EC Karl Blythe v Gleaner Company Ltd

• Jurisdiction: Jamaica
• Judge: ANDERSON J.
• Judgment Date: 12 May 2011
• Judgment citation (vLex): [2011] 5 JJC 1201
• Date: 12 May 2011
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2004 HCV- 1671

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2004 HCV- 1671

BETWEEN

E.C. KARL BLYTHE

CLAIMANT

AND

GLEANER COMPANY LIMITED

DEFENDANT

Action for Libel; whether words libelous on their face or by innuendo; whether if libelous, defendant may avail itself of defence of Qualified Privilege as extended by Reynolds v Times Newspapers Ltd; whether apology made fulfils the terms of section 2 of the Libel and Slander Act; whether Exemplary or Aggravated Damages appropriate in this case; whether damages for libel may be updated as in the case of damages for personal injuries; quantum of damages.

ANDERSON J

1 1) This is an action in libel occasioned by the publication by the defendant in its newspaper, The Daily Gleaner, on February 4, 2004, of an article on its front page entitled ‘Blythe's Firm Sued’. In that article written by Senior Reporter, Barbara Gayle, it was reported that ‘Blythe's firm’ was being sued by the National Housing Development Corporation (NHDC) for money borrowed by ‘his Company’, Central Westmoreland Trust Limited (CWTL). The Claimant says this publication defamed him and so he seeks damages; compensatory, aggravated and exemplary.

2 2) For convenience, I set out herein the relevant data on the protagonists in this drama. The claimant, Dr. Enoch C. Karl Blythe, is a well known politician and medical practitioner from the Parish of Westmoreland. He qualified as a doctor in 1980 and entered politics in or around 1985. Since his entry into that field, he has, on his evidence, served in varying positions in the party of his choice, the People's National Party (PNP). He has served as:-

• • Vice president to comrade Howard Cooke Region 6;

• • Member of the National Executive Council of the PNP;

• • Parliamentary Secretary in the Ministry of Education 1992,

• • Parliamentary Secretary in the Ministry of Health 1992-93,

• • Minister of State in the Ministry of Health 1993-95,

• • Minister of Water 1998-2000,

• • Minister of Water and Housing (2000-2002),

• • PNP Vice President from 1999-2006.

3 3) The defendant, The Gleaner Company Limited, once known as the ‘Old Lady of Harbour Street’, (but now, since 1969, of North Street), was established in or around 1834 and its main publication, the Daily Gleaner, is one of the oldest continuously published newspapers in the Western Hemisphere. Indeed, for many decades, it was the only regularly published daily newspaper in Jamaica and was so much a part of Jamaican culture, that there are anecdotes of Jamaicans abroad who, having migrated, seeking to purchase a newspaper, would ask to buy a ‘Gleaner’.

4 4) In its February 4, 2004 edition, the defendant published on its front page as the lead, a story which contained the following words now complained of by the Claimant:

‘The National Housing Development Corporation has sued Karl Blythe's Company , Central Westmoreland Trust Limited to recover $307 million arising from two loans in 2000. Blythe a former Minister of Water and Housing, is a shareholder and Director of the company.

The loan was acquired during the period that Blythe was in office and held portfolio responsibility for housing and the NHDC….

The money should have been repaid after a year, becoming due in November 2001…… Notice was served on the Trust on April 30 last year to repay the loans but the National Housing Development Corporation claimed that despite its demand for full repayment, the Trust has not complied. The Gleaner was unsuccessful in its attempts to reach Dr. Blythe for comments’.

5 5) In his submissions on behalf of the Claimant, counsel Mr. Greene submitted that the article is defamatory in that, read as a whole and given its natural and ordinary meaning, it would have conveyed to the ordinary and reasonable reader of the newspaper article, on reading the article once, that:

• • Dr. E. C. Karl Blythe personally owned the company CWTL, even though that entity was a company registered by guarantee;

• • Dr. E. C. Karl Blythe personally had shares in the entity and was entitled to a personal benefit as a shareholder;

• • Dr. E. C. Karl Blythe caused monies to be loaned to CWTL in the amount of some Three Hundred and Seven Million ($307m) from the NHDC,

• • He did so when he had Ministerial portfolio responsibility for the lending agency NHDC,

• • Dr. E. C. Karl Blythe Has not repaid the loan that his firm/company received; and

• • He and his firm/company had to be sued by the NHDC so as to recover this amount.

