Bodden v Brandon

• Jurisdiction: Jamaica
• Judge: (Duffus, P., Lewis and Henriques, JJ.A.)
• Judgment Date: 19 July 1965
• Court: Court of Appeal (Jamaica)
• Date: 19 July 1965

Court of Appeal of Jamaica

(Duffus, P., Lewis and Henriques, JJ.A.)

BODDEN

and

BRANDON

H.G. Edwards and R.C. Rattray for the appellant;

D. Coore, Q.C. for the respondent.

Cases cited:

(1) Bottomley v. Brougham, [1908] 1 K.B. 584, dictum of Channell J. applied.

(2) Munster v. LambELR(1883), 11 Q.B.D. 588, dicta of Brett, M.R. and Fry, L.J. applied.

(3) R. v. KiernanUNK(1855), 5 I.C.L.R. 171, dictum of Crampton J. applied.

Tort-defamation-absolute privilege-comments made in court by counsel in professional capacity, with reference to proceedings in progress, absolutely privileged-no action for slander even if comments defamatory, irrelevant to clients defence and addressed to individual not court

The appellant brought an action in the Grand Court against the respondent for damages for slander.

The appellant, a married woman, had been called to perform jury service in a trial for attempted murder. During the empanelling of the jury, the respondent, who appeared as counsel for the accused, peremptorily challenged the appellant and she returned to her seat. On passing the respondent, she thanked him, at which he said audibly that he had challenged her because she was a girlfriend of the victim of the attempted murder. The allegation was repeated before the judge sought an explanation, when the respondent claimed that he had responded to an insult by the appellant. The trial then continued.

Following the respondents refusal to apologize on the ground that he was covered by absolute privilege, the appellant brought the present proceedings against him in the Grand Court claiming damages for slander. The court (Melville, Ag. J.) held that although defamatory and malicious, the respondents comments were uttered during the course of the trial, on an occasion that was absolutely privileged, and accordingly the suit was dismissed.

On appeal, the appellant submitted that the words were not absolutely privileged since the appellant had at that moment ceased to be concerned with the proceedings of the court and the statements were not necessary for the protection of the accused.

The respondent submitted in reply that the rule of absolute privilege was founded on public policy, not the absence of malice, and consequently should be applicable so long as the comments were made in the course of the proceedings even if they were irrelevant or dominated by considerations unconnected with his clients interest.

Held, dismissing the appeal:

The rule of absolute privilege was designed to provide protection for any comments made in the course of the administration of the law, whether malicious or otherwise. Consequently, the respondent was entitled to protection from an action for slander, even though his

remarks were defamatory, irrelevant to his clients defence and not addressed to the court, since he was speaking as an advocate with reference to the proceedings in progress (page 77, line 15 page 78, line 4; page 79, lines 1328; page 79, line 32 page 80, line 13).

15	DUFFUS, P.: This appeal is from the judgment of Melville, Ag.
J. of the Grand Court of the Cayman Islands, on November 25th,
1964, in favour of the respondent.
The relevant facts are as follows: The appellant is a married
woman residing with her husband at Bodden Town and the
20	respondent is a barrister-at-law with chambers at Georgetown.
On January 16th, 1964, a sitting of the Grand Court before
Wilkie, Ag. J., was convened for the trial of Irwin Watler for
the offence of the attempted murder of Mostyn Bodden. The
respondent was engaged as counsel for Watler and the Clerk of
25	the Courts was proceeding to empanel the jury who were to try the
case. One Iris Bodden was called as a juror and the respondent
attempted to challenge her for cause on the ground that she was
the first cousin of the complainant Mostyn Bodden. Counsel for
the Crown objected to the respondent challenging for cause until
30	he had exhausted his peremptory challenges and the learned trial
judge thereupon directed the respondent that he should do so
before challenging for cause. Empanelling of the jury proceeded
and one Delva Ebanks was called, whereupon the respondent
challenged her on the ground that she was Mostyns sister-in-
35	law, whereupon counsel for the Crown again objected and the
learned trial judge again informed the respondent that he should
exhaust his peremptory challenges before challenging for cause.
The respondent informed the judge that he knew the correct
procedure and was sorry.
40	The appellant was then called and when her turn came to be
sworn as a juror, the Bible was passed to her, whereupon the

