Imperial Protection Services Inc. v Blue Coral Limited

SAINT LUCIA THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE Claim No.: SLUHCV2013/0688 BETWEEN: IMPERIAL PROTECTION SERVICES INC. Represented by Managing Director Claimant And BLUE CORAL LIMITED Represented by Managing Director Defendant APPEARANCES: Mr. Alfred Alcide for the Claimant Ms. Petra Nelson for the Defendant 2016: June 29; 2017: October 6. JUDGMENT

[1]BELLE J: The bone of contention in this matter arises during the existence of a contract (Service Agreement) which was entered into on 15th September, 2010 between the Claimant and the Defendant and ended on 14th September, 2012. By way of the said contract the Claimant claims pursuant to clause 1.0 of the Service Agreement under the rubric, SERVICES TO BE PROVIDED the following: “THE SECURITY PROVIDER agrees to provide the following professional security services to THE CLIENT: 1.1 Security guards for the reasonable protection of the CLIENT’S personnel, customers and visitors conducting legitimate business at the PREMISES; 1.2 Twenty four hour security surveillance of the PREMISES; 1.3 Identify and as soon as practicable report to the law enforcement authorities and THE CLIENT all suspected illegal activities occurring on THE PREMISES; 1.4 Prevent loitering, soliciting, begging and other similar activities on THE PREMISES; 1.5 Lawfully remove all persons causing a nuisance on THE PREMISES; 1.6 Provide recommendations to THE CLIENT for improving the quality of the security operations at THE PREMISES; 1.7 Provide access control services that shall enc1ble authorized persons to enter and exit controlled areas of the PREMISES.”

[2]No part of this agreement refers to a rate of billing for services outside of this agreement. .However the rates of fees chargeable under the agreement are set out in clause 2.0 being and hourly rate of $8.00 for per security officer and an hourly rate per security officer of $16.00 for work done on bank holidays.

[3]The Claimant’s Managing Director gave evidence that every job outside the terms of the service agreement was paid by Blue Coral Ltd after ubmission of the company’s invoice. In support of this contention the Claimant’s General Manager referred to instances where he provided services outside of the service agreement. In set out the background to the performance of those services in the following terms. After conforming that I could get the job done, the Defendant’s manager would verbally solicit my services. There was never any written agreement neither was there any discussion as to the cost for the job. I believed that Miss Lee was operating from a position of authority and of trust; I had no reasons to doubt her authority. The Defendant’s manager solicited my services to install sun blocking material and drapery for the show window on the second floor of Blue Coral’s conference room and upon completion Miss Lee expressed her satisfaction. She asked me to submit someone else’s name to make the cheque payable to because she didn’t want the Board of Directors of the Blue Coral Ltd to know that she was giving me extra work. This job amounted to $1,500.00 however the reason she gave me raised some doubt in my mind. ·

[4]Mr. Joseph the General Manger of Imperial Protection Services Inc. also gave evidence of the aftermath of hurricane Tomas when Miss Lee the manager of the Defendant Company agreed to seek his assistance in providing shutters at the Defendant Company’s expense and she would pay for the job on completion. Mr. Joseph said he t/usted Ms. Lee and complied with her instructions because she operated in a position of trust and authority.

[5]Mr. Joseph describes the way in which he was engaged to create the Evacuation Procedure for Blue Coral. He sets out that after hearing Ms. Lee complaining about her inability to procure an Emergency Plan from a Mr. George at NEMO which wold cost Blue Coral thousands of dollars he said to Ms. Lee , “But Miss Lee why stress yourself? My company specializes in the preparation of emergency evacuation plans, and she replied, “really? I didn’t know that, can you prepare a draft for me? I will need it by next Friday.”

[6]Mr. Joseph said fh’ t as a result of that exchange he went ahead with the plan. He explained; “At the time I embarked on the creation of the plan the cost for the creation of the (EREP) could not be reasonably estimated as the extent of the plan was not known. But given the past business dealing we had with Ms. Lee we expected to be paid for our services and Ms. Lee ought to have known that the Defendant would have to pay for the service. I immediately started working on the creation of the Blue Coral Emergency Response and Evacuation Procedure. During this period up to the final document I was mentally and emotionally exhausted.”

[7]Mr. Joseph went on; “The creation of the Blue Coral Emergency Response & Evacuation Procedure brought about tremendous burden on my family. I would sometimes forget to pick my daughter up after school. The demands for the submission of Blue Coral Emergency Response and Evacuation Procedure grew greater daily.”

