Keith Claudius Mitchell v Patrick Simmons

EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL GRENADA GDAHCVAP2023/0023 BETWEEN: KEITH CLAUDIUS MITCHELL Appellant and PATRICK SIMMONS Respondent Before: The Hon. Mde. Vicki Ann Ellis Justice of Appeal The Hon. Mr. Trevor M. Ward Justice of Appeal The Hon. Mde. Esco L. Henry Justice of Appeal Appearances: Mr. Ramesh Lawrence Maharaj SC with him Mr. Nigel D. Stewart for the Appellant Mr. Alban John with Ms. Hazel Hopkin-La Touche for the Respondent ______________________________ 2025: January 29; July 10. _______________________________ Civil appeal – Defamation – Whether the appellant’s statements at a town hall meeting were defamatory of the respondent – Meaning – Whether the words were capable of bearing a defamatory meaning – Whether the judge failed to correctly ascertain the meaning of the words spoken by the appellant – Whether the judge failed to have regard to the context in which the words were spoken in determining their meaning - Identification – Whether the appellant’s statements referred to the respondent - Fair comment – Whether the statements constituted fair comment on a matter of public interest − Qualified privilege – Whether the occasion of the town hall meeting attracted traditional qualified privilege – Reynolds principles – Whether Reynolds principles apply − Malice – Whether malice sufficiently pleaded – Whether the appellant acted with malice, defeating any defence of privilege – Assessment of damages – Whether the award of general damages was inordinately high – Whether the judge erred in awarding aggravated damages – Whether in any event the award for aggravated damages was inordinately high Keith Claudius Mitchell (“the appellant”) was at the material time in 2013, the Prime Minister of Grenada and leader of the New National Party (NNP). Patrick Simmons (“the respondent”), previously served as Minister of Youth Empowerment and Sports from 2008 to 2013 under the National Democratic Congress (NDC) government. On or about 1st June 2013, the appellant attended a town hall meeting in Brooklyn, New York in his capacity as the then Prime Minister of Grenada. This meeting was arranged for the benefit of Grenadian citizens residing in New York to discuss matters of State and generally to update those gathered on the plans of the Government. The panel comprised of the appellant, two other Ministers of Government and one Peter David, a former Minister in the NDC government but now aligned with the NNP government. Following the presentations by the appellant and his Ministers, they fielded questions from members of the audience. A woman in the audience directed the following question to the appellant: “I would like to find out what is the situation with the University, the project for the University of the West Indies in Spring Valley and secondly, I would like to know.. . why were the people of Grenada told that the land was purchased by the NDC from the shareholders and sold to the Government?" The appellant answered in the following terms: "... it is a fact sister, that the land was bought by a company which had some persons who were ministers of government in that company and it was then sold on to government and I have a fundamental problem with this. Some people are talking corruption. I don't see how any member of my government will go and buy a piece of land knowing that the government wants it, buy it and then sell it to the government. Clearly they are not buying it for charity. They clearly was buying it as a part really of making money..." The questioner challenged the truth of the appellant’s statement. The appellant replied: "No my dear, the facts are there, the Company is there. I'm talking from Cabinet papers my dear. I'm sorry that you don't agree with me but I'm not speaking from the top of my head, these are facts, ask Simmons if he wasn't a member of that Company as an example, just ask him. I can tell you more persons who were on it; not Peter David". A recording of the meeting was subsequently uploaded to YouTube. In the court below, the respondent 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 spoken by the appellant meant and were intended and understood to mean and convey as fact to the particular audience and to the public that the respondent, while serving as a government minister, used his position to engage in a corrupt transaction for personal profit at the expense of the State. The respondent further pleaded that the appellant recklessly mixed truth with falsehood, disregarding the impact on the respondent’s reputation and public perception. The appellant thereafter filed his defence and pleaded qualified privilege and, in the alternative fair comment. In relation to the alternative defence of fair comment, the appellant pleaded that the statements were fair comment on a matter of public interest, specifically government conduct and the respondent’s involvement in the land transaction and association with the company’s shareholders based on facts. The trial judge identified the following issues: (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. The judge found the statements defamatory as they implied corruption by the respondent and were clearly understood to refer to him. Both the defences of qualified privilege and fair comment failed due to unverified factual claims and reckless disregard for the truth. Malice was established by the appellant’s failure to verify facts and refusal to retract. The judge awarded the respondent $100,000.00 in general damages, $30,000.00 in aggravated damages, and $18,750.00 in costs, but denied exemplary damages and an injunction. 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) and (vii) assessment of general damages (grounds 31 – 32). Held: dismissing the appeal, affirming the decision of the learned judge and awarding costs to the respondent to be assessed if not agreed within 21 days that: 1. In an action for defamation the claimant is expected to plead the meaning which he or she invited the court to ascribe to the offending words. 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 reasonable interpretation.” The impugned words must be construed in their natural and ordinary meaning, which is the meaning that would occur to the ordinary reasonable person. Thus, 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. There can be no viable argument that the meaning that the judge attributed to the appellant’s words was outside the range of reasonably available meanings open to him. 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 and that the respondent was a member of the company at the time of the transaction. The appellant raised the spectre of corruption by stating that “some people are talking corruption”. While it may be said with justification that the judge did not expressly state that in determining the meaning to be ascribed to the impugned words he took into consideration the context in which they were made, even when due allowance is made for the fact that the statements were uttered as an impromptu response to a question posed at a Town Hall meeting, there is no more understanding or generous or less injurious way in which to interpret the words than as interpreted by the judge. Bonnick v Morris & Others [2002] UKPC 31 applied; Jones v Skelton [1963] 1 WLR 1362 applied; Ramadhar v Ramadhar [2020] UKPC 7 distinguished. 2. Words are not actionable in a claim for defamation unless they are published of and concerning the claimant. Where the claimant is clearly identified by name or otherwise clearly identified, little difficulty can arise in concluding that the defamatory words refer to him or her. However, it is not essential that the claimant be named in the statement. In a case where the statement does not expressly refer to the claimant, they may yet be held to refer to him if reasonable people with relevant knowledge could and did understand them to refer to the claimant, if not, the claim fails. From the appellant’s words, the ordinary and reasonable Grenadian would have understood that the person to whom the words referred was the respondent. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 applied. 3. It is a defence to an action for defamation if the defendant can show that the statement complained of was fair comment on a matter of public interest. The elements of the defence of fair comment are: (i) the statement in issue must be comment and not fact and the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made so that the reader can understand what the comment is about; (ii) the matter in respect of which the comment is made is a matter of public interest; (iii) where that matter consists of facts alleged to have occurred, the comment must be founded on facts that are true; (iv) the comment is objectively “fair” in the sense that the comment was one that was capable of being honestly founded on the facts to which it related, even by someone who was prejudiced and obstinate; (v) the comment represented the defendant’s honest opinion and is not made maliciously. The defendant’s honesty is assumed, and it is for the claimant to prove malice. To bring oneself within the protective ambit of the defence of fair comment, the statement in question must clearly appear and be recognisable as comment, as distinct from an imputation of fact. The defence is concerned with the protection of comment, not imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere. Viewing the appellant’s statements as a whole and in context, the statements were assertions of facts or imputations of facts and not comment. The judge did not err in concluding that the defence of fair comment should fail on this basis. Spiller v Joseph [2010] UKSC 53 applied; Hunt v Star Newspaper Co. Ltd [1908] 2 KB 319 applied; Reynolds v Times Newspapers Ltd [2001] 2 AC 127 applied. 4. A defence is available to a person who on certain occasions utters defamatory statements even though untrue where that person is acting in good faith and without any improper motive. Such occasions are regarded as occasions of qualified privilege and arise where the defendant was under a legal, moral or social duty to communicate the defamatory statements to persons who have a corresponding interest in receiving it. The rationale underpinning the defence of qualified privilege is the principle that it is in the public interest that such statements should be made. It is the occasion that attracts the privilege, and the defence can be defeated by malice. The duty-interest concept of the defence was extended by the Reynolds privilege to defamatory publications to a wide range of readers or listeners or the world at large in the general public interest. This was designed to strike an appropriate balance between the right to freedom of expression and the right of an individual to protect his reputation. Adam v Ward [1917] AC 309 applied; Reynolds v Times Newspapers Ltd [2001] 2 AC 127 applied; Pinard-Byrne v Lennox Linton [2015] UKPC 41 followed; Jameel v Wall Street Journal Europe Sprl [2006] UKHL 44 applied. 5. To succeed on Reynolds privilege two conditions must be fulfilled. Firstly, the subject matter of the publication must be a matter of public interest in respect of which there is a real public interest in communicating and receiving the information. Secondly, the publisher must have taken the care that a responsible publisher would verify the information published. In these circumstances, where the appellant did not intend and did not know or have reason to know that his words would be published to the public at large, the Reynolds principles would not apply. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 applied; Seaga v Harper [2008] UKPC 9 distinguished. 6. The defence of qualified privilege is not dependent on whether or not there was research or investigation before the words were published. The defence of qualified privilege protects the mistaken but honest publisher in respect of the accuracy of the contents of his statements. The learned judge erred in requiring the appellant’s statements to be true and also wrongly imported the requirement that the appellant should satisfy the standard of responsible journalism applicable to Reynolds privilege, and on this basis, determined that the defence of traditional qualified privilege did not apply. The judge also erred in holding that Reynolds privilege applied in circumstances where the appellant did not intend and did not know or have reason to know that his words would be published to the public at large. Hines v Davidson (1935) SC 30 applied; Horrocks v Lowe (1975) AC 135 applied; Pinard-Byrne v Lennox Linton [2015] UKPC 41 applied. 7. Notwithstanding, the judge’s error in applying Reynolds privilege, actual or express malice on the defendant’s part defeats the defence of traditional qualified privilege. Express malice refers to an absence of an honest belief by the defendant in the truth of the impugned words or indifference to their truth or falsity or any other dominant and improper motive which does not spring from or is unconnected with the duty or interest in publishing the said words and thus amounts to abusing the privilege for an improper purpose. It is for the claimant to plead and prove malice in any of these senses. The evidence of malice may be inferred from the impugned words themselves or gleaned from extrinsic facts or circumstances or indeed from the evidence of the defendant himself. Although the judge was wrong to hold that the defence of traditional qualified privilege was defeated because the statements were untrue, he was right to find that the appellant was actuated by malice, thus defeating the defence of qualified privilege. Horrocks v Lowe (1975) AC 135 applied; David Carol Bristol v Dr. Richardson St. Rose SLUHCVAP2005/0016 (delivered 20th February 2006, unreported) applied. 8. Appellate courts must generally exercise restraint when reviewing a trial judge’s assessment of damages, as it involves the judge’s discretion. However, they may interfere if the damages awarded are clearly disproportionate to the actual loss, if relevant factors were ignored, irrelevant ones considered, or if the wrong legal principles or methods were applied in making the assessment. In the circumstances of this case, the awards for general and aggravated damages were not unreasonable in relation to the injury to the respondent’s reputation and feelings. Therefore, there is no basis for this Court to interfere. Alphonso and others v Deodat Ramnath (1997) 56 WIR 183 applied. David Bristol v Dr. Richardson St. Rose SLUHCVAP2005/0016 (delivered 20th February 2006, unreported) applied. JUDGMENT

[1]WARD JA: The appellant, Keith Claudius Mitchell, was at the material time the Prime Minister of Grenada and leader of the New National Party (NNP). The respondent, Patrick Simmons, served as Minister of Youth Empowerment and Sports from 2008 to 2013 under the National Democratic Congress (NDC) government. General elections were held in Grenada on 19th February 2013 which the NNP won. The appellant was appointed Prime Minister, Minister of Finance and Minister of National Security.

[2]On or about 1st June 2013 the appellant attended a town hall meeting in Brooklyn, New York in his capacity as Prime Minister. This meeting was arranged for the benefit of Grenadian citizens residing in New York to discuss matters of State and generally to update those gathered on the plans of the NNP Government. For this purpose, the appellant had assembled a panel including two other Ministers of Government and one Peter David, a former Minister in the NDC government but now aligned with the NNP government.

[3]After the appellant’s and his Ministers’ presentations to the audience, they fielded questions from members of the audience. A lady in the audience availed herself of the opportunity to pose the following question to the appellant: “I would like to find out what is the situation with the University, the project for the University of the West Indies in Spring Valley and secondly, I would like to know.. . why were the people of Grenada told that the land was purchased by the NDC from the shareholders and sold to the Government?" The appellant answered in the following terms: "... it is a fact sister, that the land was bought by a company which had some persons who were ministers of government in that company and it was then sold on to government and I have a fundamental problem with this. Some people are talking corruption. I don't see how any member of my government will go and buy a piece of land knowing that the government wants it, buy it and then sell it to the government. Clearly they are not buying it for charity. They clearly was buying it as a part really of making money..." The questioner challenged the truth of the appellant’s statement. The appellant replied: "No my dear, the facts are there, the Company is there. I'm talking from Cabinet papers my dear. I'm sorry that you don't agree with me but I'm not speaking from the top of my head, these are facts, ask Simmons if he wasn't a member of that Company as an example, just ask him. I can tell you more persons who were on it; not Peter David.”

[4]The company referred to by the appellant was Spring Valley Co-operation Limited. A recording of the meeting was subsequently uploaded to the YouTube platform.

[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 Lloyd1 and Spiller v Jospeh2 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.4

[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 Skelton5. 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.6

[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 Ltd7 and approved by Lord Kerr in Stocker v Stocker8: “(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 Claims9, 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.”10

[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.11 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 Lynch12 that adopted dicta from Skuse v Granada Television Limited13, Halsbury’s Laws of England and Slim and others v Daily Telegraph and another14 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. 7. 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.”

[38]And at paragraph 27: “The court must not put a strained or unlikely construction upon the words and overanalyses of the words and their context is to be avoided. If they are capable of bearing a number of good interpretations, it is unreasonable to seize upon the only bad one to give the words a defamatory sense.”

[39]No less injurious or more understanding or generous meaning was pleaded by the appellant in his defence. He simply pleaded that he “denies that the words set out in paragraphs 3 and 4 of the statement of claim bore, or were understood to bear, or were capable of bearing any of the meanings alleged or any defamatory meaning.”

[40]Indeed, no less injurious or more understanding or generous meaning readily occurs to me, and the judge found none. At this stage, it is not for this Court to simply prefer a different meaning within a reasonably available range. In such an instance, the authorities make it clear that an appellate court should not interfere with the judge’s findings on meaning.

[41]Learned Senior Counsel for the appellant, Mr. Ramesh Lawrence-Maharaj in submitting that the judge did not consider the context in which the impugned statements were made in determining their meaning also sought to draw a parallel between the context in which the words were uttered in this case and the context in which the words were uttered in Ramadhar v Ramadhar. In that case, the appellant was the political leader of the Congress of the People (COP) political party in Trinidad and Tobago, which was part of a coalition government. Disagreement emerged within the party about his leadership decisions. His brother, the respondent, was one of the disaffected members. He proposed resolutions to withdraw from the coalition and criticized the appellant’s leadership. A National Council meeting was scheduled for 10th November 2013 to discuss these resolutions, but they were not pursued. A letter dated 1st October 2013, purportedly signed by the respondents, was sent to the opposition People’s National Movement party (PNM). It claimed that three COP candidates were not party members and included a CD with the COP's membership list. The letter was read at the National Council meeting, leading to a resolution to suspend the respondents pending an investigation into their conduct. Following the meeting, Prakash Ramadhar and other COP leaders held a televised press conference. Prakash stated that he made no pronouncement on the authenticity of the October letter but condemned the alleged betrayal if true, emphasizing the need for an investigation. The material parts of his statements as reproduced from the judgment are: “[1] Contrary to the many efforts by a few to destroy the party, the party stood in its resolve [that the party is greater than any individual or group of individuals. This party is the only hope in the politics of Trinidad and Tobago and I say that unreservedly.] [2] Those who moved motions of no confidence against the leader of this party knew full well, that they grounded their ambitions in an effort to destroy this party by attacking the leader. They made it clear in other statements that their intent was to destroy this party and that their efforts had nothing to do with the lack of confidence in the leader, but everything to do with their wanting to destroy the leader and therefore the party. The party today resoundingly rejected them and they know full well they could not have succeeded [and] did not pursue their trouble making efforts in the face of the National Council. [3] They would do so in the media, in solitary effort where they had open space to spread their poison but here where it mattered, where their voices would have been heard so the party would say whether we agree or reject you, they ran away like cowards. [4] And then to have found that the very personalities who have been making all the mischief on the outside, that this letter has come to us and I make no pronouncements as to its authenticity, it maybe all the media they have garnered for the last several weeks or months, maybe they should go to the media and explain whether they did in fact put their signature to such a letter, betraying the party by disclosing its membership list, something we hold very dear. [5] And let me explain why [a membership list] is important, when people join a political organisation they are much afraid by that they may be discriminated against by the mere fact that they hold membership in a party. Many may not feel that way, but many do feel that way, [and that is] why we held it in terms of a high level of confidentiality. If it is true that they did do these things, then that is the highest level of treachery that we condemn in politics generally and in the COP unreservedly. [6] And that is why the suspension, without a finding of guilt, and that is why we ask that a proper and full investigation into the matter and if it proved true, the next step is expulsion from the party […]” (paragraph numbers added) [7] The party has been condemned for not being decisive, but that is to confuse process with doing what is right and what is proper, and in these circumstances where the allegations were so strong and so high, we say step aside and let the investigation be concluded, and then whatever necessary steps be taken after that, the party will engage.”

[42]The respondents sued for defamation, claiming Prakash's statements at the press conference falsely accused them of disloyalty and treachery. The High Court and the Court of Appeal (majority) found Prakash liable for defamation, ruling his statements implied guilt despite his qualifications. The Privy Council disagreed, holding that Prakash's statements, read in context, only suggested grounds for investigation and were justified. The appeal was allowed, overturning the lower courts' decisions

[43]The Board identified a number of errors made by the judge: (i) he failed to set out the terms of the qualifications actually made by the appellant; (ii) he did not give full and fair account of the reservations that had been made; and (iii) he appears not to have considered the full context in which the statements were made, in ascertaining meaning and context was an important consideration.

