Gaston Browne v Lena Phillip

• Jurisdiction: Antigua and Barbuda
• Judgment Date: 07 March 2024
• Judgment citation (vLex): [2024] ECSC J0307-3
• Year: 2024
• Court: High Court (Antigua)
• Docket Number: CLAIM NO. ANUHCV2017/0377

Between:

Gaston Browne

Claimant

and

Lena Phillip

Defendant

CLAIM NO. ANUHCV2017/0377

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Anthony Astaphan SC, with him, Rose-Mary Reynolds for the Claimant

No appearance by or for the Defendant

DECISION

Introduction

1 The Claimant commenced defamation proceedings against the Defendant by claim form and statement of claim filed on 10 ^th July 2017. The Claimant is and was at the material time the Prime Minister of Antigua and Barbuda and the Defendant, a calypsonian by the stage name “Queen Ivena”. The Claimant filed an amended claim form and amended statement of claim on 9 ^th November 2017. In his amended claim, the Claimant sought the following reliefs:

• “(a) Damages, including aggravated damages against the Defendant for libels or slanders for the words published and broadcast and/or caused to be published and broadcast by them as mentioned above;

• (b) An injunction restraining the Defendant whether by herself, her servants or agents or howsoever from further publishing or causing to be published the said or similar defamatory words of and about the Claimant;

• (c) Costs on the indemnity basis and/or wasted costs against the Defendant.

• (d) Further or other relief.”

2 The Defendant filed a defence to the Claimant's amended claim on 18 ^th December 2017, denying the Claimant's claim.

3 The claim was case managed by a master and the parties attended pre-trial review before a judge in 2019. For reasons that are unclear, the matter was set to come on for trial on 14 ^th December 2022, more than three years after the pre-trial review. A further pre-trial review was held on 25 ^th November 2022. At the pre-trial review held on 25 ^th November 2022, the 14 ^th December 2022 trial date was vacated and the trial was adjourned to 19 ^th April 2023. Just over two weeks before the adjourned trial date, the Claimant applied to vacate the trial on the basis that he had filed an application on 31 ^st March 2023 to strike out the Defendant's defence. The adjournment application was granted by the trial judge.

4 Thereafter, on 8 ^th May 2023, the Defendant filed an application to strike out the Claimant's claim as disclosing no cause of action and also applied on even date for the court to determine whether the words complained of by the Claimant were capable of bearing the meaning attributed to them by the Claimant in his amended statement of claim.

5 The matter came on for hearing on 10 ^th May 2023. Counsel for both parties were present at the hearing. On that day, the Court case managed all three applications and gave directions for their hearing, mindful of the order in which the applications had been filed. The hearing of the applications was fixed for 6 ^th July 2023. The Defendant failed to comply with the Court's directions and the Defendant and her counsel failed to attend the hearing on 6 ^th July 2023. With the agreement of counsel for the Claimant, the Court gave a further opportunity for the Defendant to comply with the court's directions and to attend the hearing of the matter. The Court therefore extended the time for the Defendant to comply with the directions for the hearing of the applications and adjourned the hearing of the applications to 19 ^th October 2023.

6 When the applications came on for hearing on the adjourned date of 19 ^th October 2023, the Defendant still had not complied with any of the case management directions and did not attend the hearing. The Court was satisfied that counsel for the Defendant had been served with the notice of hearing and had failed to attend the hearing to make any representations to the Court in relation to the applications. The Court therefore proceeded to hear the arguments on behalf of the Claimant on the applications and reserved its decision.

7 Being mindful of the guidance of Saunders JA [Ag.] in St. Kitts Nevis Anguilla National Bank Limited v Caribbean 6/49 Limited 1 and Pereira CJ in The Attorney General of Saint Lucia v Darrel Montrope, 2 I intend to deal with the applications in the order in which they were filed; however, in determining the Claimant's application to strike out the Defendant's defence, I will also consider the question of whether the words complained of by the Claimant are capable of bearing a meaning or meanings attributed to them in his amended statement of claim, which was the basis of one of the two applications filed by the Defendant on 8 ^th May 2023.

The Claimant's Application to Strike Out the Defence

8 The grounds of the Claimant's strike out application as set out in his notice of application are:

• a. Pursuant to rules 11.3(2), 12.5(i), 26.3(1)(a), (b), (d) of the Civil Procedure Rules 2000 (CPR).

• b. The Defendant's defence has disclosed no reasonable grounds or reasonable defences to the Claimant's action for Defamation.