6 The Claimant's Case

7 6) The Claimant in his Claim Form and Particulars Claim avers that on the 4 ^th February 2004, the defendant ‘carelessly, recklessly and maliciously printed, published and edited, in the Daily Gleaner of that date an Article which was libelous of him’. The article which was, as noted above, captioned ‘Blythe's Firm Sued’ contained the words complained of and which have already been set out. It was alleged in the Claim Form that the words were published ‘knowing the said statements to be false and without belief in its truth and knowing that the same would be to the detriment of the Claimant's reputation in his professional duties as a medical doctor, a Member of Parliament and Vice President of the People's National Party in particular and the public in general’.

8 7) It was submitted by Mr. Greene for the Claimant that the article caused people to think that:

• • The Central Westmoreland Trust was a one-man company of which he was the owner.

• • He borrowed money for a company owned by him from the National Housing Development Corporation (hereinafter NHDC) whilst the NHDC was under his control as Minister of Water and Housing.

• • As owner he had not paid back monies that he owed to the NHDC.

• • He had borrowed money for his own use and benefit in abuse of his position of Minister of Water and Housing and was not paying this back.

• • He was the sole director and shareholder of the Central Westmoreland Trust (hereinafter CWT).

9 8) Counsel submitted that ‘the implication and indeed the innuendo was that he acted fraudulently and immorally and he lacked probity and integrity. His conduct was an abuse of his position and he caused taxpayer's money to be used for his own benefit; and as a consequence of all this. He was unfit to represent the people of Jamaica and to serve the Jamaican people as he had abused his position by utilizing public funds for his own benefit’.

10 The Evidence

11 9) Evidence was given by the Claimant on his own behalf and for the Defendant by the writer of the story, Ms. Barbara Gayle and Ms. Sheena Stubbs, an attorney-at-law employed to the Defendant.

12 The Claimant's Evidence

13 10) The Claimant denied that he was a shareholder in CWTL. It is not in dispute that CWTL was a Company limited by Guarantee without a share capital. The Claimant does not dispute that at the relevant time he was a subscriber and a director of CWTL. Indeed, he also claimed to have been the ‘initiator’ of the setting up of CWTL. He averred that the offending publication caused him distress and embarrassment and lowered him in the estimation of right thinking members of society. He also said that after the publication of the article, for example when he would slow down in traffic at traffic lights, persons would jeer him and mockingly ask for some of the money he had ‘stolen.’ He was of the view that the singling out of his name in the article was a deliberate attempt to impugn his integrity and destroy his reputation, sensationalise the story and boost sales. Further, it was his testimony that even members of his own family were affected by the reports and some were alleged to have cried, thinking that as a result of the allegations, he would be likely to end up in jail.

14 11) He indicated that he had not been contacted by the writer of the article and had that been done he would have been able to correct the factual inaccuracies including the allegation that he was still a director of the CWTL. He had to spend time assuring his constituents that the article was false. Some of them, having deposited money on lots in developments being undertaken in the constituency, then demanded the return of such sums.

15 12) The Claimant stated that on the day the article was published, he contacted the writer, Ms. Barbara Gayle and told her he ‘did not own the Trust’ and requested a retraction. He was asked to provide documents. There is evidence that on that day the Claimant spoke to an employee of the Defendant, one Adrian Frater, at which time he sought to indicate that he did not own CWTL and was a former director of the Trust. As a consequence of the discussion between the Claimant and Adrian Frater, a subsequent article was published on page 3 of the Gleaner on February 5, 2004. That article was captioned ‘I do not own firm: Blythe’, and is included in the bundle of agreed documents. It purported to correct errors of fact or implication (the ‘Correction Article’). Thus it said that the Claimant had denied that he was the ‘owner’ of the Trust and also denied that he was still a director thereof. However, no apology was published and the Claimant then contacted his lawyers who wrote to the managing director of the Gleaner, in a letter dated March 1, 2004 and marked for the attention of Mr. Oliver Clarke, demanding that an apology be published. The letter in the relevant paragraph provided as follows:

We demand an immediate apology from your company on the front page of the Daily Gleaner Publication in a format that is satisfactory to our client within seven (7) days of the date hereof. Dr. Blythe is also seeking damages from you for the injury you have caused him. May we therefore hear from you with a view to settle this matter.

Your failure to respond will leave us with no choice but to commence legal action against you to recover damages on behalf of Dr. Blythe.

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