[44]The context was that the impugned statements were made orally at a press conference that was being broadcast live. In those circumstances, the Board held that at paragraph 38: “Some margin has to be allowed for the fact that the statements were made orally and so were more likely to be made in a conversational style and without the precision of a legal document. The other particularly important element of the context in this case, however, is that the press conference took place in real time and was broadcast live. Some margin has to be allowed for the fact that the statements were made orally and so were more likely to be made in a conversational style and without the precision of a legal document. What a person says in those circumstances should be interpreted with a certain degree of understanding and generosity.”

[45]Nonetheless, it was made clear that the principle that in determining meaning due allowance must be made for understanding and generosity in the context of statements made impromptu in real time is no licence for politicians to be unheeding of the need for accuracy in their utterances. As the Board stated at paragraph 36: “The Board does not suggest that a press conference given by senior politicians is to be regarded as an occasion for casual statements. On the contrary, there is a clear public interest that politicians talking in public should observe high standards of accuracy and fairness since the public need to know the true position and are inevitably influenced by what they say. Moreover, in the eyes of the law, the respondents were entitled to have their reputations protected from untrue allegations.”

[46]In my view, while the principle is clear that context is relevant to construction of meaning, the factual situation in Ramadhar is sufficiently distinguishable. The similarity is that in the instant case, as in Ramadhar, the impugned statements were made orally in a public forum and concerned a matter of public interest involving political figures. The similarities end there. There was no evidence that the Town Hall meeting was being broadcast live, unlike the situation in Ramadhar. More importantly, the appellant’s statements in Ramadhar stopped well short of asserting that the respondents were responsible for leaking the list of members of the party and the appellant was clear in his statement that that matter required investigation. The position is explained at paragraphs 44 and 48 of the Board’s judgment: “44. Paras 4, 5 and 6 of Mr. Prakash Ramadhar’s press conference statements are, moreover, couched as conditional statements, conditional, that is, on the respondents being shown to have committed the wrongful acts of writing the letter to the PNM and disclosing the membership list. Thus, in para 4 he expressly declares that he was not making any pronouncements on the authenticity of the letter, and in para 5, he says that it was treachery to the party to hand over the membership list to PNM, but this was only “if it is true that they did do these things”. In para 6, he states that, if the allegations were proved, then it would be appropriate to seek the respondents’ expulsion. So, in the judgment of the Board, he was not jumping to conclusions on the question whether they wrote the October letter or passed the COP membership list to the PNM.”… 48. Examining the various statements made at the press conference, the Board considers that it is clear that the appellant qualified what he said about the respondents by stating that the authenticity of the letter was in question and that there had to be an investigation to determine what had happened. He made no secret of the fact that he considered that handing over the memberships lists to the PNM would be an act of treachery and that serious consequences would have to follow but this was only by reference to the situation which would arise if in an investigation it were established that the respondents had written the October letter. The bane and the antidote have to be taken together. Since the attacks on him were effectively undermining his leadership, he was entitled to meet them in a robust fashion.”

[47]By contrast, in the instant case, there was nothing tentative or qualified about the appellant’s statements. He asserted as fact that members of the company who were Ministers of Government, including, the appellant, knew that the government wished to acquire the land, and with that knowledge purchased it and sold it to the government for profit. While his answer was an impromptu one, the appellant insisted that he was speaking with authority on facts which were verifiable by reference to Cabinet papers to which he was privy. To my mind this was no half-considered response or repartee in the moment; the appellant was adamant, even when challenged, that he was speaking from information derived from Cabinet papers such that every assertion he made was factual.

[48]While it may be said with justification that the judge did not expressly state that in determining the meaning to be ascribed to the impugned words he took into consideration the context in which they were made, even when due allowance is made for the fact the statements were uttered as an impromptu response to a question posed at a Town Hall meeting, there is in my view no more understanding or generous or less injurious way in which to interpret the words than as interpreted by the judge. In my view, the context in which the statements were made in this case does nothing to alter the meaning ascribed to them by the learned judge.

[49]In so far as it is also said that in considering the meaning of the statements, the judge took into account an irrelevant matter at paragraph 31 of his judgment, namely a paragraph in the appellant’s defence in which he stated that he spoke the words in the belief that the transaction was orchestrated with blatant disregard for the Integrity in Public Life Act and the Prevention of Corruption Act, for the full context, both paragraphs 30 and 31 of the judgment are set out here: “[30] Dr. Mitchell, in his speech, stated “…[s]ome people are talking corruption”. This statement offers some of the context for the words spoken. Dr. Mitchell was speaking about the actions of some previous Government ministers with respect to the sale of the land. There was an imputation of corruption by those ministers involved in the transaction. An untrue accusation of corruption or corrupt dealings is evidently defamatory since no one would sensibly dispute that such a charge may adversely affect a person’s reputation in his calling or disparage him in his office. To put it in the terminology of the cases, the assertion that former Ministers were corrupt or engaged in corrupt practice(s) are the sort of allegations that tend to lower these former ministers of Government “in the estimation of right thinking members of society”.(Emphasis added) [31] Dr. Mitchell defended his statements by asserting that “the Defendant spoke the words in the belief that the transaction was orchestrated with blatant disregard for the Integrity in Public Life Act and the Prevention of Corruption Act”. This pleading by Dr. Mitchell further imputes corrupt, unethical and reprehensible conduct by the Cabinet ministers in breach of the laws of Grenada. Therefore, I find that the above meanings are defamatory and/or capable of being defamatory.”

[50]The appellant cites Gatley on Libel and Slander15, in support of his argument that this was an error: “It is clearly established at common law that in determining the meaning of words, the intention and knowledge of the publication are immaterial…what imputation is conveyed by any particular words is to be determined on an objective test, that is, by the meaning in which the ordinary reasonable person would understand them, and it is not to be determined by what the defendant intended to convey.”

[51]What is being said in this extract is that the search for meaning is to discern what the ordinary reasonable person would understand the words to mean and not what meaning the defendant intended to convey. It is an objective test. A defendant’s intention in writing, speaking or publishing the words is also irrelevant to the determination of the questions whether they bear a meaning defamatory of the claimant: E Hulton & Co v Jones.16 So that, where objectively speaking words are defamatory of a claimant it is immaterial that the defendant did not intend them to be.

[52]However, I do not construe the appellants pleaded words cited by the judge in paragraph 31 as speaking to the appellant’s intention; I understand the appellant to be advancing a reason for uttering the words, namely his “belief that the transaction was orchestrated with blatant disregard for the Integrity in Public Life Act and the Prevention of Corruption Act.”

[53]Even if it could be said that the judge erred in having regard to the appellant’s statement in his defence, it is nonetheless clear to me, that in the underlined words in paragraph 30 the judge had correctly applied the objective test in determining whether the words were defamatory. Accordingly, for all the reasons previously discussed in relation to the process of determining meaning, such an error would not vitiate the meaning ascribed to the words by the learned judge.

Were the words defamatory of the respondent

[54]The judge next considered whether the words were defamatory of the respondent. He found that they were. The complaint against this finding is that the judge erred in law having regard to the irrelevant matters he considered at paragraph 34 in arriving at his conclusion that the reference to “Simmons” in the impugned words was capable of being understood as a reference to the respondent. The impugned part of the judge’s reasoning is in the following passage: “[34] Further evidence of this conclusion lies in Dr. Mitchell’s fair comment defence when he outlined that Pauline Andrews was Mr. Simmons’ close friend and part of Mr. Simmons’ political campaign. The connection was made to Pauline Andrews, a shareholder of the company, seemingly to bolster Dr. Mitchell’s charge that there was some level of impropriety in the sale transaction. As such, it is somewhat difficult to accept that Dr. Mitchell was not referring to Mr.

Simmons in his speech at the town hall meeting.”

[55]The appellant argues that the appellant’s words were not capable of being understood as referring to the respondent because: (i) the respondent referred to “Simmons” and not “Patrick Simmons”, and (ii) the respondent was required to but did not plead and prove by extrinsic evidence that the words used by the appellant are such that they would have led persons acquainted with the respondent to identify him as the person referred to. As such, it is contended that the judge was plainly wrong in finding that the impugned words were defamatory of the respondent.

[56]The judge’s reasons for finding that the words referred to the respondent are expressed at paragraphs 32 to 36: “[32] The question then arises whether these meanings are defamatory of Mr. Simmons. Learned counsel for Dr. Mitchell, Lawrence Maharaj SC, submits that the words were not capable of being understood as referring to Mr. Simmons since his full name “Patrick Simmons” was not stated or referred to by Dr. Mitchell. Counsel continues that Mr. Simmons has not led any evidence to prove that the words would lead persons acquainted with him to believe that he was the person referred to. I respectfully disagree with these submissions. [33] Mr. Simmons served as a minister during the 2008-2013 NDC Government when the land was sold to the Government of Grenada. A minister of Government is also a member of the Cabinet. The Cabinet is made up of a limited class or group of people in a small island state like Grenada and as such they can be easily identified by members of the public. Dr. Mitchell’s comments were in reference to the Cabinet. His reference to “Simmons” could only be properly made with respect to the claimant since Mr. Simmons was the only member of Cabinet with that surname. Compounding matters, Dr. Mitchell singled out or identified Peter David. Peter David served with Mr. Simmons as a government minister during the tenure of the very Cabinet to which Dr. Mitchell alluded. Dr. Mitchell imputed corruption to the Cabinet members of the previous Government, save and except Peter David. I find that any reasonable person hearing Dr. Mitchell’s speech in the context in which it was made would conclude that it was the claimant, Mr. Simmons who was implicated. [34] Further evidence of this conclusion lies in Dr. Mitchell’s fair comment defence when he outlined that Pauline Andrew was Mr. Simmons’ are close friend and part of Mr. Simmons’ political campaign. The connection was made to Pauline Andrews, a shareholder of the company, seemingly to bolster Dr. Mitchell’s charge that there was some level of impropriety in the sale transaction. As such, it is somewhat difficult to accept that Dr. Mitchell was not referring to Mr. Simmons in his speech at the town hall meeting. [35] I find further that Dr. Mitchell suggested Mr. Simmons’ involvement in the alleged corruption when he made the definitive assertion, “[a]sk Simmons if he wasn’t a member of that company as an example, just ask him.” The effect of this statement was that it identified, singled out or implicated Mr. Simmons, a Cabinet member, as being a member of the company or at the very least someone who benefitted from the alleged corrupt scheme or activity involving the sale of the land. [36] In view of the foregoing, I find that the offending words uttered by Dr. Mitchell are capable of the meanings ascribed to them by Mr. Simmons and are defamatory of him. I find the offending words were capable of disparaging and did disparage Mr. Simmons in his office as a former Cabinet minister and/or calling as a politician. The question then arises whether the defamatory statements can be defended on grounds of fair comment and qualified privilege.” Discussion – identification

[57]Words are not actionable in a claim for defamation unless they are published of and concerning the claimant. Where the claimant is clearly identified by name or otherwise clearly identified, little difficulty can arise in concluding that the defamatory words refer to him or her. However, it is not essential that the claimant be named in the statement because in a case where the statement does not expressly refer to the claimant, they may be held to refer to him if reasonable persons to whom the words are published and who have knowledge of special facts could and did understand them to refer to the claimant. Where the claimant intends to rely on such special facts to connect him as the object of the defamatory words, they must be pleaded and proved in evidence: Morgan v Odhams Press Ltd.17

[58]The learned authors of Duncan & Neil at paragraph 7.02 provide instructive guidance on the ultimate test where identification of the object of the defamatory words is in issue: “In every case where identification is in issue the question is: would reasonable people reasonably understand the statement to refer to the claimant? If reasonable people would so understand the statement, the defendant will not escape liability though they may have tried to disguise the reference to the claimant by using initials or asterisks or a fictitious name or some other subterfuge. Nor will they escape liability even if they had never heard of the claimant or intended to refer to someone else.”

[59]It is the role of the trial judge to decide as a matter of law whether the words are reasonably capable of being understood to refer to the claimant. The judge must ask himself whether or not ordinary, reasonable persons, having the knowledge proved, could understand the words to refer to the claimant. If the answer to this question is no, that is the end of the matter: the claimant would have failed to prove that the words referred to him. If, on the other hand, the answer is that the words could reasonably lead people acquainted with the claimant to believe that he was the person referred to, it is open to the judge to find that the words did in fact refer to him.

[60]The appellant’s argument that the words cannot reasonably be understood to refer to the respondent because his full name “Patrick Simmons” was not stated cannot withstand scrutiny in light of the principles stated in the immediately preceding paragraphs. The respondent had averred in his pleadings, and provided evidence in his witness statement, that until the general elections held in Grenada in 2013, he was a senior member of the National Democratic Congress (NDC) political party and Minister for Youth Empowerment and Sports in that last NDC Government. None of this was denied or contradicted by the appellant, who in fact pleaded and relied on said facts in support of his defence. In light of this, it is not particularly clear to me whether identification was truly a live issue in the case. Neither party identified it as such in their respective Pre- Trial Memorandum, which is the document in which each party defines the issues in the case as they see it. Be that as it may, the appellant did deny that he spoke or published the words of or concerning the respondent and the judge was obliged to address the issue of identification.

[61]I find no merit in the appellant’s criticism of the judge’s conclusion on this issue. There was evidence before the judge that the respondent’s surname was Simmons; that he was a Cabinet Minister at the material time; that a Cabinet Minister in the NDC Government at the time of the transaction who bore the name “Simmons” was specifically named by the appellant at the Town Hall meeting; and of all the then Ministers, only Minister “Simmons” was singled out by name.

[62]From the appellant’s words, the ordinary and reasonable Grenadian would have understood that the person to whom the words referred was a person whose surname was “Simmons”, who was a Minister and member of the Cabinet during the 2008-2013 NDC Government when the land was sold to the Government of Grenada. Such a description matches the respondent perfectly. It would be an affront to the common sense of ordinary reasonable Grenadians to contend that the appellant’s reference to a Minister in the NDC government at the time of the transaction with the name “Simmons” was not a reference to Patrick Simmons, the respondent, simply because the appellant did not include his first name in identifying the Minister to whom he was referring. As poignantly highlighted by Mr. John in the respondent’s written submissions, relying on Bourke v Warren18: “The question for [the judge’s] consideration is whether [he] thinks the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant. It is not necessary that all the world should understand the libel; it is sufficient if those who knew the plaintiff can make out that he is the person meant.”

[63]I find further, that in such circumstances, and, on these facts, there was no necessity for the respondent to plead and prove any other or further extrinsic facts and evidence to prove identification. The appellant’s naming of the Minister under reference as “Simmons” and associating him with the NDC Cabinet at the time of the transaction was sufficient to provide a basis for reasonable people to reasonably understand the statement to refer to the respondent.

[64]For all the foregoing reasons, I conclude that grounds 1 to 8 are devoid of merit and I would dismiss them. The defence of fair comment - Grounds 9 to 19

[65]The appellant advances his arguments further by contending that even if the words were capable of bearing the meanings found by the judge and were defamatory of the respondent, the defence of fair comment was made out and the judge erred in holding that the defence failed. His error is said to consist of misdirecting himself in law at paragraph 34 by holding that the appellant’s statements were statements of facts, failing to appreciate that the corruption comments made by the appellant was an expression of opinion based on non- defamatory facts, namely, (a) the land was bought by a company which comprised some persons who were ministers in the NDC administration; and (b) it was then sold by that company to the NDC government. The judge further erred in failing to appreciate that in so far as the appellant stated: “ask Simmons if he was not a member of the company” he was asking or suggesting whether the respondent may have been connected to the company, and that statement in itself was not defamatory.19

[66]The appellant further submitted that his statement clearly identified the conduct upon which his statements as to corruption were based. The words were also clearly made in the context of political speech. In the circumstances, the statements of corruption made by the appellant ought to have been treated by the learned judge as statements of comments. The defence is established on the basis of the proven facts. Furthermore, even if the appellant’s statement “ask Simmons if he wasn’t a member of that company” could be understood by the reasonable reader to mean that “the respondent was a member or shareholder of the company which bought land with the specific motive of selling it to the government for profit”, the defence of fair comment would still be established because, though not a registered shareholder of the company, the following facts showed that he was connected with the impugned transaction: (a) he was a member of the of the Cabinet at the time the decision was made to purchase the land and was involved in the decision to purchase it; (b) he is a close friend of Pauline Andrew, a shareholder of the company and member of the NDC Government; (c) after demitting office he made enquiries of the new government as to the outstanding balance of the purchase price; and (d) he admitted under cross-examination that there was a conflict of interest in respect of Cabinet’s decision to purchase the land.

[67]Relying on section 13 of the Libel and Slander Act of Grenada20, the appellant posited that he was not required to prove that all the allegations of fact upon which the corruption comments were made were true. He was only required to show that the corruption comments are fair on the basis of those facts which he did prove.

[68]In summary, the appellant asserted that all of the elements of the defence of fair comment had been established in that: (a) the statements made by the appellant were made in the public interest; (b) the statement that “some people are talking corruption” was comment; (c) that comment was fair, based on the facts that were proved, although it was not proven that the respondent was a registered shareholder of the company; and (d) the defence of fair comment is made out on the proven facts stated in the publication as well as the particulars given in the defence.

The respondent’s submissions

[69]In written skeleton submissions, the respondent submitted that the law is that the offending statement must be read as a whole and faithfully read. When so read, the statement that “some people are talking corruption” is a statement of fact, not a comment. Furthermore, the further statement: “I don’t see how any member of my government will go and buy a piece of land knowing that the government wants it, buy it and then sell it to the government. Clearly they are not buying it for charity. They clearly was buying it as a part really of making money,” contains factual assertions, either directly or inferentially, and imply clearly that the purchase by the shareholders of the company was in the full knowledge that the government wanted the very land they were purchasing and that they purchased it with the intention of selling it to the government to make money.

[70]Yet further the appellant’s invitation to the audience to “ask Simmons if he wasn’t a member of that company”, viewed in context of all the statements preceding it, is an assertion of fact that the respondent, Simmons, and others were members of the company, but not Peter David.

