“I am not persuaded that the judge erred in principle is assessing the award of general damages, nor can it be said with any measure of reasonable justification that $100,000.00 was out of all reasonable proportion in relation to the injury to respondent’s reputation and feelings.”
Those were the words used by Justice of Appeal of the Eastern Caribbean Supreme Court Trevor Ward as he dismissed the challenge made to the decision of high court judge Raulston Glasgow against former Grenada Prime Minister Keith Mitchell in an $EC130, 000.00 ruling against him in a Defamation lawsuit filed against him by former Sports Minister Patrick Simmons.
The Court of Appeal reportedly dismissed all the grounds of appeal in the lawsuit that was filed on behalf of the island’s longest serving Prime Minister by former Trinidad and Tobago Attorney General Lawrence Ramesh Maharaj.
The two other Justices of Appeal who heard the matter – Mde. Vicki Ann Ellis and Mde. Esco L. Henry concurred with the ruling of Justice Ward.
The case stemmed from erroneous statements made by Keith Mitchell in his capacity as Prime Minister against Simmonds, the former Member of Parliament for St Andrew South-east in the sale of government lands in Hope that was intended for use by the University of the West Indies.
The former Political Leader of the New National Party (NNP) had wrongfully told Grenadians at a public meeting in New York that Simmons was involved in the sale of the land in order to become a beneficiary from the proceeds as a member of the Cabinet.
During the hearing before the 3-member panel of Court of Appeal Justice, Mitchell was represented by Maharaj SC along with local attorney-at-law Nigel Stewart while attorneys Alban John and Hazel Hopkin-La Touche appeared for Simmons.
The top Trinidad lawyer signaled to the Court of Appeal that his client intends to take the matter to the London-based Privy Council, which is the final court of appeal for the Grenada jurisdiction.
As a public service, THE NEW TODAY reproduces in full the ruling by the Court of Appeal Justices in favour of Simmons against the ex-Grenadian leader:-
[5] The respondent, who was the claimant in the court below, instituted a claim against the appellant for general, aggravated and exemplary damages for defamation. The respondent pleaded that in their natural and ordinary meaning, or by innuendo, the words recorded at paragraphs 4 and 5 above meant and were intended and understood to mean and to convey as fact to the particular audience and to the public that:
“ (i) Certain members of the Grenadian Government preceding his current administration, bought land which they knew was needed by Government for the benefit of the State and then sold it to Government for profit;
(ii) the appellant’s use of the name “Simmons” was a clear reference to the respondent who at the time of the transaction was then Minister of Youth and Sports;
(iii) the respondent was one of those shareholders of the Company to which the appellant referred, which acquired the land to which he referred and then sold it to Government for profit;
(iv) the respondent, as a then Government· minister, used his position to profit at the expense of the then Government and people of Grenada; and
(v) the respondent, as a then Government minister, engaged in corrupt practices or, at least, one corrupt transaction, to his profit and at the expense of the then Government and people of Grenada.”
[6] The respondent further pleaded that in those words the appellant mixed matters of truth or fact with falsehoods, not caring how it affected the respondent or how it would be perceived by his said audience or the public at large.
[7] By way of defence, the appellant pleaded qualified privilege and, in the alternative fair comment. The particulars of qualified privilege as asserted were that:
(i) The appellant was at all material times the Prime Minister of Grenada and Minister of National Security and Finance and as such, a public official and spoke in such capacity.
(ii) The words complained of were spoken at a town hall meeting in New York hosted by officials of the Government of Grenada and intended to report to attendees on matters of state and public interest concerning Grenada. The persons invited were members of the Grenada diaspora living in New York.
(iii) The words complained of contained a fair and accurate report gleaned from Cabinet papers ranging from 2010 to 2012 and other matters of record known to the appellant concerning the Company and the said land purchase.
(iv) The said words spoken were in response to a matter of public interest in relation to the University of the West Indies project raised for discussion by a direct question from an attendee present at the said meeting. The question posed was twofold. Apart from the status of the University of the West Indies project, clarification was sought as to why the people of Grenada were told land was purchased by the NDC and sold to government.
