Julie Blair-Johnson v Trend Media Ltd

• Jurisdiction: Jamaica
• Judge: Thompson-James J
• Judgment Date: 05 December 2019
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2018HCV02914
• Date: 05 December 2019

[2019] JMSC Civ 232

In the Supreme Court of Judicature of Jamaica

CLAIM NO. 2018HCV02914

Between

Julie Blair-Johnson

Claimant

and

Trend Media Limited

1 ^st Defendant

Avando Mitchell T/A Jaradio Media

2 ^nd Defendant

IN CHAMBERS

Mr. Lemar Neale instructed by Neal Lex for the Claimant

Mr. Maurice Manning and Mrs. Gabrielle Warren instructed by Nunes Scholefield Deleon & co for the 1st Defendant

Civil Procedure — Notice of Application for Court Orders — Civil Procedure Rules (CPR) 69.4 — Whether words complained of are capable of bearing meaning attributed to them — The Defamation Act 2013

Thompson-James J

INTRODUCTION

1 By way of notice of application for court orders filed December 21, 2018, the applicant seeks the following orders:

• “1. A declaration that the words complained of by the Claimant as being published by the 1st Defendant on the 7th day of December 2017 on its website “Loop News” in an article under the heading “Female cop under fire for ordering breastfeeding mom out of station”, are capable of falling within the spectrum of meanings attributed to them by the Claimant at paragraph 9(a)-(i) of the Claimant's statement of case.

• 2. Costs of this application be costs in the claim.

• 3. Such further and other relief as this Honourable Court deems just.

2 The orders are sought on the following grounds:

• “1. Rule 69.4 of the Civil Procedure Rules, 2002 (as amended) (“the CPR”) empowers the Court to make an order determining whether words complained of are capable of bearing the meanings attributed to them.

• 2. The Claimant contends that the words complained of are capable of bearing the defamatory meanings attributed to them [in] her statement of case.

• 3. The 1 ^st Defendant contends that the said words complained of are not capable of bearing the meanings attributed to them.

• 4. The Court's ruling on the meaning of the words complained of is therefore necessary to determine whether the proceedings should go to trial or dismissed summarily so as to save costs and resources in keeping with the overriding objectives of the CPR.”

3 The application is supported by an affidavit sworn to by the claimant filed December 21, 2018 wherein she refers to the allegations of defamatory words published by the defendants in her statement of case, and the 1st defendant's denial in its defence that the words complained of are capable of bearing the meaning that she has attributed to them in her statement of case.

BACKGROUND

4 The claimant, who was at all material times a police officer in the Jamaica Constabulary Force stationed at the Half Way Tree Police Station, filed a claim on August 2, 2018 against the defendants for damages for defamation in respect of statements she alleges were made by the defendants on December 7 and 9, 2017 that were defamatory of her, and from which she has suffered injury, loss and damage.

5 The allegations, as set out in the Amended Particulars of Claim filed December 21, 2018, are that the 1 ^st defendant, who was at all material times a company duly incorporated under the laws of Jamaica and owners and/or operators of the “Loop News” website, “recklessly and/or maliciously published or caused to be published” an article containing the following words on its website, which the claimant contends were “false and defamatory” of the claimant:

“Female cop under fire for ordering breastfeeding mom out of station

Within only days, the Jamaica Constabulary Force (JCF) has again been placed under the microscope for the actions of one of its member, this time for a recent development at the Half Way Tree Police Station in St Andrew, where a mother was reportedly ordered out of the station by a policewoman because she attempted to breastfeed her young baby while at the facility.

Only days ago, the Police High Command launched an investigation into the harsh words that were used by a traffic cop to a motorist who was found with a driver's licence, but clearly could not read. The cop got enraged by the fact that the motorist could not spell the word ‘IT’. Reports from an alleged eyewitness, who highlighted the matter of the breastfeeding mother on her Twitter account, indicated that the mother went to the station and was waiting to report a matter, when the child started to cry for attention.

That was when the mother attempted to breastfeed the child.

What took place thereafter has left persons asking questions about the customer service stance from the police force which has the words ‘to serve, protect and reassure’ in its motto.

The woman who highlighted the case said that when she saw what was happening to the mother and child, she was so moved that she offered the use of her car in the station's parking lot for the mother to breastfeed the baby in some comfort and dignity.

