Black, Kenneth v The Right Hon Mr Edward Seaga
| Jurisdiction | Jamaica |
| Judge | COR: MCINTOSH. D. J |
| Judgment Date | 15 November 2002 |
| Judgment citation (vLex) | [2002] 11 JJC 1501 |
| Docket Number | SUIT NO. CLB 257 OF 2001 |
| Court | Supreme Court (Jamaica) |
| Date | 15 November 2002 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
DEFAMATION - Slander/Libel - False and malicious publication - Defence of justification, fair comment and qualified privilege - Application to strike out defence
In this action the plaintiff filed a writ of summons against the defendant claiming damages for Slander/Libel, the defendant having falsely and maliciously published that the plaintiff was, inter alia, an illiterate who cannot read and write.
The defendant In his defence pleaded Justification, Fair Comment and Qualified Privilege.
The plaintiff now applies to this court for an order that:
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1. Defendant's defence be struck out for disclosing no reasonable defence or being frivolous or vexatious.
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2. The defendants defence be struck out as an abuse of the process of the court.
The grounds on which the plaintiff relies are that:
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a) The defence as pleaded disclosed no reasonable cause of defence.
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b) The defence filed is not bona fide.
SUBMISSIONS - PLAINTIFF
The plaintiff argued that paragraphs 1 and 7 of the defence in so far as they related to paragraph 1 of the Statement of Claim are in conflict. Paragraph 1 of the defence puts the plaintiff to proof while paragraph 7 of the same defence admits the pleadings at paragraph 1 of the plaintiffs Statement of Claim.
Further, no evidence is needed to establish that the words pleaded are defamatory. They are disparaging to the Plaintiff and were clearly intended to so disparage him as they were uttered on a political platform [admitted in paragraph 3 of the defence] with a view to bringing the Plaintiff into scandal.
The Defendant pleads Justification. For this defence to be maintained, particulars of the facts and matters relied on in support of the allegation of truth must be given. The particulars pleaded, even if established at trial do not support a finding that the words are true.
Mere appearance and reputation does not prove the fact. That would be at best hearsay. Past events cannot establish truth.
Like a man grasping at straws the Defendant asserts that the Plaintiff has never been known to attend any educational institution and never known to read and write, thereby casting in the negative something which has to be proved in the positive.
The particulars as pleaded do not support the plea of Justification but merely show malice towards the Plaintiff.
Defamation cases are unlike any other case. Whenever a claim is filed it is almost up to the Defendant to prove a defence. The Defendant must prove, from stage of filing defence.
Our Court of Appeal has laid down a test which admittedly is more stringent than the current test in England. The shift in stringency in England came after. Under either test the defence fails.
In:
Eric Anthony Abrahams vs. Gleaner Company and Dudley Stokes S S C A 98/92 Justification and Repetition of Libel are dealt with at pages 3 and 2 respectively.
In:
McDonalds Co op vs. Steele - 3 A E R-615 is laid down the clear and sufficient evidence test.
The Plaintiffs plea of Justification in this case cannot be supported by the pleadings. It is intended to embarrass the Plaintiff and to delay trial of the matter. The Defendant admitted the words were spoken at a political meeting. The Defendant knows the proper place for such allegations to be made.
Fair Comment must be words spoken as a comment on some fact. It must start with foundation of fact and then give comment. The words complained of cannot amount to a comment of that nature.
See - LONDON ARTIST vs. LITTLER: 1969 - A E R - 693
If Justification goes, all the other pleas must go. They would merely be express malice as in:
Warwick vs. Faulkes 1864 - 12 M and W- 507 at page 1299.
Qualified Privilege can only be applicable if there is a matter of Public Interest which makes it the Defendant's duty to bring it to the nations attention and it is a matter in which the public should have an interest.
SUBMISSIONS - DEFENCE
In reply the Defence submitted that the striking out of a Defence is a Draconion step which the court should rarely exercise.
The Plaintiffs application is made pursuant to Section 238 of the Civil Procedure Code similar to Order 18 Rule 19 of the United Kingdom Rule.
There are two jurisdictions under which the Court deals with the application, (a) under provisions of the rule; or (b) under its inherent jurisdiction. The rules really require the application to state what order is being sought. In this case it is specifically stated that the Defence be struck out. Where the Court exercises its jurisdiction under the rules, it will only grant the application in cases where it is plain and obvious that the Defence, on the face of it, is obviously unsustainable, that is, the Court will only exercise its jurisdiction where the case is clear beyond doubt. The Court must be satisfied that there is no reasonable defence in that the defence raised is unarguable.
The Court will not exercise its jurisdiction under this rule involving serious investigation into law, where an application to strike out pleadings involves prolonged and serious argument. The Court as a rule, declines to proceed with the argument unless it is satisfied a Defence disclosed no reasonable defence and ought to be struck out.
The Courts will not likely exercise its draconian power u less it is absolutely satisfied that there is no reasonable cause...
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