Abrahams v The Gleaner Company Ltd et Al
| Jurisdiction | Jamaica |
| Judge | Wright, J.A.,DOWNER, J A,PATTERSON, J. A. (AG.) |
| Judgment Date | 24 January 1994 |
| Neutral Citation | JM 1994 CA 2 |
| Docket Number | Civil Appeal No. 98 of 1992 |
| Court | Court of Appeal (Jamaica) |
| Date | 24 January 1994 |
Court of Appeal
Wright, J.A.
Downer, J.A.
Patterson, J.A. (Ag.)
Civil Appeal No. 98 of 1992
Winston Spaulding, Q.C., B.J. Scott, Q.C. and Susan Richardson, instructed by Clough, Long & Company, for the appellant
Emil George, Q.C. and Richard Ashenheim instructed by Milholland, Ashenheim & Stone for the respondents
Tort - Defamation — Libel — Defences of justification and qualified privileges — Whether the plaintiff is entitled to the further and better particulars sought of the defendants — Defendants have not given specific information that will enlighten the plaintiff of the charges against him — It would be ludicrous to order further and better particulars — The court must invoke its inherent jurisdiction to strike out pleadings that are embarrassing, and accordingly, to strike out those parts of the defence which relate to a plea of justification and qualified privilege — Appeal allowed — Defences of justification and qualified privilege struck out and order in court below set aside.
Having had the benefit or reading the judgment in draft of Downer, J.A., I shall not advert to the facts beyond the necessity of demonstrating my concurrence with the course he proposes.
Once again the citizen, like the stripling David, is confronted with the awesome, but necessary, power of the press, the Goliath of the equation. Public officials need to be wary of the press, the people's watchdog, but at the same time so incredible is the power which it exercises that the press is not left to run amuck but must abide by the legal leashes which apply in order to prevent avoidable damage. In other words, the press must respect the rules which apply to its operation.
By October 13, 1992, the date when the Summons for Further and Better Particulars was heard by Bingham, J., fully five years had elapsed and, if the contention of the appellant be correct, and I think it is, there had not been by that time a proper defence filed to what are undoubtedly very damaging allegations. The learned judge dismissed the application which can only mean that in his judgment the appellant is not entitled to any of the very detailed particulars sought.
There is no equivocation about the very serious charges of corruption levelled against the appellant and there has clearly been no endeavour to nullify the effect of those allegations. The appellant complains in paragraph 9(i) of the Statement of Claim:
“The Plaintiff on September 17, 1987, after the publication of the libel complained of in paragraph 3 spoke to the Second Defendant, and at the Second Defendant's request sent to the Defendants a statement denying the allegation. The Defendants neglected and refused to publish the said statement in breach of the undertaking of the Second Defendant to do so in the Star newspaper of September 18, 1987.”
What the respondents did was to exacerbate the situation by publishing the libel in the Daily Gleaner of September 18 and then on September 19 by a clarification in the Daily Gleaner removed any possible doubt that the appellant was the butt of their accusation. Such tenacity in pursuit would indicate that the respondents are fully justified and can support their actions with facts. And yet the defence for which particulars are sought is dated 18th December, 1991 — over four years since the last publication. Be it noted that in the intervening years, without any adjudication on the merits of the case there have been five judgments — a judgment in default of defence which was later sought to be set aside in a hearing which lasted eight days before Edwards, J. who refused the application; two judgments of this court, the first setting aside the judgment of Edwards, J and the second refusing conditional leave to the appellant to appeal to Her Majesty in Council. The fifth judgment was that of Bingham, J. refusing further and better particulars. Indeed, the years have been prolific in the production of judgments, the instant being the sixth and yet the appellant is no more able today than he was at the commencement of these proceedings to identify with clarity who are his companions in crime.
The respondents took cover behind the defences of justification and qualified privilege, defences which present their own difficulties.
This plea appears at paragraph 5 of the defence thus:
“The words set out in paragraphs 3, 4 and 5 of the Statement of Claim are, in their natural and ordinary meaning and without the meanings alleged in paragraphs 6 and 7 of the Statement of Claim, true in substance and in fact.”
