IN THE SUPREME COURT OF BELIZE A.D., 2001

Action No. 155 of 2001

 

Between	(NEDAL J. MCLAREN	PLAINTIFF
	( ( ( And ( (
	(OMARIO PERDOMO (as commissioner of the (Belize Football League	DEFENDANT

Applicant In Person
Mr. C. Coye for Respondent

J U D G M E N T

AWICH J:

 

Notes:

Interlocutory injunction - consideration for granting, serious triable issue (question), vexatious substantive case, balance of convenience, whether monetary award would be adequate compensation, use by another of a registered trade name under the Business Names Act, Cap. 204.

An Application

This is judgment in the summons application filed at court on 23.3.2001, of Mr. Nedal J. McLaren, for an interlocutory (temporary) injunction order stopping Mr. Omario Perdomo, the respondent, from using the name, Belize Football League, which McLaren says is his registered trade name. McLaren asks that the interlocutory injunction order be granted and to last until the substantiative case, No. 155 of 2001, between him and Perdomo is decided.

The Substantive Case

The substantive case was filed on the same date, 23.3.2001, as the interlocutory application. In the particulars of the case, McLaren averred that on 4.1.2001, he applied for and had the name, Belize Football League, registered as his business name, under the Business Names Act, Chapter 204, in the Laws of Belize. On 26.1.2001, he states, he wrote to Perdomo demanding that Perdomo stop using the name, Belize Football League, but Perdomo continues to use the name to date. McLaren sought as final relief, court declaration that he, McLaren is the, "exclusive owner of the business name, 'Belize Football League'," and damages (compensation) for loss caused to McLaren by Perdomo by using the name.

I have not seen a memorandum of appearance nor a defence of Perdomo, but from his affidavit filed on 29.3.2001, in reply to the interlocutory application, it is obvious that he strongly contests the case. In the affidavit, Perdomo deposed that he had used the name, Belize Football League, since 1995, well before McLaren had the name registered. He outlined in detail the activities of competitive football that he and associated football clubs in Belize have been and continue to organize under the name, Belize Football League. He described as malicious, McLaren's action in having the name registered.

Application Opposed

Perdomo would like McLaren's substantive case and the application dismissed on the grounds that the substantive case is baseless and because the case is vexatious and an abuse of process. A request to have the case dismissed would have to be made by a separate application and by giving due notice to McLaren. I shall, however, take the argument of learned counsel Mr. C. Coye for Perdomo, as an argument to support a submission that McLaren's case is not serious enough to found an application for interlocutory injunction order.

Perdomo based his ground that McLaren's case is vexatious and an abuse of process on the fact that he Perdomo had filed an earlier case, No. 76 of 2001, at the Supreme Court, the relief he sought in the case was an injunction to stop McLaren using the name Belize Football League, the facts and issues in McLaren's case No. 155 of 2001, Perdomo says, are the same in his case No. 76 of 2001..

The Law about Interlocutory Injunction

The purpose of granting an interlocutory injunction is to avoid or minimise loss to an applicant plaintiff while the substantive case proceeds to the final determination. The loss is avoided or minimised by ordering the defendant to stop the controversial activity so that the status quo, the state of affairs, are preserved while the substantive case proceeds to finality.

The law in Belize about granting or refusing to grant interlocutory injunction order is based on the English Common Law applied in Belize by Section 2 of the Imperial Laws (Extension) Act, Cap. 2, in the Statute Laws of Belize. The Common Law as applied in Belize has been stated in, among other cases, Paul v M.F.G. Enterprises Ltd, Action No. 284 of 1996. In the case, H.S.R. Moe J. stated:

The Court has discretion in granting interlocutory injunction. As a matter of practice the Court will consider several factors, the first two which will inveriably be dealt with are:

(1) whether the substantive case raises a serious question, that is, a serious triable issue, or not. If the case does not raise serious triable issue, the application for interlocutory injunction is refused forthwith. If the case raises serous triable issue, the court proceeds to consider the likely loss or hardship that may result if injunction is ordered - it is considered at (b) below. In assessing serious issue the court is not required to evaluate the evidence so as to decide whether the plaintiff will succeed. There is no requirement, no need, to look for evidence such as is sufficient to establish prima facie case, because the evidence at that stage is by affidavit and untested by oral presentation and crossexamination. Yet to assess whether the affidavit evidence has raised serious issue, the items of evidence for both parties are compared so as to determine whether the evidence for the applicant raises a case with prospect of succeeding.