[8]Mr. Joseph went into further detail about spending in excess of four to five hours daily at the Document Centre in the city of Castries doing research and copying documents to assist in creating the plan. He also had to consult with experts in emergency planning. He finally handed over the Emergency Response and Evacuation Procedure on Friday 17th February, 2012 after which the document was discussed.

[9]According to Mr. Joseph Ms. Lee eventually told him that the Emergency Response and Evacuation Procedure document was v ry good and asked him to make some corrections and return it to her. He also said that she asked him after the corrections to make copies and deliver them to the Saint Lucia Fire Service and NEMO. Mr. Joseph said that he printed the documents for presentation and dropped the off at the various locations at his company’s expense.

[10]There were several other encounters in relation to the Emergency Response and Evacuation Procedure document. There were also a number of meetings convened to discuss the Evacuation procedure which would be the outcome of the document. Mr. Joseph states that he officially signed and stamped the document along with Blue Coral and its manager Jacintha Lee, Imperial Protection Services Inc, and Saint Lucia Fire Service Fire Prevention stamp along with the signature of Chief Fire Officer (Ag.)

[11]Mr. Joseph described a simulation during which a number of issues arose but the evacuation procedure was completed in accordance with the document he prepared. Mr. Joseph also outlined other exchanges of documents which do not appear to be relevant but he recalled Ms. Lee calling him into his office and thanking him for being so resourceful and asking him to submit his invoice. Mr. Joseph does not state a date when this incident occurred. He noted that he received an email from the manager of Blue Coral Ltd who expressed her appreciation to him for his support during the Emergency Response and Evacuation formulation process. This was on May 2nd, 2012.

[12]Mr. Joseph states that he was going to submit the invoice after he was satisfied that the first exercise was complete owing to the failure of the alarm system to function and a decision was made to have a second simulation exercise. However on 30th April, 2013 during the life of a second contract he received a letter of termination from Blue Coral terminating his security services. The response to this termination letter was a petition which was signed and submitted to the Board of Directors s pportifig the work of the Claimant Company and Mr. Joseph. On 16 May, 2013 he received a letter from Blue Coral Ltd extending his contract to 30th ‘ June, 2013.

[13]Mr. Joseph concluded in his witness statement that he arrived at his figure of $50,000.00 based on his calculations of a $1.43 for 35,000 square foot rate. He said that although the building measured much more than 35,000 square feet he decided to discount his services. According to Mr. Joseph there is no set fee for the creation of an Emergency Response and Evacuation Plan, however, the going rates are as follows, USO 350.00 per hour or a basic rate of ECD5.00 per square foot. The rates Mr. Joseph said will cover expense and miscellaneous for the service provided.

[14]The parties agree on some issues but they have several differences on the facts. Indeed the Defendant’s Manager gave evidence that she has been in that position since August 1st, 2008. Ms. Lee gave historical background to the creation of a comprehensive evacuation plan for the Blue Coral Shopping Mall where the Claimant’s business was located and surrounding which the comprehensive evacuation plan for BCL was formulated.

[15]Ms. Lee said that on January 22, 2010, the Administrative Assistant, Ms. Keashia Melius, and herself held discussions with Mr. Andrew George, Training Officer of the National Emergency Management Organization (NEMO), to discuss the preparation of a comprehensive evacuation plan for BCL. Mr. George indicated that a template would assist with the preparation of the plan. This meeting was held in her office at the Blue Coral building.

[16]NEMO subsequently provided BCL with the approved template at no cost to BCL. This template was used to prepare BCL’s draft emergency evacuation plan. Ms. Lee assigned the Administrative Assistant the responsibility to prepare the draft plan since she was a member of NEMO’s auxiliary corps, a volunteer group responsible for providing assistance and support to NEMO in the event of an emergency or disaster.

[17]Ms. Lee went on to say that on September 15, 2010, Imperial protection Services Inc (IPS) was contracted to provide security services for a period of two years (September 15, 2010 to September 14, 2012). The contract was renewed for another two year period (September 15, 2012 to September 14, 2014).

[18]According to Ms. Lee the parties agreed that IPS would provide the service seen in the agreement.

[19]Ms. Lee provided further evidence to the effect that on October 21, 2010, she scheduled a meeting at BCL. In addition to herself those present were NEMO’s representative, Mr. Andrew George, the Administrative Assistant of BCL, BCL’s tenants and two representative of IPS namely Rickie Joseph and Patrick Edward. The purpose was to commence discussions on the emergency evacuation plan; outline the relevant training required to ensure successful implementation of the plan, the procedure to be followed in the event that an evacuation of the building was necessary. This included the role of the security and store owners and to form an emergency evacuation.

