The Supreme Court ruling on Thursday against Hope Pastures residents in their long-running dispute with Jamaica Public Service Company (JPS) over the underground electricity distribution system in that community is being seen as just and logical by eminent Queen’s Counsel Patrick Foster who had argued the power company’s case in court.
“I think it’s a fair and reasoned judgment because the evidence clearly showed that this underground system had been maintained by JPS over 50 years, despite challenges with the system. And now that they are asking for it to be replaced, the court correctly found that JPS’s duty to maintain did not encompass incurring the cost of replacing it, and the cost should be borne by the claimants,” Foster told the Jamaica Observer when contacted Thursday afternoon.
The residents had sought a declaration from the court that JPS was supposed to maintain the underground system, which meant replacing it because the system is now old and decrepit.
They had also claimed that they are entitled to electricity exclusively by underground means, basing their argument on the fact that an underground electricity system was installed in the community when it was built by private developers in the early 1960s, and therefore JPS could not change the system.
However, JPS argued that the system was old and could not be properly maintained and in September 2014, the company began a phased infrastructure upgrade in sections of the community, replacing the underground distribution system with an overhead system.
The company had also reminded the residents that when the underground system was installed it was paid for it by the householders.
The total cost of the overhead network, JPS said at the time, was $40.4 million.
The company also pointed out that the underground system would have cost approximately $143 million to install.
However, JPS had said that if the residents wanted to have the underground system, they would need to pay the difference between that and the overhead system, which, the Observer was told, worked out to approximately $520,000 per household. However, the residents refused.
In a May 10, 2018 ruling on the matter, Chief Justice Bryan Sykes said that JPS has no statutory duty to supply electricity via underground means exclusively as the claimants alleged.
However, earlier this year, the residents sought a mandatory injunction from the Supreme Court ordering JPS to restore and maintain the underground system and remove the overhead supply.
Some of the residents also sought approximately $19 million in special damages for costs incurred by them to either connect to the overhead system or provide alternative sources of power.
The Supreme Court, in its ruling on Thursday, said that the underground system failed due to age and obsolescence and not a lack of maintenance. As such, the court said it could not be repaired but had to be replaced.
The court also said that replacement of the underground system does not fall within the JPS’s statutory obligation to repair, and the cost of any new system is to be met by the claimants.
The court noted that after the residents indicated their inability and/or unwillingness to pay for a new underground supply, JPS acted out of necessity by installing overhead wires in the community.
Judgment was therefore entered for the JPS with costs to be paid by the residents.
In addition to Foster, JPS was represented by Symone Mayhew, QC; Ashley Mair; and Jacob Phillips.
The residents were represented by Anthony Gifford, QC; Emily Shields, and Maria Brady.