A dispute between two residents in the upper Middle Class area of Westerhall Heights in St David’s has ended up before high court judge Raulston Glasgow.
The two are Geoffrey Telesford and Sholto Agard who are neighbours and the former took the later to court on allegations of slander and seeking an injunction against him.
In the case dating back to 2017, Telesford claimed that Agard made certain defamatory statements about him to third parties which he felt caused him “considerable hurt, distress and embarrassment, exposing him to ridicule and contempt by members of his neighbourhood and the public.”
Telesford approached the court to seek “damages (including aggravated damages) for slander, an injunction restraining Mr. Agard from further publishing the same or similar slander, interest and costs.”
In response, Agard denied that he uttered any slanderous words concerning the complainant and put forward the argument that “the words allegedly uttered do not bear any of the defamatory meanings as claimed by Mr. Telesford.”
Attorney-at-law Nazim Burke, a former Minister of Finance in the 2008-13 Congress government appeared for Agard while his female counterpart Sheriba Lewis represented Telesford in the case.
The following ruling was handed down by Justice Glasgow in the matter:-
[38] During cross examination, Mr. Agard confirmed that he and his wife lived in Westerhall Heights for many years before Mr. Telesford, and that they put a fence around their property. He pointed out that there is a road that leads from the public road to his property, which he refers to as his driveway. When asked if the road he calls a driveway is actually an allowed road giving him access to the property, he stated that he did not know about that. When questioned about his absence from Grenada, Mr. Agard confirmed that he was out of state from 15th March, 2017 to 22nd March, 2017, but when asked if he provided any documentary evidence to support this, Mr. Agard replied that he did not think so.
[39] Mr. Agard also confirmed that he did not see who cut the chain as he was not in Grenada when the chain was cut. He also accepted that he never made a report to the police about the chain being cut. When asked about the truth of Ms. Bruce’s alleged statement about the workmen cutting the chain, Mr. Agard also accepted that he would not be able to say if it was true. However, he expressed that Ms. Bruce told him that and he believed her, as he would have to believe what she said. When asked about the cameras on his property, he denies telling Ms. Bruce that one of his cameras faced directly to their house, or saying ‘no no no, he was not trying to make confusion’, explaining that he does not speak that way and that he did not use those words to Ms. Bruce.
[40] Mr. Agard also acknowledged, when questioned, that he did not have a conversation with Mr. Telesford about the chain being cut, and that he did not speak to the workmen. He admitted telling Ms. Bruce that the chain stays, but denied making the ‘let sleeping dogs lie’ statement. When asked if he was aware that cutting a chain is considered damage to property, he said he was aware. He equally accepted that damage to property is punishable by imprisonment.
[41] When asked if he knew Officer Philbert, Mr. Agard responded that he knew the name, but he did not recognize the lady in the witness box. Mr. Agard also testified that he had only found out that day that Officer Philbert was an officer. When asked to explain, Mr. Agard replied that he knew Officer Philbert because she helps him with shipping every year, but he thought they were just employed as watchmen. Mr. Agard was asked if he was friendly with Officer Philbert. He responded that they are not friendly, just acquainted. When questioned about the tenor of his conversation with Officer Philbert, Mr. Agard confirmed that they were having a friendly conversation. He recalls that she stated several times that she had been in his neighbourhood just below his home, causing him to ask her why she had not come up to the house.
[42] Mr. Agard however denied that he invited Officer Philbert for a glass of wine. He insisted that Officer Philbert knows where he lives because she came to her brother, who is Mr. Telesford. When asked if he had provided any evidence that Mr. Telesford is Officer Philbert’s brother, he accepted that this was not in his evidence. Mr. Agard however explained that he came to this knowledge because Officer Philbert told him so. He also accepted that he had not provided the court with any evidence or reason why Officer Philbert would be untruthful in her evidence before the court.
Merle Agard’s evidence
[43] In her witness statement, Mrs. Agard confirms that she is Mr. Agard’s wife. She testifies that in 2004, they took occupancy of their house in Westerhall, St. David’s. She indicates that Mr. Anthony Forsyth and his family have been their neighbours since that time, as his house is across the street directly opposite to theirs. Mrs. Agard recalls that their stay in Grenada is usually from January to May of each year, and that her husband always informs Mr. Forsyth of their departure. Mrs. Agard states that she and her husband were overseas in Canada from March 15th to 22nd, 2017.On their return on the night of the 22nd March 2017, they found the chain across their driveway had been cut.
