Jamaica Observer Ltd and Another v Gladstone Wright

• Jurisdiction: Jamaica
• Judge: Morrison JA,McIntosh JA,Brooks JA
• Judgment Date: 30 May 2014
• Neutral Citation: [2014] JMCA Civ 18
• Court: Court of Appeal (Jamaica)
• Docket Number: CIVIL APPEAL NO 73/2008
• Date: 30 May 2014

[2014] JMCA Civ 18

JAMAICA

IN THE COURT OF APPEAL SUPREME COURT

Before:

The Hon Mr Justice Morrison JA

The Hon Mrs Justice McIntosh JA

The Hon Mr Justice Brooks JA

CIVIL APPEAL NO 73/2008

Between

Jamaica Observer Limited

1st Appellant

and

Paget deFreitas

2nd Appellant

and

Gladstone Wright

Respondent

DEFAMATION - Judgment for defamation claim - Whether trial judge's direction to jury incorrect - Whether quantum excessive

Morrison JA

Introduction

1 The 1 ^st appellant is a limited liability company incorporated under the Companies Act. It was at the material time the proprietor, publisher and distributor of “The Weekly Observer”, a weekly tabloid newspaper (“the newspaper”), which enjoyed a wide and substantial distribution throughout Jamaica and overseas. The 2 ^nd appellant was at the material time its editor-in-chief.

2 Immediately prior to his resignation on 19 March 1998, the respondent had been the manager of the Montego Bay branch (“the branch”) of the Bank of Nova Scotia Ltd (“the bank”). Up to that time, the respondent had been employed to the bank in various capacities for over 20 years.

3 In its edition published on 27 March 1998, the newspaper carried an article, under the heading ‘BNS PROBES $94 MILLION EXPOSURE – Branch Manager sent home’ (“the article”). The respondent, who considered that he had been referred to in, and defamed by, this article, commenced action against the appellants for damages for libel by writ of summons filed on 21 July 1998.

4 On 22 May 2008, after a trial before Roy Anderson J and a jury, judgment was given in the respondent's favour against the appellants for $30,000,000.00, with interest at 3% until payment, and costs. The total award was made up of $20,000,000.00 for general damages and $10,000,000.00 for punitive or exemplary damages.

5 This is an appeal from the judgment of the court below, as to both liability and damages, in which the appellants seek orders (i) that the judgment be set aside and judgment be entered in their favour; (ii) alternatively, that the matter be remitted to the court below for a retrial; or (iii) that this court grant such further or other relief or remedy as it deems appropriate in the circumstances. The appeal raises issues as to theappropriateness of the trial judge's handling of the trial, the correctness of his directions to the jury and the quantum of damages awarded by the jury.

The Pleadings

6 Paragraph 4 of the statement of claim filed on the respondent's behalf on 21 July 1998 stated as follows:

‘4. In the March 27, 1998 edition of the said Weekend Observer weekly tabloid under the Title ‘BNS PROBES $94 MILLION EXPOSURE – Branch manager sent home’ the Defendant falsely and maliciously printed, published and distributed and/or caused to be printed, published and distributed the following words, defamatory of the character of the Plaintiff:

“Sources say that Scotiabank is also investigating the recent acquisition of land in Westmoreland by Wright, and to establish if there is a connection with the “indiscretion” at the branch.”

5. In their natural and ordinary meaning the said words meant and were understood to mean that;

(i) The Plaintiff had acquired land in the parish of Westmoreland.

(ii) That the Plaintiff possibly acquired the alleged land fraudulently, dishonestly and/or through other unlawful means.

6. The Plaintiff is not, nor has the said Plaintiff ever been, the owner of any realty in the parish of Westmoreland.

7. As a consequence of the matters aforesaid the Plaintiff has been severely injured in his credit and reputation and has been brought into scandal, odium and contempt, put to great distress and inconvenience and has suffered great loss and damage.’

7 By their amended defence dated 2 November 1999, the appellants stated the following:

‘4. The Defendants will say that the said words merely constitute the final paragraph of the article which in its entirety read as follows:

‘Bank of Nova Scotia has been hit by a $94-million exposure to unauthorised credit, and has sent home a senior officer, Gladstone Wright, of the Montego Bay branch, while it deepens its probe into the irregularities.

