Lettsome v Leverick Bay (Hotel & Marina Ltd)

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Bertrand, J.
• Judgment Date: 29 May 1989
• Neutral Citation: VG 1989 HC 5
• Docket Number: Not yet available
• Date: 29 May 1989

High Court

Bertrand, J.

Not yet available

Lettsome

and

Lettsome v. Leverick Bay (Hotel & Marina Ltd.)

Appearances:

Mr. Hunte for plaintiff.

Mr. Webster for defendant.

Contract - Beach restoration project — Whether there was a misrepresentation by plaintiff in relation to an environmental impact assessment study and a sand dredging operation — Finding that evidence did not support defendant's claim — Defendant to pay plaintiff sums outstanding under the contract.

Bertrand, J.

1 The facts in this case are greatly disputed. Both parties agree that they entered into an agreement, but the defendant claimed they were induced to enter into the agreement by virtue of a misrepresentation made to them by the plaintiff. They differed on the date on which the agreement was made. The plaintiff claimed, however, that he agreed with the defendant to do the following tasks:

• (a)An EIA (Environmental Impact Assessment) for a beach restoration project which the defendant had proposed for Leverick Bay, Virgin Gorda.

• (b)An EIA for a beach restoration project which the defendant had proposed for Money Bay, Virgin Gorda.

• (c)Review Programme proposed by the defendant for the creation of a beach front between the said Leverick Bay and the said Money Bay.

2 The defendant claimed at paragraph 3 of their defence that the above terms were not fully and accurately stated. Both parties however agreed, that the plaintiff's fee was $8000.00 for the job. According to the plaintiff's statement of claim he completed the work and submitted his report and financial account to the defendant in the sum of $7,380.00, a deposit of $800.00 having been deposited by the defendant at time the agreement was made. The $7,380.00 included an amount of $180.00 for air travel expenses. The defendants paid the plaintiff a total of $2,200.00 that is, $1000.00 paid on submission of the report, and later on the sum of $400.00, plus the deposit $800.00. The defendant did not deny the total payment of $2,200.00 and stated in their defence that they considered the amount paid to be a fair renumeration for the work done by the plaintiff, and that he is not entitled to any further payment under the agreement because of the misrepresentation, or at all. The plaintiff claimed that the defendant breached the contract, and he is now claiming damages for such breach and costs. The particulars being $5,800.00 for the balance owed, plus $180.00 as expenses incurred for travel by air in connection with the work. The defendant in their defence stated in the first instant that on account of this misrepresentation made to them by the plaintiff the agreement was not binding on them, and they set out the particulars of the misrepresentation as follows:-

• (a)Prior to entering into the Agreement the plaintiff came to Leverick Bay, Virgin Gorda, in July 1986 and informed Samuel Lennard and Chris Yates, who are and were at all material times representing the defendants, and one Mr. James Michault, (hereinafter jointly called “the Representees”) that he was an environmental officer working for the Government of the Virgin Islands.

• (b) The plaintiff further informed the representees that in order to get the Government to approve the proposed beach restoration projects at Leverick Bay and Money Bay (both of which involved dredging sand from the seabed) it would be necessary for the defendant to do an environmental impact assessment study on the proposed beach restoration projects (hereinafter called an “E.I.A. Study”).

• (c) Further, the plaintiff assured the Representees that the defendant would be able to do the dredging for the beach restoration projects and offered to produce an E.I.A. Study in which he would recommend that sand dredging for the beach restoration projects could take place in the said Leverick Bay and Money Bay.

3 They claimed in the alternative that there was a breach of the Agreement by the plaintiff, when he produced the EIA Study which recommended that dredging could not take place in Money Bay and that only limited dredging could be done in Leverick Bay. And further or alternatively, the representation made by the plaintiff that dredging could take place at Money Bay and Leverick Bay was a collateral agreement which was breached by the plaintiff, and in the circumstances they are under no obligation to pay the full amount under the Agreement and did not do so.