[71]It is further said that in the offending statement the appellant mixed matters of fact and falsehoods which took away any ability of the reasonable listener or reader to determine fact from comment therein. Paragraph 8 of the statement of claim is cited as illustrative of this point.

[72]In relation to the appellant’s reliance on section 13 of the Defamation Act, the respondent relies on a quotation from Kemsley v Foot,21 referred to in Spiller v Joseph22 for the proposition that “in a case where the facts are fully set out in the alleged libel, each fact must be justified and if the defendant fails to justify one...he fails in his defence...”

[73]The respondent submitted further that, even if it is conceded, which it is not, that the allegation of corruption involving the respondent was comment, it was founded on two allegations of fact made in the offending statement, both of which were false. The first was that there were ministers of the NDC Government who were also shareholders of the company who knew that Government wanted those lands and knowing that, bought the land and sold it to Government to make a profit. The second allegation of fact, explicit or implicit, was that the respondent, also a minister in the NDC Government and was a member of the company and as such, was part of the scheme of buying the land to sell to Government to make money. Those allegations of fact had no foundation in truth.

Discussion and analysis – Fair Comment

[74]It is a defence to an action for defamation if the defendant can show that the statement complained of was fair comment on a matter of public interest. It has been held that the purpose of the defence of fair comment is to protect honest expressions of opinion, or inferences honestly drawn from, specific facts: Lowe v Associated Newspapers Ltd23 . Undergirding the defence of fair comment is the desirability that a person should be entitled to express his views freely on a matter of public interest: Spiller v Joseph at para.101.

[75]The elements of the defence of fair comment are: (i) the statement in issue must be comment and not fact and the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made so that the reader can understand what the comment is about (ii) the matter in respect of which the comment is made is a matter of public interest; (iii) where that matter consists of facts alleged to have occurred, the comment must be founded on facts that are true; (iv) the comment is objectively “fair” in the sense that the comment was one that was capable of being honestly founded on the facts to which it related, even by someone who was prejudiced and obstinate; (v) the comment represented the defendant’s honest opinion and is not made maliciously.24 The defendant’s honesty is assumed and it is for the claimant to prove malice: Telnikoff v Matusevitch.25 See also Tse Wai Chun Paul v Albert Cheng.26 The defendant bears the burden of establishing the elements of the defence. These elements will be discussed further below when analysing their application to the facts of this case.

[76]In the present case, it is agreed that the appellant’s statement concerned a matter of public interest, and indeed, the judge so found at paragraph [47] of the judgment. That is as far as agreement goes as the parties adopt rival positions as it relates to whether the appellant has established the other elements of the defence.

Was the statement in issue comment or fact?

[77]To bring oneself within the protective ambit of the defence of fair comment, the statement in question must clearly appear and be recognisable as comment, as distinct from an imputation of fact. The proposition is stated with much clarity by Fletcher Moulton LJ in Hunt v Star Newspaper Co. Ltd27 “… In the first place, comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment... Any matter, therefore, which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment.”

[78]In this case, it is important to identify what statement the appellant characterises as “comment”. At paragraphs 3 and 4 of the defence, the appellant sets out several matters which are asserted as facts on which he relied to ground the statements complained of at paragraphs 3 and 4 of the statement of claim. It is convenient to remind oneself of those words here: "... it is a fact sister, that the land was bought by a company which had some persons who were ministers of government in that company and it was then sold on to government and I have a fundamental problem with this. Some people are talking corruption. I don't see how any member of my government will go and buy a piece of land knowing that the government wants it, buy it and then sell it to the government. Clearly they are not buying it for charity. They clearly was buying it as a part really of making money... No my dear, the facts are there, the Company is there. I'm talking from Cabinet papers my dear. I'm sorry that you don't agree with me but I'm not speaking from the top of my head, these are facts, ask Simmons if he wasn't a member of that Company as an example, just ask him. I can tell you more persons who were on it; not Peter David".

[79]It is not entirely clear from the defence what sentence or sentences of these impugned statements constitute comment. The submissions that were made to the judge below on this issue by counsel for the appellant, Mr. Maharaj SC, are summarised at paragraphs [45] and [46] of the judgment as appears below: “[45] Mr. Maharaj SC submits that Dr. Mitchell’s statements were comment which was a deduction or conclusion from other facts referred to by him which have been established to be true. Counsel submits that it is a fact that the 2008 to 2013 NDC government purchased the land for the establishment of a university campus from a company which was owned by former minsters of government. In the circumstances of the case, Dr. Mitchell’s reference to “Simmons” is not a statement of fact but rather based on Simmons’ admission that he made enquiries about the balance of the purchase price after he demitted office. [46] Counsel Mr. Maharaj SC further argues that whether the words are comments or facts must be considered in the context in which they were spoken. In this context, the words were spoken at a town hall meeting. Mr. Maharaj SC submits that Dr. Mitchell, as Prime Minister at that time, did not know of the question before hand, did not have the relevant documents before him and could not speak with precision. Therefore, counsel posits, Dr. Mitchell’s statements should be regarded as comment on the matter. Counsel points to para. 12.12 of Gatley in support of his submission that Dr. Mitchell is not confined to reliance on facts to which he has referred in the publication complained of. Dr. Mitchell was entitled to rely on the Cabinet conclusions and the company’s registration documents. Further, counsel says, the comments are a matter of public interest since they concern political and state matters. See paras.12.30-31 of Gatley.”

[80]I understand the nub of the appellant’s position below to be that he had asserted and relied on certain facts, which gave rise to an imputation or inference of corruption. Such an imputation or inference of corruption was properly to be regarded as comment and not fact. Before this Court, the appellant’s written submissions were somewhat more specific. They stated that “the corruption comments made by the appellant was an expression of opinion” based on non- defamatory facts, namely, (a) the land was bought by a company which comprised some persons who were ministers of in the NDC administration; and (b) it was then sold by that company to the NDC government. The reference to “corruption comments” appears to be a reference to the appellant’s statements: “Some people are talking corruption” and “I don’t see I don't see how any member of my government will go and buy a piece of land knowing that the government wants it, buy it and then sell it to the government. Clearly, they are not buying it for charity. They clearly was buying it as a part really of making money..."

[81]The judge’s reasons for rejecting the defence of fair comment are reflected at paragraph [48] “[48] Dr. Mitchell in his response to the attendee repeatedly stated that his statements were “facts”. In his first response to the attendee, Dr. Mitchell stated “And it is a fact sister…” When challenged by the attendee, he stated “No, my dear the facts are there…I’m talking from Cabinet papers my dear…these are facts…” I therefore agree with Mr. John that Dr. Mitchell’s statements were presented as facts and not comments. Dr. Mitchell even went as far as stating that he is “talking from Cabinet papers”. This statement suggests a deliberate effort by Dr. Mitchell to convince the attendee that he was aware of or conversant with documentary evidence to substantiate his assertions. The fact that the assertions made by Dr. Mitchell, were in his words, presented as “facts” and not comments on the topic under discourse at the event is, in my view, more than a sufficient basis for one to conclude, and I so conclude that the defence of fair comment fails.”

[82]It seems therefore that the judge rejected the defence because he was of the view that the statements did not satisfy the requirement that they must be comment and not facts. He found they were facts because the appellant expressly asserted that they were and presented them as such.

[83]In Spiller v Joseph, Lord Phillips commented on the challenge sometimes presented in distinguishing between comment and fact: “5. Jurists have had difficulty in defining the difference between a statement of fact and a comment in the context of the defence of fair comment. The example in Myerson (1923) 24 SR (NSW) 20, 26 cited by Lord Nicholls is not wholly satisfactory. To say that a man’s conduct was dishonourable is not a simple statement of fact. It is a comment coupled with an allegation of unspecified conduct upon which the comment is based. A defamatory comment about a person will almost always be based, either expressly or inferentially, on conduct on the part of that person. Judges and commentators have, however, treated a comment that does not identify the conduct on which it is based as if it were a statement of fact. For such a comment the defence of fair comment does not run. The defendant must justify his comment. To do this he must prove the existence of facts which justify the comment.”

[84]The distinction is important as it goes directly to whether the defence succeeds or fails. Lord Nicholls’ observations in Reynolds v Times Newspapers Ltd28 are apposite: “It is important to keep in mind that this defence is concerned with the protection of comment, not imputations of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere. Further, to be within this defence the comment must be recognisable as comment, as distinct from an imputation of fact. The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made” see the discussion in Duncan & Neill on Defamation, 2 nd ed (1983), pp 5862.” (Emphasis added)

[85]The question then is whether the statements complained of are comments or imputations of fact. In this vein, the task here is to identify those parts of the published statement that clearly purport to be facts and those that may be properly regarded as comment.

[86]The statement “the land was bought by a company which had some persons who were ministers of government in that company and it was then sold on to government” is a statement of fact and was expressly asserted to be such by the appellant. This statement was followed by the further statement: “I have a fundamental problem with this.” This statement is in my view a comment expressing disapproval of the conduct described in the immediately preceding sentence.

[87]The further statement: “I don't see how any member of my government will go and buy a piece of land knowing that the government wants it, buy it and then sell it to the government” is a comment which questions the propriety of the said transaction but it is mixed with an assertion of fact, additional to those stated in the first assertion, namely, that the former ministers knew that the government wanted to acquire the land at the time the company purchased it. This is followed by the statement, “Some people are talking corruption.” Mr. Maharaj sought to argue during his oral submissions that a less generous meaning ascribed to this statement would not have led to the judge’s finding that that it meant that the respondent was involved in corruption. If that is correct, then the submission amounts to saying that this statement is not a defamatory comment at all. In my view, that statement is an assertion of fact: it conveys the meaning that it is a fact that some people have expressed the view that the transaction was a corrupt one. The statement, “They clearly were not buying it for charity” is a sarcastic comment carrying an imputation of fact that the transaction was motivated by a desire to make money.

[88]Furthermore, when challenged by the questioner the appellant replied: “No my dear, the facts are there, the Company is there. I'm talking from Cabinet papers my dear. I'm sorry that you don't agree with me but I'm not speaking from the top of my head, these are facts, ask Simmons if he wasn't a member of that Company as an example, just ask him. I can tell you more persons who were on it; not Peter David".

[89]In context, the appellant was re-asserting as facts, purportedly supported by Cabinet papers, that the company purchased the land knowing that the government wanted to acquire it and then subsequently sold it to the government to make money. In that context, the statement “ask Simmons if he wasn't a member of that Company as an example, just ask him. I can tell you others who were on it; not Peter David”, is posed as a rhetorical question and would have been reasonably understood by reasonable Grenadians as an assertion of yet another fact, namely, that the respondent was also a member of the company which bought the land with the specific motive of selling it to the government for profit. I reject the submission advanced by Mr. Maharaj SC that the appellant was merely asking the question, which left open the possibility that the respondent “may or not have been a member of that company.” The context does not lend itself to such an interpretation.

[90]In summary, the statements of alleged fact that were published were that: (i) former members of the NDC administration were among the members of the company that bought the land (ii) the respondent was a member of the company; and (iii) the company bought the lands with prior knowledge of the government’s intention to acquire it, intending to sell it to the government for profit.

[91]Leaving these aside, the other relevant statements are first, the appellant’s statement to the effect that he couldn’t see that ministers in his government would have done what was alleged to have been done by the former Ministers. This is merely his opinion as to how his ministers might have conducted themselves; this is not a defamatory comment on the conduct of the respondent. The other statement is that the company had not bought the land for charity. This is an imputation of fact that the transaction was motivated by the desire for profit.

[92]In my view, viewed as a whole and in context, the statements were either facts or imputations of facts and not comment. The authorities are clear that in such a case, the defence of fair comment fails. It follows from the foregoing that I agree with the judge’s conclusions that the defence of fair comment was defeated because, in my view, the appellant asserted forcefully, even when challenged, that what he had asserted were facts. There was no statement distinctly recognisable as comment on those facts.

[93]It also follows from this finding that there was no comment, as distinct from facts, that the appellant’s reliance on additional proven facts that were pleaded in the defence to make good the argument that the “corruption comment” was fair comment29 does not avail.

[94]Though not necessary for the disposal of this particular issue, I would add that this finding would also mean that section 13 of the Libel and Slander Act would not be engaged because resort to that section is limited to words consisting partly of allegations of fact and partly of expressions of opinion. This mix of fact and opinion must exist to avail oneself of the provision that a defence of fair comment shall not fail by reasons only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of are proved. Given the judge’s conclusions that the statements were assertions of fact and not comment, with which I agree, the defence of fair comment fails at the first hurdle. The defence of qualified privilege – grounds 20 - 28.

[95]The appellant advanced an alternative defence of qualified privilege, which the judge also rejected. The pleaded basis for asserting the defence is as set out at paragraph [9] of this judgment.

[96]The judge rejected the defence of qualified privilege. The appellant submitted that he was wrong to do so. Succinctly stated, the appellant contended in written submissions that the learned judge erred in law in holding that the defence of qualified privilege failed in that he was wrong to hold that the Reynolds’ principles applied. He failed to appreciate that the defence of qualified privilege was established by the existence of a privileged occasion which arose as a result of the reciprocity of interests between the appellant and the persons receiving the statements at the Town Hall Meeting. He also failed to appreciate that the defence of qualified privilege arises from such a relationship and notwithstanding whether the publication is untrue or harsh. Further, assuming but not admitting that the Reynolds’ principles did apply, the learned judge failed to take into account relevant factors in the application of those principles.30 At paragraph 59 of its written submissions the appellant contended further that the judge failed to appreciate that the publication of the appellant’s statement was not to the world at large and there was no evidence that the media was present or that the statements of the appellant were published in the mainstream media. Thus, there is no evidence to support the judge’s findings at paragraph 74 of his judgment that the appellant was cognizant of the fact or ought to have known that the comments which were made at the forum were being and would be widely disseminated and published in the worldwide media. The fact that a person made a video of the appellant making the statements complained of and uploaded that video to YouTube did not take away the privilege arising from the relationship of the appellant and the attendees.

The respondent’s submissions

[97]The respondent submitted that the judge was right to apply Reynolds Privilege and was right to conclude that the defence failed. It is said that the Reynolds principles applied because of the nature and context of the publication which included publication on YouTube. It was submitted that the fact that the appellant may not have known that the meeting was being recorded and later uploaded to YouTube is of no consequence. The judge’s approach to qualified privilege

[98]After engaging on a comprehensive discourse on the law relating to qualified privilege generally, (see paragraphs 49 – 57) the judge first examined the defence through the lens of traditional qualified privilege (see paragraphs 58 – 69). Having concluded that traditional qualified privilege failed, he then considered whether Reynolds principles were applicable to the case. (See paragraphs 70 – 74) Having analysed the case of Seaga v Harper31, and apparently viewing the circumstances as analogous, he concluded at paragraph 74 that the case was governed by Reynolds principles: “For the reasons given above and in the specific circumstances of this case, I find that the Reynolds principles are applicable to this case. Dr. Mitchell, his strenuous protestations to the contrary notwithstanding, was, more than cognisant of the fact that the comments which were made at the forum were being and would be widely disseminated and published in the worldwide media. I think that as leader of government business he would have anticipated or expected no less than the widest circulation of his interactions with the public.”

[99]The judge ultimately concluded that the defence failed, after addressing his mind to and analysing the factors identified in Reynolds as relevant to determining whether the defence was made out.

Discussion – the defence of qualified privilege

[100]A defence is available to a person who on certain occasions utters defamatory statements even though untrue where that person is acting in good faith and without any improper motive. Such occasions are regarded as occasions of qualified privilege and arise where the defendant was under a legal, moral or social duty to communicate the defamatory statements to persons who have a corresponding interest in receiving it.

[101]The rationale underpinning the need for such a defence is the principle that it is in the public interest that such statements should be made. Lord Atkinson in Adam v Ward32 explained the defence in the following terms: “It is founded upon the need to permit the making of statements where there is a duty, legal, social or moral, or sufficient interest on the part of the maker to communicate them to recipients who have a corresponding interest or duty to receive them, even though they may be defamatory, so long as they are made without malice, that is to say, honestly and without any indirect or improper motive. It is the occasion on which the statement is made which carries the privilege, and under the traditional common law doctrine there must be a reciprocity of duty and interest.”

[102]Several key points emerge: the issue of qualified privilege is only engaged where a statement is defamatory and untrue; the reciprocity of duty and interest is essential to establishing the defence; it is the occasion that attracts the privilege; and the defence can be defeated by malice.

[103]The traditional ambit of the defence, which rested on the duty-interest concept, was extended somewhat by the landmark decision in Reynolds v Times Newspapers Ltd. The effect of this decision was that privilege was extended to defamatory publications to a wide range of readers or listeners or the world at large where publication can be shown to be in the general public interest. In Pinard-Byrne v Lennox Linton33, Lord Clark suggested at paragraph 19 that the defence is perhaps more accurately described as a public interest defence, which is designed to strike an appropriate balance between the right to freedom of expression and the right of an individual to protect his reputation. Lord Hoffman in Jameel v Wall Street Journal Europe Sprl34 described the defence as “the defence of publication in the public interest”35. This was echoed by Baroness Hale at paragraph 146. Lord Hoffman also suggested at paragraph 46, that “It might more appropriately be called the Reynolds public interest defence rather than privilege.” For the present purposes, however, I will refer to it by its traditional name of Reynolds privilege.

[104]To succeed on Reynolds privilege two conditions must be fulfilled. First the subject matter of the publication must be a matter of public interest in respect of which there is a real public interest in communicating and receiving the information. This is a question for the judge. Care must be taken to distinguish this concept from matters that might simply be of interest to the public. Baroness Hale captures the essential difference in her inimitable style when she stated: “First, there must be a real public interest in communicating and receiving the information. This is, as we all know, very different from saying that it is information which interests the public – the most vapid tittle-tattle about the activities of footballers’ wives and girlfriends interests large sections of the public but no-one could claim any real public interest in our being told all about it.”36

[105]Secondly, the publisher must have taken the care that a responsible publisher would take to verify the information published. The actual steps taken will vary with the nature and sources of the information.37

[106]It is clear that where it applies, the privilege attaches to the published material and not the occasion on which it is published.38 Lord Hoffman has clarified that in answering the question of public interest it is not helpful to resort to the traditional duty-interest enquiry. His reasons for so saying are sated at paragraph 50 of Jameel: “The Reynolds defence was developed from the traditional form of privilege by a generalization that in matters of public interest there can be said to be a professional duty on the part of the journalist to impart the information and an interest in the public in receiving it. The House having made this generalisation, it should in my opinion be regarded as a proposition of law and not decided each time as a question of fact. If the publication is in the public interest, the duty and interest are taken to exist...”

