McQueen Enterprise Ltd v Spice Mas Corporation

• Jurisdiction: Grenada
• Judge: ‘Glasgow, J.’
• Judgment Date: 31 July 2024
• Neutral Citation: GD 2024 HC 037
• Docket Number: CLAIM NO. GDAHCV2023/0383 (formerly CLAIM NO. GDAHCV2019/0338)
• Court: High Court (Grenada)

IN THE MATTER OF A SPONSORSHIP CONTRACT AWARDED BY SPICE MAS CORPORATION TO GLENELEG WATER

AND

IN THE MATTER OF THE PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC PROPERTY ACT NO. 39 OF 2014

AND

IN THE MATTER OF A STIPULATION BY SPICE MAS CORPORATION IN CONTRACTS MADE WITH VENDORS TO DISTRIBUTE WATER PRODUCTS AT EVENTS ORGANIZED BY OR UNDER THE JURISDICTION OF SPICE MAS CORPORATION DURING THE PERIOD OF SPICE MAS 2019 THAT THEY ARE NOT TO SELL MOUNT PURE WATER PRODUCTS

AND

IN THE MATTER OF AN APPLICATION BY MC QUEEN ENTERPRISE LIMITED T/A MOUNT PURE FOR JUDICIAL REVIEW OF THE DECISION OF SPICE MAS CORPORATION TO AWARD A SPONSORSHIP CONTRACT TO GLENELEG WATER

AND

IN THE MATTER OF AN APPLICATION BY MC QUEEN ENTERPRISE LIMITED T/A MOUNT PURE CORPORATION FOR JUDICIAL REVIEW OF THE DECISION OF SPICE MAS CORPORATION TO INSERT A TERM IN CONTRACTS WITH DISTRIBUTORS OF WATER PRODUCTS RESTRAINING THEM FROM SELLING MOUNT PURE WATER AT EVENTS ORGANISED BY OR UNDER THE JURISDICTION OF SPICE MAS CORPORATION DURING THE PERIOD OF SPICE MAS 2019

BETWEEN:

McQueen Enterprise Limited (t/a Mount Pure Water)

Claimant

and

Spice Mas Corporation

Defendant

Before:

The Hon. Justice Raulston L.A Glasgow High Court Judge

CLAIM NO. GDAHCV2023/0383 (formerly CLAIM NO. GDAHCV2019/0338)

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CIVIL)

Appearances:

Mr. Ruggles Ferguson KC for the Claimant

Ms. Sheriba Lewis for the Defendant

BACKGROUND

‘Glasgow, J.’

1 Grenada hosts its carnival celebration coined Spicemas on the second Monday and Tuesday of August annually. This claim is about the events that occurred during Spicemas carnival in 2019 between the entity responsible for Spicemas and a local water manufacturer concerning sponsorship for that year's carnival event. The claimant, McQueen Enterprises Limited, trades locally as Mount Pure Water and supplies natural mineral water locally, regionally and internationally. The claimant will be referenced by its local moniker (Mount Pure). Spicemas Corporation is the statutory establishment responsible for the planning and execution of Spicemas pursuant to the Spicemas Corporation Act 1.

CHRONOLOGY OF EVENTS

2 Mount Pure claims that it wished to participate in the 2019 carnival as an official sponsor of Spicemas carnival in that year. In this regard, Mount Pure expressed this interest to Spicemas Corporation in 2018. Mount Pure later became aggrieved with the way Spicemas Corporation awarded sponsorship in 2019, contending that Spicemas Corporation awarded a ‘sponsorship contract’ to their competitor, Glenelg, without following the process of tendering as outlined in the Public Procurement and Disposal of Property Act 2. Further dissension ensued as Mount Pure also alleges that Spicemas Corporation unreasonably required that its carnival vendors only sell Glenelg's products during the carnival celebration, due to the exclusive sponsorship contract awarded to Glenelg. These grievances caused Mount Pure to file an application on 17 ^th July 2019 for leave to apply for judicial review of Spicemas Corporation's actions.

3 On 23 ^rd July 2019, the application came before the court which then granted leave, finding that there was an arguable case that Spicemas Corporation had acted in breach of the Public Procurement and Disposal of Public Property Act. The judge on hearing the application also granted an interim injunction restraining Spicemas Corporation from prohibiting its vendors from selling Mount Pure products during Spicemas 2019, and an interim declaration that:

“the decision of the Respondent (Spicemas Corporation) to contract with vendors prohibiting the sale of the Applicant's (Mount Pure) products during the activities of Spicemas 2019 is unreasonable and in violation of the Public Procurement and Disposal of Public Property Act.”

