Oswest Senior Smith v Gleaner (Media) Company Ltd v Lisa Palmer-Hamilton

• Jurisdiction: Jamaica
• Judge: Master C. Thomas (AG.)
• Judgment Date: 28 April 2022
• Year: 2022
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2017/HCV00031

BETWEEN

Oswest Senior Smith

Claimant

and

Gleaner (Media) Company Limited

1 ^st Defendant

Lisa Palmer-Hamilton

2 ^nd Defendant

[2022] JMSC CIV 57

CLAIM NO. 2017/HCV00031

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Civil Procedure - Rule 26.1 of Civil Procedure Rules - application to strike out claim - whether there are reasonable grounds for bringing the claim; Issue estoppel - whether issue in claim subject to issue estoppel on the basis of it being the subject of Court of Appeal judgment; Defamation - absolute privilege - whether words spoken during trial by counsel subject to absolute privilege

Mrs Denise Senior Smith instructed by Oswest Senior Smith & Company for the claimant.

Kevin Powell instructed by Hylton Powell for the 1 ^st defendant.

John Vassell QC, and Mrs Trudy-Ann Dixon Frith instructed by DunnCox for the 2 ^nd defendant.

Master C. Thomas (AG.)

Introduction

1 By a “relisted” notice of application for court orders filed on 2 ^nd July, 2020, the 2 ^nd defendant is seeking to strike out the instant claim pursuant to rule 26.3(1)(a) and (b) of the Civil Procedure Rules (“CPR”). The application was first filed on 12 ^th June, 2018. The grounds relied on are that:

• (i) The statement of case discloses no reasonable grounds for bringing the clam as absolute immunity from civil action for defamation attaches to statements made by counsel during the course of judicial proceedings;

• (ii) The statement of case is an abuse of the process of the court.

Background

2 The claim has its genesis in verbal exchanges which took place between the claimant and the 2 ^nd defendant during the murder trial Regina v Bertram Clarke and another in which the claimant, who is a defence counsel, and the 2 ^nd defendant, who was at the time, a senior deputy director of public prosecutions, were involved. The critical verbal exchanges took place on 1 ^st February, 2016. The transcript of the proceedings records the following exchange as occurring:

MRS L. PALMER HAMILTON: I am objecting, because that is not the evidence. He was not an accused before the circuit court when he gave that statement. He was – he had already pleaded guilty and was to be sentenced.

MR O SMITH: So, if you plead guilty and you are not sentenced, you are an accused.

MR O SMITH: You are [not] a convict

MR O SMITH: M’ Lady as far as I am aware, until the person is sentenced, m’ Lady, with the greatest of respect, m’ Lady, with the greatest of respect…

HER LADYSHIP: I am not going there. I made a comment, but I am not going to add to that quite at this time. I am not going to enter into any legal dissipation.

MR O SMITH: The Court cannot deny a plea and [sic] be withdrawn under the right circumstances.

HER LADYSHIP: Mr Senior Smith, I am fully aware of that. I have allow[ed] you to do that on several occasions before this Court. Mr Newland was fully before the St Ann Circuit as an accused to be sentenced.

MRS L. PALMER HAMILTON: M'Lady, do you see, Counsel's posture, m'Lady.

HER LADYSHIP: Mrs Palmer Hamilton.

MRS L. PALMER HAMILTON: No, I am appalled, that's why I am bringing it – counsel bore down on me a while ago.

HER LADYSHIP: Mrs Palmer-Hamilton you can't - please.

MRS L. PALMER HAMILTON: I felt assaulted.

HER LADYSHIP: Mrs Palmer-Hamilton, we have come thus far, whatever has a beginning will always have an end. And, I am saying I am busily trying to write. Trying to control this court, which is not the easiest thing at this stage. All I ask is, that, everybody be composed, and I appeal to everybody in the case. Once I again, I say to you, you are all senior counsel at the bar. If I had any idea that it was not a court of law I was sitting in, then I would come prepared in my other type of combat. Mr Senior Smith, thank you very much, sir, could you take your seat at this time, let me finish make the notes as to what was said.

MR O SMITH: I will finish the submission, ma'am. And it is on your record that my friend was assaulted. I just wish to correct

that if it is my friend is making reference to. I did not assault my learned friend. And, I think that it is my right to correct the record, because when counsel…

HER LADYSHIP: You know one of the things you know, Mr Senior Smith, and I ask you just to take your seat and you're still standing. Let me just say once and for all. That no matter what you may think, am still in charge of the court. No matter what any of you, all sitting down may think, I am still in charge of the court. I asked you to take your seat and you continued as if I hadn't said it. I do not wish to be stretched beyond a certain limit. I have appealed to you all as counsel of senior years to conduct yourselves in a manner which is befitting of counsel of senior years. And I once again appeal to you all, and say that I expect a certain standard of behavior from you all. It is 10 minutes past 4:00. Maybe we should take this adjournment. We will continue tomorrow morning at 10 O' clock. Thank you very much…

3 Following these exchanges, on 2 ^nd February, 2016, there was a publication in the 1 ^st defendant's newspaper which related to the above exchanges between the claimant and the 2 ^nd defendant.