‘So I told the lady to feed her starving baby in my car…my heart hurts,' elaborated the lady who came to the rescue from what persons are labelling as a grossly ‘unmotherly act’ by the female cop.

‘When I saw what took place, it really left me concerned,' added the social media user.

The matter triggered widespread condemnation from social media users in general, and has even attracted the attention of the top cop, Commissioner Quallo, who advised of an ongoing investigation of the matter via his Twitter page.

‘It is a matter that is being investigated,' the commissioner said.

However, the commissioner's statement has not been very effective in quelling the anger of some members of the public who used the

Twitter platform twitter to vent their feeling on the matter.

That was very uncaring on the part of the police,' said one user, who noted that the situation was made worse by the fact that it was done by a woman, who happened to be a member of the JCF.”

6 It was further alleged that the 2 ^nd defendant, who was at the material time the owner and operator of the ‘popular and widely viewed’ website JARADIO, published similar defamatory statements. The 2 ^nd defendant, however, was not served, and as such the matter is not being pursued against it.

7 The claimant has contended that the words published by the 1 ^st defendant, in their ‘natural and ordinary meaning, and/or by way of innuendo, bore and were capable of bearing the following meanings:

• “(a) the Claimant's actions were unethical, improper and inappropriate;

• (b) the Claimant's actions have humiliated and embarrassed the members of the Jamaica Constabulary Force;

• (c) the Claimant is not a fit and proper person to be a Police Office [sic] and by extension a member of the Jamaica Constabulary Force;

• (d) the Claimant cannot be entrusted to carry out the mandate of the Jamaica Constabulary Force whose motto is to ‘serve, protect and reassure’;

• (e) the Claimant is an untrustworthy person;

• (f) the Claimant's actions have brought the Jamaica Constabulary Force into disrepute;

• (g) the Claimant behaved in an unprofessional matter [sic] which was unbecoming of any member of the Jamaica Constabulary Force;

• (h) the Claimant's actions warrant disciplinary actions to be taken by the Commissioner of Police and the Police Services Commission;

• (i) the Claimant is not a fit and proper person to be a mother.”

8 She further contended that the aforementioned words ‘referred, were referable and were understood to refer to the claimant’, and they “were calculated to disparage the Claimant in her profession as a Police Officer and member of the Jamaica Constabulary Force. The intended effect of the publications was to lower the Claimant in the estimation of right-thinking members of society generally or to expose her to public odium, contempt and ridicule.”

9 The claimant has made a claim for exemplary damages and aggravated damages,

and has set out particulars in respect thereof. I do not think it is necessary to set them out for the purposes of this application.

10 In its defence filed October 12, 2018, the 1 ^st defendant admitted publishing the words complained of, but, denied that:

• i. the 1 ^st defendant was reckless and/or malicious in publishing or causing the words to be published;

• ii. the words published were false;

• iii. the words published were defamatory and/or that they were defamatory to the claimant;

11 The defendant further relies on the defences of truth, fair comment and qualified privilege.

12 December 21, 2018, the claimant amended her particulars of claim, to, materially, aver that at the time of the incident the claimant was one of two female officers on duty in the guardroom at the Half Way Tree Police Station, and to deny that the alleged “breast-feeding mom” was there waiting to report a matter. In that regard, she contends that:

“…the “alleged breast-feeding mom” was a relative of hers who was at the Police Station at the invitation of the Claimant in a private capacity and was not there waiting to report a matter as alleged…” and,

“.that at no point did she order any “breast-feeding mom” out of the Police Station who was waiting to report a matter.”

THE SUBMISSIONS

The Claimant's Submissions

13 The claimant relies primarily on the authority of Khemlani Mart Limited and anor v Radio Jamaica Limited (unreported), Supreme Court, Jamaica, Claim No. 2007HCV03326, judgment delivered May 26, 2008, and the cases cited by McDonald Bishop J (as she then was), for the test to be applied in respect of applications under CPR 69.4, which is, that which the words would convey to the ordinary man. Counsel for the claimant, Mr. Neale, submitted that what is for consideration before the court is not whether the words are defamatory, but rather, whether the words are reasonably capable of bearing a defamatory meaning.

14 In that regard, the claimant has submitted that the words used “in their natural and ordinary meaning impute improper conduct on the part of the Claimant and therefore bear and are capable of bearing all...