Seaga (Edward) v Western Broadcasting Service Ltd, Breakfast Club et Al, Anthony Abrahams, Laurie Gunst and Jeff Stein
| Jurisdiction | Jamaica |
| Judge | Campbell J. |
| Judgment Date | 15 December 2006 |
| Judgment citation (vLex) | [2006] 12 JJC 1503 |
| Court | Supreme Court (Jamaica) |
| Date | 15 December 2006 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
CIVIL PROCEDURE - Sanctions - Relief
(1) This is as an application by the 2 nd and 3 rd defendant for relief from sanctions imposed by an Order of James J. striking out their defence for non-attendance at an adjourned Case Management Conference. The claim is for damages for the publication of an alleged libel contained in a radio broadcast, brought by the Rt. Honourable Edward Seaga. P.C a former Prime Minister of Jamaica, who at the time the alleged defamatory remarks were published was then the Leader of the Opposition, Member of Parliament and Leader of the Jamaica Labour Party. He presently occupies the Chair of Distinguished Fellow at the University of the West Indies.
The libel was claimed to have been published on three separate dates in September 1999. The defendants were the owners of the station, the programme on which it was aired, a co-host on the programme and two guests on the show, respectively.
Courts duty to actively manage the case - Rule 25.1
(2) On the 20 th September 2004, Justice Norma Mcintosh had ruled that there was a binding Settlement Agreement between the claimant and the 1 st defendant. That decision of the learned judge has been upheld by the Court of Appeal, (see Western Broadcasting Services Ltd. v Edward Seaga, SCCA 88 /03 Delivered on 20 th December 2004.) The Court in keeping with its duty to actively manage the case, did on the adjournment of submissions in the defendants application for relief, and before resumed date, caused the following note to be sent to Counsel.
" The parties are asked to assist the Court as to the relevance of Section 3 (1) (b) of the Law Reform ( Tortfeasors) Act 1946 which it appears restricts the aggregate sum to the amount awarded in the action and disentitles the claimants right to an award of costs unless there is reasonable ground for such action. Has the claimant demonstrated any new cause of action or right that was open to him to be pursued in the assessment that was made pursuant to the settlement agreement with the 1 st defendant?"
(3) The Court was of the view that the determination of that issue was important in properly managing the case. If Section 3 (1) (b) restricts any future award to the claimant to the sum in the Settlement Agreement, satisfaction of such a sum would discharge the tort and prevent further recovery from the 2 nd and 3 rd defendants. In those circumstances, what would be the purpose of allowing the claimant to proceed in respect of the 2 nd and 3 rd defendants?
(4) Some of the relevant powers of the Court, in this regard are contained in Rule 25.1 of the Civil Procedure Rules, 2002, which provides;
The court must further the overriding objective by actively managing cases, this may include - (inter alia)
(a) identifying the issues at an early stage
(b) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others.
(c) deciding the order in which issues are to be resolved.
(i) dealing with as many aspects of the case as is practicable on the same occasion.
Both counsel agreed that such a determination was important, however Mr. Vassell Q.C., was of the view it was inappropriate to make that determination at this juncture.
Effect of Settlement Agreement, as found to exist between the claimant and the 1 st defendant, on the 2 nd and 3 rd defendants' application for relief from sanctions.
(5) Mr. Wong Ken submitted that the liability which is in issue in this case as it relates to the 1 st , 2 nd and 3 rd defendants respectively are the same, and indivisible. He further submitted that "no distinction can be made as to the acts that led to the complained of harm, ...any duty owed to the claimant was a common duty owed by all 1 st , 2 nd and 3 rd defendants."
