THE JUDICIAL Review Court has overturned the $10 billion award in favour of Ezroy Millwood's National Transport Cooperative Society (NTCS) for alleged breach of contract when the NTCS's bus franchise was cancelled by Government. The ruling perhaps, proves once again that a bad compromise might be better than a good lawsuit. And to sprinkle salt in the wound, the court has ordered the NTCS to pay
the costs of the claim in the Supreme Court as well as the costs of the arbitration.
Understandably, Mr. Millwood's lawyers have announced that they will appeal the judgement but in the circumstances it might make sense for the parties to return to the negotiating table in an effort to reach a compromise and save the NTCS and the Jamaican taxpayers million of dollars in legal fees.
The case involves some subtle legal principles which have proved a challenge to the best legal minds in our jurisprudence on both sides of the argument. The original panel of arbitrators comprised retired Appeal Court Justices Boyd Carey and Ira Rowe and a prominent attorney, Andrea Hudson-Phillips no mean collection of legal luminaries. But Justice Patrick Brooks in a crisply crafted 45-page judgement has not hesitated to point out that the arbitrators got it wrong.
According to the judgement, the original franchise agreement granting operating zones to the NTCS was ultra vires or outside the powers of the enabling legislation under which it was granted. And even if the original contract was valid, the subsequent Heads of Agreement negotiated between the Government and the NTCS in 1996 amended it, a proposition that the arbitrators refused to consider. Interestingly also, Justice Brooks enunciated a legal principle not often taken into consideration by lay persons in the Jamaican culture, namely, that although a party may be wronged he must nevertheless take steps to mitigate his damages. This principle is often overlooked in employment contracts where the injured party sits back, expecting to be paid the full amount of remuneration for the full unexpired term of the contract.
All of these and other legal principles may be so interesting and the pride of the parties so aroused that the matter will go to the Privy Council in England. A final ruling at this level will satisfy the legal purist but may not be worth the effort and the costs involved.
THE OPINIONS ON THIS PAGE, EXCEPT FOR THE ABOVE, DO NOT NECESSARILY REFLECT THE VIEWS OF THE GLEANER.