[107]In deciding whether the publication in question was privileged because of its value to the public, Lord Nicholls in Reynolds enumerated several non- exhaustive matters to which the court should have regard and stressed that the weight to be given to each factor and other relevant factors would vary from case to case. Lord Nicholls characterised the test as one of responsible journalism. This concept was elucidated in Bonnick v Morris39 as discussed by Lord Hoffmann in Jameel v Wall Street Journal: “53. If the publication, including the defamatory statement, passes the public interest test, the inquiry then shifts to whether the steps taken to gather and publish the information were responsible and fair. As Lord Nicholls said in Bonnick v Morris [2003] 1 AC 300, 309: “Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege.” 54. Lord Nicholls was speaking in the context of a publication in a newspaper but the defence is of course available to anyone who publishes material of public interest in any medium. The question in each case is whether the defendant behaved fairly and responsibly in gathering and publishing the information. But I shall for convenience continue to describe this as “responsible journalism”.

[108]The matters which may, in appropriate cases, be taken into account by a judge when considering whether the publisher satisfied the conditions of responsible journalism include: “(1) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. (2) The nature of the information, and the extent to which the subject matter is a matter of public concern. (3) The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind or are being paid for their stories. (4) The steps taken to verify the information. (5) The status of the information. The allegation may have already been the subject of an investigation which commands respect. (6) The urgency of the matter. News is often a perishable commodity. (7) Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. (8) Whether the article contained the gist of the plaintiff’s side of the story. (9) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. (10) The circumstances of the publication, including the timing.”

[109]Lord Hoffman provided a helpful steer as how a judge should approach the assessment of these factors. His Lordship counselled: “In the hands of a judge hostile to the spirit of Reynolds, they can become ten hurdles at any of which the defence may fail. But that, in my opinion, is not what Lord Nicholls meant. As he said in Bonnick (at p 309) the standard of conduct required of the newspaper must be applied in a practical and flexible manner.”

[110]Ultimately, the issue for resolution would be whether, in publishing the defamatory words, the defendant was acting responsibly and had a duty to the public to publish them. In such an inquiry the focus is on the allegations that are not true.40 Did the Reynolds principles apply?

[111]An issue before the judge below was whether Reynolds principles applied at all. Mr. Maharaj SC’s principal argument is that this case did not fall within the Reynolds principles but was governed by the doctrine of traditional qualified privilege. Mr. John for the respondent submitted that the circumstances of this case were governed by the Reynolds principles.

[112]A similar issue fell to be resolved in Seaga v Harper. In that case, the appellant, Edward Seaga, at the material time was Leader of the Jamaica Labour Party (“JLP”) and Leader of the Opposition. On 2nd October 1996 he made a statement at a meeting about the respondent, Leslie Harper, one of the Deputy Commissioners of Police, which was widely reported by representatives of the media who were present at the meeting. There was evidence before the court that the meeting was open to the public and was held at the Wyndham Hotel, Kingston. Representatives of the press and broadcasting media were present. They regularly attended such meetings, and the appellant accepted in cross-examination that his party would have alerted them to the holding of this meeting. One of the topics on which the appellant spoke was the impending appointment of a Commissioner of Police in succession to the retiring Commissioner, which appointment would be made by the party in government, the People’s National Party (“PNP”). In the course of his speech the appellant made statements which were defamatory of the defendant, who was apparently the PNP’s choice to succeed the retiring Commissioner.

[113]The respondent issued proceedings for slander. The sole defence put forward by the appellant was that the words were spoken on an occasion of qualified privilege. There was no plea of malice. The trial judge held that the words complained of were defamatory of the respondent in his office of Deputy Commissioner of Police and further held that the case was governed by the Reynolds principles. He expressed his reasons for so concluding in the following way: “I find however, that the Reynolds case does apply to the instant case bearing in mind the presence in the audience of the media and Mr Seaga’s realized expectation that his utterances were more than likely to be quoted to the public by the media.”

[114]He went on to hold that the appellant was not protected by qualified privilege because he had not shown the requisite care in checking the reliability of the information which he disseminated in order to find qualified privilege.

[115]On appeal, the Court of Appeal dismissed the appellant’s appeal on the issue of privilege but did so on the basis that the Reynolds principles did not apply and approached the case on the footing of traditional qualified privilege. They held that traditional qualified privilege did not succeed because the quality of the information was such that the appellant did not have a duty to report it to the public. In other words, the duty-interest test was not satisfied.

[116]On further appeal to the Privy Council, the appellant argued that the case did not fall within the Reynolds principles but was governed by the doctrines of traditional qualified privilege on which he should have succeeded. The Board rejected this contention. It held: “Mr Henriques QC argued on behalf of the appellant before the Board that the case did not fall within the Reynolds principles but was governed by the doctrines of traditional qualified privilege. Their Lordships consider that this was a misconceived argument. The Reynolds test is more easily satisfied, being a liberalisation of the traditional rules, and it is more difficult to bring a case within the latter. They are satisfied that the publication was not covered by traditional qualified privilege, for the element of reciprocity of duty and interest was lacking when the appellant knowingly made it to the public at large via the attendant media. If privilege was to be successfully claimed, it could only be under the Reynolds principles and, as they have said, those principles applied to the case. For the reasons given by the judge, however, with which their Lordships agree, the appellant failed to take sufficient care to check the reliability of the information which he disseminated and is unable to rely on the defence.” (Emphasis added)

[117]Seaga v Harper would seem to be authority for the proposition that whether or not the Reynolds principles apply in any given case depends not merely on what defence is asserted by a defendant, but on an analysis of the facts and circumstances that attend the publication of the statement.

[118]It is apparent that the reason why the Reynolds principles were held to apply and traditional qualified privilege did not in the Seaga v Harper case, is that there was evidence that representatives of the press and broadcasting media were present; that they had regularly attended such meetings; the JLP had alerted them to the holding of this meeting; and the appellant’s statement was widely reported by representatives of the media who were present at the meeting. These facts were not challenged. In such circumstances, by knowingly publishing the words to the public at large through the assembled media without taking sufficient care to check the reliability of the information which he disseminated, the defence failed.

[119]I do not perceive that the evidence in the case at bar was on the same footing as that in Seaga v Harper. The respondent pleaded at paragraph 5 of the statement of claim, and repeated same in his witness statement: “The Defendant's said address, including-the words reproduced in paragraphs 3 and 4 above, was either simultaneously with or subsequent to the said town hall address, published on You Tube and has remained so published since the said town hall meeting to the date of filing of this Claim.”

[120]In his defence, the appellant pleaded at paragraph 5: “a. The Defendant was not aware that a recording of the town hall meeting was uploaded to the website known as YouTube until receiving a letter from the Claimant's Legal Practitioners dated 22nd August 2014. b. The Defendant further avers that he did not upload the said video neither did he cause or contribute to the uploading of the said video on the said website.”

[121]By way of reply to the defence, the respondent pleaded: “The Claimant avers that it matters not of what the Defendant was or was not aware regarding the recording of his said statement and that it is in fact disingenuous to suggest that, in this technological age, about which the Defendant is notoriously savvy , the Defendant did not advert to the possibility that his words might be recorded and used, as it in fact was. It was and is sufficient that the Defendant spoke and published the said offending words. The same is true regarding the uploading of the said video of the Defendant speaking and as such broadcasting the said offending words, the video of which were uploaded onto the said website. But for the Defendant uttering the said offending words, there would be no publication, no videotaping, no uploading and no defamation resulting. The Court is asked to so find.”

[122]By these pleadings issue was joined as to the appellant’s knowledge that a recording had been or was being recorded for upload to YouTube. The judge found that the appellant “was, more than cognisant of the fact that the comments which were made at the forum were being and would be widely disseminated and published in the worldwide media. I think that as leader of government business he would have anticipated or expected no less than the widest circulation of his interactions with the public.”

[123]I am not persuaded that there was an evidential basis for drawing such facts or drawing such inference unlike Seaga v Harper. It is of note that in that case the Board held that the Reynolds principles applied and “the publication was not covered by traditional qualified privilege, for the element of reciprocity of duty and interest was lacking when the appellant knowingly made it to the public at large via the attendant media. This suggests that the appellant must know that his statements are being made to the public at large. (Emphasis added)

[124]Of course, knowledge is always something that can be inferred but inferences are drawn from proved facts. A person who utters defamatory statements at a press conference or at an event being broadcast live on radio or television or at which the media is present can be taken to know that their statements would be published to the world at large.

[125]On the facts of this case, there is reason to doubt whether this town hall meeting is of like species. There was no evidence that the press or broadcast media was present or that the statements were subsequently widely published by the press or at all. There was no evidence that the event was being broadcast live by any medium. There was no evidence as to whether the statement was uploaded on the YouTube channel by a private individual, or the Government of Grenada or its agents. As every viewer of YouTube knows, millions of people record millions of events, officially and unofficially, and simply upload their recordings to YouTube.

[126]I do not agree that the fact that the appellant was leader of government, without more, meant that “he would have anticipated or expected no less than the widest circulation of his interactions with the public” as the judge held. It seems to me that it must be a requirement that a defendant must at least know or intend that his statements would be published to the world at large, and not the limited audience he believes he is addressing, if the case is to be caught by Reynolds principles. In none of the cases on Reynolds principles cited to us was the publisher unaware that his words were being published to the public at large.

[127]If knowledge is not required at all, it would mean that a defendant who could otherwise assert traditional qualified privilege would lose the benefit of the defence if, unknown to him, someone covertly recorded his statement and published it to the public at large. I can’t see that the Reynolds principles were intended to be applied in circumstances where a defendant did not intend and did not know or have reason to know that his words would be published to the public at large.

[128]Even the fact that the media is present does not necessarily engage Reynolds principles and result in the defence of traditional privilege being defeated. The appellant’s proposition to this effect is supported by a passage from the learned authors of Gatley on which the appellant relies. At paragraph 14.35, the learned authors state in the context of statements made by persons who are appointed or elected to serve making statements at a Town Council meeting where the media are known to be present: “If in the conduct of public business any member of a public body which is considering and deliberating for the public benefit thinks right in the public interest to make use of expressions which are pertinent to the matter in hand, though they may bear hardly on individuals, that occasion is nevertheless privileged unless malice is proved. ..... A town council is a typical instance of a public body the members of which enjoy a privilege in the language they use in dealing with the public affairs of the borough.” ".....What is said by members of a local council at meetings of the council or any of its committees is spoken on a privileged occasion. The reason for the privilege is that those who represent the local government electors should be able to speak freely and frankly, boldly and bluntly, on any matter which they believe affects the interests or welfare of the inhabitants. They may be swayed by strong political prejudice, they may be obstinate and pig-headed, stupid and obtuse; but they were chosen by the electors to speak their minds on matters of local concern and as long as they do so honestly they run no risk of liability for defamation of those who are subjects of their criticisms…. “Even though such persons may be perfectly well aware that what they say during the deliberations of the public body may be reported in the press, they are not required to meet the additional requirements laid down by Reynolds v Times Newspapers Ltd.”

[129]I am of the view that this is applicable with even greater force to the present case where there was no evidence of knowledge of media presence or of the fact of media presence. In my view, the Reynolds privilege were not applicable, and the case fell to be analysed in the context of traditional qualified privilege.

Application of traditional qualified privilege

[130]As indicated earlier in this judgment, the judge did consider fully the defence through the lens of traditional qualified privilege. He found that the subject matter was of public interest since the UWI project involved the use of public funds (paragraph 62). He found too that the appellant as leader of the Government and the Country’s Finance Minister had a duty to elucidate these matters (paragraph 63). The judge seemed also to have accepted that “the attendees certainly had a right to receive elucidation on this public project as it would affect the finance, education and other critical aspects of the public landscape of Grenada (paragraph 63). However, the judge held the defence failed for the reasons set out at paragraphs [64] to [69]: “[64] However, looking at matters more closely and I do think this is the point borne out by the cases and by Mr. John for the claimant, did the public have a right to receive the impugned material? Elsewhere it has been said apropos of the qualified privilege defence that “[If] the thrust of the article is true, and the public interest condition is satisfied, the inclusion of an inaccurate fact may not have the same appearance of irresponsibility as it might if the whole thrust of the article is untrue.” At the town hall meeting, Dr. Mitchell was asked the following question by an attendee: “I would like to know…why were the people of Grenada [sic] told that the land was purchased by the NDC from the shareholders and sold to the Government?” Dr. replied by stating, among other things that “…I don’t see how any member of my Government will go and buy a piece of land knowing that the Government wants it, buy it and then sell it to the Government. Clearly, they are not buying it for charity. They clearly was buying it as a part really of making money…” [65] In my view, and as I have more than often recited above, the entire thrust of Dr. Mitchell’s statement imputed corruption not only to Mr. Simmons but to other members of the company and the 2008 to 2013 NDC Government. The corruption was couched as a scandal whereby land was purchased by a company in which members of the 2008 to 2013 NDC government held interest for the sole purpose of being sold to the government for use in the UWI project. While the public had a vested interest in knowledge about the project, they had no interest in receiving this misinformation which was offered without the benefit of any research or investigation. [66] By personally calling Mr. Simmons’ name in his speech as a member of the company, Dr. Mitchell suggested that Mr. Simmons was a beneficiary of the alleged corruption. The imputations were made even the more emphatic by the statement apparently exculpating Mr. Peter David from involvement in the alleged corruption. Peter David was a sitting member of the same 2008 to 2013 Cabinet which approved the land transaction. [67] Further compounding all of this and as I have observed with respect to the defence of fair comment, when the attendee challenged Dr. Mitchell’s statements that members of the 2008 to 2013 NDC Government did sell land to the Government for profit, Dr. Mitchell replied by stating “[t]hese are facts. Ask Simmons if he wasn’t a member of that company as an example, just ask him”. Dr. Mitchell’s rejoinder could not have left his audience with any clearer impression than that, as Prime Minister and Finance Minister, he was presenting, not opinion, but facts to his listeners. [68] In my view, therefore the defence fails on the question of qualified privilege. There could be no moral or social duty to disseminate this patently false information without research or comment from the person(s) traduced. These matters were entirely within Dr. Mitchell’s power to properly interrogate before he made his remarks. Mr. Maharaj SC made the point that Dr. Mitchell was asked the question which he did not know beforehand, did not have documents present with him to consult or verify and that he answered imprecisely. Certainly if Dr. Mitchell was not equipped with the material to give an accurate answer then caution would have dictated a more prudent response than the emphatic statement which he insisted to his audience was fact. [69] Even more significantly, prudence would have dictated restraint with respect to implicating Mr. Simmons’ good name and reputation in an affair which Dr. Mitchell now states that he could not adequately address at the time because he did not have sufficient material available to him to give an informed response. It seems to me that this was the very essence of the dicta in Pinard which advises that, at the very least Dr. Mitchell should have interrogated the matter or deferred the question to a time when he could have properly interrogated the matter before attempting to enlighten the public on any problems with the land sale deal.” (Emphasis added).

[131]On a proper reading of these reasons, the judge considered that the defence failed because the statements made by the appellant were “patently false” and the appellant had not taken the time to properly interrogate the matters before he made his remarks, even though it was within his power to do so. Accordingly, he held that the public “had no interest in receiving this misinformation which was offered without the benefit of any research or investigation”.

[132]Mr. Maharaj’s SC’ submission is a simple one: the judge erred in law in rejecting the defence of traditional qualified privilege on the basis that the appellant’s statements were false and were not subjected to proper investigation by the appellant before making them. Mr. Maharaj SC submitted that qualified privilege is established by the relationship of the parties and not on the truth of the word’s published. The defence is not dependent on whether or not there was research or investigation before the words were published. The defence of qualified privilege protects the mistaken but honest publisher in respect of the accuracy of the contents of his statements.

[133]In my view, this submission correctly reflects the law. I made the point earlier in this judgment that qualified privilege is only engaged where the impugned statement is both defamatory and untrue. It is therefore an error in principle to say that the defence fails because the statement is untrue. The case of Hines v Davidson41, cited by the appellant, puts the question beyond doubt: “The privilege arises not from the truth of the words complained of or the knowledge of their truth, but from the relationship in which the party making the allegation stands to the party to whom the allegation is made, and from the whole circumstances in which the allegation comes to be made. If the communication relates to a matter which the person making it would be justified in communicating, if it were true, to the person to whom the communication is made, in virtue either of an interest or of a duty, legal or moral, the occasion is deemed to be privileged and the privilege is not displaced by an averment that the communication was in fact untrue and known to be untrue.”

[134]Similarly, in Horrocks v Lowe42, Lord Diplock said that where the reciprocity of duty and interest exists, what is published in good faith is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue.”

[135]It seems to me that in addition to wrongly requiring the appellant’s statements to be true, the judge imported the requirement that the appellant should satisfy the standard of responsible journalism, applicable to Reynolds principle. In invoking the case of Pinnard-Byrne v Lennox Linton43 to support the latter requirement, the judge failed to consider that what was said there was in the context of Reynolds privilege. This is clear from Lord Clarke’s framing of the issue in that case from the very first paragraph of the judgment: “1. This case is about Reynolds privilege…There is only one issue in the appeal, namely whether the Court of Appeal was wrong to overturn the judge’s rejection of the Reynolds privilege defence.”

[136]The judge therefore erred in rejecting the defence of qualified privilege on these bases. In my view, subject only to the question of malice, the defence of qualified privilege was established. Malice – grounds 29 -30.

