unconditional reconnection or award damages on the present record, having regard to the judge’s factual finding that Casa Grande was supplying water from its premises to the adjoining premises of Knitwear Limited.
No order was made as to costs.
Speaking to reporters after the decision, attorney Lynette Eastmond, who represents Casa Grande, said her clients felt vindicated in bringing the appeal.
“Our clients feel justified in making this appeal against the decision of the High Court, because at the level of the appeal, the Court (of Appeal) did find that the High Court judge had erred in law in ordering the disconnection of the water supply. What they were not able to do at this stage is to order any reconnection or any damages, but those are issues that are ongoing. I believe that my clients when they hear of this news that they will believe that it is a positive outcome for them,” she said.
Attorney Kashawn Wood appeared for the BWA.
(JB)
