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$325,000 awarded to Dr Francis Alexis – Part III

Attorney Derek Sylvester who is now a high court judge in Belize was a member of the Francis Alexis, KC, defense team

Grenada’s foremost constitutional expert Dr. Francis Alexis is now feeling a sense of vindication.

A court has awarded Dr. Alexis EC$350,000.00 in a case of libel that he brought against Cabral Douglas, a fellow attorney-at-law from Dominica who is believed to be now living in Australia.

The Alexis-Douglas court battle started after the Dominican lawyer made certain allegations of wrongdoing on the part of the Grenadian legal expert over funding received for a book allegedly from former Chief Justice Sir Dennis Byron.

Dr Alexis took offence to the allegation and decided to institute legal proceedings through his local attorney, Ruggles Ferguson, KC and obtained a judgment in his favour.

As a public service, THE NEW TODAY has decided to reproduce the ruling of the court on the matter:-

[75] The Claimant’s name was certainly trampled by the allegations made against him. These were statements circulated within the legal community that the Claimant operates and were published to the media for internet consumption by the general public. The Claimant would undoubtedly have suffered some damage to his reputation as a result of the defamatory statements. It is also evident based on the Claimant’s evidence that he suffered humiliation and injury to his feelings and fear as a result of the defamatory remarks. The allegations distressed the Claimant. Every time he had to take calls and respond to messages from persons and answer questions about the allegations, the Claimant would have felt embarrassment and humiliation. This is clearly evident from his account of the apprehension and concern he had about travelling to Trinidad and Tobago after the defamatory allegations were published and the fear of potentially being arrested and the questions and messages he had to respond to.

[76] The Claimant also had to deal with inquiries from friends and colleagues about the allegations and repeatedly had to address the situation. This would undoubtedly cause the Claimant to feel embarrassed. The Claimant’s otherwise good name therefore has to be vindicated because of the Defendant’s defamatory remarks.

Award of General Damages
[77] Having set out the above matters that the Court should consider in assessing damages, I will now go on to consider the quantum of damages that the Claimant should be awarded, guided by defamation awards in comparable cases.

[78] Learned King’s Counsel for the Claimant has proposed that the Court make an award to the Claimant of $600,000.00 inclusive of aggravated and exemplary damages.

[79] In arriving at an award of general damages to the Claimant, the Court, as far as possible, ought to be guided by comparable cases from the Organisation of Eastern Caribbean States (OECS) over which the Eastern Caribbean Supreme Court’s jurisdiction extends. These cases would emanate from Member States and Territories with broadly similar socio-economic conditions thus rendering them more comparable. Where comparable cases are not available, the Court may consider cases emanating from other Caribbean jurisdictions preferably and further afield if necessary.

[80] Learned King’s counsel for the Claimant referred the Court to five cases to consider comparable award, two from the OECS, one from Jamaica and two from Trinidad and Tobago:

(1) Dr. Patrick Antoine v Grenada Today Limited et al:This is a decision from Grenada. Learned King’s Counsel for the Claimant submitted that in this case, the Court awarded the claimant damages in the sum of $575,000.00 plus costs and interest and of that sum, EC$180,000.00 constituted aggravated damages and EC$120,000.00 exemplary damages. Unfortunately, a copy of the judgment in this matter was not provided to the Court by the Claimant, and it was not part of his authorities bundle, and the Court’s own efforts to obtain a copy of the decision or official record were unsuccessful. The Court has therefore been unable to read and consider the facts and circumstances of the case to assess how comparable it is to the present case.