(v) Further, the words complained of were published on a matter of public concern and their publication was for a matter of public benefit.
(vi) Prior to making the words complained of, the appellant spoke of the depressed state of the Grenada economy.
(vii) The appellant in his capacity as Prime Minister was under a moral, legal, social and public duty to publish the words spoken and the said attendee and all other attendees had a like interest to receive and hear them as they related to the conduct of public officials of Grenada in relation to the said purchase by the Government of Grenada.
[8] In relation to the alternative defence of fair comment, the appellant pleaded that the said words spoken by him are fair comment upon a matter of public interest, namely, the conduct of the government in office at the relevant time, including the respondent, in relation to the purchase of the said lands in question, as well as the respondent’s connections to the shareholders of the Company and were based upon certain facts.
[9] In summary, the facts pleaded to ground the purported fair comment were:
(a) Between 2010 and 2012, the NDC-led administration in Grenada evaluated two properties for the UWI Open Campus, ultimately purchasing one from the company. The property, valued at EC$7,323,535.00, was sold for EC$8,500,000.00. Michael Lett, a shareholder of the Company and a cabinet minister at the time, was linked to the surveying firm (Lett and Partners) that conducted the survey, for which the government paid EC$44,000.00. The appellant alleged that the transaction disregarded integrity and anti-corruption laws, suggesting improper orchestration.
(b) On April 11th, 2012, the Government of Grenada, represented by Governor General Sir Carlyle Glean, purchased approximately 88.85 acres of land at Hope Estate, St. Andrew’s, from Spring Valley Co-operation Limited for EC$8,500,000. This transaction was officially recorded in the Deeds and Land Registry of Grenada (Liber 9-2012, page 852).
(c) Despite the sale being recorded on April 30th, 2012, the purchase price for the land remained unpaid. The defendant referenced these outstanding funds, which the new government had to settle.
(d) The Company’s shareholders, as listed in its 1989 filings, included Joachim St. John, Lennox & Denise Perrotte, Pauline Andrew, Carlyle John, Michael Lett, Althema St. John, and Ben Jones.
(e) Among the shareholders, Pauline Andrew was a former government minister, Carlyle John was a civil servant, Ben Jones was a former prime minister, and Michael Lett was a minister in the 2008–2013 NDC administration.
(f) No additional documents, including annual returns, have been filed since the Company’s incorporation, making it liable for removal from the Companies Register under the Companies Act.
(g) The respondent, a minister in the 2008–2013 NDC administration, was known to be closely associated with shareholder Pauline Andrew. After the 2013 elections, the respondent (no longer in office) made inquiries about the transaction.
(h) The claimant was part of the Cabinet during the deliberations and decisions regarding the land purchase.
The High Court judgment
[10] At trial, the judge identified the following issues for resolution: (i) whether the impugned words were defamatory; (ii) whether the words referred to the respondent; (iii) whether the defence of qualified privilege was made out; (iv) whether the defence of fair comment was made out and (v) the appropriate measure of damages.
[11] In relation to the first issue, the judge held that the statements, in their natural and ordinary meaning, implied corruption by NDC ministers, including the respondent. The words were capable of lowering the respondent’s reputation and exposing him to public contempt. He therefore concluded that the words were defamatory.
[12] In relation to whether the words referred to the respondent, the judge held that in singling out the respondent by name and excluding another then minister (Peter David), the appellant made it clear that his reference to ‘Simmons’ was to the respondent. The small political community in Grenada made it likely the audience would identify the respondent as the person referred to as ‘Simmons’. Accordingly, he held that the statements were defamatory of the respondent.
[13] In relation to the defence of qualified privilege raised by the appellant, the judge found that while the UWI project was of public interest, the appellant’s statements were presented as facts without verification and that he had made no effort to seek the respondent’s comment or to correct errors. He held that the defence also failed due to lack of honest belief on the part of the appellant and reckless disregard for truth.