respondent said Challenge and she handed back the Bible and
started to return to her seat in court. In doing so, she had to pass
the table where the respondent was and as she passed by him she
bowed her head and said Thank you to the respondent who was
5	then sitting at the table. The appellant reached her seat which
seems to have been fairly close to counsels table and was about to
sit when the respondent twisted around in his chair, drew his
glasses down and pointed his left hand at her, at the same time
saying in a tone of voice which was clearly audible to a number of
10	persons in the crowded courtroom: Yes, I challenged you
because you are one of Mostyns girlfriends-Mostyns girl-
friend. Counsel for the Crown spoke to the respondent, saying:
Mr. Brandon, you cant do that. The appellant then said to the
respondent: I am going to make you prove that. At this stage,
15	there was a general uproar in court from the spectators and the
respondent made the further statement: Yes, you are Mostyns
woman. The appellant apparently did not hear these latter words
but they were heard by at least one witness. The judge then asked
the appellant to stand and asked her what had happened and she
20	related the incident, whereupon the judge enquired of the respon-
dent if he had spoken thus. The respondent said: Yes, she
insulted me when passing and I said something back to her.
The judge told the respondent that he was ashamed of him. The
court was called to order and the proceedings continued.
25	Later that day, the appellant consulted Mr. W.A. McLaughlin, a
law agent, who wrote to the respondent complaining that the
words uttered and published by him in the court amounted to
slander and warning him that unless he made an appropriate
apology within seven days the appellant intended taking legal
30	action. To this letter the respondent replied on the following
day at some length. He stated as follows:
Your client was on the panel of jurors and she was called
to sit in judgment on the said case as a juror for Mostyn
Bodden and Irwin Waller. I had been instructed to challenge
35	her, for she was an ex-girlfriend of Mostyn Bodden and could
not be expected to return an impartial verdict, and so I
challenged her for cause, the cause being that she was an
old friend of Mostyn Bodden. I did this conscientiously and
impersonally and arising out of my duty to my client as I saw
40	it. I have no remorse on this matter. I held the convictions then
and I did what I thought was the duty resting on my shoulders.

I claim absolute privilege in this matter as I did not even
know your client until that morning in the Grand Court. I had
no interest in your client nor in her business and I bore no
malice against her. Indeed, if the selfsame set of circum-
5	stances arose again in the same manner, I would be con-
strained by my duty to act again in a similar way and I
make no apologies as a consequence. My duty to my client
at all times comes first.
Action was then brought in the Grand Court in which the
10	appellant claimed the sum of 5,000 as damages for slander.
This action came on for hearing before His Honour Melville,
Ag. J. on November 14th, 1964. The appellant and her witness
gave evidence and the respondents solicitor, Mr. R.C. Livingston,
elected not to call evidence, resting his case on a submission that
15	what had been said by the respondent was absolutely privileged
and that no action could be maintained against the respondent
under any circumstances. The learned judge reserved judgment
and on November 25th, 1964 he gave a written judgment in which
he found that the words, which are set out earlier herein, were
20	spoken by the respondent and that they were defamatory of the
appellant and had been spoken maliciously as the respondent had
been irked when the plaintiff said Thank you, probably think-
ing that she meant to be sarcastic. The learned judge then went
on to consider whether the defence of absolute privilege applied,
25	and in the penultimate paragraph of his judgment stated as
follows:
That being the state of the law, can it be said that the
words were not uttered in the course of a judicial inquiry?
Some jurors had already been sworn, and immediately after
30	the furore and the defendant had been rebuked by the trial
judge, the empanelling continued and then the actual trial. It
is quite clear that in using the words, the defendant exceeded
his instructions . . . but in my view the words were uttered in
the course of the trial and though highly irrelevant and
35	nauseating, to say the least, they were spoken on an occasion
which was absolutely privileged. Accordingly, there must be
judgment for the defendant with costs to be taxed or agreed.
And then he concluded his judgment:
Had I been able to find for the plaintiff, I consider an
40	award of 1,000 to be a just and appropriate award in all the
circumstances.

It is against this judgment that the

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