Christopher Dunkley v Guardian Life Ltd

• Jurisdiction: Jamaica
• Judge: P Williams JA,Simmons JA,V Harris JA
• Judgment Date: 05 May 2023
• Neutral Citation: JM 2023 CA 51
• Docket Number: SUPREME COURT CIVIL APPEAL NO COA2021CV00063
• Court: Court of Appeal (Jamaica)

Between

Christopher Dunkley

Appellant

and

Guardian Life Limited

Respondent

[2023] JMCA Civ 26

Before:

THE HON Miss Justice P Williams JA

THE HON Miss Justice Simmons JA

THE HON Mrs Justice V Harris JA

SUPREME COURT CIVIL APPEAL NO COA2021CV00063

IN THE COURT OF APPEAL

Civil Law — Defamation — Defence of absolute privilege — Defence pursuant to the Protected Disclosures Act 2011 — Tortious interference with attorneyclient relationship — Litigious interference with attorney-client relationship — Dispensing with mediation

Appearances:

Written submissions filed by Phillipson Partners for the appellant

Written submissions filed by Hylton Powell for the respondent

PROCEDURAL APPEAL

(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)

P Williams JA

1 On 22 June 2021, Hart Hines J (Ag), as she then was (‘the learned judge’), struck out a number of paragraphs of the amended defence and the counterclaim along with the counterclaim itself, which had been filed by Mr Christopher Dunkley (‘Mr Dunkley’), in response to a claim that had been filed against him by Guardian Life Limited (‘GLL’) for defamation. In so doing, the learned judge agreed with GLL that the portions of the amended defence, which relied on the Protected Disclosures Act 2011 (‘the Act’), the defence of absolute privilege and which challenged the court's jurisdiction, disclosed no real prospect of success. She also was satisfied that the amended counterclaim disclosed no reasonable grounds for bringing a counterclaim.

2 Mr Dunkley has appealed this decision asserting that the learned judge erred in her understanding of absolute privilege, especially in the context of communications with the regulators of the industry in which GLL operated. He also contended that the learned judge erred in her consideration of whether the protections in the Act were available to him. Mr Dunkley further argued that the learned judge's assessment of whether tortious interference with attorney-client relationship had occurred was misguided as he had, in fact, pleaded the tort of litigious interference with attorneyclient relationship. Additionally, Mr Dunkley took issue with the learned judge's refusal to dispense with mediation, having, he said, dismantled his defence and struck out his counterclaim.

Factual background

3 Mr Dunkley is an attorney-at-law who was instructed by Mrs Catherine Allen (‘Mrs Allen’) in respect of her dispute with GLL. She was dismissed from the position of vice president and the appointed actuary with GLL on or about 15 August 2018. On 3 September 2018, she filed a claim in the Supreme Court against GLL and others, challenging her dismissal and alleging a breach of duty of mutual trust and confidence, fraud committed by GLL and its president, and breach of the code of professional conduct by Eckler Limited (a business that provided actuarial consulting and related services). Among the issues she raised in her claim was the release of GLL's reserves, which she alleged were altered without her authority, approval and/or consent, and a misrepresentation by GLL to the Financial Services Commission (‘FSC’) that she had authorised the release of the reserves.

4 On 25 January 2019, Mr Dunkley wrote a letter to the Central Bank of Trinidad & Tobago (‘CBTT’), the financial services' regulatory body in Trinidad & Tobago, which was copied to the FSC. GLL alleged that some of the statements made in the letter were defamatory. GLL also alleged that Mr Dunkley caused the letter to be republished to a journalist in Trinidad & Tobago, which resulted in the letter being further republished in a nationally televised news report in Trinidad & Tobago. On 31 July 2019, GLL filed a claim in the Supreme Court against Mr Dunkley seeking damages for defamation, aggravated damages, interest, an injunction barring further publication of the alleged defamatory statements and costs.

5 Mr Dunkley filed an amended defence and counterclaim on 30 April 2021, in which he asserted an entitlement to the defences of truth, fair comment, qualified privilege, absolute privilege, and public interest immunity pursuant to the Defamation Act and the common law. In his counterclaim, Mr Dunkley claimed against GLL for torts of litigious interference with the attorney-client relationship and abuse of process. He claimed special damages for $7,500,000.00, representing loss of future earnings through the termination of his legal services by Mrs Allen. He also claimed general damages for constraining him from exercising his privilege as an attorney-at-law in good standing to faithfully act on behalf of Mrs Allen by bringing this claim for defamation, thereby bringing the cessation of the client/attorney relationship between them. He further claimed aggravated and exemplary damages, costs and attorneys' costs.