[14] In relation to the fair comment defence, the judge held that this defence requires the statement to be an opinion, not a fact. The appellant repeatedly asserted his claims as “facts” backed by Cabinet papers, but no evidence supported the claim that the respondent was a shareholder or profited from the sale of the land. On this basis the judge held that the defence of fair comment also failed.
[15] The judge also found malice in that the appellant acted recklessly by not verifying facts before speaking. His refusal to retract or apologize aggravated the harm. Malice therefore negated both defences.
[16] Having found in favour of the respondent, the judge awarded him general damages in the sum of $100,000.00 for defamation and aggravated damages in the sum of $30,000 but denied the claim for exemplary damages as he found that the appellant’s conduct was not oppressive or profit-driven. He awarded costs of $18,750.00 to the respondent.
[17] The judge also declined to grant an injunction as he found that there was no evidence of a risk of repeated publication.
The appeal
[18] By notice of appeal filed on 7th June 2023, the appellant raised 32 grounds of appeal. Notwithstanding the large number of grounds of appeal, many of them overlap and in substance cover different aspects of the same complaint. The broad headings of complaint relate to the judge’s: (i) assessment of evidence (ground 1); (ii) finding as to meaning of the words complained of (grounds 2 to 8); (iii) treatment of the defence of fair comment (grounds 9 – 19); (iv) treatment of the defence of qualified privilege (grounds 20 – 25); (v) treatment and conclusions on Reynolds Privilege (grounds 26 -28); (vi) findings on malice (grounds 29 -30); (vii) assessment of general damages (grounds 31 – 32).
[19] Ground 1 introduces the subsequent grounds of appeal with a broad and general assertion that the learned judge erred in law in that he failed to conduct a proper evaluation of the evidence and also failed to analyse properly the entirety of the evidence to identify the relevant evidence to properly determine and assess each of the defences raised by the appellant to the respondent’s claim. It will be convenient in this judgment to assess the grounds of appeal under the same headings adopted by the appellant, and to do so in turn.
Appellant’s submissions – Grounds 1 – 8 – Finding as to the meaning of the words
[20] The nub of the appellant’s complaints feeding grounds 1 – 8 are, first, that in determining whether the words spoken were defamatory, the judge was required, but failed, to have regard to the context in which the words were uttered, which was during a political Town Hall meeting, a forum for public debate on matters of public interest. In such a context, political speech warranted a wider latitude under defamation law, as established in Waterson v Lloyd and Spiller v Jospeh Secondly, the judge erred by not assessing whether the words could bear the alleged defamatory meaning or whether they were capable of being defamatory at all. He also failed to correctly ascertain the meaning of the words to decide if they defamed the respondent. It is further said that the judge erred in law in failing to apply general rules for determining the natural and ordinary meaning of the words, including: (i) that the natural and ordinary meaning of the words is that to be ascribed by the Court as the meaning the words would convey to the notional reasonable reader; (ii) that if there is a range of possible meanings, a right meaning is selected as the natural and ordinary meaning of the words; (iii) that the court does not use legal rules of interpretation appropriate for the construction of legal documents but is concerned with the effect of the words on ordinary people; and (iv) that in order to determine the natural and ordinary meaning of the words it is necessary to take into account the context in which the words were used.
[21] The appellant further contends that the judge erred in law in failing to appreciate that it was the respondent’s burden to prove that the words referred to him and that he was required but failed to ask himself whether reasonable people would understand the words to refer to the respondent, using an objective test. The judge overlooked that the respondent did not plead contextual facts upon which to rely to prove extrinsic facts to show that the words referred to him.
[22] The appellant further challenges the judge’s findings as to the natural and ordinary meaning of the words and his conclusion that they were defamatory. It is said in this regard that the judge misdirected himself by failing to explore how a reasonable person would understand the words in the context in which they were spoken and failed to consider whether the words were spoken within the parameters of reasonable political debate.