(2) Marina Marshall v Lenisha Augustine et al:16 The claimant was a contestant in the Miss Dominica Carnival Pageant and was employed with the local electricity company. The defendants published a derogatory email about the claimant containing an attachment depicting a woman in a sexually explicit position and the claimant’s profile was superimposed or posted onto the original photograph. The email and attachments were widely circulated on the internet and was the subject of comment on one of the radio stations in Dominica. As a result of the publicity the claimant withdrew from the Dominica Carnival Queen Pageant. The claimant was also subsequently dismissed from her job. The Court found that the dissemination of the email and attachments on the internet were sufficient publication to ground the claimant’s action in defamation. The court further found that the email and attachments were defamatory to the claimant and that the claimant had been outrageously defamed. The court found that the claimant’s career had been affected in a drastic fashion. The court also accepted the claimant’s evidence that she became introverted and feared appearing in public atter she was defamed. The court found that her suffering lasted for years. The court considered that per defendant average damages of $175,000.000 was an appropriate award to the claimant but took the view that a joint and several award of $525,000.00 should be made against the three defendants. The court’s award to the claimant was broken down as general damages of $225,000.00, aggravated damages of $180,000.00 and exemplary damages of $120,000.00.

(3) The Gleaner Co Ltd and another v Abrahams: The Judicial Committee of the Privy Council dismissed an appeal by a newspaper publisher and his editor-in-chief against the decision of the Court of Appeal in Jamaica to award the plaintiff libel damages in the sum of JM$35 million dollars or just over EC$600,000.00. The Board felt that there is a deterrent role to be played by damages in defamation actions. As a result of the defamatory statements made against the claimant, the claimant was universally treated with hostility and contempt, no one would do business with him and he became depressed, withdrawn and prone to weep. The Board considered that the Court of Appeal had been entitled to take the view that in such circumstances that if the amount awarded had a chilling effect upon the kind of conduct displayed, it would be no bad thing

(4) Dinanatha Ramnarine v Rafi Ali: The court awarded the claimant the sum of TT$831,823.65 or EC$328,919.64 as damages for defamation.

(5) Davlin Thomas v Naresh Siewah: the Trinidad and Tobago court awarded damages to the claimant the CEO of the North Central Regional Health Authority in the sum of TT$900,000.00 comprising general and aggravated damages totalling TT$800,000.00, and exemplary damages of TT$100,000.00 equivalent to about EC$358,943.26

[81] As attractive as the cases from Trinidad and Tobago and Jamaica may be to the Claimant, no doubt because of the relatively high awards, the Court will nonetheless focus its attention on awards emanating from OECS. I am guided by the pronouncements of Edwards JA in Edwardo Lynch v Ralph Gonsalves in this regard:

“[64] I accept the submissions of Mr. John that in determining the quantum of damages to be awarded it was preferable for the master to consider parallel awards for aggravated general damages in our jurisdiction since the circumstances relevant to the social and economic conditions in the islands of the OECS are relevant and critical in assessing such damages. Mr. John complains that the master was influenced by the awards made in cases from Trinidad and Tobago and Jamaica in deciding on the quantum of damages.

[65] The courts in the OECS have awarded damages to several heads of government over the years in defamation suits brought by them for damage to their reputation because of defamatory statements made by others.”

[82] If, however, as I have stated previously, comparable cases are not available, then cases from other commonwealth Caribbean countries can be sourced where the history, culture and socio-economic background are similar in some respects to the OECS.

[83] The Court is mindful that the Claimant is not a head of government or a government official, however, he is a former public official and is an attorney-at-law and academic of regional stature who remains in the public eye. The Claimant is a private citizen, but with a raised, public profile in Grenada and the OECS.

[84] The Court has therefore considered other cases from the OECS that were referred to in the written submissions by learned King’s Counsel for the Claimant and cases that were referred to in those cases. The Court has also considered a recent decision of the Cout of Appeal emanating from the Commonwealth of Dominica.