There is a cardinal rule which was stated long ago by Darling, J in Mangena v. Lloyd (1908) 98 L.T. at page 643 as recorded in Gatley on Libel and Slander 7th Edition at paragraph 1036:
“A defendant should never place a plea of justification on the record unless he has clear and sufficient evidence of the truth of the imputation for failure to establish this defence at the trial may properly be taken in aggravation of damages.”
This requirement was quoted with approval by Lord Denning, M.R. in Associated Leisure Ltd. and others v. Associated Newspapers Limited [1970] 2 All E.R. 754 at 757–8.
But that is not all. There is the very relevant requirement, which is at issue in the instant case, namely, the supplying of particulars. There is, however, an important distinction on which the respondents before us sought to rely:
“Where the libel imputes a specific offence e.g. that the plaintiff on a day, and at a place named, stole a specified article, it is sufficient to plead ‘The said words are true in substance and in fact.’ In such a case particulars of justification will not be ordered.” See Gatley on Libel and Slander 7th Ed. para. 1046; Gordon Cumming v. Green (1891) 7 T.L.R. 408.
This rule was subject to some modification in Marks and another v. Wilson-Boyd and others [1939] 2 All E.R. 505 in which the Court of Appeal (Scott, Clausen and Goddard, LJJ) held (headnote):
“There is no absolute rule or practice that, whenever a plea of justification is raised in the common form ‘that the words are true in substance and in fact’ an order for full particulars of the facts and matters relied upon in support of the plea must be made. Each case must depend on its particular facts, and, where the charges made are sufficiently specific, no general order for particulars should be made though an order may be made for particulars of specific matters.”
However, the Court was careful to observe at page 609: “We think it right to emphasize that we are neither laying down nor over-ruling any point of importance relating to practice, but are merely dealing with the facts of this particular case.”
This was a case in which the defendants were resisting an order to give full particulars of the facts and matters relied upon in support of their plea of justification. The alleged libel was contained in lengthy letters and forms of statutory declaration published to a large number of persons interested in the Whiskey trade in connection with evidence given by the plaintiffs at a public enquiry in the United States of America by the Federal Alcohol Administration of that country. The court dismissed the defendants' appeal.
In Wooton v. Sievier [1913] 3 K.B. 499 it was held, inter alia:
“That where a defendant raises an imputation of misconduct against a plaintiff, the plaintiff ought to be enabled to go to trial with knowledge of the acts which it is alleged he has committed and upon which the defendant intends to rely as justifying the imputation, and that if the particulars are such as the defendant ought to give, he cannot refuse to do so merely on the ground that his answer will disclose the names of his witnesses.” See also Zierenberg v. Labouchere (1893) 63 L.J. 89.
Before us Mr. George, Q.C., contended that the allegation against the appellant is a specific one of receiving “kickbacks' and that, accordingly, no particulars are required. But the defence must have been otherwise minded at the time when the defence was filed because it purported to have supplied particulars in paragraph 5:
“PARTICULARS
11 John Gentles, a former Director of Tourism during the time when the Plaintiff was Minister of Tourism, swore to an affidavit on the 14th January, 1988, in which he says inter alia that he identified the plaintiff's signature before a Federal Grand Jury on a number of documents including public relations and advertising contracts and cheques either drawn by or made payable to the Plaintiff or negotiated to the Plaintiff.
12 Federal authorities in Connecticut, U.S.A., are investigating public relations and advertising executives who are suspected of making payments to Jamaican Government Officials for the award of contracts by Jamaican Government agencies to the firms of those executives.
3. The words complained of at paragraphs 3 and 4 of the Statement of Claim were received by the Defendants from a usually reliable source, namely Associated Press of 50 Rockefeller Plaza, New York, U.S.A.”
But if the purpose of supplying particulars is to prevent the element of surprise at the trial, which is indeed the case, then it is difficult to see how these particulars could suffice. However, Mr. George, Q.C. submitted that long before the defence was drafted the appellant was in possession of Gentles' affidavit with the facts. That affidavit dated January 4, 1988, was filed in support of the respondents' application to set aside the default judgment. And it is contended that by reference to that affidavit the appellant would know what is being said. The seven paragraph affidavit reads:
“I, JOHN GENTLES, being duly sworn, make oath and say as follows:
1. My true place of abode and postal address are at 400 East Randolph, Chicago, Illinois, U.S.A. and I...
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