Morris (Margaret), Gleaner Company Ltd and Ken Allen v Hugh Bonnick

• Jurisdiction: Jamaica
• Judge: FORTE, P.: , BINGHAM, T.A.:
• Judgment Date: 14 April 2000
• Neutral Citation: JM 2000 CA 20
• Judgment citation (vLex): [2000] 4 JJC 1408
• Court: Court of Appeal (Jamaica)
• Date: 14 April 2000

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR JUSTICE DOWNER, J.A THE HON. MR. JUSTICE BINGHAM, J.A

BETWEEN

MARGARETMORRIS

1 ^ST DEFENDANT/APPELLANT

AND

THE GLEANER COMPANY LIMITED

2 ^ND DEFENDANT/APPELLANT

AND

KEN ALLEN

3 ^RD DEFENDANT/APPELLANT

AND

HUGH BONNICK

PLAINTIFF/RESPONDENT

John Vassell, Q.C., with Richard Ashenheim and Ingrid Mangatal Dunn, Cox, Orrett & Ashenheim

Dennis Goffe, Q.C., instructed by R. Manderson-Jones

DEFAMATION - "Right meaning" of words - Whether words published understood to have meaning ascribed by respondent - Whether protected by qualified privilege - Variarion of award of damages

FORTE, P.:

1 On the 19 ^th April, 1992, the article the subject of this action was published in the Sunday Gleaner. It was authored by Margaret Morris, the first defendant/appellant. The Sunday Gleaner is published by the second defendant/appellant, and the third defendant/appellant was its Editor at the relevant time. The article is set out hereunder in full:

"JCTC SUES BELGIAN MILK COMPANY

THE Jamaica Commodity Trading Company (JCTC) has confirmed that they have filed suit against a Belgian company in respect of a breached contract to supply milk powder.

The faxed response to the Sunday Gleaner from JCTC's Legal Officer, Karen Ford-Warner said: 'We do not feel ourselves able to answer your questions at this stage as the matter is in the hands of our attorneys who have already filed a court action.'

The Newsletter Insight reported that the suit is for US$13 million and that the Belgian company Prolacto SA has filed a counter suit. Eagle Commercial Bank, named as a co-defendant with Prolacto in the Insight report, told the Sunday Gleaner that JCTC has withdrawn the suit against them.

The Sunday Gleaner has learned that Mr. Alfred Rattray of Rattray Patterson Rattray is representing Prolacto.

A source close to JCTC confirmed that the dispute centres on two supply contracts - the first for 3,000 tonnes at US$1,264 per tonne awarded in August 1990 and the second for the same amount at US$1325 per tonne agreed in December 1990.

The attractive feature of both was that payment could be made in Jamaican dollars but the contracts were 'very unusual.' Both were cash contracts and as such, prices were lower than average in a recovering and volatile world market.

In respect of the first contract, JCTC was required to lodge the full amount (over J$30.2 million) in Eagle Commercial Bank and appropriate disbursements from the deposit were to be credited to Prolacto's account at the time of each shipment leaving Europe. At the same time, interest on the deposit was paid to JCTC.

In the second deal Prolacto demanded that the interest on the deposit of approximately J$31.8 million should accrue to their account.

According to one authoritative source, 'nobody at JCTC could be so mad as to agree to that.' He also contended that the contracts were arranged without the normal participation of the Purchasing Department and that Prolacta was not on JCTC's list of approved suppliers.

Mr. Hugh Bonnick, then managing director of the JCTC told the Sunday Gleaner that there had been a mistake in the implementation of payments on the first contract and interest should have gone to the suppliers, not to JCTC. He said that he had 'opened up the restricted lists' of all suppliers when he assumed the position at JCTC.

Mr. Bonnick also emphasised that the Prolacto contracts were both put out to tender, evaluated and awarded according to the rules and that the auditors were present on all occasions. He indicated that he will sue anybody who suggests otherwise. Mr. Bonnick's services as managing director were terminated shortly after the second contract was agreed.

An authoritative source pointed out other departures from the norm in respect of these contracts: the fact that Prolacto was late in starting delivery and then requested a price hike to cover increased transportation costs because of the Gulf War. Much pressure was brought to bear on JCTC officers to accede to this request but the Sunday Gleaner was unable to find out the actual outcome.