4 The claimant filed claim form and particulars of claim on 6 ^th January, 2017 seeking damages for defamation and amended same on 17 ^th January, 2017. At paragraphs 5-8 of the amended particulars of claim, the following allegations are made:

5. That on the 1 ^st day of February 2016 whilst the Claimant and the 2 ^nd Defendant were involved in an ongoing trial in Court 1, the 2 ^nd Defendant falsely and maliciously in the presence of all in the Court including the servant and/or agent of the 1 ^st Defendant Barbara Gayle said the following words: “My lady, My Learned Friend [Mr Senior-Smith] has just assaulted me.”

6. On the 1 ^st day of February, 2016 the 1 ^st Defendant in an article reported on its website published the false and malicious statements of and concerning the Claimant the following words which are defamatory of the Claimant:

“DEPUTY DPP ACCUSES DEFENCE LAWYER OF ASSAULTING HER DURING MURDER TRIAL

Senior Government Prosecutor Lisa Palmer Hamilton today accused defence attorney Oswest Senior-Smith of assaulting her during the hearing of a murder case.

Palmer Hamilton surprised the Home Circuit Court this afternoon when she made the disclosure to Justice Gloria Smith. She did not state the nature of the assault.

‘Conduct yourselves befitting Counsel of senior years and I expect a certain standard of behavior,’ the Judge said. Meanwhile in response, Senior-Smith said he wished to correct the records.

He told the court he never assaulted Palmer Hamilton, who is a senior Deputy Director of Public Prosecutions.

Senior-Smith later told the Gleaner that he was saying something to the prosecutor and he went close to her so his voice would not be heard by the jury. …”

7. The words complained of were therefore published by or caused to be published by the 1 ^st and 2 ^nd Defendants. The words referred to and were understood to refer to the Claimant. The words were published at large.

8. Accordingly, it was the intention of the Defendants that the words would be published to a wide cross section of persons. The words in their natural and ordinary meaning and in the context of the entire article and in the presence of those in court meant:

• a. That the Claimant has physically attacked the 2 ^nd Defendant;

• b. That the Claimant has threatened the 2 ^nd Defendant;

• c. That the Claimant is a violent person;

• d. That the Claimant has abused the 2 ^nd Defendant;

• e. That the Claimant has engaged in criminal behaviour;and

• f. That the Claimant has put the 2 ^nd Defendant in fear; (Emphasis supplied)

5 A defence was filed on behalf of the 2 ^nd defendant on 17 ^th November, 2017 in which the following averments are made in response:

3. The Second Defendant admits the date alleged in paragraph 5 of the Amended Particulars of Claim and that she and the Claimant were engaged as Counsel in a criminal trial in the Home Circuit Court and that she made a statement to the Court regarding the conduct of the Claimant as Counsel but denies that the words she used were the words alleged in the said paragraph 5 of the Amended Particulars of Claim.

4. In further reply to paragraph 5 of the Amended Particulars of Claim, the Second Defendant states that, in the course of the trial, the Claimant, having twice said to her whilst on his feet “Why are you leading the Judge into error?” moved over from where he was standing in the bench behind her, stretched over other Defence Counsel and leaned over to her in a confrontational manner which she found, not only offensive but intimidating and repeated, “Why are you leading the Judge into error?” She was so shocked and dismayed that she rose and brought the Claimant's conduct to the attention of the learned trial Judge so that the matter would not have escalated in the presence of the jury. The Second Defendant states that what she said to the trial Judge was, “Milady, do you see Counsel's posture towards me? I am appalled; that is why I am bringing it to your attention. Counsel bore down on me a while ago! I felt as if I was being assaulted.” (Emphasis supplied)

5. The Second Defendant neither admits nor denies paragraph 6 of the Amended Particulars of Claim as she does not know whether the matters alleged therein are true.

6 Then at paragraph 13, it is stated:

13. The Second Defendant states that if, which is denied, the statement made by her to the Court was the one alleged by the Claimant, the said statement was made on an occasion of absolute privilege and is not actionable.

A defence was filed on behalf of the 1 ^st defendant on 11 ^th May, 2017, the contents of which are not relevant for the purposes of this application.

PARTICULARS

• a. The Claimant and Second Defendant were engaged as Counsel in a criminal trial in the Home Circuit Court.

• b. The...