Andrew Gordon v Radio Jamaica Ltd

• Jurisdiction: Jamaica
• Judge: Henry-McKenzie, J
• Judgment Date: 14 January 2022
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. SU2020 CV 03864

[2022] JMSC Civ. 05

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. SU2020 CV 03864

CLAIM NO. SU2020 CV 03865

Between

Andrew Gordon

Applicant

and

Radio Jamaica Limited

1 ^st Respondent

and

The Gleaner Company (Media) Limited

2 ^nd Respondent

and

Television Jamaica Limited

3 ^rd Respondent

and

Jamaica Observer Limited

4 ^th Respondent

Heard Along with:

Between

Michael Dixon

Applicant

and

Radio Jamaica Limited

1 ^st Respondent

and

The Gleaner Company (Media) Limited

2 ^nd Respondent

and

Television Jamaica Limited

3 ^rd Respondent

and

Jamaica Observer Limited

4 ^th Respondent

Mr. Bert Samuels and Mr. Matthew Hyatt instructed by Knight, Junor & Samuels for the Applicants

Ms. Stephanie Williams and Ms. Shannon Scott instructed by Henlin Gibson Henlin for the 1st, 2nd and 3rd Respondents

Mr. Charles Piper Q.C. for the 4th Respondent

DEFAMATION ACT 2013 — EXPIRATION OF LIMITATION PERIOD — EXTENSION OF TIME TO FILE CLAIM — SECTION 33.

IN CHAMBERS

Henry-McKenzie, J

INTRODUCTION

1 By way Notices of Application filed on October 13, 2020 and which were amended on March11, 2021, the applicants seek an extension of time to bring a claim for defamation. The applications are supported by affidavits of both applicants and their attorney, John Junor. The 1st, 2nd and 3rd respondents filed an affidavit of Stacey Ann Steele in response and the 4th respondent filed an affidavit of Vernon Davidson, also in response.

BACKGROUND

2 Both applicants were employed to the Firearm Licensing Authority as senior officers. Mr Dixon was the Director of Audit and Complaints and Mr Gordon, a Senior Audit and Complaints officer.

3 The applicants indicate in their affidavits that their contracts of employment at the Firearm Licensing Authority (FLA) were terminated with immediate effect about August 22, 2017. In that same week the respondents published several articles with defamatory statements concerning the circumstances of their dismissal and their alleged involvement in corruption whilst employed to the FLA.

4 Further, the applicants indicate that on August 22, 2017 the Gleaner published a news report entitled “Two Senior FLA employees dismissed amid corruption probe” and on August 23, 2017 an article entitled “New FLA Fallout- Two senior staff members axed as MOCA probes 257 suspect firearms licences”. On the same day Radio Jamaica published an online article entitled “Third FLA employee fired”. Similarly, on August 23, 2017 during the TVJ Midday News and Prime Time News broadcast the news anchor also reported on the corruption scandal. The Jamaica Observer also published an article entitled “Cop on Secondment leaves FLA” on August 24, 2013.

5 The applicants state that to date the defamatory statements are still available for viewing through the world wide web and have negatively affected their reputation and have caused them to be ridiculed in the government sector.

6 They also indicate that they have suffered prejudice and hardship even now.

7 Following the news reports, the applicants retained the services of the law firm Knight, Junor & Samuels to represent them concerning the alleged defamatory statements and the unjustified manner in which they say they were terminated.

Affidavit of John Junor in Support of Applications

8 Mr. Junor in his affidavit said that primacy was given to mounting a challenge at the IDT against the unjustified termination. Further, he indicated that the processes of the IDT were more critical as it was well underway and the FLA had retained counsel to oppose this challenge.

9 After Mr. Junor was engaged in the IDT for approximately 2 years and 1 month, on or about October 24, 2019 the panel found that the 2nd applicant, Mr. Dixon's, termination was wholly unjustified and without any substantiated cause.

10 Whilst the 2nd applicant's dispute was determined, the 1st applicant, Mr. Gordon's dispute had not sufficiently progressed at the IDT and the negotiations with the Ministry of Labour and Social Security were strained. For this reason, Mr. Junor said he dedicated greater effort in having the 1st applicant's dispute resolved.