[23] The final complaint under this head is that judge wrongly held the words defamatory of the respondent because:(a) the appellant did not expressly refer to the respondent by his full name, and there was no evidence from the respondent to support the judge’s finding that the words could reasonably refer to him; and (b) the judge improperly considered at paragraph 34 the appellant’s intent, which is irrelevant on the issue of identification, the test of which is an objective one.
The respondent’s submissions – grounds 1 – 8
[24] The respondent accepts that the context of the publication is relevant to determining defamation and that the offending words were spoken at a political town hall political meeting on a matter of public interest. However, citing Jack Monroe v Katie Hopkins,3 the respondent argues that the fact that speech is political does not of itself require any special approach to deciding its meaning and the court is able to give appropriate protection to political speech without distorting well-established principles about the meaning of words.
[25] The respondent seeks to uphold the judge’s conclusions on this issue by arguing that the judge considered the background, pleadings, and legal principles of defamation. A fair and balanced reading of the judgment would reveal that the judge was mindful of the fact that the impugned statement was delivered at a town hall meeting, was made in a political context, and was not prepared in advance. Furthermore, the judge determined the meanings of the offending words and whether they were defamatory, and in doing so he did not improperly consider the appellant’s intent or knowledge.
Discussion – Did the judge err in his approach to determining the meaning of the words
[26] The general issues arising from grounds 1 – 8 is whether the judge erred in his approach to determining the meaning of the words and or arrived at a meaning outside the range of reasonably available meanings and whether he erred in determining that the words were defamatory of the respondent.
The law
[27] Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society. To succeed in an action for defamation, a claimant must prove the making of a statement by a defendant which tends to lower the claimant in the estimation of right thinking-members of the society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to disparage him in his office, profession, calling, trade or business. The impugned words must be construed in their natural and ordinary meaning, which is the meaning that would occur to the ordinary reasonable person. The standard to be ascribed to the notional ordinary, reasonable person is said to be one who is “…not naive; he can read between the lines. But he is not unduly suspicious. He is not avid for scandal. He would not select one bad meaning where other non-defamatory meanings are available”: Bonnick v Morris & others.
[28] In an action for defamation the claimant is expected to plead the meaning which he or she invites the court to ascribe to the offending words. It has been held that in determining whether the words were capable of conveying that defamatory meaning, the court must eschew over-elaborate analysis and too literal an approach and must “reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation”: Jones v Skelton. The meaning of allegedly defamatory words is a question of fact for the tribunal of fact, which in this case was the trial judge. His task was to decide on the basis of the totality of the facts the meaning that the words would have to an ordinary reasonable person: Ramadhar v Ramadhar.
[29] The Privy Council in Ramadhar provided clear guidance on the method of finding meaning as propounded by Sir Anthony Clarke MR in Jeynes v News Magazines Ltd and approved by Lord Kerr in Stocker v Stocker:
“(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve, but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking, but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any ‘bane and antidote’ taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation’: see Eady J in Gillick v Brook Advisory Centres approved by this court [2001] EWCA Civ 1263 at [7] and Gatley on Libel & Slander 10th ed, para 30.6. (8) It follows that ‘it is not enough to say that by some person or another the words might be understood in a defamatory sense’: Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68, 73, per Lord Halsbury LC.”
[30] In summary, the task of evaluating defamatory meaning calls for an emphasis on reasonableness, context and the perspective of the notional ordinary and reasonable person, and the avoidance of over analysis and interpretations that are strained, forced or unreasonable.
[31] The importance of the context in which the impugned statements were made is settled. The appellant invokes the learned authors of Duncan and Neil on Defamation and other Media and Communications Claims, to make good his point on context. The learned authors state:
“5.25 In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication. The question of context has been the subject of attention in recent case law, in relation to material that is intrinsic and extrinsic to the publication containing the statement on which the claim is based. The traditional principles have required particular reconsideration in the light of online publications.
