David Penn Claimant v [1] Telecommunications Regulatory Authority [2] Attorney General Defendant
| Jurisdiction | British Virgin Islands |
| Judge | Ellis, J. |
| Judgment Date | 02 January 2013 |
| Judgment citation (vLex) | [2013] ECSC J0102-1 |
| Court | High Court (British Virgin Islands) |
| Docket Number | CLAIM NO. BVIHCV2012/355 |
| Date | 02 January 2013 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. BVIHCV2012/355
Claimant In Person And Unrepresented
Ms. Sinead Harris And Ms. Kamika Forbes For The First Defendant
Dr. Christopher Malcolm With Him Ms. Natalie Sandiford, Senior Crown Counsel And Ms. Maya Barry, Crown Counsel For The Second Defendant
Under Part 26.3 of the Civil Procedure Rules, the court is empowered to dismiss an action in a summary way without a trial where the statement of claim discloses no cause of action, or is shown to be frivolous and vexatious or otherwise an abuse of the process of the court. Part 26.3 (1) provides that:
"(1) the court may strike out a statement of case or part of a statement of case if it appears to the court that –
(a) there has been a failure to comply with a rule, practice direction, order or direction given by the court in the proceedings;
(b) the statement of case or the part to be struck out does not disclose any reasonable ground for bringing or defending a claim;
c) the statement of case or the part to be struck out is an abuse of the process of the court or is likely to obstruct the just disposal of the proceedings;"
It is now well settled that the jurisdiction of the Court to strike out a claim pursuant to Part 26.3 is to be used sparingly and in plain and obvious cases when it can be clearly seen on the face of it that the claim is obviously unsustainable, cannot succeed or in some other way is an abuse of the process of the court. This narrow approach is premised on the fact that the exercise of this jurisdiction deprives a party of its right to a trial and of its ability to strengthen its case through amendment, disclosure and other court process.
In the case at bar, both Defendants have filed applications seeking essentially the same relief. The Defendants applications to strike out the Claimant's claim were filed on 14 th and 17 th January, 2013 respectively and they have both filed written submissions in support. They seek to have the constitutional claim filed by the Claimant struck off on the basis that the it fails disclose a sustainable claim, is an abuse of process and is likely to obstruct the just disposal of the proceedings. The Claimant elected not to file affidavit evidence in reply or legal submissions in opposition to the Applications.
Generally when dealing with such applications, a court's is restricted to the scrutiny of the statements of case. It is required to test the particulars which have been given in each averment to see whether they are sufficient to establish a reasonable cause of action which simply stated is "a factual situation, the existence of which entitles a party to obtain from a Court a remedy against another person." The court must also bear in mind that … "so long as the statement of claim or the particulars disclose some cause of action, or raises some question fitto be decided by the judge of jury, the mere fact that the case is weak and not likely to succeed is no ground for striking out". 1
It follows that then that "A person who wishes to move the court must state a case that is known to, or created by law. The case as stated must disclose sufficient facts that are material to the issue to render the claim viable and which would permit the person who has to answer the case to know what case he has to meet; it must disclose a reasonable cause of action." 2 What then is the Claimant's Case?
By Fixed Date Claim Form filed on 31 December 2012 the Claimant alleges that the Defendants herein have acted in contravention to section 29 of the BVI Constitution Order and seeks the following relief pursuant to section 31 of the BVI Constitution:
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1. An injunction ordering the immediate suspension of the transmission of radiation into the Applicant's home from the cellular antennas outside of his home.
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2. An injunction ordering the immediate suspension of the transmission of radiation into the Applicant's office in the Attorney General's Chambers from the cellular antennas over the office in the Attorney General's Chambers where he works i.e. on the TTT Building and Jayla Place Building adjoined to the TTT Building.
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3. An order for the immediate removal of the two radiation emitting cellular phone antennas from outside of the applicant's home.
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4. An order for the immediate removal of the two radiation emitting cellular phone antennas from over the office in the Attorney General's Chambers where he works i.e. on the TTT Building and Jayla Place Building adjoined to the TTT Building.