[44] Mrs. Agard deposes that the next day her husband started telling neighbours of the incident and asking if anyone saw anything. She recalls that he went to speak with Mr. Forsyth, but he was not home. Mrs. Agard recalls that she saw Mr. Forsyth and asked him if Mr. Agard had spoken to him and that he replied no. She informed Mr. Forsyth about the cutting of the chain, and asked him if he had seen anything, and he again replied no. Mrs. Agard states that she then told Mr. Forsyth that if neighbours had any issues or concerns about the chain, they could have come and spoken to them about their concerns.
[45] Mrs. Agard recalls that Mr. Forsyth responded that persons contacted him as president of the neighbourhood association to inquire whether the Agard’s driveway was a private driveway. Mrs. Agard testifies that Mr. Forsyth told her that he told the neighbours that he did not know whether the driveway was private, but that the Agards’ should know if their driveway is private or not. Mrs. Agard states that Mr. Forsyth made the point that the person was not Telesford, but she does not know why he did so. When she went back home, she told Mr. Agard about her conversation with Mr. Forsyth.
[46] During cross examination, Mrs. Agard was asked whether she had ever seen the deed for the property on which she lived. Mrs. Agard confirmed that she did. She was asked to point out where exactly her husband erected the chain on a copy of the plan attached to the deed. She had some difficulty doing so. Mrs. Agard was also questioned about whether she had provided documentary evidence of her contention that she and her husband usually stay in Grenada in January and May of each year. Mrs. Agard responded that there are documents that show when they arrive in Grenada, but there are no documents to show when they depart. Mrs. Agard was also asked if Mr. Forsyth was still alive, which she confirmed. She accepted that Mr. Forsyth was not before the court to give evidence on their behalf. Mrs. Agard also confirmed that Mr. Telesford was not present when she held the conversation with Mr. Forsyth.
ISSUES FOR THE COURT’S CONSIDERATION
[47] At the conclusion of the trial, counsel for the parties were asked to file closing submissions for the court’s consideration by 21st June, 2023. Both counsel duly complied. In light of the claim, the evidence and the closing submissions, I determined that these were the issues for consideration and determination by the court:
1) Whether Mr. Agard made the statements about Mr. Telesford to Natalie Bruce and Officer Tahera Philbert;
2) Whether the statements which Mr. Telesford alleges were made by Mr. Agard are capable of bearing the meanings which Mr. Telesford ascribed to them or any other meaning;
3) If the statements are capable of bearing the meanings ascribed by Mr. Telesford, whether the meanings are in fact defamatory of Mr. Telesford;
4) Whether the defamatory statements complained of are actionable per se without proof of material loss; and
5) What relief, if any, may be awarded Mr. Telesford.
DISCUSSION AND LEGAL ANALYSIS
Whether Mr. Agard made the statements about Mr. Telesford to Natalie Bruce and Officer Tahera Philbert.
[48] In English law, every person is entitled to his good name and to the esteem in which he is held by others, and has a right to claim that his reputation should not be disparaged by statements made about him to a third person or persons without lawful justification or excuse. This area of law is found in tort, and is known as defamation. Defamation as defined in Gatley on Libel and Slander is committed when a defendant publishes to a third person words or matters containing an untrue imputation against the reputation of the claimant. When the untrue imputation is in an oral and transient form, the cause of action is that of slander, and where the untrue imputation is in a written, printed or in a more permanent form, the cause of action is that of libel.
[49] An essential element in the law of defamation is that of publication, as a person’s reputation is based on what others think of them, and not how a person regards themselves. The law dictates that a person publishes a slander when they speak words defamatory of the claimant to, or in the presence of a third person who hears them. It is therefore the essence of the nature of defamation that the defamatory charge reach a destination, or should at least become known to someone.
[50] There is sufficient publication if the statement is made to a third party other than the claimant themselves, including the claimant’s wife. The burden therefore lies on Mr. Telesford to convince the court that the statements were in fact published, and that they were made in reference to him. It is important to note at this juncture that Mr. Agard in effect filed a bare denial by stating that he did not make the alleged defamatory statements, and he did not seek to avail himself of any of the defences of truth/justification, fair comment, qualified or absolute privilege available under the law. From his evidence, Mr. Telesford was never present when any of the alleged defamatory statements were made. Therefore, Ms. Natalie Bruce’s and Officer Tahera Philbert’s evidence as to the persons to whom the statements were allegedly uttered and the evidence from Mr. Agard himself were of assistance in determining this issue.