[20]Ms. Lee outlined a number of meetings which were held to discuss security and the evacuation plan. Mr. Joseph of IPS was present at a number of these meetings. This led to a meeting on February 7, 2012 which was scheduled by Ms. Lee. Mr. Joseph of IPS was the only other person present. According to Ms. Lee the purpose of the meeting was to discuss the procedures to be followed with respect to the emergency evacuation drill. In view of the tardiness in receiving the required information from NEMO, Ricky Joseph offered to collate the procedures I to be presented to tenants since he felt it would also be beneficial to his staff with I respect to their roles and responsibilities, hence the specific references to the Claimant’s Company IPS Inc. Security within the entire body of the document. At no time did the Claimant’s indicate he would have to be compensated for the preparation on the document. The Claimant volunteered to collate the information.

[21]Further meetings were held and on April 23, 2012, Ms. Lee scheduled another meeting of all Emergency Services which was held at the Police Conference room at Chesterfield. In addition to Ms. Lee present were representatives of the Royal Saint Lucia Police Force, namely the Assistant Commissioner of Police, Joseph Eugene, ASP Coe, Inspector Lamontagne and Sergeant 135 Leo, representative from the Saint Lucia Fire Service Fastius Serieux, representative of NEMO Andrew George and representative from IPS, Rickie Joseph. The purpose of the meeting was to discuss the implementation of the emergency evacuation exercise scheduledJor ApiriF30, 2012.

[22]Ms. Lee claims that minutes of all of these meetings were taken by Ms. Melius the BCL Administrative Assistant. Following the meetings on April 30, 2012 the Emergency evacuation exercise was implemented, followed’ by a debriefing exercise. The court has seen the said minutes.

[23]The climax of this matter came about when on July 30, 2013, IPS’ Contract was terminated. This was followed by an extension of an additional month to June 30, 2013. Ms. Lee then reports that she received a Garnishee Order from the National Insurance Corporation (NIC) which stated that the Claimant owed the corporation the sum of $33,f,391.58. She reported this to Mr. Joseph. The reason for the termination was not stated but it is not too far-fetched to presume that the Board of BCL terminated IPS contract because the members knew of this debt and indeed the Blue Coral building was owned by NIC. The BCL manager recorded the conversation between herself and Mr. Joseph about the Garnishee order in the following terms: “On July 3rd, 2013 I received a call from the Glaimant regarding the final amount (of $10,046.40) due to him for security rendered to Blue Coral Limited for the period June 16, 2013 to June 30, 2013. I informed the Claimant that we had received a Garnishee Order from the NIC and as such he could not be paid since the amount had to be forwarded to the NIC. The amount was then paid to the NIC.” [24]The conversation above was followed by a letter with an invoice attached from Attorney-at-law Winston Hinkson who was at the time acting on the behalf of IPS. The letter noted that Rickie Joseph was due a professional fee for the “Emergency Response and Execution Procedure plan’ which the Claimant had fixed at $50,000.00.

[25]Ms. Lee states that based on the relationship that existed between IPS and Blue Coral it was understood that their involvement in the development of Emergency Response and Execution Procedure plan was part of the services offered to Blue Coral. Ms. Lee insisted that at no time was there an agreement tacit or otherwise that IPS would be paid for their input in the development of the Emergency Response and Execution Procedure plan.

[26]Ms. Lee concluded that all stakeholders met and discussed and crafted the documents based on the discussions held, the foundation being the NEMO template. There was no agreement or tacit understanding that the final document which evolved from the discussions and by dint of the joint efforts of all stakeholders would have been “claimed” to be that of only one of the stakeholders, IPS or that there was going to be payment for said documents to any one or all participants.

[27]Based on this evidence the Defendant asks the court to conclude the Blue Coral never entered into any agreement with the Claimant at any time to pay $50,000.00 ECO or any sum at all whatsoever for the Claimant’s input, indeed the parties particularly Ms. Lee made corrections and contributed to the document which was used.

[28]The parties did not agree on the particulars of issues to be determined at trial. The court has amalgamated the parties’ statements of issues and has determined that the issues to be determined are as follows; 1. Whether there was any agreement between the Claimant and the Defendant for the payment of $50,000.00 for the preparation of the document. 2. Whether there was any breach of any contract by the Defendant for which the Defendant can be liable to pay $50,000.00. 3. Whether the Claimant is entitled to be paid $50,000.00 or any damages in the circumstances. 4. Whether in the factual circumstances surrounding the matter the Claimant is entitled to be paid for its services regarding the development of the emergency response and evacuation procedure.

[29]must say that the other issues raised by the Claimant’s counsel were argumentative.