[137]Because the judge held that the defence of traditional qualified privilege failed for the reasons he posited, he did not go on to consider the question of malice immediately under the section dealing with traditional qualified privilege. However, when considering the applicability of Reynolds principles, the judge directed himself on malice in the context of qualified privilege generally at paragraphs 95 – 97. The relevant part of his discourse is set out below. “Malice in respect of qualified privilege [95] With respect to the defence of qualified privilege, it is said, as noted in Mansoor above at paragraph 88 of this judgment that: “[I]n whatever context malice is raised, evidence tending to show, or from which it can be inferred, that the defendant had no honest belief in the truth of the defamatory statement will usually be powerful evidence of malice.” [96] Ratlins JA made the point more succinctly in David Carol Bristol v Dr. Richardson St. Rose when he stated that: “Where words are published under circumstances which create qualified privilege, the claimant might still prevail on a claim for defamation if he proves that the person abused the privilege because of express or actual malice. The test of express malice requires the claimant to prove that the defendant did not honestly believe that the words were true because the defendant was either aware that they were not true or was indifferent to their truth or falsity. Express malice arises as a question of fact, which is to be drawn or inferred, inter alia, from the contents and source of the statements and the circumstances in which the statements were made. A defendant might be indifferent to their truth or falsity where he took no investigative steps to ensure their accuracy when he could have done so. Whether a defendant was indifferent to the truth of the defamatory statements is subjective to the defendant and depends, among other things, on his level of knowledge, education and intelligence. To a great extent, it is an enquiry as to the motive for the publication.” (Judge’s emphasis)

[138]Applying these principles, the judge concluded, “Dr. Mitchell, in my view, was rather reckless in his failure to interrogate or to seek an opportunity to interrogate the matters on which he spoke publicly when, he more than anyone else could have easily verified the accuracy of his utterances before they were made or he could have easily deferred his answer to such a time as he could have properly enlightened the public. His insistence that what he was stating were facts indicate that he spoke without considering whether what he was saying was true or not. This evidence does not suggest mere inadvertence or impulsiveness or even the sort of crass and/or callous language that is oftentimes a feature of political conversations. See Horrocks and Lyndon Duncan v Edison Baird in this regard. The statements in question in this case suggest to me a sort of deliberate insistence on imparting information as facts without minding whether they were true or not. For this reason, as discussed below, I have found that Dr. Mitchell could not have held an honest belief in what he was stating as facts. The dominant motive in that moment does not appear to me to have been to shed a light on the matter under question. Rather, the statements seem to have been uttered with the primary intention to seriously disparage the members of the previous Government in general and Mr. Simmons, in particular. A finding of a primary or dominant motive of such a nature, the authorities above suggest, is generally conclusive proof of express malice which negatives the defence of qualified privilege. In this case therefore, I find that, for all the foregoing reasons, the defence of qualified privilege would have been defeated by express malice if the defence had succeeded in this case.”

[139]The appellant submitted that this was a serious error of law and fact by the learned judge in that the respondent did not plead or prove malice in relation to either defence as he was required to do pursuant to Rule 69. 2 (c) of the Civil Procedure Rules of the Eastern Caribbean Supreme Court ((2000) as amended). Rule 69.2 (c) provides: “[69.2] The statement of claim (or counterclaim) in a defamation claim must, in addition to the matters set out in Part 8 – (c) if the claimant alleges that the defendant maliciously published the words or matters – give particulars in support of the allegation.”

[140]The appellant also cites the following passage from Halsbury’s Laws of England44: “It is for the defendant to prove that the occasion of publication is one of qualified privilege. To defeat that defence the claimant must then prove that the defendant, in publishing the words complained of, was actuated by express malice.”

[141]It was contended that there was no pleading and no evidence of malice. In any event, so it was said, the matters that the judge identified as constituting malice could not in law support a finding of malice since neither the failure to verify the matters before publication or the appellant’s assertion that he was speaking facts was capable in law of being proof of malice.

[142]The respondent submitted that if a plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in the statement of claim give particulars of the facts on which he relies in support of the allegation of malice but, if the defendant pleads fear comment on a matter of public interest or that the publication was on a privileged location and the plaintiff intends to allege the defendant was activated by express malice he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred.

[143]It is said that although malice was not expressly asserted in the statement of claim, the foundation was laid at paragraph 6 of the statement of claim where the respondent pleaded the appellant’s singling him out by name while distancing Peter Davis from the charge of corruption, and at paragraphs’ 8 and 10 where reference is made to the appellant’s mixing of truth and falsehoods. Furthermore, in its reply to the defence the respondent pleaded that the appellant knew or was otherwise reckless as to the fact that apart from his associations and friendship with some of the shareholders of the company he had no interest in the said company; at paragraph 5 he pleaded that the date of the purchase of the land by the company was June 1989 so that there was then no project or prospect of a project to interest the government in the said lands and expressly referred to the malicious and defamatory intent behind the claimants words evidenced in the separation of Peter David from the corruption charge at paragraph. At paragraph 11(a) he pleaded the failure of the appellant to act in good faith and to have an honest belief in the allegations published when he failed to obtain the respondents views on the matter and insisted on relying on cabinet papers to support the allegations. At paragraph 11(b) he pleaded that the words were spoken maliciously to the extent that they were intended to lead the audience to believe that there was evidence to support the charge of government members purchasing land knowing that government wanted it so as to sell it to government to make money and that the respondent was part of that scheme. It was further pleaded that the appellant knew when he made the statement that there could be no truth in it or was reckless as to its truth or falsehood.

[144]In so far as the evidence before the judge went, the respondent highlighted that the appellant admitted under cross examination: (i) that the respondent was apparently not a member of the company; (ii) that the land was bought by the company in 1989 but was sold to the NDC government in 2011 or 2012; (iii) that the statement he made implying or inferring that members of the NDC government had bought the land knowing government wanted it and sold it to the government was not a factual statement; (iv) that the shareholders of the company that bought the land in 1989 were not members of the government in 2012; and (v) when asked if he was not in fact saying that he had cabinet papers supporting his statements he would only concede that that could have been the interpretation and that was what was he was led to believe.

Discussion - Malice

[145]In the context of qualified privilege, actual or express malice on the defendant’s part defeats the defence. Express malice refers to an absence of an honest belief by the defendant in the truth of the impugned words or indifference to their truth or falsity or any other dominant and improper motive which does not spring from or is unconnected with the duty or interest in publishing the said words and thus amounts to abusing the privilege for an improper purpose. See Horrocks v Lowe. It is for the claimant to plead and prove malice in any of these senses.

Was malice pleaded?

[146]In Deldridge Flavius v Dr. Ernest Hilaire45 this Court considered whether the master ought to have struck out the respondent’s claim because of failure to plead and particularise express malice after the appellant had raised it as a defence. In upholding the master’s decision not to strike out the claim, the Court applied the dictum of Lord Justice-Clerk (Alness) in Hayford v Forrester-Paton46 addressing the absence of a particular pleading of malice. He concluded” “Although there is no particular pleading of spite or ill will, I do not find the pleadings of malice objectionable in the circumstances of this case. I find that in addition to the pleadings and particulars of the claimant, evidence of malice can be inferred by the court given the nature of this statement made, the circumstances under which it was made and an assessment by the court of whether the statements made were in fact commentary and were in fact fear. This would rebut any presumption of the defendant acting in good faith.”

[147]In commenting on this Pereira CJ stated: “I can find no fault with this reasoning… If the argument is not sufficiently made out, then in the face of a defence of fair comment where such a defence exists it may very well be that at trial the claimant may be able to defeat the defence.” (Emphasis added)

[148]I understand from these authorities that even where there may not have been a specific pleading of malice in the statement of claim or the reply, evidence of malice can yet be inferred by the court at trial, given the nature of the statement and the circumstances under which it was made.

[149]Adopting this approach to the issue of the respondent’s pleading of malice, I am satisfied that the issue of malice was sufficiently pleaded in the respondent’s reply to the defence, having regard to the matters set out at paragraphs [145] to [146] above. It was clearly pleaded that the appellant mixed truth and falsehoods; failed to act in good faith and to have an honest belief in the allegations published when he failed to obtain the respondents views on the matter; that the offending words had no basis in truth; that the appellant knew when he made the statement that there could be no truth in it or was reckless as to its truth or falsehood.

Was there evidence of malice

[150]If the claimant proves that the defendant did not believe that what was published was true, that is generally conclusive evidence of express malice. The test of express malice and how it may be proved was explained by Rawlins JA in David Carol Bristol v Dr. Richardson St. Rose47: “The test of express malice requires the claimant to prove that the defendant did not honestly believe that the words were true because the defendant was either aware that they were not true or was indifferent to their truth or falsity. Express malice arises as a question of fact countries to be drawn or inferred, inter alia, from the contents and source of the statements and the circumstances in which the statements were made. The defendant might be indifferent to the truth or falsity where he took no investigative steps to ensure there veracity when he could have done so weather in defendant was indifferent to the truth of the defamatory statement is subjective to defender and depends among other things on his level of knowledge education and intelligence.”

[151]Moreover, as Lord Diplock explained in Horrocks v Lowe, “If the defendant publishes untrue, defamatory matters statements recklessly, without considering whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false” (paragraph 150). At the same time, it is to be noted that the authorities caution that carelessness, impulsiveness or irrationality in arriving at an honest belief is not to be equated with indifference to the truth.48

[152]The evidence of malice may thus be inferred from the impugned words themselves or gleaned from extrinsic facts or circumstances or indeed from the evidence of the defendant himself. It has been held that where the judge has to determine the existence of malice on no other material than the speech itself, the circumstances in which it was made and the defendant’s own evidence, the test of malice is very simple: “Has it been proved that the defendant did not honestly believe that what he said was true, that is, was he either aware that it was not true or indifferent to its truth or falsity.”49

[153]In this case, the judge made a finding of fact that the appellant did not honestly believe that the words he uttered were true and was indifferent to its truth or falsity. He found that the dominant purpose actuating the appellant was not connected with the duty-interest purpose but that they were uttered “with the primary intention to seriously disparage the members of the previous Government in general and Mr. Simmons, in particular.” He held that the appellant was rather reckless in his failure to interrogate or to seek an opportunity to interrogate the matters on which he spoke publicly when, he more than anyone else could have easily verified the accuracy of his utterances before they were made or he could have easily deferred his answer to such a time as he could have properly enlightened the public. His insistence that what he was stating were facts indicated that he spoke without considering whether what he was saying was true or not. This evidence does not suggest mere inadvertence or impulsiveness.”

[154]Contrary to the appellant’s contentions, I do not regard these reasons as a finding that malice was established merely because the appellant had failed to verify the matters before publication or had asserted that he was speaking facts or was careless or impulsive in forming his belief in the truth of his statements. After all, the appellant had specifically pleaded: “The words complained of contained a fair and accurate report gleaned from Cabinet papers ranging from 20 10- 20 12 and other matters of record known to the Defendant concerning the Company and the said land purchase.”

[155]I understand the judge to be saying that since the appellant was undoubtedly in possession of the Cabinet papers and the Company documents, which he had perused and upon which he assured his listeners he was relying to base his statements, he must have known or had the opportunity to know that it was patently false that the company had bought the land knowing that the government was interested in purchasing and then selling it to the government for profit. The fact that the company purchased it in 1989 and that government’s decision to and purchase of it occurred in 2012 made the falsity of this assertion manifest. The appellant must also have known that the respondent was not a member of the company and that at the time of the sale of the lands to the government none of the members of the company was a minister of government, with the exception of Mr. Lett.

[156]The judge was entitled to consider that evidence in assessing the appellant’s assertion of honest belief. On the evidence before him and having seen and heard the appellant testify, the judge was well-placed to assess the evidence. It was entirely open to the judge to conclude that the appellant either did not hold an honest belief in the truth of what he was saying or was indifferent to the truth and actuated by an improper purpose. By definition, that is malice, and it operates to defeat the defence of qualified privilege.

[157]I would therefore hold, that although the judge was wrong to hold that the defence of traditional qualified privilege was defeated because the statements were untrue, he was right to hold that in any event the defence was defeated by malice.

Damages – grounds 30 -32

[158]Having found the appellant liable, the judge awarded the respondent $100,000.00 in general damages and $30,000.00 in aggravated damages. The reasons for these awards were stated as follows: “[120] Mr. Simmons' case is that the offending words uttered by Dr. Mitchell damaged his reputation, credit and calling as a politician and he has been seriously injured. Mr. Simmons testifies that he has been brought in public odium, contempt and ridicule. I have found earlier that the offending words were defamatory, in that they tended to lower Mr. Simmons' reputation in the eyes of right-thinking members of the society or caused him to face ridicule or contempt in his office or calling….”

[159]In relation to the award of aggravated damages the judge explained: [125] “I find that the most glaring evidence of aggravation is exhibited by the failure to apologize. Counsel for Mr. Simmons, Mr. John, in his pre action letter dated 22nd August 2014 demanded a written apology from Dr. Mitchell, which was refused. At trial, Dr. Mitchell acknowledged that his statements were erroneous in material regards for instance, Mr. Simmons' membership of the company. In my view this acknowledgement should have been forthcoming much earlier. Certainly, the company documents which showed who were the shareholders of the company, ought to have impelled Dr. Mitchell to immediately retract his assertions about Mr. Simmons' involvement in the alleged affair. [126] Equally, the Cabinet papers which Dr. Mitchell relied on in his evidence ought to have advised him at least by the time of disclosure that his assessment of the conduct of the 2008 to 2013 Government was flawed in material respects. He ought to have issued some retraction, correction or apology. His failure to do so, in my view, added to the injury caused to Mr. Simmons’ reputation and must be compensated as aggravated damages.” Submissions

[160]In relation to the award of general damages the appellant submitted that it was inordinately high, having regard to the facts and circumstances of this case. It was submitted that the judge failed to take into account the following matters which were all relevant to the quantum of general damages: (i) the mode of the publication and the extent of the publication; (ii) the conduct of the respondent himself, who was involved in the decision of cabinet which involved a clear conflict of interest, and the inquiries he made in relation to payment of the purchase price after he had demitted office.

[161]In relation to the quantum awarded as aggravated damages, the appellant submitted that the judge erred in making an award of aggravated damages, and, in any event, the quantum awarded was inordinately high. The judge failed to take into account that there was no evidence of the extent of the publication or evidence from the respondent of injured feelings, distress, embarrassment and humiliation. The appellant suggested that an appropriate range of award would have been between $75,000.00 to $45,000.00 given that there was no evidence of the adverse effect on the claimant’s political reputation.

[162]The respondent countered with the reminder of the need for appellate restraint in interfering with a trial judge’s assessment of damages. It was submitted that the judge properly directed himself on matters relevant to the assessment of damages. Among these factors were that the allegation was a very serious one against the respondent, who was a former minister of government, the appellant declined to apologize and persisted with his defence, and the appellant was actuated by malice, as found by the judge. The judge’s assessment of quantum was informed by authorities, which he considered at paragraph [122] of the judgment. Accordingly, it cannot be said that he acted on any wrong principle or that the award was so high as to be out of step with other awards.

[163]In relation to the award of aggravated damages the respondent submitted that the judge correctly directed himself on the basis of which aggravated damages are awarded in accordance with principles stated in Lester Bryant Bird v Winston Baldwin Spencer50.

Discussion

[164]When challenge is made to a trial judge’s assessment of damages, the starting point must be to acknowledge the necessary restraint which an appellate Court is required to exercise in such cases, as the assessment of damages engages in a fundamental way the exercise of a trial judge’s discretion. The need for restraint does not mean that an appellate court will never interfere. It does mean, however, that it ought not to do so unless it is clear that having regard to all the circumstances of the case the award is out of all reasonable proportion in relation to the loss sustained. Interference may also be warranted where the judge took irrelevant factors into consideration or omitted relevant ones or applied a wrong principle of law or applied the wrong measure of damages, such that it is a wholly erroneous assessment of the damage suffered: Alphonso and others v Deodat Ramnath.51

[165]The award of general damages for defamation has as its objective the provision of adequate compensation to the claimant for the injury to his reputation and feelings occasioned by the tort. Settling on the appropriate monetary measure of compensation requires consideration of factors such as the gravity or seriousness of the libel; the extent and manner of its publication; the relationship between the claimant and the persons to whom the libel is published; the presence of express or actual malice; the defendants refusal to apologize; and the defendants persistence with the libel or the defence of justification which he fails to prove; the conduct of the defence and the probability of loss of earnings by the claimant: David Carol Bristol v Dr. Richardson St. Rose. Not all of these will be relevant to every case.

[166]In his judgment the judge considered the seriousness of the allegations and the injury to the respondent’s reputation and guided himself on quantum by reference to cited authorities from the Eastern Caribbean which both awarded general damages in the sum of $100,000.00. These are all relevant matters. The appellant has not sought to argue otherwise. What is said is that the judge failed to take account of other relevant factors: (i) the mode of the publication and the extent of the publication; (ii) the conduct of the respondent himself, who was involved in the decision of cabinet which involved a clear conflict of interest, and the inquiries he made in relation to payment of the purchase price after he had demitted office.

[167]I am unable to appreciate how consideration of these factors would have mitigated the quantum of general damages. As to the mode and extent of publication, the publication occurred at a town hall meeting in New York which was hosted for and attended by Grenadians in the diaspora. The appellant’s statements were uploaded to the very popular YouTube platform, where it remained for some time even after the respondent’s lawyers had drawn this to the appellant’s attention and at least up to the date of filing the claim. As to the respondent’s conduct, whereas there can be cases where the claimant’s conduct can serve to mitigate damages, such as where he has a general bad reputation, the conduct complained of here was simply irrelevant in circumstances where the judge had found that the respondent’s conduct in no way justified or supported the appellant’s defamatory statements.

[168]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. I heed the words of Satrohansingh JA in Alphonso and others v Deodat Ramnath: “If the judge had taken all the proper elements of damage into consideration and had awarded what he deemed to be fair and reasonable compensation under all the circumstances of the case we ought not, unless under very exceptional circumstances, to disturb his award. The mere fact that the judge’s award is for a larger or smaller sum than we would have given is not of itself a sufficient reason for disturbing the award… The award of damages is a matter for the exercise of the trial judge’s judicial discretion and unless we can say that the judges award exceeded the generous ambit within which reasonable disagreement is possible and was therefore clearly and blatantly wrong we will not interfere.” (At pp. 11 -12.)