[51] Counsel for Mr. Telesford submitted that the evidence from Mr. Telesford’s witnesses remained consistent throughout and they ought to be accepted as truthful, as the witnesses’ evidence remained unchallenged, truthful and clear throughout cross – examination. Counsel for Mr. Agard counters that no one other than Officer Philbert and Mr. Agard can confirm whether he actually made the statements, and asks the court to find that Officer Philbert’s evidence is unreliable. Mr. Agard’s counsel’s challenge to Mr. Telesford’s witnesses is threefold.
[52] Counsel for Mr. Agard submits that both parties accept that the chain cutting incident occurred in March, 2017. However Officer Philbert states that she spoke to Mr. Agard in December, 2017. Counsel argues that this is not possible because Mr. Agard was not in Grenada in December, 2017, and submits that Mr. Agard has provided evidence of his passports for the years 2012, 2014, 2016, 2017, 2018, 2019, 2020 and 2022 showing his absences from Grenada, which evidence remains unchallenged. Counsel also contends that both Mr. Telesford and Ms. Bruce admitted that Mr. Agard never called Mr. Telesford by his first name, and invited the court to investigate the chances that ‘at 11:00 one morning, an 82 year old man would walk up to a police officer in uniform and on duty and say to her, ‘you must come by me for a glass of red wine’.
[53] Having observed the demeanour of Ms. Bruce and Officer Philbert and their respective answers to counsel for Mr. Agard in cross – examination, I have determined that their evidence is credible and that they are witnesses of truth. Both witnesses were steadfast and adamant about what Mr. Agard had said to them, but also readily admitted where there were lapses in their statements.
[54] For example, Ms. Bruce acknowledged that part of what Mr. Agard said to her when she asked him directly if he was accusing her husband of cutting the chain– “no no no” was omitted from the statement of claim. Ms. Bruce was however unwavering in her position that Mr. Agard actually uttered those words to her when questioned. Officer Philbert also readily admitted that there was an error in her statement, as she indicated in cross – examination that Mr. Agard told her that he lived in Westerhall Heights, and not Westerhall as recounted in her evidence. Both witnesses could have stuck to what their statements related, but were honest and forthright which established their credibility before the court.
[55] Mr. Agard’s counsel sought to impugn Officer Philbert’s recollection of her conversation with Mr. Agard on the basis that it is unbelievable that an elderly man would invite an on-duty police officer for a glass of wine. I do not find this to be unbelievable, given that both Officer Philbert and Mr. Agard acknowledged that they had known each other for quite some time before that day’s meeting in St. George’s. Mr. Agard also indicated that he invited Officer Philbert to get some fruits from his property. It is not out of the realm of reality that he would invite Officer Philbert to his home for some wine as well.
[56] Having reviewed the documentary evidence filed, and Mr. Agard’s passports, I am minded to believe that the conversation with Officer Philbert took place in April, 2017 and not in December, 2017 as alleged. However, counsel’s qualms over whether the conversation with Officer Philbert occurred in April or December is of no moment in my determination, as both parties accepted that the conversation did take place. The time when the conversation took place is, in my opinion, quite immaterial on the present facts.
[57] Juxtaposed to Mr. Agard’s evidence, I found Mr. Agard to be very combative and argumentative in cross – examination, as he seemed to be deliberately evading directly answering questions posed to him. Mr. Agard instead insisted on posing questions in response to questions asked by this court and Mr. Telesford’s counsel. His demeanour and attitude did not lend me to believe that he did not make the statements to Ms. Bruce and Officer Philbert as alleged. I am constrained to find that he appeared to be trying to cover his tracks by repeatedly saying that ‘he did not want to get tied up.’ I therefore find as a matter of fact that Mr. Agard made the statements attributed to him by Ms. Bruce and Officer Philbert respectively.
Whether the statements which Mr. Telesford alleges were made are capable of bearing the meanings which Mr. Telesford ascribes to them or any other meaning.
[58] Before assessing whether the allegedly offending words uttered by Mr. Agard are defamatory of Mr. Telesford, the court must first consider whether the offending words are capable of bearing the meanings ascribed to them. Whether words are capable of bearing a defamatory meaning is a question of law and whether words do bear a defamatory meaning is a question of fact. The legal principles in relation to this issue are well settled.
[59] The court’s first task is to determine the single natural and ordinary meanings of the words complained of, which is the meaning that the hypothetical reasonable reader would understand the words to bear. Jeynes v News Magazines Ltd and another provides a comprehensive but non exhaustive list of considerations for the court as drawn from Thomas Bingham MR in Skuse v Granada Television Limited:
“ (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 …
(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…”
[60] Counsel for Mr. Telesford referred the court to the eight considerations in Skruse as quoted above, and further referenced Jones v Skeleton, to make the point that the court should give the words in question their natural and ordinary meaning, which may be either the literal meaning or an indirect meaning, which includes any implications or inferences which a reasonable reader would draw from the words.
