Deandra Chung v Future Services International Ltd and Another

• Jurisdiction: Jamaica
• Judge: Morrison JA,Phillips JA,Brooks JA
• Judgment Date: 13 June 2014
• Neutral Citation: JM 2014 CA 60
• Docket Number: CIVIL APPEAL NO 104/2012
• Court: Court of Appeal (Jamaica)
• Date: 13 June 2014

Between

Deandra Chung

Applicant

and

Future Services International Limited

1st Respondent

and

Yaneek Page

2nd Respondent

[2014] JMCA Civ 21

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

CIVIL APPEAL NO 104/2012

JAMAICA

IN THE COURT OF APPEAL SUPREME COURT

DEFAMATION - Words - Whether words were defamatory in nature - Civil Procedure Rules 2002, Rule 69.4

Nigel Jones and Miss Kashina Moore instructed by Nigel Jones & Co for the appellant

Abraham Dabdoub and Kevin Page instructed by Dabdoub, Dabdoub & Co for the respondents

Morrison JA

Introduction

1 Up to 6 February 2012, the appellant was employed to the 1 ^st respondent, a company of which the 2 ^nd respondent is a director, as senior client relations officer. On that date, the appellant resigned with immediate effect.

2 It is not in issue that on more than one occasion between 9 and 21 March 2012, in reference to the appellant, the respondents caused to be published in the Daily Gleaner, the Sunday Gleaner and the Star newspapers, the following words:

‘ NOTICE – The public is hereby advised that Miss Deandra Chung is no longer employed to Future Services International Ltd and is therefore not authorized to conduct any business on our behalf .’

3 In an action for libel filed as a result of these publications, the appellant contended that these words were defamatory of her. By an order made on 6 July 2012, D McIntosh J dismissed the appellant's claim, with costs, on the basis that the words complained of were not capable of bearing the meanings which the appellant had attributed to them in her statement of case. The single issue which arises on this appeal is whether the learned judge was correct in this determination.

The pleadings

4 In her particulars of claim filed on 10 April 2012, the appellant stated the following (at paras 26–27):

‘26. In their natural and ordinary meaning the said words meant and were understood to mean that the Claimant's termination of employment was such as to warrant notification to the public at large and that the Claimant was at the time (post resignation) engaging in conduct which was detrimental to the company and which warranted the public being warned.

27. Further in alternative [sic], the said words bore and were understood to bear the meaning pleaded in paragraph 26 above by way of innuendo.

PARTICULARS

It is commonly known by right thinking Jamaicans that such publications is [sic] warranted in circumstances where ex-employees are dishonest, thieves, fraudsters and are purporting the [sic] act for their ex-employers for the benefit of the ex-employees.’

5 In their defence filed on 24 May 2012, the respondents denied that the words complained of by the appellant were capable of bearing or bore the meanings pleaded by the appellant (paras 27–29):

‘27. The Defendants deny that in their natural and ordinary meaning the words complained of are capable of bearing the meaning attributed to them by the Claimant in Paragraph 26 of the Particulars of Claim.

28. The Defendants specifically deny that the words complained of mean or could be understood to mean that the Claimant's employment was terminated by the 1 ^st Defendant or that the termination of employment was such as to warrant notification to the public at large that at the time (post resignation) the Claimant was engaging in conduct which was detrimental to the company and which warranted the public being warned.

29. The Defendants aver and say that in their natural and ordinary meaning the words complained of meant and could only mean the following:

• (a) That the Claimant was no longer employed to the 1 ^st Defendant,

  and

• (b) That the Claimant was no longer authorized to conduct any business on behalf of the 1 ^st Defendant.

The Defendants further aver and say that the words in their natural and ordinary meaning could not and did not and could not possibly be taken by any reasonable man to mean, as the Claimant alleges, that her employment was terminated by the 1 ^st Defendant, that subsequent to termination her conduct was detrimental to the Company.’

The proceedings before D McIntosh J

6 By an application filed on 22 May 2012, the respondents moved the court, pursuant to rule 69.4 of the Civil Procedure Rules 2002 (“the CPR”), for orders that (i) ‘the words complained of are not capable of bearing the meaning or meanings attributed to them in the statement of case’; and (ii) the claim be dismissed.