11 In the meantime however, the limitation period to make a claim for defamation had passed without the knowledge of Mr. Junor. He explained that this was due to his lack of experience in this area of the law and as such, he believed the limitation period of 6 years still prevailed. It was not until about the end of July 2020 that it came to his attention by an attorney in the firm that the statutory limitation had drastically reduced to 2 years from the date of publication with the passing of the Defamation Act in 2013.

12 As soon as this was unearthed, the firm explained the difficulties to the applicants and the possible solutions. The firm then took swift action in preparing to file the application seeking extension of time to pursue the claim for defamation and in informing the respondents of their intention.

13 However, the applications were not filed until October 13, 2020 as deliberations with the applicants continued for months as they (the attorneys) sought to perfect the applicants' applications and their supporting affidavits in accordance with their instructions. This caused the claim to be filed out of time by 1 year and 2 months.

14 Mr. Junor accepted that the delay was on his part and added that his clients ought not to be denied their time in court due to his inadvertence. He indicated that the prejudice which the applicants have faced and will continue to face if the application is not granted, outweighs any prejudice the respondents might suffer if the application were granted. He highlighted that the damage to their reputation continues without ease or redress and that the defamatory content is still available for current readers.

Affidavit in Response on behalf of the 1 ^st, 2 ^nd and 3 ^rd Respondents

15 Ms. Stacey-Ann Steele, attorney-at-law and legal adviser to 1 ^st, 2 ^nd and 3 ^rd respondents, in an affidavit in response filed on March 11, 2021, indicated that due to the passage of time the respondents are not in a position to defend the claim or even prepare their defence, should the matter go to trial. She stated that the statements in the Gleaner complained of as being defamatory were written by a staff reporter who had resigned and migrated to Canada since the publications. Further, that the reporter's specific location is unknown and there is no means of contacting him. Further she stated that the entities were not notified of a potential claim and as such the standard procedure to preserve the documents to be able to respond, was not followed.

16 In addition, the identity of the reporters who produced the news report published by Television Jamaica Limited and Radio Jamaica Limited is not available as the newsroom software data was changed approximately three years ago, post publications and as such they were unable to access the old scripts and data with the names of reporter for both entities, despite several attempts to do so.

17 As a result of this, the 1 ^st, 2 ^nd and 3 ^rd respondents are not in a position to defend any claim that may be brought against them. Further, the delay is prejudicial as the respondents will not have any witnesses, were the extension to be granted. The delay has made it difficult for the respondents to adduce sufficient evidence to defend the claim.

Affidavit in Response on behalf of the 4 ^th Respondent

18 An affidavit in response from Mr Vernon Davidson was filed on January 8, 2021, on behalf of the Jamaica Observer Limited. The affidavit of Mr. Davidson demonstrates that they too would be severely impaired by the delay in defending the action. The affidavit indicates that the article complained of was published without disclosing the name of the reporter who authored it. However, after a search was done of the computer system to identify the reporter, they have not been able to locate any information relating to the article, or even who uploaded the report to determine if the person is still engaged to the company, or would be available to assist in the company in its defence. Mr. Davidson was of the view that the failure to locate the information was due to the information being removed from the system upon the expiration of the limitation period.

SUBMISSIONS

Applicants' Submissions

19 On behalf of the applicants, Mr. Samuels submitted that though there may be a limitation period imposed by the Defamation Act to bring a claim for defamation, this may be displaced if the criteria outlined in section 33(4) are satisfied, that is:

• i. Whether there are reasonable and compelling grounds for the action not having been brought within the limitation period;

• ii. The prejudice to the respondent, if any, and;

• iii. The interest of justice

20 Counsel submitted that the explanations provided in the evidence supporting the applications are sufficient to satisfy the requirements of reasonable and compelling grounds. He highlighted that the affidavit deposed by Mr. Junor has shown that the applicants are relying on two explanations for the delay. Firstly, the applicants' attorney's approach was to deal with the challenge before the IDT regarding the unjustifiable dismissal of the applicants before commencing the defamation claim, as it was perceived that should the FLA be successful at the IDT, this could negatively impact a claim for defamation. Secondly, that Mr. Junor was unaware of the change to the limitation period from 6 years to 2 years, which resulted in the applicants being out of time to file a claim. He drew reference to what Mr. Junor indicated was his limited experience in civil litigation, which also resulted in the delay.

21 However, Mr. Samuels submitted that based on numerous case law it is a fundamental principle, that a litigant ought not to suffer or be denied an opportunity to have his day in court due to the fault of his...