MALCOLM CAPLAN et al v MICHAEL DuBOULAY et al

~. ~ ... SAINT LUCIA: IN THE HIGH COURT OF JUSTICE (Civil) No: 29 of 1999 Between: 1. MALCOLM CAPLAN 2. IRENE CAPLAN Intended Plaintiffs 1. MICHAEL DuBOULAY 2. MICHELLE DuBOULA Y 3. DAVID DUDOULAY 4. DuBOULAY ESTATES COMPANY LTD Intended Defendants Appearances: Mr. Peter Foster for the Plaintiffs Mr. Vern Gill for the Defendants 1999: February ........ and 26. DECISION Allen J. On thl~ 23rd January 1999 the Honourable Madame Justice d'Auvergne granted an exparte injunction to the intended Plaintiffs restraining the intended Defendants or any of them whether by themselves or by their servants and or agents from - a. Trespassing on the parcels of land owned by the intended Plaintiffs being parcel 0031 B 15 and the parcels of land in the actual occupation of the intended Plaintiffs being parcels No:0031 B 28,29 &30. or b. Interferring with the intended Plaintiff's peaceful occupation of their property by operating any equipment heavy duty or otherwise on or over the said lands, or c. Having their agents, servants, employees or otherwise come onto the said Lanas, or d. burn bush, tyres, wood or any material or thing that may cause or be a nuissance to the occupants of the said house, or e. do anything which may interfere with the intended Plaintiffs, their employees, servants or agents and which mayor might interfere with the peaceful and quiet enjoyment of the property. In the matter now before this court the Plaintiff is asking that the interlocutory injunction continue until the substantive issues are altogether resolved or until fUl1her order. The purpose of an interlocutory injunction is to preserve the status quo until the right of the parties have been determined in an action. The principles to be applied in applications for interlocutory injunctions have been ~uthoritatively explained by Lord Diplock in the case of American Cyanamid v Ethicon Ltd [1975] A.C.396.

1.The Plaintiff must establish that he has a good arguable claim to the right he seeks to protect.

2.The Court must not attempt to decide the claim on the affidavi:s: it is enough if the Plaintiffs show that there is a serious guestion to be tried.

3.If the Plaintiff satisfies these tests the grant or refusal of an injunction IS a matter for exercise of the Courts discretion on the balance 01 ccnvenience. Having listened carefully to the well prepared arguments of Counsel for the Plaintiffs and counsel for the Defendants, it is beyond question that there are very serious issues to be tried. What is also obvious is that whichever party wins or loses (as the case may be) this action by its very nature is bound to be very expensive. In an attempt to determine where the balance of convenience lies, the most compelling argument advanced by Counsel for the Plaintiff is that if it is proven that the Plaintiffs have been wronged, damages would not be a sufficient remedy. On the other hand, the Defendants' claim hinges on a lease of crown lands for 22 years, for the purpose of embarking on an extensive project against which time is running. In all the circumstances I find no difficulty in concluding that the balance of convenience dictates that the status quo ought to be maintained the rights of all parties have been determined. The order of the Court therefore is that upon the Plaintiffs giving an undertaking as to damages the injunction granted to the Plaintiff by d'Auvergne J. will be allowed to continue until the final determination of this action. Costs will be cost in the cause.

KENNETH ALLEN Q.C. OBE

Higti Court Judge (Ag.)

Suit No: 29 of 1999 Allen J. Delivered: 26/02/99