7 Rule 69.4 of the CPR provides as follows:

• ‘69.4 (1) At any time after the service of the particulars of claim either party may apply to a judge sitting in private for an order determining whether or not the words complained of are capable of bearing a meaning or meanings attributed to them in the statements of case.

• (2) If it appears to the judge on the hearing of an application under paragraph (1) that none of the words complained of are [sic] capable of bearing the meaning or meanings attributed to them in the statements of case, the judge may dismiss the claim or make such order or give such judgment in the proceedings as may be just.’

8 The application was supported by an affidavit sworn to by the 2 ^nd respondent, in which she stated that, before the appellant's resignation, the 1 ^st respondent had projected her in its advertisements as one of the persons authorised to transact business on its behalf. Further, that after the appellant's unexpected resignation, she had made contact with some of the 1 ^st respondent's clients and had failed to return the identification card issued by the 1 ^st respondent, despite having been asked to do so. In these circumstances, the 2 ^nd respondent stated, the 1 ^st respondent had a right to advise the public that a person held out by it as a person capable of conducting business on its behalf was no longer its employee; and, as a director of the 1 ^st respondent, she had a duty to protect the 1 ^st respondent's business by advising the public that the appellant was no longer employed to or authorised to conduct business on its behalf.

9 In a brief affidavit in response, the appellant denied making any contact with the 1 ^st respondent's clients and explained that the identification card which had been issued to her had been lost by her and was never replaced. The appellant also relied on three affidavits sworn to by acquaintances of hers, all of whom spoke to having immediately assumed on reading the words complained of that the appellant was guilty of theft or some other illegal or unethical behaviour.

10 In a brief written judgment, the learned judge noted (at para. [3]) that (a) there was no denial by the respondents of the publication of the words complained of; and (b) the appellant had made no complaint that the publication ‘bears any falsehood’. The judge then resolved the application in this way (at paras [5]–[8]):

‘[5] The Claimant has ascribed certain meanings to the published words.

[6] The Defendant insists that the publication is truthful and in their [sic] natural and ordinary meaning are [sic] not capable of bearing the meaning attributed to them [sic] by the Claimant in her statement of claim and are therefore not defamatory.

[7] An examination of the authorities relied on by the Claimant does not detract or change the rules which were promulgated to jettison spurious claims for defamation where the words complained of consist of statements of fact which were true in substance and in fact.

[8] That being the case in this instance this court finds that the words complained of are not capable of being defamatory. They are true in substance and in fact.’

The appeal

11 The appellant filed three grounds of appeal:

‘a. The judge failed to consider whether the words complained of were capable of bearing a defamatory meaning pleaded by way of innuendo.

b. The judge failed to demonstrate that he considered the words complained of in the context of the Jamaican society and the meaning that would be ascribed to the words complained of by the average Jamaican.

c. The learned judge only directed his mind to whether the words complained of consisted of statements which were true in substance and in fact.’

12 On the first ground, Mr Jones for the appellant pointed out that the appellant in her particulars of claim had relied, not only on the natural and ordinary meaning of the words of which she complained, but also on their extended meaning by way of innuendo, particulars of which she had provided. Mr Jones submitted that it was clear that the judge had failed to demonstrate in his judgment that he had given any consideration to the innuendo meaning in coming to his conclusion on the application. On the second ground, Mr Jones contended that the judge had failed to approach the matter from the standpoint of the ordinary, reasonable and fair-minded Jamaican reader, as he was required to do. And on the third ground, which was really an extension of the first, it was submitted that, by directing his mind only to the question of whether the words were true in substance and in fact on their face, the judge had failed to consider whether the secondary meaning pleaded was defamatory.

13 In a general response to these submissions, Mr Dabdoub for the respondents submitted that, when considering an application under rule 69.4, the judge is required to apply an objective test to determine the natural and ordinary meaning which the words complained of would convey to the ordinary, reasonable and fair-minded reader. It was submitted that on this analysis, which was the one undertaken by the judge in this case, none of the words complained of was capable of bearing the meanings attributed to them by the appellant in the particulars of claim: to ascribe to those words the meanings...