[30]By way of a response to these cited issues I immediately conclude that the answer to 4 is “yes.” But that the issue raised this way does nothing to advance the claimant’s claim because indeed if the court concludes that the work done on the emergency response and evacuation procedure was part of the Claimant’s existing contract then it would be entitled to be paid and was paid pursuant to the monthly fee that the Defendant paid the Claimant pursuant to the existing contract between the parties.

[31]The Claimant seeks to argue that the Defendant had previous dealing where the Defendant requested their services to do certain jobs which they executed and were paid by the _Q fendant for their services. The claimant’s counsel also argues that all of the agreements between the parties where ad hoc and informal in nature and were not in writing. Given the nature of the document produced the Defendant ought to have known it had to pay for the document if requested from another source.

[32]The Claimant further submits that since the Defendant received the document as presented without protestation and secondly by testing it on two occasions they are estopped from denying the existence of an agreement between them and the Claimant in respect of the document. Indeed the Claimant insists that its General Manager Rickie Joseph made an offer which was accepted by the Defendant by their conduct and therefore a binding contract exists.

[33]The Defendant correctly in my view cited the Civil Code Cap 4.01 of the revised Laws of Saint Lucia 2001 to define the concept of contract.

[34]Article 1.6 of the said Civil Code states as follows: “A contract” means an agreement, the fulfilment of which may be enforced through the intervention of a court of justice. Ilie conditions essential to a contract are contained in article 918 of the Code, and subsequent articles.”

[35]Article 918 of the Code provides as follows; “A contract to be valid must have a subject and a lawful cause or consideration. The parties to it must be legally capable and their consent legally given.”

[36]The Defendant’s counsel also cited Halsbury’s Laws of England/ Contract1 and I quote: “To constitute a valid contract: (1) There must be an agreement between separate and existing parties, (2) those parties must intend to create legal relations as a consequence of their agreement; and (3) the promises made by each party must be supported by.c,onsideration, or by some other factor which the law considers sufficienCr·

[37]Indeed what is essential about a contract is the intention of the parties must be clear. In this case it is clear that there was no mutual understanding about the sum of money (consideration) to be paid for the work done on the emergency response 1 Volume 22 (2012) 5th Edition and evacuation procedure. Consequently, there could be no clear intention of the parties to pay or be paid outside of the realm;’ of the existing contract. The parties may have agreed on the scope of the work to be done, but there was no intention formed based on any communication, to pay for this work. The Claimant’s submission that the parties had in the past operated on an ad hoc basis is limited only to those cases where there is evidence of a payment. Had there been no agreement to pa:y·’f llowedby payment there would have been no clear evidence of the intention of the parties.

[38]Counsel for the Claimant cites the case of Upton on Severn RDC v Powell to support the argument that a party could be found liable to pay for a service which was presumed to be free. However the facts of that case refer to fire services providing free services in certain areas and the determination of a fee being due would not turn on the issue of whether it was presumed to be free but rather on the location where the service was provided. If Upton Fire Service was called to attend to a fire outside of Upton then a contractual agreement would be implied for which the Upton Fire Service could charge a fee. That was the deciding factor in the Upton v Powell case. There is no analogous presumption in this case with respect to the drafting of an Emergency Response & Evacuation Procedure for Blue Coral

[39]I also distinguish the circumstances involved in the procurement of a person to build shutters or perform some kind of artisan work, for example making blinds which are clearly outside of the scope of the existing contract and that of a preparation of a ·4 page document followed by attendance at meetings where the document was discussed and amended. The Claimant had ample opportunity to provide time sheets for work done similar to that done in the case of the security guards, along with fees for attendance at meetings on a phased basis if necessary. None of this was done. I therefore cannot agree that the work done on [1942] All ER 220 the evacuation ‘procedure can be e, quated with the so q lled ad hoc work done for Ms. Lee. [40) Another matter that was raised by the Claimant’s counsel in argument related to the alleged verbal change of fees for security guards. Again I do not think this bears any relevance to the matter at hand. There was a written contract in relation to the payment of security guards. There was no such written contract in relation to the Evacuation Procedure. The two matters are totally unrelated except to say that some verbal agreements had been made in the past. In my view nothing turns on the general conclusion that some agreements may have been made verbally.