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5. An order for the immediate removal of the radiation emitting cellular phones antennas immediately outside the Terrance B. Lettsome Airport where he assists with the management of his parent's restaurant
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6. The immediate removal of the radiation emitting cellular phones antennas from outside the Sports Club where radiation from low lying antenna is very high.
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7. Damages
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8. Costs
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9. Such further and other relief.
The Claim Form is supported by two affidavits. The first affidavit filed on 31 st December 2012 does little more than detail the Claimant's condition and the effects of radiation on the Claimant. These appear to be extensive and range from general fatigue to nose bleeds and headaches. It is in the Claimant's second affidavit filed on 17 th January 2013 that he launches his case against the Defendants. At paragraphs 12 — 32 of the Affidavit he sets out his case against the First Defendant and at paragraphs 33 — 54 he makes a number of allegations against the Town and Country Planning Department. He concludes his evidence by analysing a number of judicial authorities which he says are relevant authorities and support the relief claimed.
Having reviewed the written submissions of both Defendants and having listened to the oral submissions of the Claimant as well as Counsel for the Defendants, the Court is satisfied that the Fixed Date Claim Form and the evidence filed in support do not establish a sustainable claim of infringement of section 29 of the Constitution.
It is settled law that a Claimant who seeks to claim breach of constitutional provisions must show on the face of the pleadings the nature of the alleged violation or contravention that is being asserted. 3 In order to succeed in his claim for relief under section 31 of the Constitution, the Claimant would have to establish
a violation or threat of violation of his right under section 29 of the Constitution which provides that:"Every person has the right to an environment that is generally not harmful to his or her health or well-being and to have the environment protected, for the benefit of present and future generations, through such laws as may be enacted by the Legislature including laws to —
(a) prevent pollution and ecological degradation;
(b) promote conservation; and
(c) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development."
The Court notes that although the Claimant seeks injunctive relief against the Defendants he has omitted a critical first step. He has not specifically sought to obtain a declaration of unconstitutionality under Section 29. In order to obtain a declaration of unconstitutionality the Claimant would have to demonstrate that the Defendants have in some way acted inconsistently with his rights under Section 29 which obliges the Government to refrain from activities which are harmful to the environment, and to adopt and enforce policies and statutes which prevent its degradation and which promote conservation and improvement of its quality. This right recognizes a right to a healthy or clean environment or an environment conducive to an individual's well-being.
The Claimant's pleadings must therefore not only allege but must provide cogent evidence that these Defendants have through their action or inaction so impaired the environment such as to cause harm to his health and well-being. The Claimmust therefore demonstrate on its face:
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i. That the emissions of electromagnetic energy/radiation from the relevant cellular phone antennas in proximity to his residence, workplace and other places of interest have rendered the environment unsafe or harmful.
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ii. That such harm was caused or contributed to by the acts or omissions of the Defendants.
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iii. That there is a direct causal link between the emissions from the cellular phone antennas and the harm alleged to be suffered by him.
The Court finds that the Claim fails on all fronts.
Although there is a fair amount of ambiguity and contention surrounding what constitutes a pollutant, it is commonly accepted that whether a contaminant will amount to a pollutant will depend on a number of factors including its concentration when released; how quickly it breaks down in the environment; its toxicity and impact on plants, animals, humans and microorganisms and its impact on the environment generally. As it stands the Claimant's case provides no or insufficient information about the allegedly offending cellular antennas. He does not allege that they are in fact emitting electromagnetic energy; he fails to indicate the levels of such emissions or whether they have resulted in an undesirable, harmful or dangerous change to the environment.
In this case, the basic theory of environmental infringement requires that the Claimant demonstrate in his pleadings the actual or potential damage that is alleged to have been caused by the Defendants. It is therefore surprising that the Claimant does not allege that the Defendant's action have resulted pollution, electromagnetic or otherwise. The Claimant does not...
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