The law firm of Lewis & Renwick has decided to challenge a court ruling awarding local environmentalist Dr. Valma Jessamy of Jessamy Environmetal Consultancy & Research Caribbean Incorporated EC$170, 000.00 in a judgment against the Grenada Co-operative Bank Limited (GCBL).
Female Master Jan Drysdale handed down the ruling after Jessamy’s attorney who is her husband, Jerry Edwin filed a suit against Co-op bank for refusing to honour some of her cheques.
The American-trained attorney claimed in the case that there was money in the account when the financial institution did not honour the cheques and also posted her name in the public domain as someone who should be treated with caution in doing business.
Edwin reportedly asked the court for millions in damages as part of the compensation package for his wife but Master Drysdale awarded less than EC$200, 000.00 in a judgment, which is believed to be the first of its kind in the country.
Informed sources told THE NEW TODAY that Lewis & Renwick is not in agreement with certain aspects of the ruling of the Master and will be challenging it before the Justices of the Court of Appeal.
A well-placed source said that the law firm has obtained a legal document, which seems to suggest that the Master might have erred in a certain aspect of her ruling.
As a public service, this newspaper brings Part 2 of the edited version of the ruling as handed down by Master Drysdale:
Damages Breach of Contract
Liability having been determined it is without question that the Defendant breached the obligation it had to the Claimant to honour the cheques presented where in the circumstances the overdraft facility had the requisite funds to do so.
The Defendant therefore acted unlawfully and is liable to the Claimant for appropriate damages for breach of contract.
In order to arrive at appropriate measure of damages, the Court must ascertain whether this breach caused injury to reputation of the Claimant.
The undisputed evidence is that there was publication of dishonoured 14 to six different agencies. Out of the six entities, four to date refuse to accept the cheques of the Claimant. The remaining two abandoned their initial position of dealing with the Claimant on a cash only basis after a process was engaged to satisfy them that the Claimant was in good financial standing.
Clearly the dishonouring of the cheques gave rise to an inference that the Claimant was not credit worthy.
Having regard to the above it is pellucid that the reputation of the Claimant was adversely affected. The Court also notes that there has been no attempt by the Defendant to mitigate this by acknowledging the error to the Claimant or the recipients of the dishonoured cheques and or render an apology.
Taking into account all of the circumstances reasonable damages to compensate the Claimant for the wrong done is assessed in the sum of $30,000.00.
The purpose of damages in a defamation is to compensate the injured party for the wrong suffered.
The Court has in a plethora of cases set out the factors to be taken into account in assessing damages which factors include the nature and extent of the publication, standing of the injured party, whether an apology has been issued, the conduct of the Defendant and where appropriate the injury to the feelings of the injured party.
It is not disputed the Defendant dishonoured a total of 14 cheques issued by the Claimant. The principle that every publication of a libel gives rise to a separate cause of action was established more than a century ago in the case of Duke of Brunswick v Harmer.
The Court also takes into account that there is no indication that prior to the series of these dishonoured cheques that the Claimant had ever or was habitually engaged in the submission of dishonoured cheques.
The evidence suggests that the Claimant was a company in good standing. It is evident that the Claimant’s reputation was adversely affected resulting in several companies altering the way business was done with it and refusing to accept cheques from it.
The Court notes also that notwithstanding the issue of liability being determined the Defendant has failed to date to resile from its position of not being liable to the Claimant and has failed or refused to tender an apology.
The court also notes that whilst the Claimant has suggested that it has sustained loss of profits not a scintilla of evidence has been provided to substantiate this claim. Further from the Claimant’s own evidence there is not a clear indication that any alleged loss of business is directly attributed to these dishonoured cheques.
In this case there are some comparable circumstances including the relatively small sums of some of the cheques dishonoured in circumstances where the claimant should have had sufficient monies to satisfy the same, the posture of the bank in refusing to offer an apology and standing of the claimant being a ‘person’ known to be of good standing.
Having reviewed all the circumstances including the similarities and differences of the cases, it is this court’s considered opinion that the Claimant be awarded the sum of $10,000.00 for each dishonoured cheque making in the aggregate the sum of $140,000.00.
Aggravated damages take into account the Defendant’s motives, conduct and manner of committing a wrong in so far as they may have aggravated the Claimant’s damage by injuring his proper feelings of dignity and pride. It is awarded as compensation for a tort and not for a breach of contract.
The Claimant argues that the failure to render an apology coupled with the continued denial that the Defendant had wrongfully dishonoured the Claimant’s cheques and failure to notify the Claimant of the decision not to honour the cheques are sufficient aggravating factors for such an award to be made.
Having examined the evidence, I do not find any malice or spite by the Defendant’s dishonouring cheques sufficient to award aggravated damages. Further this being a company doubt is expressed as to whether objectively the company can be attributed with injured feelings.
To my mind this can only be done by attributing these feelings to the alter ego of the company in this case the Director. There is however a paucity of legal authority to justify this and so this Court will veer on the side of caution in the circumstances.
In any event whether it may be possible for such an award to be made, I do not find that there are enough factors available in this case which would aggravate the circumstances and thereby lead to an award of damages.
Exemplary damages are damages awarded to punish the wrongdoer for behaviour which is inter alia oppressive arbitrary and or unconstitutional. Exemplary damages like aggravated damages are not appropriate in breach of contract claims.
As it relates to the tort of defamation in this case the Claimant must demonstrate that the behaviour of the Defendant in some way designed to make a profit from his wrong or that the behaviour of the Defendant was so outrageous that the Defendant should be punished.
The dishonour of several cheques is not in and of itself sufficient to Order justify an award. Further the Claimant has not provided satisfactory evidence of any outrageous behaviour deserving of punishment and therefore has not met the threshold for an award of exemplary damages. Moreover, having regard to the fact that this discretion is sparingly used I decline to make an award of exemplary damages.
Based on the foregoing I make the following order:
- The Claimant is awarded damages as follows:
(a). The sum of $30,000.00 for breach of contract
(b). The sum of $140,000.00 for the tort of defamation