Hon Gordon Stewart OJ and Others v Independent Radio Company Ltd and Another

• Jurisdiction: Jamaica
• Judge: Harris JA,McIntosh JA,Hibbert JA (Ag),Mcintosh JA
• Judgment Date: 17 February 2012
• Neutral Citation: JM 2012 CA 17,[2012] JMCA Civ 2
• Date: 17 February 2012
• Docket Number: SUPREME COURT CIVIL APPEAL NO 9/2011
• Court: Court of Appeal (Jamaica)

Between

Hon Gordon Stewart Oj

1st Appellant

and

Christopher Zacca

2nd Appellant

and

Air Jamaica Acquisition Group Limited

3rd Appellant

and

Independent Radio Company Limited

1st Respondent

and

Wilmot Perkins

2nd Respondent

[2012] JMCA Civ 2

Before:

The Hon Mrs Justice Harris JA

The Hon Mrs Justice McIntosh JA

The Hon Mr Justice Hibbert JA (Ag)

SUPREME COURT CIVIL APPEAL NO 9/2011

JAMAICA

IN THE COURT OF APPEAL

Donald Scharschmidt QC and Jerome Spencer instructed by Patterson , Mair , Hamilton for the appellants

Michael Hylton QC and Miss Carlene Larmond instructed by Michael Hylton and Associates for the respondents

Harris JA

1 I have read in draft the judgment of my brother Hibbert JA (Ag). I agree with his reasoning and conclusion and have nothing further to add.

McIntosh JA

2 I too have read the judgment of Hibbert JA (Ag) and agree with his reasoning and conclusion.

Hibbert JA (Ag)

3 The appellants in 2009 filed a claim in the Supreme Court against the respondents and in the amended claim form filed on 24 August 2010, claimed damages for defamation ‘arising from a number of publications maliciously and falsely made by Wilmot Perkins on the programme Perkins-On-Line broadcast by Independent Radio Company Limited on the radio station Power 106 FM over an extended period, particularly from the year 2004 to 2008 which were defamatory of the claimants personally and in the way of their business’.

4 Paragraph 43(a) of the amended particulars of claim stated:

‘The 1 ^st Defendant's station broadcast the contents of a parliamentary speech made by a member of the House of Representatives Mr. Andrew Gallimore on the 28 ^th June 2005. This presentation assailed the 3 ^rd Claimant's management team in an unjustifiable manner. This had occurred while there was a pending case in Miami between Mr. Andrew Gallimore's brother, Miguel Gallimore against Air Jamaica arising from an incident, which occurred when the 3 ^rd Claimant was in control of Air Jamaica's management and in which Andrew Gallimore had abused his parliamentary privilege. The 1 ^st Defendant's station has been energetic and highly motivated in promoting the contents and sentiments of the speech and promotion of its accusations against the Claimants by repeating them outside of Parliament.’

5 On 13 July 2010 the appellants again sued the respondents, claiming among other reliefs the following:

‘1. Damages for libel in respect of the republication of a speech, and or parts thereof, presented in the Houses of Parliament by Andrew Gallimore, M.P. on June 28, 2005.’

6 Paragraph 20 of the particulars of claim stated:

‘On July 29, 2005, the 2 ^nd Defendant, while hosting his radio programme ‘Perkins On Line” on Power 106, which was aired on the internet as well, falsely and maliciously republished a speech, or parts thereof, presented in the Houses of Parliament on June 28, 2005 by the current State Minister in the Ministry of Labour and Social Security, Andrew Gallimore, M.P. which was defamatory of the Claimants. At the time of the speech, Minister Gallimore was the M.P. for West Rural St. Andrew, the Jamaica Labour Party's parliamentary whip and shadow cabinet secretary.’

7 On 8 October 2010 the respondents filed an application seeking an order:

‘1. That the Claim Form and Particulars of Claim dated July 12, 2010 be struck out.’

The grounds upon which the application was based were:

• ‘(a) Rule 26.3(1) (b) of the Civil Procedure Rules, 2002 provides that the court may strike out a statement of case if the statement of case is an abuse of the process of the court.

• (b) The Claimants in these proceedings are advancing the same claim and seeking the same relief that they advanced and sought against the Defendants in Claim No 2009 HCV 02971 filed on June 9, 2009.

• (c) The claim is therefore an abuse of the court's process.’

8 On 13 January 2011 when the application to strike out the claim dated 12 July 2010 and filed on 13 July 2010 came up for hearing before Miss Paulette Williams, J, the appellants took a preliminary objection to the hearing of the respondents' application. The appellants argued that in keeping with the provisions of Part 74 of the Civil Procedure Rules (CPR) the matter must first be referred to mediation. The learned judge rejected the preliminary objection and proceeded to hear the application. At the conclusion of the hearing the learned judge made the following orders:

• ‘1. The Claim Form and Particulars of Claim dated July 12, 2010 be struck out.