4 Mount Pure later filed its substantive claim for judicial review on 2 ^nd August, 2019.

MOUNT PURE'S CLAIM

5 After being granted leave as aforesaid, Mount Pure claimed 8 declarations concerning Spicemas Corporation's actions of awarding Glenelg sponsorship, inserting contractual terms into vending contracts, and preventing vendors from selling Mount Pure's water during carnival 3. Mount Pure sought an order quashing Spicemas Corporation's decision to award sponsorship to its competitor, Glenelg and an order restraining Spicemas Corporation from inserting terms into vending contracts. Mount Pure also sought damages for the loss ostensibly caused by Spicemas Corporation's actions, interest and costs. Mount Pure filed affidavits in support of their claim from Mr. Kevin Peterkin, the sales and marketing manager of Mount Pure and Ms. Shirley Roland McQueen, the managing director and sole shareholder of McQueen Enterprises Limited.

Kevin Peterkin's Evidence

6 In his initial affidavit in support of a request for leave to apply for judicial review, Mr. Peterkin deposes that McQueen Enterprises is a forwardlooking business aiming to establish a firm foothold for production of water

in Grenada and the Caribbean by bringing Grenadian produced water to the world. As sales and marketing manager, Mr. Peterkin explains that his responsibilities include building and promoting the brand and establishing and managing relationships with customers. As part of its marketing strategy, he explains that in 2019, Mount Pure entered the Berkeley Springs International Water Competition, where 112 competitors from 54 countries participated

7 Mount Pure later obtained the bronze prize for best bottled water in the competition. Mr. Peterkin asserts that Mount Pure's profile in Grenada grew tremendously thereafter. As part of Mount Pure's marketing strategy locally, he indicates that Mount Pure was interested in participating in carnival, as it is the largest single festival in Grenada and a key plank of establishing Mount Pure's presence as a major player in carnival. By email dated 25 ^th September, 2018, Mr. Peterkin recalls that he contacted Spicemas Corporation through Ms. Keisha Lawrence, a member of Spicemas' administrative staff, indicating Mount Pure's desire to become a sponsor of Spicemas 2019. He recalls receiving a prompt response from Ms. Lawrence on even date, wherein she explained that information was not yet available and promising to get back to him.

8 Mr. Peterkin claims that he remained in regular telephone contact with Spicemas Corporation, calling biweekly to find out when the process to obtain sponsorship contracts would open. He explains that in addition to sponsorship, Mount Pure also wished to set up booths during carnival events to sell its products on its workers account and its own. The plan, as articulated by Mr. Peterkin, was to give their workers products at special prices, so that they could make a profit for themselves. Mr. Peterkin further deposes that he contacted established vendors to encourage them to sell Mount Pure products at carnival, and overall, they were expecting to do good business, due to the high interest in their products. Mr. Peterkin deposes that in June 2019 he was informed by Spicemas Corporation that applications for contracts to vend products during Spicemas 2019 would commence on 9 ^th July, 2019.

9 On 9 ^th July, 2019, Mr. Peterkin states that he went to Spicemas Corporation's office to sign up to obtain booths to sell Mount Pure products for carnival on behalf of the company and in his own personal capacity. After writing out the applications, Mr. Peterkin states that Ms. Lawrence told him that Mount Pure's application would not be considered because Glenelg was the official sponsor for water for carnival and only Glenelg's water was to be sold at events under the control of Spicemas Corporation.

10 Mr. Peterkin alleges that this information came as a complete surprise to him, given that he remained in contact with Spicemas Corporation since 2018 about Mount Pure's interest in sponsorship of Spice Mas 2019. He claims that he was never informed of any process through which business entities could bid for sponsorship. Mr. Peterkin states that he was further taken aback when Ms. George, a Spicemas Corporation official, made an announcement to the over 100 vendors gathered at the Spicemas Corporation office, that persons receiving contracts were only to sell Glenelg water and they could not sell Mount Pure water. He observed that a notice to this effect was also posted on Spicemas Corporation's compound.

11 Mr. Peterkin recalls that his personal application for a booth was accepted, but that he was made to sign an undertaking that he would not distribute Mount Pure products. Mr. Peterkin alleges that Mount Pure had invested in excess of $250,000.00 to purchase new equipment for production, expansion of Mount Pure's storage capacity and the hiring of additional staff for carnival. He also alleges that Mount Pure entered into contracts to employ dozens of distributors of their water at carnival, but those contracts would be cancelled if they were not allowed to sell their products.

12 Due to the losses that Mount Pure could have incurred, Mr. Peterkin explains that Mount Pure retained its present counsel to write to Spicemas Corporation, seeking to have the decision to blacklist Mount Pure's products immediately rescinded. His counsel received an email acknowledgement with a promised response, but none was forthcoming. Mr. Peterkin states that Spicemas Corporation's actions as a public body unfairly undermined Mount Pure's business strategy and sent a negative message to the market about the Mount Pure brand. He further states that Spicemas Corporation's actions caused serious and irreparable damage to Mount Pure's competitive position in the market.

13 Mr. Peterkin also filed a supplemental affidavit dated 2 ^nd August 2019 in support of Mount Pure's claim. In this affidavit, he deposes that on the eve of the grant of the interim...