[85] In the seminal case of Edwardo Lynch v Ralph Gonsalves, the appellant, one of the defendants in the court below, hosted a political radio programme sponsored by the opposition party in St Vincent and the Grenadines. The appellant published certain defamatory words about the respondent, the Prime Minister of St. Vincent and the Grenadines, who was the claimant in the court below. The defamatory statements alleged that the respondent allowed money from the State’s consolidated fund to be used in the purchasing of tickets for his mother and daughter to travel to Rome to see the Pope. The respondent commenced proceedings against the defendants for damages for slander. The appellants’ defences were struck out. On an assessment of damages the master ordered each defendant to pay the claimant assessed damages in the sum of $160,000.00, inclusive of aggravated damages. The Court of Appeal reduced the lower court’s award on an assessment of damages from $160,000.00 to $140,000.00 on account of errors made by the lower court concerning the extent of the publication and the effect of the slander on the reputation of the Defendant. The court was therefore of the view that those errors had to be registered in a reduction of the amount awarded for injury to his reputation. The Court of Appeal was also of the view that the court below erred in making separate awards for each of the appellants and that the respondent was entitled to receive a sum representing the damage that he suffered from a single wrong inflicted by both defendants. Therefore, the Court of Appeal ordered that the award of general damages of $140,000.00 to the respondent to be paid by both defendants who were joint tortfeasors.

[86] In Keith Mitchell v Steve Fassihi et al, the 1st respondent, the 1st defendant in the court below, wrote an article making certain defamatory remarks concerning the appellant, the claimant in the court below, who was then Prime Minister of Grenada. The article was published by the third respondent in the Grenada Today newspaper. The claimant commenced proceedings against the defendants and no defence was filed by the defendants nor was there ever any apology or retraction. Judgment in default of defence was entered for the claimant with damages to be assessed. The master awarded the appellant the sum of $100,000.00 as general damages including aggravated damages but refused an award of exemplary damages. The appellant appealed the award of general damages and the master’s refusal to award exemplary damages. The Court of Appeal noted that the defendants had failed to file a defence or evidence on damages and in the circumstances it was reasonable to conclude that the defendants had not even a scintilla of proof of the statements, further, the defendant offered no apology. The Court of Appeal found that such conduct came dangerously close to “outrageous” but considered that the defendants had gone even further by printing the same libel in a second and subsequent issue of the Grenada Today Newspaper. The Court of Appeal felt that it was clear and proper inference that the respondents were contemptuous of any sanction that the law might provide and was of the view that compensatory damages, even augmented by an element of aggravation was an inadequate remedy in the case. The Court of Appeal found that it was one of those exemplary exceptional cases where it was appropriate to make an award of exemplary damages. Whilst the Court of Appeal affirmed the award of $100,000.00 for general damages, it allowed the appeal against’s the master’s failure to award exemplary damages and awarded the appellant the sum of $50,000.00 exemplary damages.

[87] In France and another v Simmonds, the Prime Minister, the respondent to the appeal, instituted libel proceedings against the appellants in relation to an article written by the second appellant which on the face of it appeared to be stating that the Prime Minister had been guilty of corruption in relation to the transactions involving ferry vessels. The appellants were found liable following trial. The High Court judge awarded the respondent damages in the sum of $75,000.00. The award was upheld on appeal to both the Court of Appeal and the Judicial Committee of the Privy Council.

[88] The recent decision of the Court of Appeal in Mathias Peltier et al v Matthew LeBlanc, 22 which did not form part of the Claimant’s submissions, also offers guidance for a comparable award. The appellants, the defendants in the court below, broadcast and published alleged defamatory statements made by a certain person concerning the respondent, the claimant in the court below. The said alleged defamatory statements alleged that the respondent used his office for financial gain and was engaged in certain unethical conduct. At the time, the respondent served as a Labour Commissioner in the Division of Labour and Immigration, Ministry of Justice, Immigration and National Security of the Government of the Commonwealth of Dominica. The respondents counsel wrote to the appellants counsel seeking a retraction of the allegations, an apology and an undertaking not to further broadcast the defamatory statements. The 1st appellant publicly acknowledged receipt of the letter but instead of retracting the statements, the appellants rebroadcast the defamatory words. The respondent commenced proceedings against the appellants seeking damages including aggravated and/or exemplary damages for libel or alternatively slander for the words broadcast. The appellants failed to file a defence to the respondents claim and judgment in default of defence was entered for the respondent.

[89] At the assessment of damages the master proceeded on the basis that the issue of liability was concluded and assessed the damages on the respondent’s claim. The master found that the allegations seriously undermined the integrity of the office held by the respondent and brought the respondent’s character and professional reputation into disrepute. He found that the broadcast was of wide circulation and that the respondent’s evidence was that he was embarrassed and seriously affected by the slander of his reputation. The master awarded the respondent $120,000.00 in general and aggravated damages. Although the Court of Appeal commented that the award to the respondent was on the higher side, the Court of Appeal dismissed the appellants’ appeal and affirmed the master’s award to the respondent.

Related:  $325,000 awarded to Dr Francis Alexis

[90] I have read and considered all of the above cases. I note that in the Marina Marshall decision there were multiple defendants, and two claims were consolidated or heard together. I also note the reasoning of the Court as to how it arrived at the relatively high award to the Claimant in that case on the facts of that case.

[91] Turning back to the present case. Serious, unsubstantiated, allegations of criminal misconduct and bribery were made by the Defendant in the Offending Publications. The Defendant caused the statements to be published not only to regional and international police forces, but also to lawyers, court staff and the judiciary, persons who are the Claimants professional colleagues. The Defendant also intended and caused the statements to be published on the internet via online news media to the public at large. The Claimant had an impeccable professional and personal reputation, and is a prominent public figure locally and regionally. The defamatory statements were intended to damage the Claimant’s reputation and diminish his standing in society. The Claimant suffered embarrassment and humiliation.

[92] The Court has also recognized that damage to the Claimant’s reputation by the Defendant’s defamatory statement is presumed. The libelous allegation made by the Defendant involved the commission of a criminal offence. The Court is cognisant that damage to the Claimant’s reputation would have been increased by the Defendant’s conduct.

[93] The Claimant, whilst not a government official or politician, has a high profile and as was reiterated by the Court of Edwardo Lynch v Ralph Gonsalves, 23 it is well-settled that those who have high and distinguished profiles should receive a higher ward than a person   similarly defamed with a lesser profile. Additionally, the Claimant, not being a politician or government official at the material time, his reputation would be more vulnerable to unfounded attacks and would not be expected to be as resilient in the face of public attacks and would likely be more sensitive to those attacks.

Mitigation of Damages
[94] On the assessment of damages, it was open to the Defendant to seek to mitigate any award of damages to the Claimant. In Edwardo Lynch v Ralph Gonsalves,Edwards JA stated:

“It is permissible at common law for a defendant to seek to mitigate the damages which may be awarded against him, by proving circumstances which show that he did not act with deliberate malice. A defendant may prove facts in mitigation of damages without pleading such facts.”

[95] No defence was filed by the Defendant to the Claimant’s claim and no evidence was filed by him for the assessment of damages as ordered by a judge. Even though the Defendant filed written submissions out of time without the leave of the court and those written submissions are accordingly not properly before the court, in my view, nothing contained in those submissions mitigate any award of damages to the Claimant. The Defendant has not tendered or offered any apologies for the defamatory statements made about the Claimant. Having considered all the material placed before the Court for the assessment of damages, I am unable to discern any mitigating features which could be taken into account in mitigating an award of damages to the Claimant.

Aggravated Damages
[96] General damages may be increased where there is an element of aggravation considering all the relevant factors of the case. In Edwardo Lynch v Ralph Gonsalves, Edwards JA noted:

“General damages may be aggravated by evidence of the circumstances of the publication, of the conduct of the defendant with reference thereto, and of the effect which it has actually produced.”

[97] In Jenny Lindsay et al v Harriet Carty, Baptiste JA put it thus:

“[41] Aggravated damages are awarded for a tort as compensation for the complainant’s mental distress, where the manner in which the defendant has committed the tort or his motives in so doing, or his conduct subsequent to the tort, has upset or outraged the claimant. Such conduct or motive aggravates the injury done to the claimant, and therefore warrants a greater or additional compensatory sum. (Per Lewison LJ in Phonographic Performance Limited and Andrew Ellis Trading [2018] EWCA Civ 2812 at paragraph 11.).”

[98] In considering whether to make an award under this head I will bear in mind the conduct of the Defendant, his conduct of the case as well as his state of mind.

[99] The Claimant pleaded the facts to ground his claim his claim for aggravated and exemplary damages at paragraph 17 of his statement of claim, and in his witness statement and the various affidavits incorporated into the witness statement, he has sought to evidence those facts.

[100] The Claimant commenced these proceedings against the Defendant in November 2017. Despite being duly served with the claim, the Defendant failed to file an acknowledgement of service or defence. In fact, he did not seek to do so until after the Claimant made an application for judgment in default of defence in November 2022.

[101] The Court also takes cognisance of the fact that that in response to the Claimant’s pre-action protocol letter of 27th October 2017, the Defendant refused to apologise and retract his offending publications and instead repeated and sought to justify his defamatory remarks without a basis for doing so.

[102] The Claimant’s lawyer again wrote to the Defendant by letters dated 31st October and 2nd November 2017 and the Defendant responded to those letters with similar allegations against the Claimant as his first response.

[103] The Defendant deliberately gave attention to the offending statements and publicized his refusal to apologize and thus continued to seek to disparage the Claimant and trample his reputation.

[104] In his particulars of aggravated and special damages, the Claimant pleaded that the motives of the Defendant in making the defamatory allegation were purely malicious and vindictive and part of an overall plan to discredit the CCJ for ruling against in him in certain proceedings brought before the CCJ. In his affidavit in support of his application for an interim injunction, which was incorporated into his witness statement, the Claimant states that the Defendant’s defamatory allegations against him were made by the Defendant in retaliation against him for publicly rejecting the Defendants attacks on the former President of the CCJ, following a ruling by the CCJ.

[105] Considering all the above matter, I am of the view there are aggravating circumstances in this case which warrant an award of aggravated damages in to increase the award of general damages to the Claimant.

Conclusion on Award of General and Aggravated Damages
[106] I have considered all the circumstances of this case, the nature and gravity of the allegations made against the Claimant, the Claimant’s reputation, the extent of the publication, the effect of the publication including the effect on the Claimant’s reputation and the hurt and injury to the Claimant’s feelings, the Defendant’s conduct and his motives for making the defamatory statement. I have considered whether there are any mitigating and aggravating features in the case. I have also considered the comparable cases referred to above. I note that the cases mainly involved politicians/government official who as was alluded to by Michel J in Edmond Mansoor v Eugene Scott, would be expected to be less sensitive to allegations being levelled against them publicly. The Claimant however is a private citizen, albeit with a public profile. I am also of the view that the circumstances of this case, taken as a whole, are more serious than the cases from the OECS that have been referred to. Having given careful consideration to the foregoing, I am of the view that the Claimant should be awarded general damages of $225,000.00 inclusive of aggravated damages of $50,000.00.

Exemplary Damages
[107] The Claimant also seeks exemplary damages. Learned King’s Counsel for the Claimant, relying on the case of John v MGM Limited, submitted that it has been held that principle requires that an award of exemplary damages should never exceed the minimum sum necessary to meet the public purpose underlying such damages, that of punishing the defendant, showing that tort does not pay and deterring others.

[108] In the case of Keith Mitchell v Steve Fassihi et al, Gordon JA discussed in detail the principles guiding an award of exceptional damages. His Lordship cited with approval the principles guiding an award of exemplary damages as discussed in the A v Bottrill, a judgment of the Judicial Committee of the Privy Council.

[109] I will set out the relevant paragraphs from Keith Mitchell v Steve Fassihi et al where Gordon JA quoted and discussed the Board’s judgment in A v Bottrill:

“At paragraph 20 of the judgment of Lord Nicholls of Birkenhead he says the following:

“20 The starting point for any discussion of the limits of the court’s jurisdiction to award exemplary damages is to identify the rationale of the jurisdiction. This is not in doubt, although different forms of words have been used, each with its own shades of meaning. For present purposes the essence of the rationale can be sufficiently encapsulated as follows. In the ordinary course the appropriate response of a court to the commission of a tort is to require the wrongdoer to make good the wronged person’s loss, so far as a payment of money can achieve this. In appropriate circumstances this may include aggravated damages. Exceptionally, a defendant’s conduct in committing a civil wrong is so outrageous that an order for payment of compensation is not an adequate response. Something more is needed from the court, to demonstrate that such conduct is altogether unacceptable to society. Then the wrongdoer may be ordered to make a further payment, by way of condemnation and punishment.”