(2) If the evidence for the applicant establishes a serious issue, the court proceeds to consider the likely loss to the respondent, in the event that interlocutory injunction is imposed restraining him while the case proceeds to finality and should the respondent finally win the case. If the respondent's likely loss is one that monetary compensation will adequately meet, then interlocutory injunction may be ordered, not withstanding the likely loss, because final order for monetary compensation in the substantive case will adequately cover any likely loss. If monetary award will be inadequate or inappropriate redress, interlocutory injunction order may not be granted. In most cases, the applicant's likely loss may also be such that monetary award will not be adequate or appropriate compensation for. In such cases the court compares the likely losses to each of the two sides, in the event that the injunction is granted or not granted. The comparison has become known as determining the balance of convenience. I would say it is in fact balancing the inconvenience rather than the convenience to the parties.

A third consideration may be necessary in the once in a while case in which balancing the likely losses of the parties does not show a greater likely loss to one of the parties. In such a rare case, the court may look at the comparative strength of the parties' cases.

A judgement of Lord Diplock in a case from England (House of Lords), American Cyanamid Co. v Ethicon Ltd [1975] AC 396 or [1975] 1 ALL ER 504 outlined in detail the considerations that the court bears in mind when exercising the discretion to grant or not to grant interlocutory injunction order.

Determination of the Application

In this application, it is my view that sufficient question, that is, serious issue for trial, has been raised by McLaren in his case to stop the use of what he says is his registered business name. The affidavit evidence filed by Perdomo has not made McLaren's case completely baseless. Perdomo concedes that McLaren has duly registered the name, Belize Football League, as his business name and that he, Perdomo, is using the same name. Use of the same or identical business name by two persons who will engage in businesses encompassing the same activities is likely to confuse the public and lead to loss of business to the one who has the right to the name, because of the mistaken identity. There is a serious question before the Court for consideration. Whether McLaren will succeed is, of course, left for the final determination. Perdomo's reason for using the name renders the issue in the case worth due consideration and not baseless. An earlier, somewhat similar case in which the issue was the use of the same or similar name is Chateau Caribbean v Chateau Caribbean Hotel Ltd [2000] 3BLR 268. Note however, that the case was not about raising serious issue for deciding whether interlocutory injunction would be ordered.

About the contention that the case is vexatious, I would say that the Court would not simply strike out the case on application, it would most likely order consolidation of the two cases Nos. 76 of 2001 and 155 of 2001 or at most, strike out the later case, but grant leave to amend the defence in the former to include counterclaim that avers the claims in the latter case.

Having decided that McLaren's case raises serious issue that will be resolved at the final determination, I now have to consider the likely losses to Perdomo, in the event that I order interlocutory injunction enjoining him not to use the name, Belize Football League, until the substantive case is finally decided and should the case finally be decided in his favour. Further, I have to decide whether the loss would be adequately compensated for by an order to pay money, in the event that the case is finally decided in favour of Perdomo. I have also to consider the likely loss to McLaren in the event that I do not impose interlocutory injunction on Perdomo and should the case finally be decided in favour of McLaren.

According to Perdomo's affidavit, he is currently organizing annual tournaments, change of name will bring chaos and loss of confidence, and players, coaches and other staff will lose their jobs. McLaren says that although he has not started business, he wants to use the name alone so that he can start getting assistance even from outside Belize, he is not much concerned about financial loss or gain, he would like to start managing properly the sport of football which he referred to as "the peoples' sport".

Having compared the two likely losses, I have to say that Perdomo's loss would be the greater, in the event that the substantive case ends in his favour. In my view, some of the losses will be difficult to compensate monetarily, and there may not be money to compensate for those that money could compensate for. McLaren has stated that he would, "abide by any order as to damages," but he has not disclosed available means. His undertaking is not sufficient.

The circumstances of the case are such that I have to refuse the application of McLaren for interlocutory injunction. Costs of the application only, is granted against McLaren in favour of Perdomo.

The facts of this case call for a speedy trial. I direct that the two related cases No. 76 of 2001 and No. 155 of 2001 be listed in the near future for direction. Parties are to attend on the Registrar within seven days to obtain a mutually agreeable date for direction hearing before me.

Delivered this Thursday the 5th day of April, 2001.

At the Supreme Court, Belize City.

Sam Lungole Awich
Judge