The application to strike out the counterclaim and parts of the defence

6 On 12 November 2019, GLL filed an application to strike out the counterclaim and sections of the defence. In its application, GLL sought the following orders:

• “1. The court dispense [sic] with automatic referral to mediation of the claim or counterclaim, or alternatively dispense with automatic referral to mediation of the counterclaim.

• 2. Paragraphs 14(ii) 24, 35, 40, and 45, subparagraph (i) under the heading ‘Particulars of Absolute Privilege’ of the defence be struck out as disclosing no reasonable grounds for defending the claim and/or as being likely to obstruct the just disposal of the proceedings.

• 3. The counterclaim be struck out as disclosing no reasonable grounds for bringing a claim and/or as being likely to obstruct the just disposal of the proceedings.

• 4. Alternatively, that paragraphs (iv) and (v) of the relief claimed in the counterclaim be struck out as disclosing no reasonable grounds for bringing the claim for them.”

7 Paras. 14(ii), 24, 35, 40, and 45 of the amended defence are as follows:

“14. [Mr Dunkley] expressly denies the words [GLL] extracted from the letter at issue (per its paragraph 5) were defamatory, and will say that;

…

(ii) [Mr Dunkley] acted in his capacity/role as an Attorney-at-law/Counsel for Mrs Allen and on her instructions when the letter at issue was written, not published, to the CBTT and copied only to FSC, consistent with the protection of his client's rights under [the Act].

…

24. In further response to paragraph 8 of the Particulars of Claim, [Mr Dunkley] will say that the above averments in the Allen Claim are a matter of record which [Mr Dunkley] will rely on for their full terms, interpretation and effects, and that the only recipients of the subject letter were the addressees of the said letter, being the CBTT and the FSC, the interested parties to the Allen Claim, consistent with the protection of his client's rights under [the Act].

…

35. [Mr Dunkley] will nonetheless raise the issue of jurisdiction regarding this Claim for Defamation, limited to the Trinidadian aspect of its complaint.

40. [Mr Dunkley] repeats paragraph 14(iii) of this Defence that he held the honest belief that the complaints raised against [GLL] in Mrs Allen's Claim were carefully considered as credible and worthy of investigation by the CBTT and the FSC, and in keeping with the mandate of both as regulators of financial services in their respective jurisdictions and dispatched to both in a manner consistent with the protection of his client's rights pursuant to [the Act].

…

45. [Mr Dunkley] repeats that the letter at issue, written on behalf of [his] client, Mrs Allen, referenced the Allen claim, which complaints were known to both recipients as named parties to that Claim, and in the furtherance of their respective mandates of due diligence on the financial dealings of two of its regulated entities, and dispatched in a manner consistent with the protection of his client's rights pursuant to the tenets of [the Act].”

8 Although in its application GLL stated that it was also seeking to have “subparagraph (i) under the heading ‘Particulars of Absolute Privilege’ of the defence” struck out, the learned judge, at para. [15] of her reasons for judgment, referred to para. 54 of the amended defence under the heading ‘Particulars of Absolute Privilege & Public Interest Immunity’. It was apparent that the reference in the application was to the paragraph as it originally appeared in the defence, but the learned judge focused on the paragraph as it appeared in the amended defence. Para. 54 in the amended defence stated:

• “i) [Mr Dunkley's] letter of January 25, 2019 written on behalf of [his] client Mrs. Allen was communicated to the regulatory authorities, the CBTT and FSC in a manner consistent with the tenets of [the Act] and is therefore subject of Absolute Privilege.

• ii) [Mr Dunkley's] letter of January 25, 2019 with the ongoing Allen Claim (Claim No 2018 CD 00503 Catherine Allen v Guardian Life Limited et al) as its subject, was written to the CBTT and copied to the FSC, both named interested parties to the Allen Claim and was therefore on an occasion of absolute privilege.

• iii) [Mr Dunkley's] letter of January 25 2019 was written by him as attorney at law in discharge of his duty to his client, Mrs. Allen, whose claim concerned matters within the scope of the oversight responsibilities of the CBTT and the FSC as regulators statutorily empowered by the Financial Services Commission Act, 2022, and the Central Bank Act 2015, respectively, with their own investigative process.

• iv) [Mr Dunkley's] letter of January 25, 2019 referencing Mrs. Allen's claim and her complaints therein was written and delivered to the CBTT and copied to the FSC on an occasion of absolute privilege and therefore [Mr Dunkley], as Attorney-at-law for Mrs Allen, is protected by public interest immunity from suit necessary for the due administration of justice.

• v) In light of the letter's subject matter and the...