Diandra Bramwell v Andrene Gibson

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Master Carnegie
• Judgment Date: 28 July 2023
• Docket Number: CLAIM NO. SU2020CV04392

Between

Diandra Bramwell

Claimant/Respondent

and

Andrene Gibson

Defendant/Applicant

[2023] JMSC Civ 157

Master Carnegie (AG)

CLAIM NO. SU2020CV04392

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

Civil Procedure — Specific Disclosure — Requirements for specific disclosure — Time for ordering Specific Disclosure — Whether the documents to be disclosed are directly relevant — Whether Specific Disclosure is necessary to dispose fairly of the claim or to save costs — Civil Procedure Rules 2002 (as amended) — CPR 1.1, 28, 34.1, 64.6 and 65.8 (3) — Defamation Act section 20(3) — General Consumption Tax Act sections 26 and 28

IN CHAMBERS

VIDEO CONFERENCE

Miss Georgia Hamilton instructed by Georgia Hamilton & Co. appeared for the Applicant/Defendant.

Mr. Lemar Neale instructed by Nea/ Lex appeared for the Claimant/Respondent.

Master Carnegie (AG)

1 On the 28 ^th day of July 2023, I delivered this judgment orally. Counsel for the Respondents requested leave to appeal and same was refused. Consequently, on request of Counsel that I provide my notes, I have decided to reduce my oral judgment to writing.

BACKGROUND

2 The Application at bar arose out of a Claim filed on November 13, 2020, by the Claimant (hereinafter referred to as the Respondent) to recover damages for defamation for various statements made by the Defendant (hereinafter referred to as the Applicant). Paragraph 6 of the Particulars of Claim reflect that on September 24 ^th 2020, the Defendant published or caused to be published via email to all the members of The Proprietors Strata Plan No. 2875, words which are false and defamatory. The Particulars of Claim highlighted the words considered false and defamatory in the email. Excerpts of the email and Particulars are reflected below–

EMAIL

“Proprietors,

… In our phone conversation you said you were upset because my AC was on all weekend. MY A/C CAN BE ON EVERY DAY OF THE YEAR, ALL DAY IF I CHOOSE. When I signed my mortgage there was no clause saying I would be under the finger of an English immigrant and a deceitful lawyer…”

PARTICULARS OF CLAIM

8. The said words were referred, referable and were understood to refer to the Claimant.

9. Further or alternatively, the said words bore and were understood to bear the meaning pleaded at Paragraph 6 above by way of innuendo as all members of The Proprietors, Strata Plan No 2785 to whom the said words were published would have, and in fact, understood the words complained of to bear the meanings set out herein.

10. The said words were calculated to disparage the Claimant in her profession as an Attorney-at-law, and as a member of the Jamaican Bar Association. The intended effect of the publication was to lower the Claimant in the estimation of right-thinking members of society generally or to expose her to public odium, contempt and ridicule.”

3 Consequently, the Respondent claims:

• 1. General Damages;

• 2. Aggravated and/or Exemplary Damages;

• 3. Interest at 1% above the commercial bank's lending rate pursuant to Section 3 of the Law Reform (Miscellaneous Provisions) Act;

• 4. Costs; and

• 5. Such further or other relief as the Court considers necessary or appropriate.

4 The Defence includes the paragraphs reflected below–

“…

7. In respect of paragraph 7, the Defendant will say the statement complained of meant the Claimant has been the Defendant will say that the statement complained of meant the Claimant has been known to her to mislead and be deceptive in their dealings during their attorney/client relationship and in her role as the Secretary of the Strata Committee.

8. If which is not admitted the statement further meant the meanings alleged at paragraph 7 of the Particulars of Claim, the Defendant will say that the said words are not materially different from the truth.

9. In its natural and ordinary meaning as set out in paragraph 7 hereof, the statement is substantially true and/or not materially different from the truth and if any of the words in the Defendant's statement are not proven to be true such words do not materially injure the Claimant's reputation having regard to the truth of the remaining portions of the Defendant's statement.

Particulars of Mistaken/Misleading Impression Given by the Claimant to the Defendant and which were later discovered by the Defendant to be misleading or untrue

…

b. Mis/representing as at 3 July 2019 and again on 18 September 2019 that she had jurisdiction to waive GCT charges due on legal fees payable to her on account of representing the Defendant's interests in the said transactions;

…

10. In respect of paragraphs 8, 9 and 10 of the Particulars of Claim, paragraphs 7, 8 and 9 of this Defence are repeated.

