Joseph v Derrick
| Jurisdiction | Antigua and Barbuda |
| Judge | Thomas, J. |
| Judgment Date | 11 November 2004 |
| Neutral Citation | AG 2004 HC 63 |
| Docket Number | ANUHCV 0383/2002 |
| Court | High Court (Antigua) |
| Date | 11 November 2004 |
High Court
Thomas, J.
ANUHCV 0383/2002
Mr. Elliott D. Mottley Q.C. and Mr. Trevor R Kendall with him for the claimant.
Mr. Dane Hamilton for the defendant.
Defamation - Libel — Whether words published in newspaper could in their natural and ordinary meaning be understood to mean that the claimant caused and/or abetted the theft of a Rolls Royce car from the harbour — No apology — Claim upheld — Damages of $15,000 plus $10,000 in aggravated damages awarded.
This claim, filed on 23rd February, 2004 is for damages against the defendant for libel allegedly contained in a newspaper, the Daily Observer, printed and published by the defendant.
The article in which the alleged libel is contained is captioned “Can the ALP Deliver Justice and Fairness” and it is the claimant's contention that the words contained in the article referred and were understood to refer to him.
The claimant pleads that at the material time he was a Member of Parliament a former Minister of Finance in the Government of Antigua and Barbuda and that on 29th October 2000 he was one of the Ministers of Government who appeared on ABS Television.
The claimant pleads further that the words published of him in their natural and ordinary meaning meant and were understood to mean that the claimant caused and or abetted and or counseled and or procured and or conspired in the stealing of a Rolls Royce motor car from Customs at the Deep Water Harbour. Consequently says the claimant; he has been seriously injured in his character credit and reputation and in the way of his office and has been brought into public scandal, odium and contempt and has suffered hurt to his feelings.
Accordingly, the claimant seeks damages, interest, costs and such further relief as the Court may deem fit.
In his defence the defendant disputes the claimant's case. However while admitting that the words complained of were published by him and they refer to the claimant, it is the defendant's contention that the words were fair comment on a matter of public interest. According to the defendant the matter of public interest rests on the protest action in Antigua and Barbuda of businesses and the Chamber of Commerce in relation to the imposition of taxes by the Government of Antigua and Barbuda, the claimant's role as a Member of Government in support of the action by the Government and his conduct in August 1996 when as Minister of Finance he procured the delivery of an antique Rolls Royce motor car to a friend Trevor Richards.
Particulars of matters of public interest pleaded by the defendant include: the claimant serving as Minister of Finance prior to his dismissal in September 1996; the 2% turnover tax imposed by the Government by legislation on the gross earnings of companies, businesses and individuals and threats of protest action by these persons if the legislation was not repealed; actual protests in October to November 2000; the appearance of the claimant and two other ministers of government on television to support the Government's measure; the responsibilities of the claimant in August 1996, as Minister of Finance, for the Inland Revenue Department and the Customs Department; the arrival by boat from St Kitts of one antique Rolls Royce car on 4th August 1996 purportedly consigned to Trevor Richards; the release of the car on Sunday 4th December 1996 to Trevor Richards and its conveyance to the claimant's house; the investigation of the matter of the release by the Solicitor General on the instructions of the then Prime Minister; the inquiry revealing that the car was not manifested as required by law and the delivery to Trevor Richards without the payment of tax and the non compliance with other legal requirements; public agitation following the release of the report and calls for the resignation of the claimant as Minister of Finance and the eventual termination of his appointment by the Governor General on the advice of the Prime Minister on 23rd September 1996.
The defendant also contends that the words complained of were published on an occasion of qualified privilege and deny that the claimant suffered damage or any damage as is alleged or has been seriously injured in his character and reputation personally or in the way of his office.
The following are the issues for determination:
- Whether the words complained of are defamatory of the claimant. 2. Whether the defence of qualified privilege can be maintained by the defendant 3. Whether the defence of fair comment can be sustained in the circumstances
On behalf of the claimant it is submitted that the words complained of are defamatory in that in their ordinary meaning they were understood to mean that the claimant caused, abetted, counseled procured or conspired in stealing the subject car from Customs.