It is the first major case to surface at Scotiabank, cracking the apparent insularity of this institution to the wave of multimillion dollar scams and unauthorised credits which have haunted much of the sector within the past year.

Scotia's managing director, Bill Clarke, declined to discuss the issue with the Observer, claiming that it was against the bank's policy to discuss the affairs of its employees or customers with the media.

But authoritative sources inside Scotiabank confirmed that Wright was immediately sent on leave two weeks ago after inspectors from the bank's headquarters uncovered the irregular loans – involving advances which exceeded the limit of the branch, and loans and overdraft facilities for which there were woefully inadequate collateral.

“The bank stands to lose $94 million, and that is what has been discovered so far”, the Observer source said. “But there is a likelihood that the exposure will climb even further.”

Sources say that Scotiabank is also investigating the recent acquisition of land in Westmoreland by Wright, and to establish if there is a connection with the “indiscretion” at the branch.’

5. The Defendants make no admission that the words outlined in paragraph 4 are false and deny that the said words were published maliciously. The Defendants further,make no admission that the said words were defamatory of the Plaintiff.

6. The Defendants make no admission that the said words in their natural and ordinary meaning are capable of having the meanings which have been attributed to them in paragraph 5 of the Statement of Claim.

7. If, which is not admitted the words set out in paragraph 4 of the Statement of Claim are false and if, which is not admitted, the words are capable of having the meaning attributed to them in paragraph 5 of the Statement of Claim the Defendants say that the contents of the article as a whole are substantially true and accordingly if the words set out in paragraph 4 of the Statement of Claim are not true the publication of the said words by the Defendants did not materially injure the reputation of the Plaintiff having regard to the truth of the remaining contents of the article.’

8 The effect of the amended defence was therefore that the appellants (a) admitted publication of the words complained of; (b) denied that they were published maliciously; (c) put the respondent to proof that they were false, that they were defamatory of him or that they were capable of having the meanings attributed to them by him; and (d) raised (albeit not in so many words) the statutory defence provided by section 7 of the Defamation Act (“the Act”).

9 Section 7 of the Act provides as follows:

‘In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.’

The trial

10 The jury was empanelled and a foreman selected on the morning of 20 May 2008. In his opening charge to the jury, the learned trial judge advised them of their role:

‘Let me thank you jurors for agreeing to serve. In your roles as adjudicators of fact I would advise you of your duties; to base your decision upon the evidence which is led. At the appropriate time I will direct you as to what specific questions I would require answered from the jury panel. But I would also caution you not to discuss the matter and not to be influenced by anything you may have heard outside or anywhere else or read anywhere else and focus on the evidence which you hear. Particularly, I warn you not to discuss the matter outside of the precincts of the court.’

11 Thereafter, the trial commenced and continued for three days, with refreshment, lunch and overnight adjournments being taken as appropriate. It does not appear from the transcript of the proceedings that, at the point at which each of these adjournments was about to be taken (there were five in all), the judge either reminded the jury of his warning to them not to discuss the matter with anyone or sought to give them a fresh warning to the same or similar effect. However, as will be seen, he did revisit the question one more time during his summing-up to the jury (see para. [34] below).

12 Three witnesses gave evidence before the jury: the respondent himself, a witness called on his behalf (Mr Michael Bancroft) and the author of the article, Mr Moses Jackson, an employee of the 1 ^st appellant. The witness statements were tendered in evidence and read to the jury and each witness was in turn cross-examined.

13 At the time of the trial, the respondent was 62 years old, married and the father of four children. He had risen through the ranks from the position of teller at the bank in 1966, to his first managerial appointment at the Savanna-la-mar branch of the bank, where the loan and deposit portfolios both grew rapidly under his watch. His time as manager of the Savanna-la-mar branch was distinguished when that branch won the bank's inaugural branch of the year award. In 1990, he was transferred to Montego Bay as manager of the branch. After about a year, he was sent to the bank's head office in Toronto, Canada for training. He remained there for 18 months, before returning to the branch. Between 1992 and March 1998, the respondent testified, the loan and deposit portfolios at the branch also grew rapidly and he again enjoyed the distinction of the branch being named branch of the year.

14 The respondent's account of the events which immediately preceded the publication of the article on 27...