Jamaica Observer Ltd v Chong

• Jurisdiction: Jamaica
• Judge: Panton, P.,Dukharan, J.A.,Brooks, J.A.
• Judgment Date: 24 June 2016
• Neutral Citation: JM 2016 CA 62
• Docket Number: Supreme Court Civil Appeal No. 36/2008
• Date: 24 June 2016
• Court: Court of Appeal (Jamaica)

Court of Appeal

Panton, P.; Dukharan, J.A.; Brooks, J.A.

Supreme Court Civil Appeal No. 36/2008

Jamaica Observer Ltd

and

Chong

Appearances:

Charles Piper instructed by Wayne Piper of Charles E Piper & Associates for the appellant

Respondent not appearing and unrepresented

Defamation - Libel and slander — Whether the trial judge erred in finding that the appellant had libeled the respondent where the article was fair and honest comment — Whether it was reasonable and fair to conclude and state that the respondent had been suspended — Whether the public interest in the material was clearly satisfied — Appeal allowed — Judgment of trial judge set aside — Trial judge was incorrect in finding libel — Section 8 of the Defamation Act.

Panton, P.

1 I am of the opinion that this appeal ought to be allowed. In my view, consideration of the evidence presented as well as some of the findings of the learned judge result in a conclusion that the judgment cannot be sustained.

2 On 26 February 2008, Mangatal, J. adjudged that the appellant had libeled the respondent. Consequently, she entered judgment for $1,700,000.00 and costs in favour of the respondent.

SUMMARY OF THE PLEADINGS

3 It is agreed by the parties that the appellant is a company that prints and publishes the Jamaica Daily Observer newspaper which has a large circulation in Jamaica. It is also agreed that on 1 November 1995, the appellant published the following article in the said newspaper:

“Gov't official suspended for buying bad asphalt

By Rohan Powell

Observer staff writer

DENNIS CHONG, [sic] A senior official in the local government ministry, has been suspended from his job for his part in the unauthorized importation of $3-million worth of unsuitable asphalt from Trinidad and Tobago.

The asphalt was to have been used by the construction firm Surrey Paving and Aggregate for road repair on behalf of the government, but when it arrived it was found that it could not be used.

Government sources say that Chung, a director in the ministry's projects department, overstepped his bounds in ‘trying to get something (asphalt) cheaper and at a more competitive price.’

Tests showed that the asphalt settled too easily making it inappropriate for the road repair programme. The problem was compounded by the fact that local facilities are ill-equipped to process asphalt with the characteristic of the one imported from Trinidad and Tobago.”

4 The respondent claimed that these words meant that:

• a) he had acted “ultra vires his job”, in an incompetent manner;

• b) he “had engaged in improper, unprofessional and/or negligent conduct”; and

• c) he had been suspended from his job at the Ministry of Local Government and Works.

He claimed that, as a result, he had been injured in ““his character, credit and reputation” and had been “brought into public scandal, odium, and contempt, particularly in his office and position as Director of Planning and major projects in the Ministry of Local Government and Works…”

5 The respondent also alleged that as a result of the publication of the article, his employers commenced an investigation against him and this was followed by the preferring of disciplinary charges of which he was subsequently acquitted. While the charges were pending, he was interdicted from duty, but was reinstated upon his acquittal. His suspension, he said, caused him ““great embarrassment, mental distress, stress and financial hardship”, and his chances of promotion to the post of Permanent Secretary were ruined. Indeed, a new Permanent Secretary was appointed during the period of his suspension. His “next logical and expected promotion” would have been to the post of Permanent Secretary, he said. Another result of the article, according to the respondent, was the loss of a contract for design and construction of an office complex at 9 Cargill Avenue, Kingston 10.

6 The learned judge, quite rightly, in my view, found no causal connection between the publication of the article and the laying of the charges, the suspension from duty, the loss of promotion to the post of Permanent Secretary, or the loss of the contract for the design and construction at Cargill Avenue. Indeed, the respondent had no choice but to concede that the laying of the charges and the subsequent suspension had been recommended several days before the article was published. Furthermore, he had not received permission to engage in the design and construction of the office complex referred to.