• 2. Costs to the Defendants on the claim to be taxed if not agreed.

• 3. Leave to appeal granted in respect of all orders made.’

9 It is from these decisions that the appellants have appealed. They have relied on the following grounds of appeal:

• ‘(1) The Learned Judge erred in relying on the overriding objective in circumstances when the situation was dealt with by the clear and unambiguous language of Rule 74.4 of the CPR.

• (2) The Learned Judge erroneously concluded that she had the power to dispense with mediation without following the provisions of Rule 74.4 and Rule 26.1 (8) of the CPR.

• (3) In determining that the overriding objective was applicable, the Learned Judge fell into error in deciding that hearing the application to strike out the claim rather than allowing the matter to proceed to automatic mediation was more in keeping with the overriding objective.

• (4) The Learned Judge wrongly found that Claim No. 2009HCV39721 included a claim for defamation against these Respondents arising out of the republication or repetition of the speech made by Minister Gallimore and therefore the pursuit of the claim below was an abuse of process.’

10 Before this court Mr Spencer submitted that, although rule 1.2 of the CPR provides that, ‘The court must seek to give effect to the overriding objective when interpreting these rules or exercising any powers under the rules’, this cannot be used to defeat the clear and unambiguous provisions of the CPR.

11 He further submitted that the provisions of rules 74.3(3) which mandate automatic referral to mediation and 74.4 which deals with the circumstances under which mediation may be dispensed with are in clear and unambiguous terms and therefore cannot be defeated by the use of the overriding objective. Consequently, he argued, the learned judge was bound to refer the matter to mediation and could not then embark on the hearing of the application by the respondents to strike out the appellants' statement of case. He finally submitted that the effect of the automatic referral to mediation is to impose a partial stay on court proceedings until and unless mediation had been dispensed with, had not occurred or had failed to broker a settlement.

12 In support of those submissions, Mr Spencer relied on the judgments in Goodwin v Swindon Borough Council [2001] 4 All ER 64, and Vinos v Marks and Spencer [2001] 3 All ER 784.

13 In reply, Mr Hylton QC submitted that, although the provisions of rule 74.3(3) is couched in mandatory language, an examination of other provisions in rule 74 merely provides for a sequence for all matters to follow to avoid matters ‘falling between the cracks’. He also submitted that the provisions contained in rule 74 are general provisions and, where applicable, the court may depart from the sequence in circumstances that warrant it. He further submitted that it could never have been the intention of the framers of the rules to oust the jurisdiction of the court to jealously guard its process from abuse. Indeed, he submitted, such allegation of abuse ought to be brought to the attention of the court as early as possible so that the court may deal with it expeditiously. He further submitted that rule 26.3(1) which empowers the court to strike out a statement of case, if it is found to be an abuse of the process of the court, contains no restrictions on, or pre-conditions to, the exercise of the court's power under that rule. Accordingly, he submitted, the learned judge was correct in applying the overriding objective and dealing with the application before the mediation process.

Analysis

14 Rule 74.1 of the CPR states:

‘This part establishes automatic referral to mediation in the civil jurisdiction of the court for the following purposes:

• a) improving the pace of litigation;

• b) promoting early and fair resolution of disputes;

• c) reducing the cost of litigation to the parties and the court system;

• d) improving access to justice;

• e) improving user satisfaction with dispute resolution in the justice system; and

• f) maintaining the quality of litigation outcomes.

through a mediation referral agency appointed to carry out the objects of this part.’

In furtherance of the stated objective in rule 74.1, rule 74.3(3) states:

‘In any proceedings in which a case management conference has not been fixed before September 18, 2006, the matter shall be automatically referred to mediation.’

Rule 74.4 empowers the court to postpone or dispense with mediation if it is satisfied that certain stated circumstances exist.

15 It is quite clear from rule 74.3(3) that the automatic referral to mediation does not require an order from a judge and in fact is done administratively by the registrar of the court. A judge only becomes involved in the referral process if an application is made under rule 74.4. Before Williams J, there was no application to postpone or dispense with mediation, neither was there an order made by her postponing or dispensing with mediation. Was Williams J therefore precluded from entertaining the application when she did?

16 The principle relevant to this case which may be extracted from the decisions in Goodwin v Swindon Borough Council, Vinos v Marks and Spencer and Millicent Forbes v The Attorney General of Jamaica SCCA No 29/05...