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JPS licence not exclusive, court rules

Paul Henry

Tuesday, July 31, 2012    

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THE Supreme Court yesterday ruled that the all-island licence held by the Jamaica Public Service (JPS) is not exclusive, paving the way for other players to enter the market for distribution of electricity.

The ruling by Justice Bryan Sykes was immediately hailed by Hugh Wildman, attorney for the claimants, as a major victory. "It is a major victory, because the claimants have been able to break the monopoly licence," Wildman told reporters following the handing down of the ruling.

"What the court is saying is that the exclusive nature of the licence is illegal; that is what this judgement has done. We have succeeded in the main declaration," said the attorney.

Yesterday, Justice Sykes told the court that the minister had the right to grant a licence to a single light and power provider to cover the entire island, but that the minister does not have the power to grant a licence on terms that preclude him from considering any other applicant. "That is not what Section 3 [of the Electric Lighting Act of 1890] in my view, intended. The exclusive licence to JPS did that," said the high court judge.

Said the judgement: "The minister does not have the power to grant a licence upon terms that bars the possibility of any other person entering the market for transmission of electricity. The term of JPS' licence granting it exclusive right to transmit electricity is not valid."

Michael Hylton, QC, who appeared for the JPS, told the Jamaica Observer that his client would be appealing Justice Sykes' ruling.

The claimants — Dennis Meadows, Betty Ann Blaine and Cyrus Rousseau — had challenged the 20-year exclusive all-island licence issued by the energy minister to the JPS in 2001, saying that it violated Section 3 of the Electric Lighting Act of 1890.

The judge had reserved judgement in July and indicated that he would have handed down his ruling in September, but gave the lawyers notice recently that the handing down of the ruling would have been done yesterday.

The claimants had also brought a claim against the Office of Utilities Regulation (OUR), charging that it had recommended that the minister grant the exclusive licence. However, Justice Sykes ruled that there was no factual foundation on which the claimant can bring a case against the OUR.

He also ruled that the attorney general and the JPS should stand the legal costs of the claimants.

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