Jennes Anderson v General Legal Council

• Jurisdiction: Jamaica
• Judge: Carr, J
• Judgment Date: 13 May 2022
• Year: 2022
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO.SU2020 CV 02836

BETWEEN

Jennes Anderson

Claimant

and

General Legal Council

Defendant

[2022] JMSC Civ.61

CLAIM NO.SU2020 CV 02836

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Application to strike out statement of case — Application for summary judgment — Defamation — Whether the words and/or publication bears a defamatory meaning — Rule 69.4 of the Civil Procedure Rules — Absolute Privilege

IN CHAMBERS

Mr. Terrence Williams Ms. Carol Davis and Mr. John Clarke instructed by Carol Davis for the Claimant/Respondent

Mrs. Denise Kitson Q.C. and Mr. Kevin Williams instructed by Grant Stewart Phillips for the Defendant/Applicant

Carr, J

Introduction

1 The Claimant, Ms. Anderson, contends that the General Legal Council ( GLC) posted on its website and in its annual report commencing sometime on or about July 31, 2018, defamatory matter which has been detrimental to her reputation and has subjected her to ridicule and contempt and lowered her reputation in the estimation of others. In the Amended Particulars of Claim filed on the 29 ^th of September 2021 she outlines that the statements are untrue and in their natural and ordinary meaning are capable of bearing the meanings that after the 31 July 2018;

• a) The Claimant's impugned conduct was of a certain level that as a sitting Judge of the Parish Court, she had been subject to the jurisdiction of the Disciplinary Committee,

• b) The Claimant's record in the legal profession included extant, valid and proper findings or orders that the Claimant was;

• c) The Claimant, then a sitting Judge of the Parish Court, is subject to the jurisdiction of the Disciplinary Committee.

• d) The Claimant is guilty of professional misconduct

• e) The Claimant is reprimanded and ordered to pay costs amounting to $350,000.

2 The defamatory matter consisted of a report of the Disciplinary Committee ( The Committee) with respect to a complaint filed against the Claimant which was later overturned on appeal in the Court of Appeal. There was no reference made on the website to the Court of Appeal decision and the report was republished on numerous occasions as it was hyperlinked to footnotes which facilitated cross referencing. In essence when a user of the website searches for the name Jennes Anderson a link would take you straight to the report.

3 The said defamatory material was also published in the annual report of the Defendant which was tabled in Parliament. Changes were only made to the website following a letter by the Claimant sometime in July 2020.

4 The Defendant filed an application seeking the following orders:

Issues:

• 1. The Court do determine whether the words and/or publication, the subject matter of this Claim:

  • a) Bears a defamatory meaning as alleged by the Claimant or at all;

  • b) If the words/publication, the subject matter of this Claim, is capable of bearing a defamatory meaning as alleged by the Claimant or at all, whether those words were published on an occasion which attracts absolute and/or qualified privilege;

• 2. If the Court determines pursuant to paragraph 1 (a) hereof that the words/publication was either not capable of bearing a defamatory meaning as alleged or at all, that the Claim be struck out and there be judgment for the Defendant.

• 3. In the alternative and/or in addition, if the court determines pursuant to paragraph 1 (b) hereof that the words/publication, the subject matter of this Claim, were published on an occasion which attracts absolute and/or qualified privilege that the Claim be struck out and there be judgment for the Defendant.

• 4. Costs of this application to be that of the Defendant to be taxed, if not agreed.

• 5. Such further and other relief and order as this Court shall think fit.

• a) Whether the report bears a defamatory meaning.

• b) Whether the Defendant is entitled to summary judgment.

The Law

6 The Defamation Act as amended in 2013 defines defamatory matter as “any matter published by a person that is, may be, or is alleged to be, defamatory of another person” 1. The word matter includes a programme, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication. 2 A publisher means a person who has published a matter that is, may be, or is alleged to be defamatory

of another person and “publish” and “publication”, in relation to a statement, subject to the provisions of this Act, have the meaning they have for the purposes of the law relating to the tort of defamation

7 Part v Section 19 (1) of the Act states:

“A defence under this Part is additional to any other defence or exclusion of liability available to the defendant apart from this Act and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability.” Part v then goes on to detail the defences of Truth, Fair Comment, Innocent Dissemination and Qualified Privilege, there is no mention of Absolute Privilege.