The second contract was agreed just weeks after delivery on the first contract had started. In the absence of any official release, it is assumed that Prolacto terminated supplies when JCTC refused to agree to release their financial conditions - for example agreeing to Prolacta getting the bank interest.

Skim milk under these contracts is supplied to the condensery and ice-cream manufacturers and the import price impacts heavily on the cost of living."

The respondent thereafter filed this action in defamation alleging that the words of the article in their natural and ordinary meaning would be understood to mean:

• "(a) The Plaintiff's services as Managing Director of Jamaica Commodity Trading Company Limited (JCTC) were terminated because of his impropriety in the formation, conclusion and implementation of very unusual contracts with Prolacta SA for the supply of milk powder.

• (b) The Plaintiff caused the contracts to be entered into and implemented irregularly and in breach of normal procedures.

• (c) The Plaintiff acted irregularly and improperly in having JCTC enter into these very unusual contracts without the normal participation of the Purchasing Department and with a company which was not on JCTC's list of approved suppliers.

• (d) The Plaintiff is insane or stupid and would be so viewed by an authoritative source insofar as the Plaintiff agrees that under the contracts interest should have gone to the suppliers.

• (e) The Plaintiff is insane, stupid or incompetent in having JCTC enter into contracts in which the supplier could be entitled to interest on the deposits.

• (f) The Plaintiff is guilty of impropriety and irregularity in bringing pressure to bear on JCTC officers to accede to requests from the supplier which were departures from the norm and irregular."

He also alleged inter alia that by the publication of the words, he had been much injured in his credit and reputation and has been brought into public scandal, odium and contempt.

In determining the natural and ordinary meaning of words in a libel action, the Court should not be concerned with the fact that a combination of words may mean different things to different people but must give the "right meaning" to those words, the "right meaning" being the meaning which an ordinary reasonable fair-minded reader would give to them.

This principle was settled in the House of Lords case of Charleston v. News Group Newspapers Ltd and another [1995] 2 All E.R. 313. The following dicta of Lord Bridge at page 317 speaks clearly to this principle. He stated:

"... where no legal innuendo is alleged to arise from extrinsic circumstances known to some readers, the 'natural and ordinary meaning' to be ascribed to the words of an allegedly defamatory publication is the meaning including any inferential meaning, which the words would convey to the mind of the ordinary reasonable, fair-minded reader. This proposition is too well established to require citation of authority. The second principle, which is perhaps a corollary of the first, is that, although a combination of words may in fact convey different meanings to the minds of different readers, the jury in a libel action, applying the criterion which the first principle dictates, is required to determine the single meaning which the publication conveyed to the notional reasonable reader and to base its verdict and any award of damages on the assumption that this was the one sense in which all readers would have understood it."

In arriving at this conclusion, Lord Bridge for his second principle adopted the dicta of Diplock, L.J. (as he then was) in the case of Slim and Othersv.Daily Telegraph, Ltd And Another [1968] 1 All E.R. 497. In that case as far back in time as 1968 Diplock, L.J. stated:

"Where, as in the present case, words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is 'the natural and ordinary meaning' of words in an action for libel."

The question therefore, is whether the words published in the article, in their natural and ordinary meaning as understood by an ordinary, reasonable fair-minded reader, would bear the meaning ascribed to them by the respondent, with the result of injuring the reputation of the respondent and bringing him into public scandal, odium and contempt.

The learned judge came to that conclusion thus:

"It seems quite clear to me that the words mean and would be reasonably understood by the ordinary man to mean that the plaintiff, Managing Director despite his assertions that the contracts were put out to tender, evaluated and awarded according to the rules and his threat to sue anybody who suggests otherwise, an authoritative source close to JCTC states that the contracts were arranged without the normal participation of the Purchasing Department and without Prolacta being on JCTC's list of approved suppliers. As a result of these and other irregularities the plaintiff was dismissed as managing director shortly after the second contract was agreed.

In my judgment, notwithstanding the submissions by Mr. Vassell to the contrary, the ordinary meaning pleaded by the plaintiff in paragraph 3 of the statement of claim is sustainable and that meaning is clearly defamatory.

The plaintiff is...