Aggravated damages

[169]Aggravated damages are awarded as compensation beyond the basic award to which the claimant would have been restricted on account of conduct by the defendant or some feature of the case which aggravates the injury to the claimant’s feelings. Examples of such features include a failure to make any or any sufficient apology, the motives of the defendant and the presence of express or actual malice. The judge may have regard to a defendant’s conduct up to the time of judgment.

[170]In his judgment, the judge identified the factors that informed his decision to award aggravated dames. These were the failure of the appellant to offer an apology even after it became apparent that his assessment of the involvement of the respondent in the transaction which he spoke of was erroneous. Secondly, the judge found that he was actuated by malice.

[171]In relation to malice, the Court of Appeal in Edwardo Lynch v Ralph Gonsalves explained the impact of a finding of malice on the award of damages: “One of the consequences of malice being established is that it becomes irrelevant that the publisher of the slanderous statements may not have intended to harm the claimant’s reputation. The existence of malice generally saves to inflate the damages that may be awarded.”

[172]It is plain therefore that both factors taken into account by the judge are sufficient in law to ground an award of aggravated damages, so the judge did not err in principle in this regard.

[173]In relation to the quantum, the judge awarded $30,000.00 Curiously, before the judge, the appellant had put forward and relied on an authority where $40,000.00 was awarded as aggravated damages. The judge, noting that the case had been overturned on liability on appeal, did not follow it and awarded a sum less than the range suggested by the appellant. This sum is not out of all reasonable proportion in relation to the injury to respondent’s reputation and feelings. There is therefore no basis for this court to interfere.

Disposition

[174]I would dismiss the appeal and affirm the decision of the learned judge for the reasons given in this judgment. The respondent is awarded its costs on this appeal to be assessed if not agreed within 21 days of delivery of this judgment. I concur. Mde. Vicki Ann Ellis Justice of Appeal I concur.

Mde. Esco L. Henry

Justice of Appeal

By the Court

Chief Registrar

EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL GRENADA GDAHCVAP2023/0023 BETWEEN: KEITH CLAUDIUS MITCHELL Appellant and PATRICK SIMMONS Respondent Before: The Hon. Mde. Vicki Ann Ellis Justice of Appeal The Hon. Mr. Trevor M. Ward Justice of Appeal The Hon. Mde. Esco L. Henry Justice of Appeal Appearances: Mr. Ramesh Lawrence Maharaj SC with him Mr. Nigel D. Stewart for the Appellant Mr. Alban John with Ms. Hazel Hopkin-La Touche for the Respondent ______________________________ 2025: January 29; July 10. _______________________________ Civil appeal – Defamation – Whether the appellant’s statements at a town hall meeting were defamatory of the respondent – Meaning – Whether the words were capable of bearing a defamatory meaning – Whether the judge failed to correctly ascertain the meaning of the words spoken by the appellant – Whether the judge failed to have regard to the context in which the words were spoken in determining their meaning – Identification – Whether the appellant’s statements referred to the respondent – Fair comment – Whether the statements constituted fair comment on a matter of public interest − Qualified privilege – Whether the occasion of the town hall meeting attracted traditional qualified privilege – Reynolds principles – Whether Reynolds principles apply − Malice – Whether malice sufficiently pleaded – Whether the appellant acted with malice, defeating any defence of privilege – Assessment of damages – Whether the award of general damages was inordinately high – Whether the judge erred in awarding aggravated damages – Whether in any event the award for aggravated damages was inordinately high Keith Claudius Mitchell (“the appellant”) was at the material time in 2013, the Prime Minister of Grenada and leader of the New National Party (NNP). Patrick Simmons (“the respondent”), previously served as Minister of Youth Empowerment and Sports from 2008 to 2013 under the National Democratic Congress (NDC) government. On or about 1st June 2013, the appellant attended a town hall meeting in Brooklyn, New York in his capacity as the then Prime Minister of Grenada. This meeting was arranged for the benefit of Grenadian citizens residing in New York to discuss matters of State and generally to update those gathered on the plans of the Government. The panel comprised of the appellant, two other Ministers of Government and one Peter David, a former Minister in the NDC government but now aligned with the NNP government. Following the presentations by the appellant and his Ministers, they fielded questions from members of the audience. A woman in the audience directed the following question to the appellant: “I would like to find out what is the situation with the University, the project for the University of the West Indies in Spring Valley and secondly, I would like to know.. . why were the people of Grenada told that the land was purchased by the NDC from the shareholders and sold to the Government?” The appellant answered in the following terms: “… it is a fact sister, that the land was bought by a company which had some persons who were ministers of government in that company and it was then sold on to government and I have a fundamental problem with this. Some people are talking corruption. I don’t see how any member of my government will go and buy a piece of land knowing that the government wants it, buy it and then sell it to the government. Clearly they are not buying it for charity. They clearly was buying it as a part really of making money…” The questioner challenged the truth of the appellant’s statement. The appellant replied: “No my dear, the facts are there, the Company is there. I’m talking from Cabinet papers my dear. I’m sorry that you don’t agree with me but I’m not speaking from the top of my head, these are facts, ask Simmons if he wasn’t a member of that Company as an example, just ask him. I can tell you more persons who were on it; not Peter David”. A recording of the meeting was subsequently uploaded to YouTube. In the court below, the respondent 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 spoken by the appellant meant and were intended and understood to mean and convey as fact to the particular audience and to the public that the respondent, while serving as a government minister, used his position to engage in a corrupt transaction for personal profit at the expense of the State. The respondent further pleaded that the appellant recklessly mixed truth with falsehood, disregarding the impact on the respondent’s reputation and public perception. The appellant thereafter filed his defence and pleaded qualified privilege and, in the alternative fair comment. In relation to the alternative defence of fair comment, the appellant pleaded that the statements were fair comment on a matter of public interest, specifically government conduct and the respondent’s involvement in the land transaction and association with the company’s shareholders based on facts. The trial judge identified the following issues: (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. The judge found the statements defamatory as they implied corruption by the respondent and were clearly understood to refer to him. Both the defences of qualified privilege and fair comment failed due to unverified factual claims and reckless disregard for the truth. Malice was established by the appellant’s failure to verify facts and refusal to retract. The judge awarded the respondent $100,000.00 in general damages, $30,000.00 in aggravated damages, and $18,750.00 in costs, but denied exemplary damages and an injunction. 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) and (vii) assessment of general damages (grounds 31 – 32). Held: dismissing the appeal, affirming the decision of the learned judge and awarding costs to the respondent to be assessed if not agreed within 21 days that:

[1]WARD JA: The appellant, Keith Claudius Mitchell, was at the material time the Prime Minister of Grenada and leader of the New National Party (NNP). The respondent, Patrick Simmons, served as Minister of Youth Empowerment and Sports from 2008 to 2013 under the National Democratic Congress (NDC) government. General elections were held in Grenada on 19th February 2013 which the NNP won. The appellant was appointed Prime Minister, Minister of Finance and Minister of National Security.

[2]On or about 1st June 2013 the appellant attended a town hall meeting in Brooklyn, New York in his capacity as Prime Minister. This meeting was arranged for the benefit of Grenadian citizens residing in New York to discuss matters of State and generally to update those gathered on the plans of the NNP Government. For this purpose, the appellant had assembled a panel including two other Ministers of Government and one Peter David, a former Minister in the NDC government but now aligned with the NNP government.

[3]After the appellant’s and his Ministers’ presentations to the audience, they fielded questions from members of the audience. A lady in the audience availed herself of the opportunity to pose the following question to the appellant: “I would like to find out what is the situation with the University, the project for the University of the West Indies in Spring Valley and secondly, I would like to know.. . why were the people of Grenada told that the land was purchased by the NDC from the shareholders and sold to the Government?" The appellant answered in the following terms: “… it is a fact sister, that the land was bought by a company which had some persons who were ministers of government in that company and it was then sold on to government and I have a fundamental problem with this. Some people are talking corruption. I don’t see how any member of my government will go and buy a piece of land knowing that the government wants it, buy it and then sell it to the government. Clearly they are not buying it for charity. They clearly was buying it as a part really of making money..." The questioner challenged the truth of the appellant’s statement. The appellant replied: "No my dear, the facts are there, the Company is there. I’m talking from Cabinet papers my dear. I’m sorry that you don’t agree with me but I’m not speaking from the top of my head, these are facts, ask Simmons if he wasn’t a member of that Company as an example, just ask him. I can tell you more persons who were on it; not Peter David.”

[4]The company referred to by the appellant was Spring Valley Co-operation Limited. A recording of the meeting was subsequently uploaded to the YouTube platform.

[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, 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

[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.

[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’

[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

[38]And at paragraph 27: “The court must not put a strained or unlikely construction upon the words and overanalyses of the words and their context is to be avoided. If they are capable of bearing a number of good interpretations, it is unreasonable to seize upon the only bad one to give the words a defamatory sense.”

[39]No less injurious or more understanding or generous meaning was pleaded by the appellant in his defence. He simply pleaded that he “denies that the words set out in paragraphs 3 and 4 of the statement of claim bore, or were understood to bear, or were capable of bearing any of the meanings alleged or any defamatory meaning.”

[40]Indeed, no less injurious or more understanding or generous meaning readily occurs to me, and the judge found none. At this stage, it is not for this Court to simply prefer a different meaning within a reasonably available range. In such an instance, the authorities make it clear that an appellate court should not interfere with the judge’s findings on meaning.

[41]Learned Senior Counsel for the appellant, Mr. Ramesh Lawrence-Maharaj in submitting that the judge did not consider the context in which the impugned statements were made in determining their meaning also sought to draw a parallel between the context in which the words were uttered in this case and the context in which the words were uttered in Ramadhar v Ramadhar. In that case, the appellant was the political leader of the Congress of the People (COP) political party in Trinidad and Tobago, which was part of a coalition government. Disagreement emerged within the party about his leadership decisions. His brother, the respondent, was one of the disaffected members. He proposed resolutions to withdraw from the coalition and criticized the appellant’s leadership. A National Council meeting was scheduled for 10th November 2013 to discuss these resolutions, but they were not pursued. A letter dated 1st October 2013, purportedly signed by the respondents, was sent to the opposition People’s National Movement party (PNM). It claimed that three COP candidates were not party members and included a CD with the COP’s membership list. The letter was read at the National Council meeting, leading to a resolution to suspend the respondents pending an investigation into their conduct. Following the meeting, Prakash Ramadhar and other COP leaders held a televised press conference. Prakash stated that he made no pronouncement on the authenticity of the October letter but condemned the alleged betrayal if true, emphasizing the need for an investigation. The material parts of his statements as reproduced from the judgment are: “[1] Contrary to the many efforts by a few to destroy the party, the party stood in its resolve [that the party is greater than any individual or group of individuals. This party is the only hope in the politics of Trinidad and Tobago and I say that unreservedly.]

[42]The respondents sued for defamation, claiming Prakash’s statements at the press conference falsely accused them of disloyalty and treachery. The High Court and the Court of Appeal (majority) found Prakash liable for defamation, ruling his statements implied guilt despite his qualifications. The Privy Council disagreed, holding that Prakash’s statements, read in context, only suggested grounds for investigation and were justified. The appeal was allowed, overturning the lower courts' decisions

[43]The Board identified a number of errors made by the judge: (i) he failed to set out the terms of the qualifications actually made by the appellant; (ii) he did not give full and fair account of the reservations that had been made; and (iii) he appears not to have considered the full context in which the statements were made, in ascertaining meaning and context was an important consideration.

[44]The context was that the impugned statements were made orally at a press conference that was being broadcast live. In those circumstances, the Board held that at paragraph 38: “Some margin has to be allowed for the fact that the statements were made orally and so were more likely to be made in a conversational style and without the precision of a legal document. The other particularly important element of the context in this case, however, is that the press conference took place in real time and was broadcast live. Some margin has to be allowed for the fact that the statements were made orally and so were more likely to be made in a conversational style and without the precision of a legal document. What a person says in those circumstances should be interpreted with a certain degree of understanding and generosity.”

[45]Nonetheless, it was made clear that the principle that in determining meaning due allowance must be made for understanding and generosity in the context of statements made impromptu in real time is no licence for politicians to be unheeding of the need for accuracy in their utterances. As the Board stated at paragraph 36: “The Board does not suggest that a press conference given by senior politicians is to be regarded as an occasion for casual statements. On the contrary, there is a clear public interest that politicians talking in public should observe high standards of accuracy and fairness since the public need to know the true position and are inevitably influenced by what they say. Moreover, in the eyes of the law, the respondents were entitled to have their reputations protected from untrue allegations.”

[46]In my view, while the principle is clear that context is relevant to construction of meaning, the factual situation in Ramadhar is sufficiently distinguishable. The similarity is that in the instant case, as in Ramadhar, the impugned statements were made orally in a public forum and concerned a matter of public interest involving political figures. The similarities end there. There was no evidence that the Town Hall meeting was being broadcast live, unlike the situation in Ramadhar. More importantly, the appellant’s statements in Ramadhar stopped well short of asserting that the respondents were responsible for leaking the list of members of the party and the appellant was clear in his statement that that matter required investigation. The position is explained at paragraphs 44 and 48 of the Board’s judgment: “44. Paras 4, 5 and 6 of Mr. Prakash Ramadhar’s press conference statements are, moreover, couched as conditional statements, conditional, that is, on the respondents being shown to have committed the wrongful acts of writing the letter to the PNM and disclosing the membership list. Thus, in para 4 he expressly declares that he was not making any pronouncements on the authenticity of the letter, and in para 5, he says that it was treachery to the party to hand over the membership list to PNM, but this was only “if it is true that they did do these things”. In para 6, he states that, if the allegations were proved, then it would be appropriate to seek the respondents’ expulsion. So, in the judgment of the Board, he was not jumping to conclusions on the question whether they wrote the October letter or passed the COP membership list to the PNM.”…

[47]By contrast, in the instant case, there was nothing tentative or qualified about the appellant’s statements. He asserted as fact that members of the company who were Ministers of Government, including, the appellant, knew that the government wished to acquire the land, and with that knowledge purchased it and sold it to the government for profit. While his answer was an impromptu one, the appellant insisted that he was speaking with authority on facts which were verifiable by reference to Cabinet papers to which he was privy. To my mind this was no half-considered response or repartee in the moment; the appellant was adamant, even when challenged, that he was speaking from information derived from Cabinet papers such that every assertion he made was factual.

[48]While it may be said with justification that the judge did not expressly state that in determining the meaning to be ascribed to the impugned words he took into consideration the context in which they were made, even when due allowance is made for the fact the statements were uttered as an impromptu response to a question posed at a Town Hall meeting, there is in my view no more understanding or generous or less injurious way in which to interpret the words than as interpreted by the judge. In my view, the context in which the statements were made in this case does nothing to alter the meaning ascribed to them by the learned judge.

[49]In so far as it is also said that in considering the meaning of the statements, the judge took into account an irrelevant matter at paragraph 31 of his judgment, namely a paragraph in the appellant’s defence in which he stated that he spoke the words in the belief that the transaction was orchestrated with blatant disregard for the Integrity in Public Life Act and the Prevention of Corruption Act, for the full context, both paragraphs 30 and 31 of the judgment are set out here: “[30] Dr. Mitchell, in his speech, stated “…[s]ome people are talking corruption”. This statement offers some of the context for the words spoken. Dr. Mitchell was speaking about the actions of some previous Government ministers with respect to the sale of the land. There was an imputation of corruption by those ministers involved in the transaction. An untrue accusation of corruption or corrupt dealings is evidently defamatory since no one would sensibly dispute that such a charge may adversely affect a person’s reputation in his calling or disparage him in his office. To put it in the terminology of the cases, the assertion that former Ministers were corrupt or engaged in corrupt practice(s) are the sort of allegations that tend to lower these former ministers of Government “in the estimation of right thinking members of society”.(Emphasis added)

[50]The appellant cites Gatley on Libel and Slander , in support of his argument that this was an error: “It is clearly established at common law that in determining the meaning of words, the intention and knowledge of the publication are immaterial…what imputation is conveyed by any particular words is to be determined on an objective test, that is, by the meaning in which the ordinary reasonable person would understand them, and it is not to be determined by what the defendant intended to convey.”

[51]What is being said in this extract is that the search for meaning is to discern what the ordinary reasonable person would understand the words to mean and not what meaning the defendant intended to convey. It is an objective test. A defendant’s intention in writing, speaking or publishing the words is also irrelevant to the determination of the questions whether they bear a meaning defamatory of the claimant: E Hulton & Co v Jones. So that, where objectively speaking words are defamatory of a claimant it is immaterial that the defendant did not intend them to be.

[52]However, I do not construe the appellants pleaded words cited by the judge in paragraph 31 as speaking to the appellant’s intention; I understand the appellant to be advancing a reason for uttering the words, namely his “belief that the transaction was orchestrated with blatant disregard for the Integrity in Public Life Act and the Prevention of Corruption Act.”

[53]Even if it could be said that the judge erred in having regard to the appellant’s statement in his defence, it is nonetheless clear to me, that in the underlined words in paragraph 30 the judge had correctly applied the objective test in determining whether the words were defamatory. Accordingly, for all the reasons previously discussed in relation to the process of determining meaning, such an error would not vitiate the meaning ascribed to the words by the learned judge. Were the words defamatory of the respondent

[4]And then to have found that the very personalities who have been making all the mischief on the outside, that this letter has come to us and I make no pronouncements as to its authenticity, it maybe all the media they have garnered for the last several weeks or months, maybe they should go to the media and explain whether they did in fact put their signature to such a letter, betraying the party by disclosing its membership list, something we hold very dear.

[54]The judge next considered whether the words were defamatory of the respondent. He found that they were. The complaint against this finding is that the judge erred in law having regard to the irrelevant matters he considered at paragraph 34 in arriving at his conclusion that the reference to “Simmons” in the impugned words was capable of being understood as a reference to the respondent. The impugned part of the judge’s reasoning is in the following passage: “[34] Further evidence of this conclusion lies in Dr. Mitchell’s fair comment defence when he outlined that Pauline Andrews was Mr. Simmons’ close friend and part of Mr. Simmons’ political campaign. The connection was made to Pauline Andrews, a shareholder of the company, seemingly to bolster Dr. Mitchell’s charge that there was some level of impropriety in the sale transaction. As such, it is somewhat difficult to accept that Dr. Mitchell was not referring to Mr. Simmons in his speech at the town hall meeting.”

