Owen Ellington v Reverend Merrick “Al” Miller

• Jurisdiction: Jamaica
• Judge: Tracey-Ann Johnson, J (AG.)
• Judgment Date: 23 November 2023
• Court: Supreme Court (Jamaica)
• Year: 2023
• Docket Number: CLAIM NO. 2017HCV03800

Between

Owen Ellington

Claimant

and

Reverend Merrick “Al” Miller

1 ^st Defendant

and

Reverend Herro Blair

2 ^nd Defendant

and

Nationwide News Network Limited

3 ^rd Defendant

[2023] JMSC CIV. 250

Tracey-Ann Johnson, J (AG.)

CLAIM NO. 2017HCV03800

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

Application to Strike Out — Application for Summary Judgment — Whether Words Bear/Capable of Bearing a Defamatory Meaning — Defences of Truth and Absolute Privilege — Rule 15.2 (a) and 69.4 of the Civil Procedure Rules — Section 17 of The Political Ombudsman (Interim) Act

Ms. Sharon Usim, Ms. Deborah Martin and Miss Kelly Hamilton instructed by Usim, Williams & Company for the Claimant/Respondent.

Mr. Wentworth Charles and Mr. Demetrie Adams instructed by Wentworth Charles & Company for the 2 ^nd Defendant/Applicant.

BACKGROUND

1 The Claimant/Respondent filed a claim in this Honourable Court on November 10, 2017 against Reverend Merrick “Al” Miller, the 1 ^st Defendant, Reverend Herro Blair, the 2 ^nd Defendant/Applicant and Nationwide News Network Limited, the 3 ^rdDefendant, seeking inter alia, “ Damages for Defamation including exemplary and aggravated Damages resulting from statements made by the 1 ^st Defendant at a Press Conference and in various publications and statements made by the 2 ^nd Defendant on a radio broadcast hosted by the 3 ^rd Defendant”. A Notice of Discontinuance was filed in this Honourable Court in relation to the 3 ^rd Defendant on July 7, 2023.

2 The Claimant's/Respondent's claim in relation to the 2 ^nd Defendant/Applicant as particularised in the Particulars of Claim filed on November 10, 2017 is as follows:

“ 4. The second Defendant is a well-known Minister of Religion and at the material time was the Political Ombudsman and head of the Peace Management Initiative located at 85A Duke Street, Kingston.

6. By way of background, on the 22nd day of July, 2016, the 1st Defendant was convicted in the St. Andrew Parish Court for Perverting the Course of Justice. The 1 ^st Defendant was sentenced on 15 ^th September, 2016. The trial and conviction for the First Defendant arose after the First Defendant was intercepted along Mandela Highway on the 22 ^nd June, 2010 by members of the Jamaica Constabulary Force transporting the then fugitive Christopher “Dudus” Coke. At the material time, a warrant had been issued for the arrest of Christopher Coke.

16. On September 15, 2016 the Second Defendant made defamatory statements whilst participating in an interview which was broadcast and published by radio and internet by the Third Defendant on Nationwide Radio. At the material times, the Third Defendant's website was open to and accessed by users of the worldwide web who chose to log into the address referred to in paragraph 6 and thereafter to listen to the Nationwide Radio Station.”

3 The words spoken were set out at paragraph 18 of the Particulars of Claim and the full transcript of the radio interview was attached to the Particulars of Claim. At paragraphs 20 to 21 of the Particulars of Claim, the Claimant/Respondent further particularised as follows:

“ 20. In their natural and ordinary meaning the said words and defamatory statements at [paragraph]… 18 and more fully set out in the full transcripts attached hereto, meant and were understood to mean that the Claimant:

• (i) Is a dishonest person.

• (ii) Is an untrustworthy person.

• (iii) As the then Commissioner of Police participated in a criminal conspiracy.

• (iv) Is corrupt and cowardly.

21. Further or alternatively, the said words bore and were understood to bear the meaning pleaded in paragraph 20 above and by way of innuendo.

PARTICULARS PURSUANT TO RULE 69 OF THE CIVIL PROCEDURE RULES

• a) The Claimant who at all material times was the Commissioner of Police and head of the Jamaica Constabulary Force conspired with the 1 ^st and 2 ^nd Defendants to participate in a criminal act by agreeing to allow for the evasion of capture of wanted fugitive Christopher Coke for whom there was a “warrant” issued pursuant to the Jamaica Extradition Act.