[61] In relation to Ms. Bruce, counsel for Mr. Agard contends that in their totality, the words allegedly uttered to her do not bear a defamatory meaning, as Ms. Bruce admitted that the response made by Mr. Agard was omitted from that statement. Counsel submits that if the court examines the totality of the statement and its context, the words complained of relate to the suggestion that it was one of Mr. Telesford’s employees that cut the chain, which is the good interpretation.
[62] Counsel further puts forward that it is unreasonable to seize only on the bad interpretation that Mr. Agard was accusing Mr. Telesford of the chain cutting to give the words a defamatory sense. Counsel for Mr. Agard submits that the court should take note of the reasonable man test as set out in Jeynes in determining the meanings of the words, as the reasonable man is not avid for scandal, and does not select one bad meaning where other non – defamatory meanings are available.
[63] When the facts of this case are examined in the lens of the legal principles, I find that it would be perverse to conclude that the natural and ordinary meanings of the statements made to Ms. Bruce and Officer Philbert are not capable of bearing at least some of the meanings as alleged by Mr. Telesford. The statement made to Ms. Bruce suggest that Mr. Agard was alleging that Mr. Telesford was responsible for his chain being cut. Ms. Bruce herself indicates that she formed this conclusion during the conversation, and I am inclined to agree with her. The natural and ordinary meaning of the discussion between Mr. Agard and Ms. Bruce lends to the conclusion that when Mr. Agard came back to find his chain cut and viewed his cameras, he found that Mr. Telesford was the culprit, and this caused him to want to have a man to man conversation to discuss the issue with him.
[64] Counsel for Mr. Agard’s submissions ignore that I am assessing the statements made by Mr. Agard to Ms. Bruce and not what Mr. Agard claims Ms. Bruce said to him, which I disbelieve in any event. Notably, counsel for Mr. Agard made specific reference to Ms. Bruce’s statement but made no submissions about the meanings to be attributed to the statement made to Officer Philbert. I hypothesise that this posture may be due to the obvious fact that the natural and ordinary meanings of the words uttered to Officer Philbert expressly identify Mr. Telesford as the person who cut Mr. Agard’s chain.
[65] I therefore find that the natural and ordinary meaning of the words spoken to Ms. Bruce is that Mr. Telesford was responsible for cutting Mr. Agard’s chain, and the words spoken to Officer Philbert need no further elucidation. I do not think that the statements are capable of meaning that Mr. Telesford is a malicious man in our Caribbean parlance or a bad neighbour and disreputable person, but the natural and ordinary meaning would definitely communicate to the reasonable person that Mr. Telesford committed a criminal offence by cutting Mr. Agard’s chain.
If the statements are capable of bearing the meanings ascribed by Mr. Telesford, whether the meanings are in fact defamatory of Mr. Telesford.
[66] As stated by Stephenson J in Lexi Maximea v The Dominica Agricultural Industrial and Development Bank et anor,
“ a defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule…”.
[67] Counsel for Mr. Telesford submits that the words stated by Mr. Agard have lowered Mr. Telesford in the estimation of right-thinking members of society, as any person hearing the words would conclude that Mr. Telesford had committed a criminal offence of damage to property. Damage to property is in fact a criminal offence, as will be discussed in the subsequent issue, and I believe that any right-thinking member of society would think less of Mr. Telesford upon hearing the accusations made by Mr. Agard. Any allegation of criminal activity is surely offensive to right thinking members of society.
[68] Counsel for Mr. Agard however avers that the statements were not in fact defamatory of Mr. Telesford, but of his workmen. Counsel bases this assertion on Ms. Bruce’s response in cross – examination when she accepted that Mr. Agard said ‘no no no I am not making any confusion’, and further on Mr. Agard’s claim that Ms. Bruce told him that her workmen cut the chain. Counsel submits that Mr. Telesford “cherry picked” the words to be placed in the statement of claim, and by wilfully omitting the answer given by Mr. Agard, came to the court with unclean hands and was motivated by malice. In this regard, counsel refers the court to Charleston and Another v News Group Limited and Another15, where Farquharson LJ said:
“There is no doubt that the publisher of an alleged defamatory statement is entitled to have the entire statement looked at in its full and proper context. The Claimant who contends that a statement is defamatory of him cannot select part of the statement to justify his claim and ignore passages or words which qualify or negate the effect of the part complained of”.