7 In its defence, the appellant stated that the words in the article were “incapable of conveying or supporting any libelous meaning”. Instead, according to the appellant, the article was °an honest report published without malice on an occasion of public privilege”. It was “a fair comment upon a matter of public interest”. The appellant's position was that, “if anything, the article went out of its way to comment favourably of the (respondent)”. Rather than being condemnatory of the respondent, the article °if anything…reflected negatively upon the Ministry and the government sources” as they °were depicted as being unconcerned with the commendable and practical motives of the (respondent) as expressed by them but to be focusing on some procedural issue unrelated to the motive, his competence, his integrity, his honesty or public spirited concern”.

8 In his reply, the respondent said that the words in the article were not comment, but instead were assertions of facts that were untrue and had been maliciously printed.

THE RELEVANT EVIDENCE

9 In his witness statement, the respondent asserted that the publication of the article on the front page of the newspaper was for the purpose of increasing the sale of the newspaper, rather than to advise the public on a matter of public interest.

10 The respondent is a highly qualified civil and structural engineer. He holds a Bachelor of Science Honours degree in civil engineering from the University of the West Indies, a Master of Science degree in construction engineering and management, a research fellowship diploma in earthquake engineering (Institute of Earthquake Engineering in Skopjie, Macedonia, Yugoslavia), and a diploma in executive management from the University of the West Indies. He is also a graduate of the Institute of Constructional Engineers, London. At the time of the publication of the article, he was employed to the Ministry of Local Government and Works (the Ministry) as Director of Major Projects and Planning. As such, he was responsible for:

• • directing research;

• • the development and maintenance of socio-economic data bases;

• • providing advice and assistance to the Ministry of Construction as it executes its role which includes the maintenance of roads;

• • providing advice on planning; and

• • the planning, preparing and monitoring of the Ministry's capital budget programmes.

11 In 1995, there was a World Bank project in Jamaica for the resurfacing of roads. On 24 July 1995, the respondent wrote to the managing director of Lake Asphalt of Trinidad & Tobago Ltd referring to an earlier indication by the Ministry of its willingness “to conduct some roadway test sections constructed of asphaltic concrete mixed with 60/70 grade Lake Asphalt Bitumen”. The letter identified the roadway that would be involved, and stated that a contract had been awarded to Surrey Paving and Aggregate Company Limited to carry out the work. The letter continued:

“We would however like to have 60/70 Lake Asphalt Bitumen here in Jamaica to undertake these test sections by August 11 - 15th latest. The quantity required would be 217,000 U.S. gallons or approximately 790 tons. … Therefore, we request that the supply of 217,000 U.S. gallons or 790 tons of Lake Asphalt be provided at a processed cost of Jamaican $30.00/U.S. gallons or 88 cents U.S./gallon C.I.F. to the Contractor.”

The letter concluded that the details or mechanisms of payment and delivery for processing were to be ““worked out later or in dialogue by telephone and confirmed by an Agreement”. A favourable response was being sought, the letter stated, “as the future use of Lake Asphalt” in Jamaica and other Caribbean countries ““will have great prospects and advantages arising from this test roadway section”.

12 Lake Asphalt replied to the respondent on 27 July 1995, and referred to ““subsequent telephone conversations” that had taken place on the matter, and agreed the price and quantity suggested in the letter of 24 July. According to the letter signed by the marketing manager, Lake Asphalt looked forward to a long and fruitful relationship between itself and the Ministry. A payment schedule was subsequently agreed, and this was confirmed in an exchange of letters — one dated 3 August 1995, signed by the respondent, and the other dated 10 August 1995, signed by Lake Asphalt's marketing manager. The respondent said that he signed the former letter in his personal capacity on behalf of Surrey Paving as its representative was overseas.

13 On 8 August 1995, according to the respondent, ““it was revealed” by Professor Raymond Charles of the University of the West Indies, St Augustine Campus, Trinidad, that the asphalt to be imported from Lake Asphalt would require a further processing step which would require modification of Surrey Paving's plant. The additional cost for this process would however be incorporated in the unit cost that had already been agreed (see paragraphs 25 and 2 6 of the respondent's witness statement).

14 The agreed documents for the hearing indicate a dramatic turn of events on 11 August 1995. On that date, the Permanent Secretary in the Ministry wrote to the managing director of Lake Asphalt advising that the letter signed by the respondent on 24 July 1995 was premature. It stated that only the Chief Technical Director had the power to authorize Surrey Paving to use the material, if they...