In so far as the defendant is concerned it is submitted that the words are not defamatory in that when placed within the context of the article they do not charge the claimant with the stealing of the car.
The precise words complained of by the claimant are these:–
“Joseph seemed to have forgotten that when he was Minister of Finance he caused to be stolen from the Customs at the Deep Water Harbour a Rolls Royce motor car on which the Customs Duty had not been paid.”
It is the contention of the claimant that these words in their ordinary meaning were understood to mean that the claimant caused and or abetted, and or counseled and or procured and or conspired in stealing the motor car from Customs. In short the words are defamatory.
According to Gatley On Libel and Slander (8th ed) (“Gatley”) at para 31:
“The gist of the torts of libel and slander is the publication of matter (usually words) conveying a defamatory meaning. A defamatory imputation is one to a man's discredit or which tends to lower him in the estimation of others or to expose him to hatred, contempt or ridicule or to injure his reputation in his office, trade or profession or to injure his financial credit. The standard opinion is that of right thinking persons generally. To be defamatory an imputation need have no actual effect on a person's reputation the law looks only at its tendency”
The essence of the foregoing is also embodied in the following extract from Diplock, J. in his summation to the jury in Silken v. Beaverbrook Newspaper Ltd (1958) 1 W.I.R. 743,746
“…every man, whether in public life or not is entitled not to have lies told about him, and by that is meant that one is not entitled to make statement of fact about a person which are untrue and which redound to his discredit, that is to say tend to lower him in the estimation of right thinking men.”
By definition, therefore, it is actionable to publish an untruthful statement about a person, which would tend to lower him in the estimation of others. Therefore, the question is: are the words true or false?
Part of the factual background to the matter of the subject vehicle is contained in an official report of the Solicitor General of Antigua and Barbuda titled: “A Report on the Movement of Goods at the Port Authority on August 4th, 1996.” (“the Report”) (CTB Vol. 11 pp. 8-40). In the Report there is no finding of the vehicle being stolen by the claimant or any other person, but the following findings or conclusions are of immediate relevance:
At paragraph 3 of the findings at page 24:–
“I find therefore that the Rolls Royce was delivered to Mr. Trevor Richards contrary to section 26 of the Customs (Control and Management Act 1993 and regulations 161 and 162 of the Port Authority Regulations.)”
At paragraph 4 at page 25:–
“I find that the Rolls Royce car was removed from the Port without assessment of value for duty in breach of customs valuation procedure.”
Then at paragraph 9 at page 26:
“I do not have any evidence that Honourable Molwyn Joseph, the Minister of Finance used his Ministerial Authority to permit rules and regulations to be breached on his friend's behalf. However I do not find that the dazzling speed by which the Minister's request was executed, the absolute relegation of the Customs Department in the entire operation, the final destination of the Rolls Royce car and the repeated claim by the Minister to the effect that his request to the Comptroller of Customs and the Operations Manager was not unusual combined to create a cloud of suspicion in a curious public. A suspicion, which undermines public confidence in the Minister.”
A finding that the whole affair created a cloud of suspicion is not however a finding that the claimant caused the car to be stolen.
The findings in the Report stand in contrast to the cross-examination testimony of the defendant relating to alleged stealing.
To begin with the defendant said he read the report ‘several times although he would not say he had studied it more than once. Based on the fact that the defendant testified that Molwyn Joseph stole the car or caused it to be stolen, it was put to him by learned counsel for the claimant that stealing is an act of taking something without the owner's permission. The witness responded by saying that he was not aware that that was the only description of stealing. He added that he have a better understanding of stealing. This was followed by further testimony that there was no evidence of stealing and then this: “Perhaps we made an error. Perhaps he is entitled to an apology.”
The defendant, Winston Derrick, continued his testimony on the path of assertions and contradictions by saying that someone stole is an assertion of fact and if something is removed without payment of the duties he considered it to be stolen.
With respect to the actual publication of the subject article in the...
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