Careif Ltd and Another v Jamaica Observer Ltd
| Jurisdiction | Jamaica |
| Judge | Straw, J. |
| Judgment Date | 30 July 2013 |
| Neutral Citation | [2013] JMSC Civ 108 |
| Docket Number | CLAIM NO. 2010 HCV 04315 |
| Court | Supreme Court (Jamaica) |
| Date | 30 July 2013 |
[2013] JMSC Civ. 108
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2010 HCV 04315
and
Interlocutory Application — Defamation — Whether Words Capable of Defamatory Meaning — Whether Defence Statement of Case Properly Pleaded — Qualified Privilege
[1] Mr. Anthony Tharpe, the claimant, is a self represented litigant who has taken on the herculean task of this action, claiming damages on behalf of himself and Careif Ltd, the 1 st claimant, against Jamaica Observer Limited, the defendant. In the forty odd page particulars of claim, he alleges that the Jamaica Observer published defamatory words on the 7 th May 2008 contained in a story concerning both claimants bearing the headline ‘CAREIF CRASHES’.
[2] The Jamaica Observer filed a defence to this action on the 27 th October 2010. A case management date was scheduled for the 29 th June 2011 and further adjourned to the 19 th October 2011. On the 29 th of September 2011, the claimants filed an Amended notice of application requesting several orders from the court as follows:
1] An order pursuant to rule 69.4 of the Civil Procedure Rules 2002 [CPR] as to whether the words complained of in the publication are capable of bearing the meanings attributed to them in the particulars of claim, whether they are capable of being defamatory of the claimants or capable of bearing any other meaning defamatory of the claimants.
2] That the defence be struck out for failure to comply with Part 10.5 of the CPR and for failing to disclose any reasonable grounds for defending the claim, in particular, whether the defences of justification, fair comment and qualified privilege are properly pleaded in accordance with rule 10.5 of the CPR.
3] That the pleas of justification and fair comment on a matter of public interest in general and paragraph 37 in particular be struck out for failure to comply with rule 69.3 [c] of the CPR and in any event for failing to disclose any or reasonable grounds of defence.
4] That paragraphs 38 and 39 of the Defence be struck out for failure to disclose a reasonable ground of defence pursuant to rule 26.3 [1] [c] of the CPR.
[3] An amended defence was filed on the 18 th October 2011, the day before the scheduled case management conference. Mr. Tharpe has also challenged the status of the amended defence.
[4] There are several issues for the court's determination. Mr. Tharpe relied on written submissions contained in the Further Amended Legal Submissions filed on 8 th June 2012 and also oral submissions. Mr. Charles Piper, who appeared for the defendant, relied on oral submissions.
[5] Mr. Tharpe contends that in the face of the claimants' application to strike out the defence, the defendant is obliged to satisfy the court that the said defence has a real prospect of success. He is relying on consolidated appeals Nos. 112, 115, 116 AND 117 of 2008 , Pan Caribbean Financial Services Ltd v Robert Cartade and Others [per Harrison JA who approved the application of this principle by Brooks J, the trial judge [as he then was] at paragraph 74–76] .
[6] In relation to the above submission, it is to be noted that the application for the amendment in the above case was made at the case management conference itself. At that stage, the permission of the court is required [per rule 20.4[ 1] of the CPR]. In the case at bar, the amendment preceded the hearing date and the permission of the court is not required unless the amendment breaches relevant limitation periods [per rule 20.1 of the CPR]. This is not an issue in the case under consideration.
[7] The court, however, has an overriding discretion to disallow such an amendment [per rule 20.2 [1]. At any rate, even if the court is required to assess the prospect of success of the amended defence, the court considers, firstly, the extent of the differences between both defences.
[8] Except for the section entitled particulars on page 13 of 14 of the original defence, the differences between the original and amended defence are all underlined in the amended version. Most of the amendments are words added in various paragraphs e.g, paragraph 8 where these words are added “because we do not know if the allegation is true”. Paragraph 19 contains the most substantive amendments. It is an additional paragraph. It refers to a letter dated September 20, 2011 from the Financial Services Commission [FSC] to the defendant. This letter was not mentioned in the original defence. Page 13, which incorporates paragraph 37 b to e and paragraph 39 of the original defence avers the defence of fair comment and justification respectively.