[41]Counsel for the Claimant also argued that there need be no written contract. While ·:·· 1 : this may be the case where the parties meet and on the basis of a sole verbal agreement decide to proceed with work to be done and what payment is to be made or how it should be calculated the absence of a contract in writing may not be important. But in this case the circumstances are different. There is nothing other than an alleged offer and the other party saying “okay go ahead and do it.” There is nothing available to support the allegation that this conversation occurred. Indeed I am of the view that it did not go that way. However even if it did, this alone does not confirm the existence of a contract. [42) Indeed the Claimant’s own witness stated that he was suspicious about the reason Ms. Lee asked to invoice for at least one case of the ad hoc work earlier mentioned, to prevent the Board from becoming aware· that h was being given extra work. Consequently there is no evidence of this extra work in the name of the Company IPS. Ms. Lee’s explanation that what Mr. Joseph of IPS did was to procure the workmen for the said work and did none of it himself. Whether Mr. Joseph did this work himself or not is neither here nor there since there was a contract that clearly dealt with security services. The ad hoc work was not security services but the Evacuation Procedure clearly was.

[43]I, therefore conclude that there could have been no clear offer and acceptance to create a contractual relationship in the instance of the emergency response and evacuation procedure.

[44]lagree that the Claimant should have been paid for his work. But the work was that of the Manager of IPS. When one looks at the Emergency Response & Evacuation Procedure created by Rickie Joseph on the behalf of IPS Services Inc. several areas whlth overlap with the day to day security services provided can be dbserved for example, the document states that IPS Inc. security “shall prevent anyone from entering the building during an evacuation”…and later it states that I1?S Inc’s main responsibility is “to search and secure designated areas or businesses in the event of a fire”. Later the document states “the nature and location of the incident must be given to the security officer (e.g. a fire on the 1st floor at the shoe store etc.). Finally the document stipulates that “the security officer will verify the fire, then inform the Mall Manager.”

[45]Indeed on a balance of probabilities it is plausible to find that the drafting of the document was done pursuant to the existing security contract. Indeed I so find.

[46]If is true that the Claimant may not have done this kind of work prior to the contract since each building needs only one disaster plan and in the case of Blue Coral this ijad not been done before. But there must have been work done on the overall security plan for the building which impressed the Defendant to hire the services of the Claimant and it is logical to presume that there were overlapping areas such as those outlined above. In that context the Emergency response and evacuation procedure could be considered an extension of the overall responsibility of the Claimant.

[47]Indeed if the Claimant thought that the work was exceptional to the degree that it should be paid f tseparately it was IPS’ responsibility to set out the proposed rates for the services to be rendered before the work was done or somewhere along the way as the work was proceeding. I do not accept the explanation that the fee could not be stated until the acceptance of the document was indicated after testing and this is why the invoice was not prepared earlier. Indeed this speaks to an unprofessional approach to business and Blue Coral Limited cannot be blamed for that.

[48]Finally it would have been necessary to itemize the nature of the product and time spent on each aspect of the work done on the Emergency Response and Evacuation Procedure. Since the template for the plan could have been sourced from elsewhere; if the Claimant’s General Manager was being truthful when he told the Defendant’s manager that IPS specialized i the preparation of such emergency and evacuation plans he would have known where to find any available template.

[49]I therefore do agree with the Defendant’s submission that the Claimant acted to set off the NIC’s Garnishee order by invoicing the Defendant the sum of $50,000.00. Indeed the facts show that the Claimant never issued his invoice for the Emergency Response and Evacuation Procedure until he had seen the communication about the Garnishee order and the Defendant’s stated refusal to pay IPS for billed work done during the last 14 days of June, 2013.

[50]The Defendant raised the issue of the completion of a new complete Evacuation Plan and distinguishes it from the Evacuation ProcedUi prep red by Mr. Joseph. She also says that in the final analysis Mr. Joseph’s procedure was not used. What this information does is that it assists in identifying the context of the agreement to prepare an evacuation procedure. It would not be strange for security to have an evacuation procedure while Fire Service has another and NEMO yet another. At the end of the day these procedures would together provide the basis for a comprehensive plan. Mr. Joseph’s plan could therefore never have been complete without input from the other sources mentioned at the very least.This information helps to lead to the court’s conclusion that there was no exclusive contract given to IPS to prepare an evacuation plan.

[51]Based on these facts and on consideration of the evidence I hold that the Claimant volunteered his services to prepare an Emergency Response & Evacuation Procedure.

[52]The answers to the questions posed in the issues raised are therefore as follows: Issue 1: No Issue 2: No Issue 3: No Issue 4: Yes as explained above.

[53]The Claimant had claimed damages and special damage of $50,000.00 in his statement of claim.

[54]In the circumstances the Claimant’s claim for damages both general and special is dismissed and the Claimant is ordered to pay the Defendant’s costs pursuant to Part 65 of the CPR 2000. FRANCIS H.V. BELLE HIGH COURT JUDGE < p align=”right”> BY THE COURT