4 The plaintiff was the only witness called on his behalf. He is a Marine Biologist and works for the Government of the British Virgin Islands in the Ministry of Natural Resources as a Conservation Officer. He is also engaged in private practice and has a trade licence to do so. He stated in his evidence what constitutes Marine Biology. His duties were to advise Government on environmental aspects and to make recommendations. According to the plaintiff, he was contacted in early July, 1986 by Samuel Lennard the General Manager of the defendant company. The plaintiff's evidence is that Lennard asked him if he was willing to engage himself in his private capacity to do an environmental Impact Assessment (EIA) for a number of projects that he Lennard was involved with at North Sound, Virgin Gorda. Lennard denied that conversation.

5 Lennard, who gave evidence on behalf of the defendant told the court that he wanted to do a beach restoration at Leverick Bay for his company, and one at Money Bay for one Michault. This, he said, was going to involve the dredging of sand from the deeper part of the sea. He first contacted one Roosevelt Smith who owns a dredge, to do the dredging for him. He then contacted the plaintiff, and this is what Lennard said in evidence:

“I called the Ministry of Natural Resources by telephone. I spoke with him (meaning the plaintiff) I told the plaintiff that I wanted to do some dredging in Leverick Bay and Money Bay. I told him I was told to get in contact with him. He then told me he will call back and let me know when he can come over and look at what I had to do. I did not ask to engage him in a private capacity. As far as I know he was coming to look at the dredging I had to do. Plaintiff came over on Thursday 17th July, 1986. He came by plane. I met him at the Airport in Virgin Gorda.”

6 The plaintiff said he called Lennard's secretary on the 18th July, 1986 made an appointment and arrived in Virgin Gorda on 19th July, 1986 where he was met by Lennard. Whether it was the 17th or the 19th July the plaintiff arrived in Virgin Gorda, the fact is the Agreement between the defendant and the plaintiff was made on the day the plaintiff first arrived there, as the statement of claim recites “during the month of July, 1986.” The plaintiff first asserted that he arrived there alone, but later he reluctantly admitted that his assistant was with him. However, his assistant was not called to give evidence.

7 It is not difficult to accept that Lennard knew he was contacting a Civil Servant at the time he spoke to the plaintiff at the Ministry of Natural Resources. It was only after the plaintiff spoke to him at Leverick Bay that he realized he would be engaging him in his private capacity. He said in cross-examination: “I began to engage plaintiff in a personal capacity after he told me how the new law is set up.” What was the work the defendant wanted the plaintiff to do?

8 The plaintiff said Lennard asked him to do an EIA for a number of projects. Lennard denies that and said he did not know what an EIA was. There were only two and half projects, item (c) at paragraph 3 of the statement of claim being the half. The plaintiff however said in evidence that Lennard “explained the proposed project to me ………. The projects he described and the work he wanted me to do with regard to these projects are as follows:

1

An EIA for a beach restoration project at Leverick Bay. 2. An EIA for a beach restoration project at Money Bay. 3. A feasibility study or a review of program for the creation of a beach front between Money Bay and Leverick Bay.”

9 Lennard told the court: “At Leverick Bay I wanted to restore the beach a fit more than its present condition …………. and also the restoration of the beach ………. at Money Bay. Beach restoration was going to involve dredging sand from out in the deeper part of the area where there was plenty of sand to develop a nice beach in that area.”

10 Lennard went on further to say that when he and the plaintiff were discussing at the bar in Leverick Bay he, Lennard, wanted to know plaintiff's position with Government. His evidence is that the plaintiff told him he was the Environmentalist or Environmental Officer. That, however, was difficult for him to understand and the plaintiff tried to explain to him the meaning of the words environmental officer, but he did not fully comprehend.

11 The evidence discloses however, that the plaintiff was, in 1986, an Environmental Officer working for the Government of the British Virgin Islands. He admitted that an EIA Study is normally required before approval can be given for anyone to use the seabed. His work includes the physical processes involved in beach restoration. Samuel Lennard, the man who did business with him on behalf of the defendant, and also for one Michault, is the Managing director of the defendant company and the business of that company is the running of a hotel, marina and restaurant and he also owns a construction business.

12 I believe at the time the plaintiff visited Virgin Gorda, Lennard did not know what an EIA study was, but he said the plaintiff explained it to him. According to Lennard the plaintiff told him: “……. that the Government has a new law that anything to be done with the seabed, whoever wanted to do it, had to submit an Environmental Study.”

13 Lennard disclosed that he had done projects involving the seabed before. He did not get an EIA Study, but got permission from the Government to do the...