Guardian Life Ltd v Christopher Dunkley

• Jurisdiction: Jamaica
• Judge: C. Barnaby, J
• Judgment Date: 09 April 2021
• Neutral Citation: [2021] JMSC Civ 63
• Docket Number: CLAIM NO. SU2019 CV 03141
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. SU2019 CV 03141

Between

Guardian Life Limited

Claimant

and

Christopher Dunkley

Defendant

IN CHAMBERS

Kevin Powell and Shanique Scott instructed by Hylton Powell, Attorneysat- Law for the Claimant.

Abe Dabdoub, Kayola Muirhead and Tiffany Sinclair instructed by Phillipson Partners, Attorneys-at-Law for the Defendant

Civil Procedure — CPR Rule 69.4 — Scope of the rule — Whether the words complained of by the Claimant are capable of bearing the meanings attributed to them in the statements of case.

C. Barnaby, J

INTRODUCTION

1 On the 18 ^th March 2021 the Defendant's Notice of Application for Court Orders came on for hearing before and a decision thereon was reserved to today's date. It follows the issue of a substantive claim for defamation and is made pursuant to r. 69.4. The Defendant seeks the following orders.

• 1. The words complained of by the Claimant are not capable of bearing the meanings attributed to them in the Claimant's Statements of Case and do not amount to defamation.

• 2. Claimant's claim be dismissed.

• 3. Cost of this application and costs be awarded to the Defendant.

• 4. There be such further and other relief as the court may deem just.

2 The issues which are to be determined on the application are whether the words complained of are defamatory and capable of the meanings attributed to them in the Claimant's statements of case. For reasons, which appear below, I find that both are answered in the affirmative.

BRIEF BACKGROUND TO THE SUBSTANTIVE CLAIM

3 Guardian Life Limited (GLL) is an insurance provider and a subsidiary of Guardian Holdings Limited (GHL), a member of the Guardian Group (GG) which carried on business throughout the Caribbean, including Jamaica and the Republic of Trinidad and Tobago. It has brought an action in defamation against the Defendant, an Attorney-at Law.

4 It is the Claimant's claim that on or about the 25 ^th January, the 26 ^th and 29 ^th April 2019, the Defendant published or caused to be published and republished words defamatory to it; putting it to expense and causing it to suffer loss and damage, including to its business reputation.

5 The progenitor of the dispute is a letter dated 25 ^th January 2019 written by the Defendant to the Acting Inspector of Financial Institutions at the Central Bank of Trinidad and Tobago (CBTT) and copied to the Financial Services Commission (FSC) in Jamaica.

6 The Defendant admits to writing and delivering the letter to the intended addressees who had been joined as interested parties in a claim between Mrs. Catherine Allen and GLL, following her dismissal as the latter's appointed actuary. The Defendant was among the Attorneys-at-Law representing Mrs. Allen in that claim and he contends as part of his defence, that the letter and the words complained of were matters appearing in the affidavit evidence filed in support of that claim.

7 It is not denied that the contents of the letter were subsequently published on a television station in Trinidad and Tobago by a reporter. The Defendant says the reporter had contacted him for confirmation of the authorship and content of the letter which she already had in her possession and had read to him verbatim. He confirmed both. He denies supplying her with the letter or authorising its reporting; that he published or caused the letter to be published or republished; or that the words in the letter are defamatory of the Claimant. He asserts, among other defences, that of absolute privilege.

APPLICABLE LAW

8 Pursuant to r. 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 capable of bearing the meaning or meanings attributed to them in the statements of case, the judge may dismiss the claim or make such other order or give such judgment in the proceedings as may be just.

9 Although each party referred to a number of authorities during the course of submissions, for which I express my gratitude, I have only found it necessary to refer to a few of them. Many of them and certainly those which appear in these reasons for decision, were approvingly referred to by Morrison JA (as he then was) in Deandra Chung v Future Services International Limited and Yaneek Page [2014] JMCA Civ 21, on which gboth parties relied. While that case is factually dissimilar from the instant case, the principles upon which the court proceed in determining the appeal against a decision made under rule 69.4 are equally applicable here.

10 On the history of rule 69.4 and the role of the court on an application thereunder, Morrison JA (as he then was) stated,

[38] … The rule has its origin in the former RSC Ord 82, r 3A, which was introduced in England in 1995. As Hirst LJ explained in Mapp v News Group Newspapers Ltd [1995] QB 520, 524, prior to the introduction of that rule, rulings as to the meaning of the words complained of in a libel action were traditionally sought and given at the trial itself, unless tried as a preliminary issue. Any earlier interlocutory proceedings were confined to a summons to strike out under RSC Ord 18, r 19, which applied “in plain and obvious cases”. After referring to Lewis and Another v Daily Telegraph Ltd and other authorities which established the principle that in actions for libel the question is what the words would convey to the ordinary man, Hirst LJ explained the purpose of the rule in this way (at page 526): “In my judgment, the proper role for the judge, when adjudicating a question under Ord. 82, r. 3A, is to evaluate the words complained of and to delimit the range of meanings of which the words are reasonably capable, exercising his own judgment in the light of the principles laid down in the above authorities and without any Ord. 18, r. 19 overtones. If he decides that any pleaded meaning falls outside the permissible range, it is his duty to rule accordingly. It will, as is common ground, still be open to the plaintiff at the trial to rely on any lesser defamatory meanings within the permissible range but not on any meanings outside it. The whole purpose of the new rule is to enable the court in appropriate cases to fix in advance the ground rules on permissible meanings which are of such cardinal importance in defamation actions, not only for the purpose of assessing the degree of injury to the plaintiff's reputation, but also for the purpose of evaluating any defences raised, in particular, justification or fair comment. This applies with particular force in a case like the present where there is a defence of justification of a lesser meaning than that pleaded in the statement of claim.” [ Emphasis added]

11 Skuse v Granada Television Ltd [1993] Lexis Citation 3931, [1996] EMLR 278 also provides helpful assistance to a court tasked with determining whether words are capable of a defamatory meaning in law. Sir Thomas Bingham MR stated the approach thus at pp 6–8,

(1) The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable viewer watching the programme [or reading the letter] once…

(2) “The hypothetical reasonable reader [or viewer] is not naive but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer, and may indulge in a certain amount of loose thinking. But he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory...