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$325,000 awarded to Dr Francis Alexis

Carlos Cameron Michel – the sitting Master who handed down the decision

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:-

DECISION ON ASSESSMENT OF DAMAGES

Introduction

[1] MICHEL M: This is an assessment of damages on a defamation claim brought by Dr. Francis Alexis KC (“the Claimant”) against Mr. Cabral Douglas (“the Defendant”).

[2] The Claimant is an attorney-at-law, and one of His Majesty’s Counsel, learned in the law, and author of multiple law-related books including the book ‘Changing Caribbean Constitutions’. He is also a former member of the Regional Judicial and Legal Services Commission (“RJLSC”) of the Caribbean Court of Justice (“CCJ”). It is alleged by the Claimant in his statement of claim that the Defendant holds himself out to be an Attorney -at-Law admitted to practice in New South Wales, Australia and a senior journalist/editor residing in New South Wales, Australia.

[3] By claim form and statement of claim filed on 17th November 2017, the Claimant commenced these proceedings against the Defendant seeking damages for libel, including aggravated and exemplary damages, for words published by the Defendant in three publications (“the Offending Publications”) and a permanent injunction to restrain the Defendant whether by himself, his servants or agents, or otherwise howsoever named, from printing or publishing or causing to be printed or published, the offending words which are referred to in the statement of claim.

[4] The Claimant alleged that on 26th October 2017, the Defendant published or caused to be published via the internet, of and concerning the Claimant, and of and concerning him in the way of his profession, the following documents containing defamatory statements:

(i) “A letter dated 24th October 2017 headed “OFFICIAL POLICE COMPLAINT” and reflecting its subject matter as “RE: “Dr. Francis Alexis Received Bribe from CCJ President Byron Ahead of Appointment to RJLSC in contravention of CCJ Agreement 2001and Section 3 of the Trinidad and Tobago Prevention of Corruption Act 1987′. The said letter is addressed to Acting Commissioner of Police Stephen Williams (Ag COP Stephen Williams) of the Trinidad and Tobago Police Service (“Offending Publication 1”).”

(ii) “A “Breaking News” Press Release dated 24th October 2017 bearing the title “Dr. Francis Alexis Received Bribe from CCJ President Byron Ahead of Appointment to RJLSC’ (“Offending Publication 2”).”

(iii) A document entitled “Corruption at the CCJ’ (“Offending Publication 3”) in which the Defendant stated that “the official Police Report dated 24th October 2017 (Offending Publication 1) has been submitted to:

1.) The Trinidad and Tobago Police Commissioner (acting)

2.) The Royal Grenada Police Force

3.) The Royal Canadian Mounted Police ECMP)

4.) The Dominica Police Commissioner”

[5] In his statement of claim, the Claimant averred, in essence, that the Offending Publications falsely, maliciously, and scandalously asserted that the Claimant received a bribe from a former President of the CCJ ahead of the Claimant’s appointment to the RJLSC.

[6] The Claimant alleged that the Defendant is the author of all the above offending publications and that the assertion that the Claimant had received a bribe from a former President of the CCJ, is false and extremely defamatory of him, bringing him into public odium, contempt and disrepute and maliciously intended to lower his reputation among his colleagues and other right-thinking members of society – locally, regionally and internationally. The Claimant alleged that each of the three Offending Publications assert and repeat the false and baseless allegations made by the Defendant.

[7] The Claimant further relied on a number of facts to support a claim against the Defendant for aggravated and exemplary damages.

[8] No acknowledgement of service or defence was filed by Defendant to the Claimant’s claim within the time limited by the Civil Procedure Rules 2000 (“CPR”), and on application by the Claimant for judgment in default of defence, default judgment was entered for the Claimant by a judge, on certain terms. The learned judge also gave directions for the assessment of damages to be conducted by a master. The Claimant duly complied with the learned judge’s directions for the assessment of damages and filed a witness statement and written submissions in support of the assessment of damages. The Defendant failed to comply with the learned judge’s directions for the assessment of damages. He did not file a Form 31 notice of intention to be heard on assessment and did not file any witness statements. The Defendant filed written submissions out of time without the leave of the Court on the day the assessment of damages was scheduled for hearing.

[9] A subsequent application filed by the Defendant to set aside the default judgment was refused. Thus, the issue of liability having been crystallised by the default judgment, the task on the assessment is to determine how much compensation the Claimant is entitled to, based on his pleaded case, the evidence and the law. All matters that go to quantification of damages were open to the Defendant to challenge in so far as any such challenge was not inconsistent with the issue of liability concluded by the default judgment; however, the Defendant opted not to comply with the learned judge’s order to be heard on the assessment. The Court proceeded with the assessment of damages hearing on 29th November 2023 and reserved its decision.

Fresh Evidence Application
[10] On 7th December 2023, the Claimant filed an application to admit fresh evidence touching and concerning the assessment of damages. The application is supported by the affidavit of the Claimant. In the affidavit, the Claimant gives an account of statements made by the Defendant following the assessment of damages hearing on 29th November 2023 as evidence of the conduct of the Defendant to be taken into account for the assessment of damages.

[11] Despite being filed since 7th December 2023, the application did not come on for hearing until 27th March 2024.

[12] The basis of the Claimant’s fresh evidence application is that subsequent to the assessment of damages hearing on 29th November 2023, the Defendant proceeded via public media to make disparaging remarks about the Court, the Claimant and his counsel, while at the same time repeating the defamatory statement of the Claimant which forms the subject matter of these proceedings. The Claimant states that the offending remarks were made sometime between 29th November and 4th December 2023 and were received by one of his counsel in this matter via the WhatsApp platform.

[13] The Claimant contends that not only did the offending remarks breach an injunctive order of the Court against the Defendant but they also constitute aggravating conduct on the part of the Defendant. The Claimant argues that the Court is entitled to take into account such aggravating conduct in assessing damages and consider, in particular, whether to increase the award for aggravating and exemplary damages.

[14] The Claimant further contended that the words and actions constituting the offending remarks could not be placed as evidence at the 29th November 2023 assessment of damages hearing, as they were uttered and done post the hearing. The Claimant contended that the law establishes clearly that he can rely on the aggravating conduct in the damages equation, since the Court has not yet rendered its decision.

[15] The Claimant relied on the well-known principles laid down in Ladd v Marshall for the Court to consider the fresh evidence application. In a Ladd v Marshall application, three limbs must be satisfied before an application to adduce fresh evidence can be granted. First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

[16] Fresh evidence applications are usually made in the context of appeals whereby the evidence sought to be adduced was not before the court below from which an appeal against its decision is being heard. In the present case, the Claimant is seeking to admit evidence of the Defendant’s conduct following the assessment of damages hearing but before the court has rendered its judgment on the assessment. This scenario was considered by Leon J [Ag.] in Andriy Malitskiy et al v Stockman Interhold S.A. After discussing the principles concerning the reconsideration of a judgment in the High Court, looking at the matter from a pre-judgment point of view, the learned Commercial Division Judge stated:

“The test for additional evidence before judgment has been rendered must be taken to have advanced with the advancement of the test for a court to admit additional evidence and/or reconsider its judgment before its order has been sealed. The test before judgment also must be to deal with the case justly.”

[17] Considering the present matter, whether the test in Ladd v Marshall applies or the court is to exercise is discretion and in so doing considers the overriding objective to deal with cases justly, I am of the view that the affidavit evidence of the Claimant filed in support of his application on 7th December 2023 should be considered for the purpose of the assessment of damages. I have reached this conclusion for the following reasons.

[18] First, the evidence the Claimant is seeking to adduce is based on statements made by the Defendant after the conclusion of the assessment of damages hearing when the court reserved its decision and it would be impossible to have earlier placed such evidence before the court. Secondly, the evidence that the Claimant is seeking to adduce goes to the conduct of the Defendant, which is one of the factors the court must consider on the assessment of damages. It is important to bear in mind, as has correctly been submitted by learned King’s Counsel for the Claimant, that the trial court in assessing damages is entitled to look at the whole conduct of the Defendant from the time the libel was published down to the time the verdict is given. It may consider what his conduct has been before action, after action and in Court during the trial.

Related:  $325,000 awarded to Dr Francis Alexis - Part III

[19] Thirdly, the Court considers that the Claimant’s evidence is credible. The Claimant is not seeking to adduce, as evidence, allegations or statements made by the Defendant, but rather to demonstrate the Defendant’s conduct even after the assessment hearing and before judgment is delivered.

[20] In light of the foregoing, the affidavit of the Claimant, Francis Alexis, filed on 7th December 2023, is admitted for the purpose of the assessment of damages.

[21] I will now proceed with the substantive matter before the court, the assessment of damages on the Claimant’s claim.

The Claimant’s Evidence
[22] In his witness statement filed on 2nd October 2023, the Claimant stated that he was relying on and incorporating into his witness statement, certain filed documents in the proceedings. I shall set this out in full:

“5.1 In support of this Assessment, apart from this affidavit [sic], I rely on the following documents which already form part of the Court record in this matter:

“i. The Statement of Claim filed on 10th November 2017;

ii. Affidavit of Francis Alexis in support of Application for Interlocutory Injunction together with the Certificate of Exhibits attached thereto and numbering “FA1” to “FA20” filed on 10th November 2017 (“Alexis Affidavit 1”)

iii. Affidavit of Francis Alexis in support of Notice of Application for substituted service and the Certificate of Exhibits attached thereto filed on 20th November 2017 (“Alexis Affidavit 2”)

iv. Supplemental Affidavit of Francis Alexis in support of Application for Interlocutory Injunction together with Certificate of Exhibit attached thereto and marked “FA21” filed on 20th November 2017 (“Alexis Affidavit 3”)

v. Affidavit of Francis Alexis in support of Notice of Application for substituted service together with the certificate of exhibits attached thereto and numbers FA22 to FA31, filed on December 19th, 2017 (“Alexis Affidavit 4)

vi. Affidavit of Francis Alexis in support of application for default judgment against the Defendant, filed on 18th November 2022 (“Alexis Affidavit 5)

vii. Affidavit of Francis Alexis in support of application for committal to of the Defendant to prison for breach of court order, together with certificate of exhibit numbered FA1 to FA3, filed 18th November 2022 (“Alexis Affidavit 6).

5.2 I refer to, rely on, incorporate all the aforementioned documents as part of this Witness Statement.”

The Law of Defamation
[23] According to Gatley on Libel and Slander, “Defamation is committed when the defendant publishes to a third person words or matter containing an untrue imputation against the reputation of the claimant.” Any other imputation of the words or matter which may tend to lower a claimant in the estimate of right-thinking members of society generally or to expose him or her to hatred, contempt or ridicule is defamatory of him or her.

[24] Two types of defamatory statements are recognised. Libel, as in the present case, is a defamatory statement in a permanent form, usually consisting of printed or written words and includes anything more or less in a permanent form. Slander on the other hand is a defamatory statement that is in a transient form, often a spoken statement. The distinction at law between the two types of defamatory statements is that libel is actionable per se, that is, without any proof of special damages, as the law presumes that damage had been caused to the claimant’s reputation. Thus, the law presumes that some damage will flow from the publication. However, because of its transient nature, for slander to be actionable, some special damages must be proved to flow from it, unless it falls within one of the specified exceptions.

[25] As was noted by Cave J in Scott v Sampson, ‘the law recognizes in every man the right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit.’ The law of defamation is therefore there to protect a person’s general reputation and the associated injury to his or her feelings.

Principles Guiding the Assessment of Damages
[26] The general principles guiding an assessment of damages in a defamation action were considered by the Court of Appeal in Jenny Lindsay et al v Harriett Carty. In the Court of Appeal’s judgment, Baptiste JA cited with approval the following passage by Lord Bingham in John v MGN Ltd.:

“The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way. Although the plaintiff has been referred to as “he” all this of course applies to women just as much as men.”

[27] Lord Bingham went on to note that there can never be a precise arithmetical formula to govern the assessment of general damages and that in assessing general damages, a judge sitting alone should consider the particular facts of an individual case in the context of broadly comparable cases to lead to broadly comparable awards.

[28] As was stated by Windeyer J in a passage approved by the House of Lords:

‘‘It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways—as a vindication of the plaintiff to the public, and as a consolation to him for the wrong done.’’

[29] I will therefore consider the assessment of general damages under the following heads: (1) the gravity of the libel; (2) the extent of the publication; (3) the reputation of the Claimant; (4) the conduct of the Defendant; and (5) the effect of the publication.

The Gravity of the Libel
[30] As was stated in John v MGN Ltd in assessing the damages recoverable for injury to reputation, the most important factor in the gravity of the libel; the ‘more closely it touches the claimant’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be.’

[31] The defamatory words published by the Defendant were gravely serious. The words alleged that the Claimant had accepted a cash bribe and committed a criminal offence of corruption in public office. The words also carried an imputation that the Claimant’s appointment to the RJLSC was part of an alleged bribe he received. The Defamatory words also suggested that the Defendant was dishonest. The defamatory words struck at the heart of the Claimant’s integrity, character, and professional reputation, which are the very core attributes of a person’s personality.

The Extent of the Publication
[32] As noted above, in John v MGM Ltd, (which was cited with approval by the Court of Appeal in Edwardo G. Lynch v Ralph Gonsalves), it was stated that the extent of publication is a relevant factor in assessing damages and ‘a libel published to millions has a greater potential to cause damage than a libel published to a handful of people.’

[33] The first offending publication was addressed to the Acting Commissioner of Police, Trinidad and Tobago Police Service and was copied to the Royal Grenada Police Force, the Commonwealth of Dominica Police Force and the Royal Canadian Mounted Police.

[34] The second offending publication by the Defendant was a press release by the Defendant addressed to “media members”. The third offending publication was a document entitled “Corruption at CCJ” published in the media.

[35] In his statement of claim, the Claimant alleged that Offending Publications 1, 2 and 3 were all published on the internet, including via Grenada Broadcast and the Caribbean News Network. He alleged that Grenada Broadcast is widely followed by Grenadians throughout the world, including as far away as China and New Zealand. He further alleged that the Caribbean News Network is read widely by Caribbean nationals and others throughout the world.

[36] The Claimant further alleged that by the Defendant’s own admission, in Offending Publication 3, apart from publication via the World Wide Web, the Defendant copied all the offending publications specifically to the Royal Grenada Police Force, the Royal Canadian Mounted Police and the Dominica Police Force and has circulated it widely via email to the news media, Bar Associations, Lawyers and other professionals throughout the Caribbean and elsewhere.

TO BE CONTINUED

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