DeFreitas (Paget), Clovis Brown and Jamaica Observer Ltd.v Enoch Karl Blythe

• Jurisdiction: Jamaica
• Judgment Date: 01 October 2010
• Judgment citation (vLex): [2010] 10 JJC 0102
• Date: 01 October 2010
• Court: Court of Appeal (Jamaica)

[2010] JMCA Civ 35

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE PANTON, P THE HON. MR JUSTICE MORRISON, J.A THE HON. MR JUSTICE BROOKS, J.A. (Ag.)

BETWEEN

PAGET DeFREITAS

1 ^ST APPLICANT

AND

CLOVIS BROWN

2 ^ND APPLICANT

AND

THE JAMAICA OBSERVER LIMITED

3 ^rd APPLICANT

AND

ENOCH KARL BLYTHE

RESPONDENT

Winston Spaulding, QC and Charles Piper for the applicants

Canute Brown and L. Jack Hines for the respondent

CIVIL PROCEDURE - Privy Council - Leave to appeal - Libel - Qualified privilege

1 The following are our reasons for refusing, on 30 July 2010, an application by the applicants herein for leave to appeal to Her Majesty in Council in respect of an order made by this court (Panton, P., Cooke and Morrison, JJA) on 30 July 2009. The latter order was in the following terms:

"Application to discharge order of single judge granted. Order of the court below is reinstated. Costs of this application to the applicant to be agreed or taxed. Matter to proceed in the Supreme Court in the usual way."

2 By an amended writ of summons and endorsement, filed in the Supreme Court on 14 September 2000, the respondent herein is seeking damages for libel which he says is contained "in an article and cartoon appearing in the editorial on page eight of the Sunday Observer dated the 14 ^th day of November 1999 entitled "A blighted prospect"?, written and published by the Defendants." The article has been reproduced in the statement of claim. In their amended defence, the applicants deny that the article has a defamatory meaning. They also plead that the occasion was one of qualified privilege on a matter of public interest, and that the words and cartoon were not published maliciously. In his reply, the respondent counters that the words and cartoon complained of were published maliciously, and he sets out particulars from which he claims malice may be inferred.

3 It is the reply filed 8 May 2008 that has given rise to the present proceedings. Hibbert J had, on 30 April 2008, granted leave to file the reply out of time, and to serve it within seven days. On 11 March 2009, Harrison JA, sitting as a single judge of this Court set aside the order of Hibbert J but on 30 July 2009 the court unanimously discharged the order of Harrison JA and directed that the matter was to proceed in the usual way in the Supreme Court.

4 Morrison JA in delivering the judgment of this court, said that it is clear that"... as a matter of law, malice is not an ingredient of the cause of action for libel and there is accordingly no necessity to plead it,..." (para. 15). Given that fact as well as there not being a duty to anticipate the defence, the court concluded that it was entirely appropriate for the respondent to respond by alleging malice in the reply, rather than by way of amendment of the particulars of claim. The court concluded that rule 10.9 (1) of the Civil Procedure Rules which permits a reply is sufficiently general in its terms to embrace a reply to allege malice in defamation proceedings. The court further concluded that the right of reply is not affected by rule 69.2(c) which deals solely with the giving of particulars in support of an allegation of malice in particulars of claim or in a counterclaim. Morrison JA indicated that there was nothing placed before the court to suggest that Hibbert J had exercised his discretion by applying any incorrect principle or by taking into consideration irrelevant matters.

5 Against this background, the applicants, while conceding that this is strictly a procedural matter, nevertheless submitted that this was a matter of "great general or public importance". Of course, for the application to have succeeded, this Court would have had to share that opinion too. Section 110(2) of the Constitution provides in part:

"An appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council with the leave of the Court of Appeal in the following cases -

• (a) where in the opinion of the Court of Appeal the question involved in the appeal is one that, by reason of its great general or public importance or otherwise, ought to be submitted to Her Majesty in Council, decisions in any civil proceedings;"

6 In the relisted notice of motion...