M.A. Bullen Alston Andrew (Proprietors of the "Vanguard" newspaper) Appellants v Eric Matthew Gairy Respondents [ECSC]

• Jurisdiction: Grenada
• Judge: CECIL LEVIS, J.A.,Acting Chief Justice
• Judgment Date: 28 September 1970
• Judgment citation (vLex): [1970] ECSC J0928-2
• Court: Court of Appeal (Grenada)
• Date: 28 September 1970
• Docket Number: Civil Appeal No.4 of 1970

[1970] ECSC J0928-2

IN THE COURT OF APPEAL

Before:

The Honourable the Acting Chief Justice

The Honourable Mr. Justice P. Cecil Lewis

The Honourable Mr. Justice St. Bernard (Ag.)

Civil Appeal No.4 of 1970

Between:

M.A. Bullen

and

Alston Andrew (Proprietors of the "Vanguard" newspaper)

Appellants

and

Eric Matthew Gairy

Respondents

H.E.L. Hosten, Q.C. for the Appellants

E.A. Heyliger for the Respondent

CECIL LEVIS, J.A.

1 This is an appeal against an order of a judge of the High Court in Grenada dated April 9th, 1970, in which he awarded the respondent (the plaintiff in the court below) the sum of $10,000.00 as damages in respect of a defamatory article appearing in the issue of the "Vanguard" newspaper of March 1st, 1968. The appellant 13 are the proprietors of this newspaper.

2 The article in question was captioned "City Bank threatened by Union Leader. Manager refuses to predate Account". The article as set out in paragraph 3 of the statement of claim reads as follows:

"A certain trade union leader (meaning thereby the Plaintiff) has threatened a city Bank with closure after the Manager had refused to predate a union account. Reliable sources reported that the union leader (meaning thereby the Plaintiff) taxied to the manager's home after making an appointment with him. There the manager was asked to predate a union account in such a way that the account might appear to have been opened long ago. The manager refused pointing out not only the immorality of the thing, but also the question of the obvious errors in the annual bank statements already published.

3 damages put the matter thus:

"province of the jury. In an action of libel "the assessment of damages does not depend on any legal rule." The amount of damages is "peculiarly the province of the jury," who in assessing them will naturally be governed by all the circumstances of the particular case. They are entitled to take into their consideration the conduct of the plaintiff, his position and standing, the nature of the libel, the mode and extent of publication, the absence or refusal of any retraction or apology, and "the whole conduct of the defendant from the time when the libel was published down to the very moment of their verdict. They may take into consideration the conduct of the defendant before action, after action, and in court at the trial of the action," and also, it is submitted, the conduct of his counsel, who cannot shelter his client by taking responsibility for the conduct of the case. They should allow "for the sad truth that no apology, retraction or withdrawal can ever be guaranteed completely to undo the harm it has done or the hurt it has caused."

4 Counsel for the appellant however contended that in two respects the trial judge took into account matters which he should not have considered and thus applied a wrong principle in assessing the damages. His first criticism was directed towards the words "position and standing". He conceded that the respondent's position was that of Premier of this State but he contended that there was no evidence as to his standing in the community, that is to say there was no evidence as to the manner in which he was regarded by the people of Grenada, whether he was held in high esteem by the people of Grenada, whether he was a good or a bad Premier, but nevertheless he said the trial judge based his assessment of damages on the standing and position of the plaintiff. He further added that there was no evidence as to the plaintiff's character and conduct. He claimed that "standing" in this particular sense meant the esteem or the reputation which the plaintiff enjoyed in the territory, and that it was separate and distinct from the word "position". Counsel stated that in the absence of evidence of the respondent's "standing" in the se nse in which he interpreted this word, the respondent would only be entitled to nominal damages, but he did not mean by the use of the word "nominal" to say that he was only entitled to small damages "of the 40/- variety". He conceded that as the respondent had a judgment in his favour he would be entitled to general damages. Counsel did not cite any case in support of this submission. I am not prepared to take so restricted a view of the word "standing" in this context. The word"position" is a word of much broader meaning than the word "standing", and the two words are sometimes used synonymously. One meaning of "position" as defined in Webster's New Collegiate Dictionary is "relative place; situation or standing, specifically social or official rank or status;" so therefore the word "position" in the expression "position and standing" would cover here both the official and the social status of the plaintiff. What the words "position" and "standing" of the plaintiff are intended to convey in this context is his status in the community. His position in the community is that of head of Government, and obviously being head of Government he must have a certain standing.

5 I am accordingly not persuaded that there is any merit in this submission.

6 The next criticism was in connection with the judge's statement that he had taken into account the absence of an apology. Counsel said that as no apology had been asked for, none was given and therefore the trial judge in referring to the absence of an apology as one of the factors which he had taken into account in assessing damages had erred in so doing.

7 In a passage in his judgment appearing at page 7 of the record the trial judge stated:

"The Defendants had originally pleaded in addition that the said words as set out in paragraph 3 of the Statement of Claim are fair andbona fide comment made in good faith and without malice on a matter of public interest."

8 That was one of the defences pleaded by the appellants. By an order of the judge in chambers made on the 11th August, 1969, upon the application of the plaintiff the defendants were required to serve on the plaintiff within 14 days the following further and better particulars in writing of the statement of defence, that is to say of the facts upon which the fair andbona fide, comment referred to above was based, and it was therein stipulated that in default the paragraph in the statement of defence in which such comment was alleged should be struck out. The defendants failed to furnish the required particulars within the time specified in the order and the relevant paragraph in the statement of defence was accordingly struck out. So the defendants having put forward an alternative defence that the statement made was a fair and bona fide comment made in good faith and without malice on a matter of public interest later found that they could not establish it, and it seems to me that at that stage it was open to them to consider the question of an apology. They did not do so and they preferred to let the matter go to trial, leaving as their only defence on record that the article complained of did not refer to the respondent. In these circumstances the trial judge, in my opinion, was...