[9] In relation to paragraph 19, Mr. Tharpe has submitted that the defendant is not allowed to rely on material to justify the published words that has arisen after the publication. The authorities support his submissions. Chase v Newsgroup Newspapers Ltd. [2002] EWCA Civ 1772, Lord Justice Brooks, paragraph 30. However, the fullness of the principle is not clear as Lord Justice Brooks described it as a general rule: [paragraph 52,55]
——-a defendant may not rely on matters which occurred after the date of publication complained of in order to support a plea that there were, objectively speaking, reasonable grounds for suspecting that the claimant performed the actions attributed to him —
Although there appears to be no authority directly on point, the same principle seems to be properly applicable when the meaning sought to be justified is that there were reasonable grounds at the date of publication to suspect that the claimant was guilty of the matters attributable to him/her .
[10] The reference in paragraph 19 to public notices by the Financial Services Commission [FSC] by way of print media dated subsequent to 7 th May 2008 should therefore be struck out.
This holds true also for these words appearing below paragraph 18 d:
The first claimant was in fact blacklisted by the Financial Services Commission by notices to the public dated January 1, 2010, May 12, 2010 .
References to these notices which also appear at paragraph 18 e ii and iii are also to be struck out.
[11] It is to be noted also that the defence of fair comment and justification which appeared at paragraphs 37 and 39 of the original defence have been removed from the amended defence. In order to rely on the defence of fair comment, the amended defence must conform to rule 69.3.The defendant would therefore be unable to rely on any such defence by virtue of the amendment.
[12] Secondly, at this stage of the proceedings, without embarking on a mini trial, the court cannot say that the amended defence has no realistic prospect of success. The major issue [in relation to the amendment] is contained within the said paragraph 19. Whether Careif Ltd was an alternative investment club under investigation by the FSC, and whether it was blacklisted by that organization can only be determined after witness statements have been filed. Apart from the pleadings ordered to be struck out, the amended defence is allowed to stand.
[13] A second issue for determination is whether the words complained of are capable of bearing the meanings attributed to them in the particulars of claim, whether they are capable of being defamatory or capable of bearing any other meaning defamatory of the claimants.
[14] Mr. Piper has submitted that the court ought not to engage in such an exercise at this time as a substantial part of the particulars speak to issues relevant to establishing the reputation of the claimants prior to the date of publication. The claim is a significant one in terms of the assessment of damages. The defendant filed an application dated 12 th October 2011 for specific disclosure in relation to the business dealings of the claimants who had previously refused their request for information on the basis of irrelevance. This application has not yet been heard.
[15] Mr. Piper has also submitted that the claimants are asking the court to determine defamatory meanings, but whether the words are defamatory has to be considered against the background of the claimants' refusal to provide particulars of the allegations on which they claim the good reputation is based. It is his view that the court is being asked to determine issues when there is material that should be disclosed by the claimants that would be helpful to determine the issues.
[16] The particulars of claim sets out the passages complained of from the published article at paragraph 11. Paragraph 14 a to z and [aa] and paragraph 15 a to e list the defamatory meanings attributed by the claimants.
[17] While I would agree with Mr. Piper that certain orders sought by the claimants should await the application for specific disclosure, it is to be noted what the rules actually entitle the court to do. It is not to decide whether the words are actually defamatory of the claimants, which is the function of the jury, but whether they are capable of the defamatory meanings attributed. To this extent, it would appear that the exercise is somewhat futile and fragmented, bearing in mind the scope of the issues, but to the extent the court can assess this issue, it will do so
[18] Rule 69.4 [ 1] of the CPR allows the court to consider an application made by either party after the particulars have been filed for:
an order determining whether or not the words complained of are capable of bearing a meaning or meanings attributed to them in the statement of case.
[19] The court is therefore limited to an...
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