Whether the report bears a defamatory meaning

Discussion

8 Rule 69.4 of the Civil Procedure Rules provides as follows:

“(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 order or give such judgment in the proceedings as may be just.”

9 The rule gives the court the power to strike out a claim in circumstances where it is found that the words complained of are not capable of bearing a defamatory meaning.

10 The legal principles applied in making such a determination have been set out in several cases. Morrison, JA, as he then was in the case of Deandra Chung v. Future Services Ltd.and Yaneek Page 3 started with a review of the Privy Council decision of Bonnick v. Morris and stated:

“I take as a starting point Bonnick v Morris et al [2002] UKPC 31, in which Lord Nicholls explained (at para. 9) the correct approach to determining whether a statement can bear or is capable of bearing the defamatory meaning alleged: “As to meaning, the approach to be adopted by a court is not in doubt. The principles were conveniently summarised by Sir Thomas Bingham MR in Skuse v Granada Television Ltd [1996] EMLR 278, 285-287. In short, the court should give the article the natural and ordinary meaning it would have conveyed to the ordinary reasonable reader of the [newspaper], reading the article once. The ordinary, reasonable reader is not naïve; he can read between the lines. But he is not unduly suspicious. He is not avid for scandal. He would not select one bad meaning where other, non-defamatory meanings are available. The court must read the article as a whole, and eschew over-elaborate analysis and, also, too literal an approach. The intention of the publisher is not relevant.”

11 The facts of this case are not in dispute. The Claimant was the subject of a disciplinary hearing before The Committee of the General Legal Council for failing to comply with Regulation 16(1) of the Legal Profession Act relative to the filing of Accountant's report and/or Declaration for the years 2000 and 2001. On the 26 ^th of April 2014 The Committee issued its decision which found that the Claimant was guilty of professional misconduct, she was reprimanded and ordered to pay costs in the sum of Three Hundred and Fifty Thousand Dollars. The Claimant lodged an appeal with the Court of Appeal. The Court in handing down its decision found inter

alia that as the Claimant was a sitting judge of the Parish Court, it was the Judicial Services Commission that had jurisdiction over her and not The Committee. The appeal was allowed and the decision and orders were set aside

12 The Claimant by way of letter dated 22 ^nd of July 2020, to the then Chairman of the GLC Allan Wood, complained about the continued posting of The Committee's decision on the website, the letter was headed “Re: Defamation and Breach of Constitutional Rights of Jennes Vashti Anderson”.

13 The report subsequent to the decision of the Court of Appeal falls squarely within the ambit of the definition of defamation as outlined in the Act. The report contains matter which the Claimant alleges is defamatory. The report is no longer true following the decision of the Court of Appeal, and there can be no doubt that it is injurious to the reputation of the Claimant.

14 In applying the test as set out in Bonnick v. Morris, there can be no ambiguity as to the meaning or effect of the report. It charged that the Claimant was found guilty of professional misconduct, that she was reprimanded and fined. The ordinary reasonable reader having not had the benefit of the judgment of the Court of Appeal would accept the report and find that the Claimant was lawfully sanctioned by the GLC for misconduct. I find therefore that the report subsequent to the ruling of the Court of Appeal is defamatory matter which continued to be published on the website of the GLC.

Whether the Defendant is entitled to summary judgment.

15 Rule 15.2 (a) of the CPR provides that: “The court may give summary judgment on the claim or on a particular issue if it considers that – (a) The claimant has no real prospect of succeeding on the claim or the issue.” The scope and application of the rule was discussed in the Privy Council decision of Sagicor Bank v. Taylor Wright 4. It was stated:

“ Part 15 of the CPR provides, in Jamaica as in England and Wales, a valuable opportunity (if invoked by one or other of the parties) for the court to decide whether the determination of the question whether the claimant is...