[69] With respect to learned counsel, this submission fails on the same point as discussed in the previous issue. I am assessing the statements made by Mr. Agard to Ms. Bruce, and not the converse. In any event, the allegation of cherry picking, while frowned upon, does not assist Mr. Agard. I glean the guidance from Lord Bridge of Hardwich in Charleston and Another v News Group Newspapers Ltd which referenced Alderson B’s passage in Chalmers v Payne (1835) 2 C.M. & R. 156, 159:
“But the question here is, whether the matter be slanderous or not, which is a question for the jury, who are to take the whole together, and say whether the result of the whole is calculated to injure the plaintiff’s character. In one part of the publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion, the bane and the antidote must be taken together.”
[70] I find that even if the ‘no no no” comment is added to the statement made to Ms. Bruce, it does not rise to the level of an ‘antidote’ to take away the sting of the inference which Mr. Agard made against Mr. Telesford about the chain being cut. If I am to believe, as suggested by counsel for Mr. Agard, that Mr. Agard was not accusing Mr. Telesford himself, but his workmen, then Mr. Agard could easily have said that in conversation with Ms. Bruce.
[71] Instead of saying “no no no I am not making any confusion” in response to Ms. Bruce’s question, he could easily have said that he was not accusing Mr. Telesford, but the workmen. The need to speak to Mr. Telesford “man to man”, especially after viewing his cameras, suggests to me that Mr. Agard thought or had found by viewing his cameras that Mr. Telesford was the culprit who committed the allegedly criminal act of cutting the fence, and wished to confront him. I therefore find that the words were defamatory of Mr. Telesford as they would tend to lower him in the estimation of members of society.
Whether the slanderous statements complained of are actionable per se without proof of material loss.
[72] Usually, in an action for slander, the aggrieved party must allege and prove as special damage some form of actual material loss. There are exceptions to this general rule, as an oral defamatory statement is actionable per se (without proof of special damage) in three distinct circumstances:
1) Where the statement disparages the claimant in any office, profession, calling, trade or business held or carried on by him at the time of the publication;
2) Where the statement is published about the claimant in the way of his office or calling in relation to his conduct for it, and imputes unfitness for or misconduct in that office or calling; or
3) Where the statement imputes that the person of whom the words are published has committed a crime punishable by imprisonment.
[73] Counsel for Mr. Telesford relies on the third limb as referenced in Hellwig v Mitchell19, submitting that Mr. Agard’s words suggested that Mr. Telesford had committed the criminal offence of damage to property by cutting the chain to Mr. Agard’s driveway. She argues that this criminal offence is punishable by imprisonment pursuant to section 94(2) of the Criminal Code. Further, counsel for Mr. Telesford submits that the slander as alleged consists of words actionable in themselves and the mere use of those words constitute the infringement of Mr. Telesford’s rights which is a wrong which gives rise to a cause of action.
[74] Counsel for Mr. Agard counters that Mr. Telesford has not alleged or proven actual material loss, and therefore has not made out a case for special damages. In this regard, counsel contends that Mr. Telesford will not be able to maintain his action against Mr. Agard unless he convinces the court that the slander is actionable per se. Counsel further contends that the crime of which Mr. Telesford complains is that of chain cutting, which is governed by section 89 of the Criminal Code, where the penalty is a fine and not imprisonment.
[75] Further, counsel for Mr. Agard explains that sections 94(2) and 271 of the Criminal Code have no application to the case at bar. Counsel is of the view that even though section 89 does not make specific reference to a ‘chain’, section 89 makes it unmistakeably clear that damage to any class of items listed in that section would result in a fine. In counsel’s view the chain falls within the purview of this section as it was erected to act as a barrier to entry by unauthorized persons.
[76] Counsel also submits that sections 94(2) and 271 of the Criminal Code have not been made out, as these sections require that the damage to property amount to sums as set out in the legislation, which Mr. Telesford has not proven. On this basis, counsel contends that the slander complained of is not actionable per se, and judgment should be entered for Mr. Agard, as the existence of material loss is essential to the cause of action of slander outside of the exceptions.
[77] I agree with counsel for Mr. Agard that the case can turn on the issue of whether the claim is actionable per se. Counsel for Telesford’s contention that the slander is actionable because it constitutes an infringement of Mr. Telesford’s rights borrows language from constitutional law, which is not the cause of action at bar. The law on this point has been settled as early as the 18th century in cases such as Ratcliffe v Evans and Alexander v Jenkins that actual material loss must be alleged and proven in cases of slander unless the slander falls within the exceptions mentioned above.
TO BE CONTINUED