• b) The Claimant is a dishonest person who lied and betrayed the trust of the 1 ^st Defendant who relied on assurances given by him.

• c) The Claimant is a coward in that he refused to attend Court to support the First Defendant, in the circumstances where the First Defendant was acting pursuant to the instructions of the Claimant.

• d) The Claimant is a coward for failing to give evidence at the trial of the First Defendant and giving the “full” story.

• e) The Claimant did not give evidence at the trial of the First Defendant because he had something to hide.”

4 In his Defence filed on May 21, 2018, the 2 ^nd Defendant/Applicant stated in summary that he participated in an interview on September 15, 2016 which was conducted by Cliff Hughes and Patria Kay Aarons, which the 3 ^rd Defendant broadcasted on radio. He stated that paragraph 18 of the Particulars of Claim is denied as the transcript in its natural and ordinary meaning when taken in its proper context was not defamatory of the Claimant/Respondent as alleged or at all. Additionally, he denied paragraphs 20 and 21 of the Particulars of Claim and stated that the words in their natural and ordinary meaning did not bear nor were they capable of bearing the meanings as alleged in paragraph 20 inclusive of sub-paragraphs “(i) to (iv)”. He further stated that if the words in their natural and ordinary meaning bore and were understood to bear the meanings set out in the transcript at paragraph 18, they were true in substance and in fact. He stated that the Claimant/Respondent was guilty of betraying the trust and confidence of the 2 ^nd Defendant/Applicant when he denied meeting with the 2 ^nd Defendant/Applicant at the Claimant's/Respondent's Office and authorised meetings with Christopher “Dudus” Coke. He further stated that the Claimant/Respondent was being hypocritical by making public pronouncements contrary to the facts which he well knew having instructed the 2 ^nd Defendant/Applicant to inform Christopher “Dudus” Coke to turn himself into the American or Jamaican authorities.

5 He further stated that the Claimant's/Respondent's conduct, as Commissioner of Police in refusing to acknowledge and/or admit that the 2 ^nd Defendant as Political Ombudsman and Chairman of the Peace Management Initiative (PMI) was asked to meet with Christopher “Dudus” Coke and advise him of the possible loss of life and damage to property if he failed to turn himself into the United States Embassy or the Jamaican authorities, was deceitful. Additionally, he denied that the said words in their natural and ordinary meaning bore or were understood to bear any of the meanings alleged in paragraph 21 of the Particulars of Claim and Particulars a) to e) which were set out pursuant to rule 69 of the Civil Procedure Rules. He relied on section 20 of the Defamation Act. He relied on the defences of Truth and Absolute Privilege as also stated in his Affidavit evidence as outlined below at paragraphs [8] to [12].

THE APPLICATION

6 On July 14, 2023, the 2 ^nd Defendant/Applicant filed a Notice of Application for Court Orders in this Honourable Court to determine the following:

• “ 1. … 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 the defences of truth and absolute privilege pursuant to Section 17 of the Political Ombudsman (Interim) Act 2002;

• 2. If this Honourable 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/or there be summary judgment for the 2 ^nd Defendant.

• 3. In the alternative and/or in addition, if this Honourable 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 the defences of truth and absolute privilege, that the Claim be struck out and/or there be summary judgment for the 2 ^nd Defendant.”

7 The grounds upon which the 2 ^nd Defendant/Applicant seek the Orders are as follows:

• “ a. Pursuant to Rule 69.4 of the Civil Procedure Rules (“CPR”) 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. If it appears to the judge on the hearing of an application 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;

• b. Pursuant to Rule 15.2(a) of the CPR, the Court may give summary judgment on the claim or on a particular issue if it considers that the Claimant has no real prospect of succeeding on the claim or the issue;

• c. The 2nd Defendant has a case “which is better than merely arguable” and he has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success;

• d. The words spoken in their natural and ordinary meaning were not defamatory as alleged by the Claimant;

• e. The words spoken by the 2nd Defendant were in his capacity as Political Ombudsman and/or Chairman of the Peace Management Initiative (PMI);

• f. The 2nd Defendant was the former Political Ombudsman and acted at all material times in his official duties under the Political Ombudsman (Interim) Act 2002 and enjoys absolute immunity from all proceedings whatsoever for acts done in relation to his...