[6]And that is why the suspension, without a finding of guilt, and that is why we ask that a proper and full investigation into the matter and if it proved true, the next step is expulsion from the party […]” (paragraph numbers added)

[55]The appellant argues that the appellant’s words were not capable of being understood as referring to the respondent because: (i) the respondent referred to “Simmons” and not “Patrick Simmons”, and (ii) the respondent was required to but did not plead and prove by extrinsic evidence that the words used by the appellant are such that they would have led persons acquainted with the respondent to identify him as the person referred to. As such, it is contended that the judge was plainly wrong in finding that the impugned words were defamatory of the respondent.

[56]The judge’s reasons for finding that the words referred to the respondent are expressed at paragraphs 32 to 36: “[32] The question then arises whether these meanings are defamatory of Mr. Simmons. Learned counsel for Dr. Mitchell, Lawrence Maharaj SC, submits that the words were not capable of being understood as referring to Mr. Simmons since his full name “Patrick Simmons” was not stated or referred to by Dr. Mitchell. Counsel continues that Mr. Simmons has not led any evidence to prove that the words would lead persons acquainted with him to believe that he was the person referred to. I respectfully disagree with these submissions.

[57]Words are not actionable in a claim for defamation unless they are published of and concerning the claimant. Where the claimant is clearly identified by name or otherwise clearly identified, little difficulty can arise in concluding that the defamatory words refer to him or her. However, it is not essential that the claimant be named in the statement because in a case where the statement does not expressly refer to the claimant, they may be held to refer to him if reasonable persons to whom the words are published and who have knowledge of special facts could and did understand them to refer to the claimant. Where the claimant intends to rely on such special facts to connect him as the object of the defamatory words, they must be pleaded and proved in evidence: Morgan v Odhams Press Ltd.

[58]The learned authors of Duncan & Neil at paragraph 7.02 provide instructive guidance on the ultimate test where identification of the object of the defamatory words is in issue: “In every case where identification is in issue the question is: would reasonable people reasonably understand the statement to refer to the claimant? If reasonable people would so understand the statement, the defendant will not escape liability though they may have tried to disguise the reference to the claimant by using initials or asterisks or a fictitious name or some other subterfuge. Nor will they escape liability even if they had never heard of the claimant or intended to refer to someone else.”

[59]It is the role of the trial judge to decide as a matter of law whether the words are reasonably capable of being understood to refer to the claimant. The judge must ask himself whether or not ordinary, reasonable persons, having the knowledge proved, could understand the words to refer to the claimant. If the answer to this question is no, that is the end of the matter: the claimant would have failed to prove that the words referred to him. If, on the other hand, the answer is that the words could reasonably lead people acquainted with the claimant to believe that he was the person referred to, it is open to the judge to find that the words did in fact refer to him.

[60]The appellant’s argument that the words cannot reasonably be understood to refer to the respondent because his full name “Patrick Simmons” was not stated cannot withstand scrutiny in light of the principles stated in the immediately preceding paragraphs. The respondent had averred in his pleadings, and provided evidence in his witness statement, that until the general elections held in Grenada in 2013, he was a senior member of the National Democratic Congress (NDC) political party and Minister for Youth Empowerment and Sports in that last NDC Government. None of this was denied or contradicted by the appellant, who in fact pleaded and relied on said facts in support of his defence. In light of this, it is not particularly clear to me whether identification was truly a live issue in the case. Neither party identified it as such in their respective Pre-Trial Memorandum, which is the document in which each party defines the issues in the case as they see it. Be that as it may, the appellant did deny that he spoke or published the words of or concerning the respondent and the judge was obliged to address the issue of identification.

[61]I find no merit in the appellant’s criticism of the judge’s conclusion on this issue. There was evidence before the judge that the respondent’s surname was Simmons; that he was a Cabinet Minister at the material time; that a Cabinet Minister in the NDC Government at the time of the transaction who bore the name “Simmons” was specifically named by the appellant at the Town Hall meeting; and of all the then Ministers, only Minister “Simmons” was singled out by name.

[62]From the appellant’s words, the ordinary and reasonable Grenadian would have understood that the person to whom the words referred was a person whose surname was “Simmons”, who was a Minister and member of the Cabinet during the 2008-2013 NDC Government when the land was sold to the Government of Grenada. Such a description matches the respondent perfectly. It would be an affront to the common sense of ordinary reasonable Grenadians to contend that the appellant’s reference to a Minister in the NDC government at the time of the transaction with the name “Simmons” was not a reference to Patrick Simmons, the respondent, simply because the appellant did not include his first name in identifying the Minister to whom he was referring. As poignantly highlighted by Mr. John in the respondent’s written submissions, relying on Bourke v Warren : “The question for [the judge’s] consideration is whether [he] thinks the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant. It is not necessary that all the world should understand the libel; it is sufficient if those who knew the plaintiff can make out that he is the person meant.”

[63]I find further, that in such circumstances, and, on these facts, there was no necessity for the respondent to plead and prove any other or further extrinsic facts and evidence to prove identification. The appellant’s naming of the Minister under reference as “Simmons” and associating him with the NDC Cabinet at the time of the transaction was sufficient to provide a basis for reasonable people to reasonably understand the statement to refer to the respondent.

[64]For all the foregoing reasons, I conclude that grounds 1 to 8 are devoid of merit and I would dismiss them. The defence of fair comment – Grounds 9 to 19

[65]The appellant advances his arguments further by contending that even if the words were capable of bearing the meanings found by the judge and were defamatory of the respondent, the defence of fair comment was made out and the judge erred in holding that the defence failed. His error is said to consist of misdirecting himself in law at paragraph 34 by holding that the appellant’s statements were statements of facts, failing to appreciate that the corruption comments made by the appellant was an expression of opinion based on non-defamatory facts, namely, (a) the land was bought by a company which comprised some persons who were ministers in the NDC administration; and (b) it was then sold by that company to the NDC government. The judge further erred in failing to appreciate that in so far as the appellant stated: “ask Simmons if he was not a member of the company” he was asking or suggesting whether the respondent may have been connected to the company, and that statement in itself was not defamatory.

[66]The appellant further submitted that his statement clearly identified the conduct upon which his statements as to corruption were based. The words were also clearly made in the context of political speech. In the circumstances, the statements of corruption made by the appellant ought to have been treated by the learned judge as statements of comments. The defence is established on the basis of the proven facts. Furthermore, even if the appellant’s statement “ask Simmons if he wasn’t a member of that company” could be understood by the reasonable reader to mean that “the respondent was a member or shareholder of the company which bought land with the specific motive of selling it to the government for profit”, the defence of fair comment would still be established because, though not a registered shareholder of the company, the following facts showed that he was connected with the impugned transaction: (a) he was a member of the of the Cabinet at the time the decision was made to purchase the land and was involved in the decision to purchase it; (b) he is a close friend of Pauline Andrew, a shareholder of the company and member of the NDC Government; (c) after demitting office he made enquiries of the new government as to the outstanding balance of the purchase price; and (d) he admitted under cross-examination that there was a conflict of interest in respect of Cabinet’s decision to purchase the land.

[67]Relying on section 13 of the Libel and Slander Act of Grenada , the appellant posited that he was not required to prove that all the allegations of fact upon which the corruption comments were made were true. He was only required to show that the corruption comments are fair on the basis of those facts which he did prove.

[68]In summary, the appellant asserted that all of the elements of the defence of fair comment had been established in that: (a) the statements made by the appellant were made in the public interest; (b) the statement that “some people are talking corruption” was comment; (c) that comment was fair, based on the facts that were proved, although it was not proven that the respondent was a registered shareholder of the company; and (d) the defence of fair comment is made out on the proven facts stated in the publication as well as the particulars given in the defence. The respondent’s submissions

[69]In written skeleton submissions, the respondent submitted that the law is that the offending statement must be read as a whole and faithfully read. When so read, the statement that “some people are talking corruption” is a statement of fact, not a comment. Furthermore, the further statement: “I don’t see how any member of my government will go and buy a piece of land knowing that the government wants it, buy it and then sell it to the government. Clearly they are not buying it for charity. They clearly was buying it as a part really of making money,” contains factual assertions, either directly or inferentially, and imply clearly that the purchase by the shareholders of the company was in the full knowledge that the government wanted the very land they were purchasing and that they purchased it with the intention of selling it to the government to make money.

[70]Yet further the appellant’s invitation to the audience to “ask Simmons if he wasn’t a member of that company”, viewed in context of all the statements preceding it, is an assertion of fact that the respondent, Simmons, and others were members of the company, but not Peter David.

[71]It is further said that in the offending statement the appellant mixed matters of fact and falsehoods which took away any ability of the reasonable listener or reader to determine fact from comment therein. Paragraph 8 of the statement of claim is cited as illustrative of this point.

[72]In relation to the appellant’s reliance on section 13 of the Defamation Act, the respondent relies on a quotation from Kemsley v Foot, referred to in Spiller v Joseph for the proposition that “in a case where the facts are fully set out in the alleged libel, each fact must be justified and if the defendant fails to justify one…he fails in his defence...”

[73]The respondent submitted further that, even if it is conceded, which it is not, that the allegation of corruption involving the respondent was comment, it was founded on two allegations of fact made in the offending statement, both of which were false. The first was that there were ministers of the NDC Government who were also shareholders of the company who knew that Government wanted those lands and knowing that, bought the land and sold it to Government to make a profit. The second allegation of fact, explicit or implicit, was that the respondent, also a minister in the NDC Government and was a member of the company and as such, was part of the scheme of buying the land to sell to Government to make money. Those allegations of fact had no foundation in truth. Discussion and analysis – Fair Comment

[35]I find further that Dr. Mitchell suggested Mr. Simmons’ involvement in the alleged corruption when he made the definitive assertion, “[a]sk Simmons if he wasn’t a member of that company as an example, just ask him.” The effect of this statement was that it identified, singled out or implicated Mr. Simmons, a Cabinet member, as being a member of the company or at the very least someone who benefitted from the alleged corrupt scheme or activity involving the sale of the land.

[74]It is a defence to an action for defamation if the defendant can show that the statement complained of was fair comment on a matter of public interest. It has been held that the purpose of the defence of fair comment is to protect honest expressions of opinion, or inferences honestly drawn from, specific facts: Lowe v Associated Newspapers Ltd . Undergirding the defence of fair comment is the desirability that a person should be entitled to express his views freely on a matter of public interest: Spiller v Joseph at para.101.

[75]The elements of the defence of fair comment are: (i) the statement in issue must be comment and not fact and the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made so that the reader can understand what the comment is about (ii) the matter in respect of which the comment is made is a matter of public interest; (iii) where that matter consists of facts alleged to have occurred, the comment must be founded on facts that are true; (iv) the comment is objectively “fair” in the sense that the comment was one that was capable of being honestly founded on the facts to which it related, even by someone who was prejudiced and obstinate; (v) the comment represented the defendant’s honest opinion and is not made maliciously. The defendant’s honesty is assumed and it is for the claimant to prove malice: Telnikoff v Matusevitch. See also Tse Wai Chun Paul v Albert Cheng. The defendant bears the burden of establishing the elements of the defence. These elements will be discussed further below when analysing their application to the facts of this case.

[76]In the present case, it is agreed that the appellant’s statement concerned a matter of public interest, and indeed, the judge so found at paragraph

[77]To bring oneself within the protective ambit of the defence of fair comment, the statement in question must clearly appear and be recognisable as comment, as distinct from an imputation of fact. The proposition is stated with much clarity by Fletcher Moulton LJ in Hunt v Star Newspaper Co. Ltd “… In the first place, comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment... Any matter, therefore, which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment.”

[78]In this case, it is important to identify what statement the appellant characterises as “comment”. At paragraphs 3 and 4 of the defence, the appellant sets out several matters which are asserted as facts on which he relied to ground the statements complained of at paragraphs 3 and 4 of the statement of claim. It is convenient to remind oneself of those words here: “… it is a fact sister, that the land was bought by a company which had some persons who were ministers of government in that company and it was then sold on to government and I have a fundamental problem with this. Some people are talking corruption. I don’t see how any member of my government will go and buy a piece of land knowing that the government wants it, buy it and then sell it to the government. Clearly they are not buying it for charity. They clearly was buying it as a part really of making money... No my dear, the facts are there, the Company is there. I’m talking from Cabinet papers my dear. I’m sorry that you don’t agree with me but I’m not speaking from the top of my head, these are facts, ask Simmons if he wasn’t a member of that Company as an example, just ask him. I can tell you more persons who were on it; not Peter David".

[79]It is not entirely clear from the defence what sentence or sentences of these impugned statements constitute comment. The submissions that were made to the judge below on this issue by counsel for the appellant, Mr. Maharaj SC, are summarised at paragraphs

[80]I understand the nub of the appellant’s position below to be that he had asserted and relied on certain facts, which gave rise to an imputation or inference of corruption. Such an imputation or inference of corruption was properly to be regarded as comment and not fact. Before this Court, the appellant’s written submissions were somewhat more specific. They stated that “the corruption comments made by the appellant was an expression of opinion” based on non-defamatory facts, namely, (a) the land was bought by a company which comprised some persons who were ministers of in the NDC administration; and (b) it was then sold by that company to the NDC government. The reference to “corruption comments” appears to be a reference to the appellant’s statements: “Some people are talking corruption” and “I don’t see I don’t see how any member of my government will go and buy a piece of land knowing that the government wants it, buy it and then sell it to the government. Clearly, they are not buying it for charity. They clearly was buying it as a part really of making money..."

[81]The judge’s reasons for rejecting the defence of fair comment are reflected at paragraph

[82]It seems therefore that the judge rejected the defence because he was of the view that the statements did not satisfy the requirement that they must be comment and not facts. He found they were facts because the appellant expressly asserted that they were and presented them as such.

[83]In Spiller v Joseph, Lord Phillips commented on the challenge sometimes presented in distinguishing between comment and fact: “5. Jurists have had difficulty in defining the difference between a statement of fact and a comment in the context of the defence of fair comment. The example in Myerson (1923) 24 SR (NSW) 20, 26 cited by Lord Nicholls is not wholly satisfactory. To say that a man’s conduct was dishonourable is not a simple statement of fact. It is a comment coupled with an allegation of unspecified conduct upon which the comment is based. A defamatory comment about a person will almost always be based, either expressly or inferentially, on conduct on the part of that person. Judges and commentators have, however, treated a comment that does not identify the conduct on which it is based as if it were a statement of fact. For such a comment the defence of fair comment does not run. The defendant must justify his comment. To do this he must prove the existence of facts which justify the comment.”

[84]The distinction is important as it goes directly to whether the defence succeeds or fails. Lord Nicholls’ observations in Reynolds v Times Newspapers Ltd are apposite: “It is important to keep in mind that this defence is concerned with the protection of comment, not imputations of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere. Further, to be within this defence the comment must be recognisable as comment, as distinct from an imputation of fact. The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made” see the discussion in Duncan & Neill on Defamation, 2 nd ed (1983), pp 5862.” (Emphasis added)

[85]The question then is whether the statements complained of are comments or imputations of fact. In this vein, the task here is to identify those parts of the published statement that clearly purport to be facts and those that may be properly regarded as comment.

[86]The statement “the land was bought by a company which had some persons who were ministers of government in that company and it was then sold on to government” is a statement of fact and was expressly asserted to be such by the appellant. This statement was followed by the further statement: “I have a fundamental problem with this.” This statement is in my view a comment expressing disapproval of the conduct described in the immediately preceding sentence.

[87]The further statement: “I don’t see how any member of my government will go and buy a piece of land knowing that the government wants it, buy it and then sell it to the government” is a comment which questions the propriety of the said transaction but it is mixed with an assertion of fact, additional to those stated in the first assertion, namely, that the former ministers knew that the government wanted to acquire the land at the time the company purchased it. This is followed by the statement, “Some people are talking corruption.” Mr. Maharaj sought to argue during his oral submissions that a less generous meaning ascribed to this statement would not have led to the judge’s finding that that it meant that the respondent was involved in corruption. If that is correct, then the submission amounts to saying that this statement is not a defamatory comment at all. In my view, that statement is an assertion of fact: it conveys the meaning that it is a fact that some people have expressed the view that the transaction was a corrupt one. The statement, “They clearly were not buying it for charity” is a sarcastic comment carrying an imputation of fact that the transaction was motivated by a desire to make money.

[88]Furthermore, when challenged by the questioner the appellant replied: “No my dear, the facts are there, the Company is there. I’m talking from Cabinet papers my dear. I’m sorry that you don’t agree with me but I’m not speaking from the top of my head, these are facts, ask Simmons if he wasn’t a member of that Company as an example, just ask him. I can tell you more persons who were on it; not Peter David".

[89]In context, the appellant was re-asserting as facts, purportedly supported by Cabinet papers, that the company purchased the land knowing that the government wanted to acquire it and then subsequently sold it to the government to make money. In that context, the statement “ask Simmons if he wasn’t a member of that Company as an example, just ask him. I can tell you others who were on it; not Peter David”, is posed as a rhetorical question and would have been reasonably understood by reasonable Grenadians as an assertion of yet another fact, namely, that the respondent was also a member of the company which bought the land with the specific motive of selling it to the government for profit. I reject the submission advanced by Mr. Maharaj SC that the appellant was merely asking the question, which left open the possibility that the respondent “may or not have been a member of that company.” The context does not lend itself to such an interpretation.

[90]In summary, the statements of alleged fact that were published were that: (i) former members of the NDC administration were among the members of the company that bought the land (ii) the respondent was a member of the company; and (iii) the company bought the lands with prior knowledge of the government’s intention to acquire it, intending to sell it to the government for profit.