11. If necessary, in response to this claim, the Defendant will rely on section 20(3) of the Defamation Act, 2013.

PROCEDURAL HISTORY

5 The procedural history of the Claim thus far–

• 1. The Defence was filed June 15 ^th 2021;

• 2. A Reply to the Defence was filed on June 29 ^th 2021.

• 3. Report of Mediation filed March 29 ^th 2022, indicating that Mediation was unsuccessful.

• 4. A Case Management Conference was set for May 29 ^th 2023, where on said date the matter was adjourned to July 19 ^th 2023, with a notation that the Application for Court Orders filed May 4 ^th 2023 to be served on the Respondent.

• 5. An Amended Notice of Application for Court Orders of the Application for Court Orders filed May 4 ^th 2023 was filed on July 4, 2023, which reflected the following orders sought by the Applicant–

  • (a) That the Respondent make a specific disclosure of the General Consumption Tax (GCT) number for the Claimant as at 3 ^rd July 2019 and 18 ^th September 2019 and the date the Claimant was registered as a GCT paying person; and disclosure and inspection of the Claimant's GCT Certificate of Registration covering the period 3 ^rdJuly 2019 to 18 ^th September 2019 and Claimant's GCT return for that period.

  • (b) The proceedings herein stayed pending the hearing of the Notice of Application for Court Orders and the Respondent's compliance with any orders made herein for specific disclosure and inspection.

  • (c) That the time for hearing of this Notice of Application be abridged

  • (d) That costs herein and costs associated with this Application be awarded to the Defendant.

  • (e) That there be such further and/or other relief as this Honourable Court deems just.

6 The grounds on which the Applicant seeks the foregoing orders are–

• i. On the 1 ^st of February 2022, the Defendant served the Claimant with a Request for Information & Disclosure dated 1 ^st February 2022 seeking confirmation of the Claimant's GCT registration and compliance for the period of July 2019 to September 2019 during which the Claimant represented the Defendant in the purchase of a property which is relevant to the subject matter of this claim.

• ii. That the Claimant has failed/or refused to disclose and or provide the requested documents and information, and the Defendant verily believes that this information is critical to the question of whether the Claimant misrepresented herself as GCT compliant at the material time, thus substantiating the Defendant's defence of truth;

• iii. The Defendant is unable to obtain the requested information from the Respondent without Court's intervention and has no other means of obtaining the requested information;

• iv. The Defendant is of the view that the disclosure of the said documents is necessary in order to fairly dispose of the claim herein and/or save judicial costs, as the information therein is crucial to substantiating the Defence filed therein.

• v. The granting of the orders herein will enable the Court to deal with the matter expeditiously and fairly and is in keeping with the overriding objectives of this Honourable Court; and

• vi. The granting of the orders herein is in the interests of justice.

7 The Respondent's submission in response to the Application was filed July 18 ^th 2023.

SUBMISSIONS

8 The submissions made on behalf of the Parties both oral and written are summarised accordingly.

The Applicant

9 The Applicant is asserting that, among other things, when the term “deceitful lawyer” was used the Applicant meant to convey that during her course of dealings, with the Respondent, the Respondent has been known to mislead and be deceptive. Counsel asserted that such, started when the Respondent represented the Applicant in the purchase of a unit in PSP 2875.

10 The submission on behalf of the Applicant was that one of the ways the Respondent misled the Applicant during their dealings while she represented her as an attorney-at-law, was by holding out herself as someone who deals with GCT. Counsel's submission was that this was not so and that the Respondent mislead the Applicant into thinking she had waived GCT charges reflected on her invoices. Counsel relied on exhibits which indicated that there was a fifty per cent (50%) mark down on the transaction for the unit in PSP 2875.

11 It was further advanced by Counsel that the Respondent's Reply to the Defence filed is to assert that at no time did she give the impression that she had the authority to waive GCT, and that no GCT was charged to the Applicant. Counsel submitted that on the 1 ^st of February 2022, the Applicant served a Request for Information on the Respondent, in respect of the Respondent's GCT status. To date the Respondent has not acted on the Request for Information.

12 Counsel drew reference to CPR 11.3(1) which states–

“So far as is practicable all applications relating to pending proceedings must be listed for hearing at the at case management conference or pre-trial review.”

13 Counsel relied on CPR 28.6 and 28.7 in support of the grounds for orders for specific disclosure and case law. In support, Counsel for the Applicant relied on the decisions of Jamaica Association of Composers Authors...