5.26 The meaning of a particular statement will often vary according to the context in which it appears. Thus, the context may give the statement complained of a defamatory meaning, or shade of meaning, which it does not have when read in isolation. Equally, it may be that the defamatory sense of the statement on its face is neutralized or mitigated by the context.”
[32] While the discussion has thus far focused on the approach the trial judge should take in determining meaning, it is necessary to underscore the principle that an appellate court must exercise caution and restraint in determining whether the trial judge erred in his conclusion as to the meaning of allegedly defamatory words. Lord Kerr in Stocker v Stocker expressed the injunction in the following terms:
“[59] … [i]f an appellate court considers that the meaning that he has given to the statement was outside the range of reasonably available alternatives, it should not be deterred from so saying by the use of epithets such as ‘plainly’ or ‘quite’ satisfied. If it was vitiated by an error of law then the appellate court will have to choose between remitting the matter or, more usually in this context, determining the meaning afresh. But if the appellate court would just prefer a different meaning within a reasonably available range, then it should not interfere.”
[33] With the foregoing principles in mind, I turn to consider the approach taken by the judge in finding the meaning of the offending words and the criticisms levied against his approach.
[34] The judge embarked on the task by first adopting and articulating the definition of a defamatory statement derived from Halsbury’s Laws of England. The judge then directed himself that he must consider whether the offending words can bear the meanings ascribed to them and if yes, whether those meanings are in fact defamatory of the respondent. He instructed himself that it is for the judge to determine the possible meanings of the words and whether those words are defamatory of the respondent. At paragraphs’ [25] – [28], citing the case of Gonsalves v Lynch that adopted dicta from Skuse v Granada Television Limited, Halsbury’s Laws of England and Slim and others v Daily Telegraph and another which encapsulate all of the pertinent principles, and correctly directed himself on the need to be alive to the possible meanings of the impugned words. Thus guided, the judge set out his conclusion on the impugned words in the following terms:
“(1) Some ministers of the 2008 to 2013 NDC Government purchased land knowing that the Government intended to acquire it for a particular purpose and then sold the land to the Government for profit.
(2) Some ministers of the 2008 to 2013 NDC Government engaged in corruption or corrupt practices to the detriment of the Government and/or people of Grenada.
(3) Mr. Simmons was a member or shareholder of a company which bought land with the specific motive of selling it to the Government for profit.
(4) Mr. Simmons was engaged in corruption or misconduct as a minister of Government.”
[35] I cannot see that there is any viable argument that these meanings were outside the range of reasonably available meanings open to the judge. When the appellant’s statements are read as a whole the sting of the allegation is that with knowledge, that government wished to acquire the said land, ministers aligned with the government who were members of the Company, bought the land and then sold it to the government with a view to profit making. He implied that the respondent was a member of the company at the time of the transaction and raised the spectre of corruption by stating that some people are talking corruption.
[36] The appellant argues that in determining the meaning of the words, the judge was required but failed to consider that the context in which the words were uttered was one of political speech and debate on questions of public interest. He also failed to consider the mode of publication of the statement, which was an impromptu response without documentation at hand to a question posed by a member of the audience at a Town Hall Meeting. These circumstances required the court to interpret the impugned words with a certain degree of understanding and generosity. In oral arguments, it was said that a less injurious meaning ought to have been found.
[37] There are difficulties with this argument. In the first place the judge was plainly aware that he was required to interrogate whether a less injurious meaning was discernible. He expressly directed himself at paragraph [26] in accordance with the principles stated in Skuse v Granada Television Limited that:
“…6. In determining the meaning of the material complained of, the court is not limited by the meanings which either the plaintiff or the defendant seeks to place upon the words.
- The defamatory meaning pleaded by the plaintiff is treated as the most injurious meaning the words are capable of bearing and the questions a judge sitting alone has to ask himself are, first, is the natural and ordinary meaning of the words that which is alleged in the statement of claim and secondly, if not, what (if any) less injurious defamatory meaning do they bear.”
TO BE CONTINUED