(6) Mr. Wong Ken further submitted that the negotiated settlement made by the claimant with the 1 st defendant, which has been entered as a judgment extinguishes the claimant's right to damages from the 2 nd and 3 rd defendants.' Counsel relied upon Jameson and Another v Central Electricity Generating Board and Others (2000) 1 AC 455. HL[1999] 1 ALL ER 193
(7) Mr. John Vassell Q.C. contended that all S. 3 (1) (b) means is that if and when damages are assessed in favour of the claimant, the amount of the settlement with the 1 st defendant, if in fact paid to the claimant, may have to be brought into account to reduce the amount recoverable under the judgment since the purpose of S. 3(1) (b) is to ensure that the claimant is not overcompensated for his loss. Only when damages have been assessed will it be possible to make comparison between the settlement figure and the assessed damages for the purposes of determining the sum recoverable by the claimant and the proper order for costs as contemplated in S. 3(1) (b)
Analysis
(8) The tort of defamation consists of breach, damage and loss. If the loss has been satisfied there is no cause of action. The claimant is unable to recover twice for the same claim. In Jameson v Central Electricity Generating Board (2000) 1 AC 455 (Supra), a decision of the House of Lords, which deals with a full and final settlement, in respect of several tortfeasors and the effect of that settlement, in respect of another tortfeasor. Lord Hope of Craighead at page 202 (Letter b), said;
"But the existence of damages is an essential part of the cause of action in any claim for damages. It would seem to follow, as a matter of principle, that once the plaintiffs claim has been satisfied by one of several tortfeasors, his cause of action is extinguished against all of them. As Lord Atkin said in Clark v Urquhart(1930) A.C. 28, AT 66:
Damage is an essential part of the cause of action and if already satisfied by one of the alleged tortfeasors, the cause of action is destroyed"
(9) In Phillip Ward (administrator of the Estate of Damion Philip Ward, deceased) Christine Gabbidon (administrator of the Estate of Damion Phillip Ward, deceased) v Jamaica Public Service Company and Kaiser Jamaica Bauxite Company et al Suit No. C.L 2000/W006 , delivered 27 th October 2004, the Court held at pg6;
The common law position was that a judgment against one joint-tortfeasor was a bar to subsequent action against the others or even the continuance of the same action if the damages remained unsatisfied. Further the release of one was the release of all; this was the result of the action being regarded as one an indivisible. These effects did not apply to "several tortfeasors".
The Law Reform (Tortfeasors) Act. 1946 abolished the first rule and provide the applicable principle in relation to the conduct of litigation against multiple tortfeasors. The claimants are provided by Section 3 (1) (a) with the right to claim against as many defendants as maybe culpable either in one or several actions provides;
Judgment recovered against any tortfeasor liable in respect of such damage to an action against any other person who would if sued have been liable as a joint tortfeasor in respect of the same damage.
Section 3(1) (b), however, restricts the aggregate sum to be recovered to the amount awarded in the first action and disentitles the claimants right to an award of costs unless there is reasonable ground for bringing such action.
"If more than one action is bought in respect of such damage by or on behalf of the person by whom it was suffered or for the benefit of the estate ... against tortfeasors liable in respect of the damage (whether as joint tortfeasor or otherwise) the sums recoverable under the judgments given in these actions shall not In the aggregate exceed the amount of the damages awarded the judgment first given ; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of the opinion that there was reasonable ground for bringing the action"
Clearly, although the law does not prevent a subsequent action against the other tortfeasors, it discourages multiplicity of actions based on the same cause of action where one such action would suffice.
(10) The burden on the Court would be intolerable, were it not for settlement agreements between parties. They are effective in saving expense and ensuring that the matters are dealt with expeditiously and fairly. Lord Hope of Craighead judgment in Jameson (Supra) acknowledges this, at page 204 (letter B) he says:
"There is a strong element of public interest in facilitating the disposition of cases in this way,"
and cautions at page 205, letter J.
"What the judge may not do is allow the plaintiff to open up the question whether the amount which he agreed to accept from the first concurrent tortfeasor or under the settlement represents full value for what has been claimed."
(11) Whether the damages were fixed by a judgment of the court or through negotiation is immaterial. The Claim is for an illiquid sum once determined fixes the amount of damages. The settlement brings to an end the plaintiff cause of action and fixes the damage as a judgment does. Lord Hope says at page 203 (Letter a).
And it is clear that an agreement reached between the plaintiff and one concurrent tortfeasor cannot extinguish the plaintiffs claim against the...
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