• c. There is nothing of the Defendant's defence, disclosure, or evidence which is capable of showing or establishing that the words

  complained of by the Claimant are true or that she has a viable or reasonable defence to the action.

• d. The Defendant has by paragraph 4 and 5 of its defence, pleaded a bare denial that the words are not capable of the meaning that the Claimant attributed to them, contrary to CPR 10.5(4) and that this is not a proper defence.

• e. The Defendant's defence has failed to plead or show any reasonable grounds for resisting the allegations of the Claimant's statement of claim contrary to CPR 10.5

• f. The Defendant has failed to comply with CPR 10.5(3) as the defence has not stated whether the further allegations in the statement of claim (a) are admitted; (b) are denied; (c) are neither admitted nor denied, because the defendant does not know whether they are true; and (d) the Defendant wishes the claimant to prove; and that this is not a permissible defence.

• g. The Defendant's defence has failed to comply with CPR 69.3 which requires the Defendant to give particulars stating (i) which of the words complained of are alleged to be statements of fact; and (ii) the facts and matters relied on in support of the allegation that the words are true; and that this is an incurably bad pleading.

• h. The defence is incurable bad.

• i. In all the circumstances it is just that the court make the orders sought, the Defendant's statement of case is struck out and judgment be entered for the Claimant on the claim as prayed.

The Claimant's Claim

9 The Claimant's case is based on a calypso song performed by the Defendant. At paragraph 3 of his amended statement of claim, the Claimant pleaded that on or about 24 ^th June 2017 at a calypso tent organized by the Pepperpot Calypso Tent, and on 8 ^th July 2017 at the quarter finals of the calypso competition held at Barrymore Hotel, the Defendant sang a song called “Nastiness” which included the following words:

“…Hey mama

Nasty nasty lewe clean up dis country

Nasty nasty

Plenty nasty

Ready to rebuild in 2016

De PM started a charity for 5 million of de people's money

With his budget speech, I felt really pleased

It is to help young business women like you and me

But in 2017 man ah bawl

An so ah scream

Cus his budget was nothing

But ah smokescreen…”

“…Ask the PM for de 5 million in his wife's charity

Dat is nasty

Nastiness

When de PM tellin his MP

Use your post and get rich quickly

Dis is nasty

Nastiness

With them nastiness…”

10 At paragraph 5 of his amended statement of claim, the Claimant alleged that the words spoken by the Defendant were and are to the knowledge of the Defendant false and at paragraph 6 of his amended statement of claim, the Claimant alleged that in their natural and ordinary meaning, or by way of innuendo, the words complained of meant and were intended to mean that:

• “6.1 The Claimant is guilty of criminal corruption, acted in breach of his fiduciary duties and/or guilty of misfeasance in public office in that as Prime Minister and Minister of Finance he authorized public monies from the Treasury, namely the sum of 5 million dollars, to be paid to his wife's charity or foundation, and not to the Venture Capital Fund, for illegal or improper purposes including personal gain and/or that the monies were used or misused for personal reasons and gain as none of the 5 million was spent by the Foundation or Charity on any person or public purpose.

• 6.2. The Claimant by the alleged words “Use your post and get rich quickly,” which are denied, unlawfully encouraged his Members of Parliament and Ministers to corruptly use their public officers for personal gain in breach of the law.”

11 At paragraph 6.3 to 6.9 of his amended statement of claim, the Claimant pleaded the following particulars of innuendo in relation to the “5 million dollars” and the “charity”.

• “6.3 Paragraph 1 above is repeated. The Claimant is and was the Minister responsible for the finances of Antigua and Barbuda;

• 6.4 The Claimant as Minister of Finance is responsible for the finances of the State of Antigua and Barbuda;

• 6.5 On the 5 ^th February 2016 the Claimant as Minister of Finance said in the course of his Budget Address that

  “Prior to taking over the government of this country we took a decision that we will have Venture Capital funding available for entrepreneurs in our Manifesto and that is how we created this fund of $2 million and the partnership that is being developed here is that Share will make a half a million available to that fund. However, since there is so much to say about it and there is so much push back coming from the Members of the Opposition, we have decided to make it a little more exciting. So I am pleased to announce to this Nation that that Venture Capital will be increased from $2 million to $5 million.”

• 6.6. The proceedings of the Parliament are broadcast live.

• 6.7. Listeners would understand that the Claimant was not entitled to act in the way alleged in paragraphs 6.1 and 6.2 and...