It is to be noted that the learned Law Lord focuses on the word “outrageous”. Subsequently in the judgment he continues:

“22 In principle the limits of the Court’s jurisdiction to award exemplary damages can be expected to be co-extensive with this broad-based rationale. The court’s jurisdiction may be expected to extend to all cases of tortuous wrongdoing where the defendant’s behaviour satisfies this criterion of outrageousness…

“23 The next point to note is that, in the nature of things, cases satisfying the test of outrageousness will usually involve intentional wrongdoing with, additionally, an element of flagrancy or cynicism or oppression or the like: something additional, rendering the wrongdoing or the manner or circumstances in which it was committed particularly appalling. It is these features that make the defendant’s conduct outrageous.”

[16] What I derive from the above cases is that the narrow requirement that a defendant must contemplate a profit exceeding the likely damages to be assessed against him has been considerably widened. I believe that the law being applied, the Common Law, notwithstanding that the case derived from New Zealand, is the same law as applies in our jurisdiction and I so hold.”

[110] Applying these principles to the facts of the case, I consider that the Defendant’s failure to acknowledge service of the Claimant’s claim and to file a defence and his refusal to offer an apology even after being written to, were aggravating factors in the present case which have already been considered in making an award of aggravated damages to the Claimant. However, the Defendant’s persistence in repeating the defamatory statements, his attempts to justify his statements, his blatant breach of the interim injunction granted by the court and the evidence of his persistence and continued conduct of repeating the defamatory allegations even after the court concluded the assessment of damages hearing but before the court issued its ruling, in my view make his conduct outrageous. The Defendant has clearly demonstrated that he is unbothered by any sanction the law may provide.

[111] Exemplary damages are appropriate where a mere compensatory award is insufficient to punish a defendant for their outrageous conduct. The award of exemplary damages is to mark the disapproval of the conduct and deter the defendant from repeating it. In my view, compensatory damages even if increased by aggravated damages is inadequate in this present case.

[112] Having considered the circumstances of this case and the Defendant’s conduct, I am of the view that this is such a case that warrants an award of exemplary damages. I bear in mind that such an award should not exceed the minimum necessary to meet the public purpose of such damages, punishing the defendant and demonstrating that tort does not pay.29 In my view, the Defendant’s conduct in this case is much more outrageous and egregious that the Defendants in Keith Mitchell v Steve Fassihi et al. The award in Keith Mitchell v Steve Fassihi et al was also made close to 20 years ago. The award of exemplary damages in this case must meet its purpose of marking the disdain for the Defendant’s conduct and deterring such future conduct, accordingly, a higher award is therefore justified.

[113] I would therefore award the Claimant the sum of $100,000.00 as exemplary damages.

Interest
[114] Interest on the judgment debt shall be at the statutory rate of 6% per annum until payment in full.

Costs
[115] The Claimant is entitled to 60% of prescribed costs on the global award of $325,000.00 in accordance with rule 65.5 of the Civil Procedure Rules (Revised Edition) 2023 (“CPR”) and CPR Part 65, appendices B and C, in the sum of $26,250.00.

Disposition
[116] In light of the foregoing the Defendant shall pay the Claimant the following:

(1) General damages in the sum of $225,000.00 inclusive of $50,000.00 in aggravated damages.

(2)Exemplary damages in the sum of $100,000.00

(3) Interest on the global award of $325,000.00 at the statutory rate of 6% per annum from the date of this order, until payment in full.

(4) 60% of prescribed costs on the global award of $325,000.00 in the sum of $26,250.00.

[117] I wish to thank learned King’s Counsel and learned counsel for the Claimant for their helpful oral and written submissions.

Carlos Cameron Michel
Master
By the Court
Registrar

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