[91]Leaving these aside, the other relevant statements are first, the appellant’s statement to the effect that he couldn’t see that ministers in his government would have done what was alleged to have been done by the former Ministers. This is merely his opinion as to how his ministers might have conducted themselves; this is not a defamatory comment on the conduct of the respondent. The other statement is that the company had not bought the land for charity. This is an imputation of fact that the transaction was motivated by the desire for profit.

[92]In my view, viewed as a whole and in context, the statements were either facts or imputations of facts and not comment. The authorities are clear that in such a case, the defence of fair comment fails. It follows from the foregoing that I agree with the judge’s conclusions that the defence of fair comment was defeated because, in my view, the appellant asserted forcefully, even when challenged, that what he had asserted were facts. There was no statement distinctly recognisable as comment on those facts.

[93]It also follows from this finding that there was no comment, as distinct from facts, that the appellant’s reliance on additional proven facts that were pleaded in the defence to make good the argument that the “corruption comment” was fair comment does not avail.

[94]Though not necessary for the disposal of this particular issue, I would add that this finding would also mean that section 13 of the Libel and Slander Act would not be engaged because resort to that section is limited to words consisting partly of allegations of fact and partly of expressions of opinion. This mix of fact and opinion must exist to avail oneself of the provision that a defence of fair comment shall not fail by reasons only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of are proved. Given the judge’s conclusions that the statements were assertions of fact and not comment, with which I agree, the defence of fair comment fails at the first hurdle. The defence of qualified privilege – grounds 20 – 28.

[95]The appellant advanced an alternative defence of qualified privilege, which the judge also rejected. The pleaded basis for asserting the defence is as set out at paragraph

[96]The judge rejected the defence of qualified privilege. The appellant submitted that he was wrong to do so. Succinctly stated, the appellant contended in written submissions that the learned judge erred in law in holding that the defence of qualified privilege failed in that he was wrong to hold that the Reynolds’ principles applied. He failed to appreciate that the defence of qualified privilege was established by the existence of a privileged occasion which arose as a result of the reciprocity of interests between the appellant and the persons receiving the statements at the Town Hall Meeting. He also failed to appreciate that the defence of qualified privilege arises from such a relationship and notwithstanding whether the publication is untrue or harsh. Further, assuming but not admitting that the Reynolds’ principles did apply, the learned judge failed to take into account relevant factors in the application of those principles. At paragraph 59 of its written submissions the appellant contended further that the judge failed to appreciate that the publication of the appellant’s statement was not to the world at large and there was no evidence that the media was present or that the statements of the appellant were published in the mainstream media. Thus, there is no evidence to support the judge’s findings at paragraph 74 of his judgment that the appellant was cognizant of the fact or ought to have known that the comments which were made at the forum were being and would be widely disseminated and published in the worldwide media. The fact that a person made a video of the appellant making the statements complained of and uploaded that video to YouTube did not take away the privilege arising from the relationship of the appellant and the attendees. The respondent’s submissions

[97]The respondent submitted that the judge was right to apply Reynolds Privilege and was right to conclude that the defence failed. It is said that the Reynolds principles applied because of the nature and context of the publication which included publication on YouTube. It was submitted that the fact that the appellant may not have known that the meeting was being recorded and later uploaded to YouTube is of no consequence. The judge’s approach to qualified privilege

[98]After engaging on a comprehensive discourse on the law relating to qualified privilege generally, (see paragraphs 49 – 57) the judge first examined the defence through the lens of traditional qualified privilege (see paragraphs 58 – 69). Having concluded that traditional qualified privilege failed, he then considered whether Reynolds principles were applicable to the case. (See paragraphs 70 – 74) Having analysed the case of Seaga v Harper , and apparently viewing the circumstances as analogous, he concluded at paragraph 74 that the case was governed by Reynolds principles: “For the reasons given above and in the specific circumstances of this case, I find that the Reynolds principles are applicable to this case. Dr. Mitchell, his strenuous protestations to the contrary notwithstanding, was, more than cognisant of the fact that the comments which were made at the forum were being and would be widely disseminated and published in the worldwide media. I think that as leader of government business he would have anticipated or expected no less than the widest circulation of his interactions with the public.”

[99]The judge ultimately concluded that the defence failed, after addressing his mind to and analysing the factors identified in Reynolds as relevant to determining whether the defence was made out. Discussion – the defence of qualified privilege

[100]A defence is available to a person who on certain occasions utters defamatory statements even though untrue where that person is acting in good faith and without any improper motive. Such occasions are regarded as occasions of qualified privilege and arise where the defendant was under a legal, moral or social duty to communicate the defamatory statements to persons who have a corresponding interest in receiving it.

[101]The rationale underpinning the need for such a defence is the principle that it is in the public interest that such statements should be made. Lord Atkinson in Adam v Ward explained the defence in the following terms: “It is founded upon the need to permit the making of statements where there is a duty, legal, social or moral, or sufficient interest on the part of the maker to communicate them to recipients who have a corresponding interest or duty to receive them, even though they may be defamatory, so long as they are made without malice, that is to say, honestly and without any indirect or improper motive. It is the occasion on which the statement is made which carries the privilege, and under the traditional common law doctrine there must be a reciprocity of duty and interest.”

[102]Several key points emerge: the issue of qualified privilege is only engaged where a statement is defamatory and untrue; the reciprocity of duty and interest is essential to establishing the defence; it is the occasion that attracts the privilege; and the defence can be defeated by malice.

[103]The traditional ambit of the defence, which rested on the duty-interest concept, was extended somewhat by the landmark decision in Reynolds v Times Newspapers Ltd. The effect of this decision was that privilege was extended to defamatory publications to a wide range of readers or listeners or the world at large where publication can be shown to be in the general public interest. In Pinard-Byrne v Lennox Linton , Lord Clark suggested at paragraph 19 that the defence is perhaps more accurately described as a public interest defence, which is designed to strike an appropriate balance between the right to freedom of expression and the right of an individual to protect his reputation. Lord Hoffman in Jameel v Wall Street Journal Europe Sprl described the defence as “the defence of publication in the public interest” . This was echoed by Baroness Hale at paragraph 146. Lord Hoffman also suggested at paragraph 46, that “It might more appropriately be called the Reynolds public interest defence rather than privilege.” For the present purposes, however, I will refer to it by its traditional name of Reynolds privilege.

[104]To succeed on Reynolds privilege two conditions must be fulfilled. First the subject matter of the publication must be a matter of public interest in respect of which there is a real public interest in communicating and receiving the information. This is a question for the judge. Care must be taken to distinguish this concept from matters that might simply be of interest to the public. Baroness Hale captures the essential difference in her inimitable style when she stated: “First, there must be a real public interest in communicating and receiving the information. This is, as we all know, very different from saying that it is information which interests the public – the most vapid tittle-tattle about the activities of footballers’ wives and girlfriends interests large sections of the public but no-one could claim any real public interest in our being told all about it.”

[105]Secondly, the publisher must have taken the care that a responsible publisher would take to verify the information published. The actual steps taken will vary with the nature and sources of the information.

[106]It is clear that where it applies, the privilege attaches to the published material and not the occasion on which it is published. Lord Hoffman has clarified that in answering the question of public interest it is not helpful to resort to the traditional duty-interest enquiry. His reasons for so saying are sated at paragraph 50 of Jameel: “The Reynolds defence was developed from the traditional form of privilege by a generalization that in matters of public interest there can be said to be a professional duty on the part of the journalist to impart the information and an interest in the public in receiving it. The House having made this generalisation, it should in my opinion be regarded as a proposition of law and not decided each time as a question of fact. If the publication is in the public interest, the duty and interest are taken to exist...”

[107]In deciding whether the publication in question was privileged because of its value to the public, Lord Nicholls in Reynolds enumerated several non-exhaustive matters to which the court should have regard and stressed that the weight to be given to each factor and other relevant factors would vary from case to case. Lord Nicholls characterised the test as one of responsible journalism. This concept was elucidated in Bonnick v Morris as discussed by Lord Hoffmann in Jameel v Wall Street Journal: “53. If the publication, including the defamatory statement, passes the public interest test, the inquiry then shifts to whether the steps taken to gather and publish the information were responsible and fair. As Lord Nicholls said in Bonnick v Morris [2003] 1 AC 300, 309: “Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege.”

[108]The matters which may, in appropriate cases, be taken into account by a judge when considering whether the publisher satisfied the conditions of responsible journalism include: “(1) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. (2) The nature of the information, and the extent to which the subject matter is a matter of public concern. (3) The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind or are being paid for their stories. (4) The steps taken to verify the information. (5) The status of the information. The allegation may have already been the subject of an investigation which commands respect. (6) The urgency of the matter. News is often a perishable commodity. (7) Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. (8) Whether the article contained the gist of the plaintiff’s side of the story. (9) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. (10) The circumstances of the publication, including the timing.”

[109]Lord Hoffman provided a helpful steer as how a judge should approach the assessment of these factors. His Lordship counselled: “In the hands of a judge hostile to the spirit of Reynolds, they can become ten hurdles at any of which the defence may fail. But that, in my opinion, is not what Lord Nicholls meant. As he said in Bonnick (at p 309) the standard of conduct required of the newspaper must be applied in a practical and flexible manner.”

[110]Ultimately, the issue for resolution would be whether, in publishing the defamatory words, the defendant was acting responsibly and had a duty to the public to publish them. In such an inquiry the focus is on the allegations that are not true. Did the Reynolds principles apply?

[111]An issue before the judge below was whether Reynolds principles applied at all. Mr. Maharaj SC’s principal argument is that this case did not fall within the Reynolds principles but was governed by the doctrine of traditional qualified privilege. Mr. John for the respondent submitted that the circumstances of this case were governed by the Reynolds principles.

[112]A similar issue fell to be resolved in Seaga v Harper. In that case, the appellant, Edward Seaga, at the material time was Leader of the Jamaica Labour Party (“JLP”) and Leader of the Opposition. On 2nd October 1996 he made a statement at a meeting about the respondent, Leslie Harper, one of the Deputy Commissioners of Police, which was widely reported by representatives of the media who were present at the meeting. There was evidence before the court that the meeting was open to the public and was held at the Wyndham Hotel, Kingston. Representatives of the press and broadcasting media were present. They regularly attended such meetings, and the appellant accepted in cross-examination that his party would have alerted them to the holding of this meeting. One of the topics on which the appellant spoke was the impending appointment of a Commissioner of Police in succession to the retiring Commissioner, which appointment would be made by the party in government, the People’s National Party (“PNP”). In the course of his speech the appellant made statements which were defamatory of the defendant, who was apparently the PNP’s choice to succeed the retiring Commissioner.

[113]The respondent issued proceedings for slander. The sole defence put forward by the appellant was that the words were spoken on an occasion of qualified privilege. There was no plea of malice. The trial judge held that the words complained of were defamatory of the respondent in his office of Deputy Commissioner of Police and further held that the case was governed by the Reynolds principles. He expressed his reasons for so concluding in the following way: “I find however, that the Reynolds case does apply to the instant case bearing in mind the presence in the audience of the media and Mr Seaga’s realized expectation that his utterances were more than likely to be quoted to the public by the media.”

[114]He went on to hold that the appellant was not protected by qualified privilege because he had not shown the requisite care in checking the reliability of the information which he disseminated in order to find qualified privilege.

[115]On appeal, the Court of Appeal dismissed the appellant’s appeal on the issue of privilege but did so on the basis that the Reynolds principles did not apply and approached the case on the footing of traditional qualified privilege. They held that traditional qualified privilege did not succeed because the quality of the information was such that the appellant did not have a duty to report it to the public. In other words, the duty-interest test was not satisfied.

[116]On further appeal to the Privy Council, the appellant argued that the case did not fall within the Reynolds principles but was governed by the doctrines of traditional qualified privilege on which he should have succeeded. The Board rejected this contention. It held: “Mr Henriques QC argued on behalf of the appellant before the Board that the case did not fall within the Reynolds principles but was governed by the doctrines of traditional qualified privilege. Their Lordships consider that this was a misconceived argument. The Reynolds test is more easily satisfied, being a liberalisation of the traditional rules, and it is more difficult to bring a case within the latter. They are satisfied that the publication was not covered by traditional qualified privilege, for the element of reciprocity of duty and interest was lacking when the appellant knowingly made it to the public at large via the attendant media. If privilege was to be successfully claimed, it could only be under the Reynolds principles and, as they have said, those principles applied to the case. For the reasons given by the judge, however, with which their Lordships agree, the appellant failed to take sufficient care to check the reliability of the information which he disseminated and is unable to rely on the defence.” (Emphasis added)

[117]Seaga v Harper would seem to be authority for the proposition that whether or not the Reynolds principles apply in any given case depends not merely on what defence is asserted by a defendant, but on an analysis of the facts and circumstances that attend the publication of the statement.

[118]It is apparent that the reason why the Reynolds principles were held to apply and traditional qualified privilege did not in the Seaga v Harper case, is that there was evidence that representatives of the press and broadcasting media were present; that they had regularly attended such meetings; the JLP had alerted them to the holding of this meeting; and the appellant’s statement was widely reported by representatives of the media who were present at the meeting. These facts were not challenged. In such circumstances, by knowingly publishing the words to the public at large through the assembled media without taking sufficient care to check the reliability of the information which he disseminated, the defence failed.

[119]I do not perceive that the evidence in the case at bar was on the same footing as that in Seaga v Harper. The respondent pleaded at paragraph 5 of the statement of claim, and repeated same in his witness statement: “The Defendant’s said address, including-the words reproduced in paragraphs 3 and 4 above, was either simultaneously with or subsequent to the said town hall address, published on You Tube and has remained so published since the said town hall meeting to the date of filing of this Claim.”

[120]In his defence, the appellant pleaded at paragraph 5: “a. The Defendant was not aware that a recording of the town hall meeting was uploaded to the website known as YouTube until receiving a letter from the Claimant’s Legal Practitioners dated 22nd August 2014. b. The Defendant further avers that he did not upload the said video neither did he cause or contribute to the uploading of the said video on the said website.”

[121]By way of reply to the defence, the respondent pleaded: “The Claimant avers that it matters not of what the Defendant was or was not aware regarding the recording of his said statement and that it is in fact disingenuous to suggest that, in this technological age, about which the Defendant is notoriously savvy , the Defendant did not advert to the possibility that his words might be recorded and used, as it in fact was. It was and is sufficient that the Defendant spoke and published the said offending words. The same is true regarding the uploading of the said video of the Defendant speaking and as such broadcasting the said offending words, the video of which were uploaded onto the said website. But for the Defendant uttering the said offending words, there would be no publication, no videotaping, no uploading and no defamation resulting. The Court is asked to so find.”

[122]By these pleadings issue was joined as to the appellant’s knowledge that a recording had been or was being recorded for upload to YouTube. The judge found that the appellant “was, more than cognisant of the fact that the comments which were made at the forum were being and would be widely disseminated and published in the worldwide media. I think that as leader of government business he would have anticipated or expected no less than the widest circulation of his interactions with the public.”

[123]I am not persuaded that there was an evidential basis for drawing such facts or drawing such inference unlike Seaga v Harper. It is of note that in that case the Board held that the Reynolds principles applied and “the publication was not covered by traditional qualified privilege, for the element of reciprocity of duty and interest was lacking when the appellant knowingly made it to the public at large via the attendant media. This suggests that the appellant must know that his statements are being made to the public at large. (Emphasis added)

[124]Of course, knowledge is always something that can be inferred but inferences are drawn from proved facts. A person who utters defamatory statements at a press conference or at an event being broadcast live on radio or television or at which the media is present can be taken to know that their statements would be published to the world at large.

[125]On the facts of this case, there is reason to doubt whether this town hall meeting is of like species. There was no evidence that the press or broadcast media was present or that the statements were subsequently widely published by the press or at all. There was no evidence that the event was being broadcast live by any medium. There was no evidence as to whether the statement was uploaded on the YouTube channel by a private individual, or the Government of Grenada or its agents. As every viewer of YouTube knows, millions of people record millions of events, officially and unofficially, and simply upload their recordings to YouTube.

[126]I do not agree that the fact that the appellant was leader of government, without more, meant that “he would have anticipated or expected no less than the widest circulation of his interactions with the public” as the judge held. It seems to me that it must be a requirement that a defendant must at least know or intend that his statements would be published to the world at large, and not the limited audience he believes he is addressing, if the case is to be caught by Reynolds principles. In none of the cases on Reynolds principles cited to us was the publisher unaware that his words were being published to the public at large.

[127]If knowledge is not required at all, it would mean that a defendant who could otherwise assert traditional qualified privilege would lose the benefit of the defence if, unknown to him, someone covertly recorded his statement and published it to the public at large. I can’t see that the Reynolds principles were intended to be applied in circumstances where a defendant did not intend and did not know or have reason to know that his words would be published to the public at large.

[128]Even the fact that the media is present does not necessarily engage Reynolds principles and result in the defence of traditional privilege being defeated. The appellant’s proposition to this effect is supported by a passage from the learned authors of Gatley on which the appellant relies. At paragraph 14.35, the learned authors state in the context of statements made by persons who are appointed or elected to serve making statements at a Town Council meeting where the media are known to be present: “If in the conduct of public business any member of a public body which is considering and deliberating for the public benefit thinks right in the public interest to make use of expressions which are pertinent to the matter in hand, though they may bear hardly on individuals, that occasion is nevertheless privileged unless malice is proved. ….. A town council is a typical instance of a public body the members of which enjoy a privilege in the language they use in dealing with the public affairs of the borough.” ".....What is said by members of a local council at meetings of the council or any of its committees is spoken on a privileged occasion. The reason for the privilege is that those who represent the local government electors should be able to speak freely and frankly, boldly and bluntly, on any matter which they believe affects the interests or welfare of the inhabitants. They may be swayed by strong political prejudice, they may be obstinate and pig-headed, stupid and obtuse; but they were chosen by the electors to speak their minds on matters of local concern and as long as they do so honestly they run no risk of liability for defamation of those who are subjects of their criticisms…. “Even though such persons may be perfectly well aware that what they say during the deliberations of the public body may be reported in the press, they are not required to meet the additional requirements laid down by Reynolds v Times Newspapers Ltd.”

[129]I am of the view that this is applicable with even greater force to the present case where there was no evidence of knowledge of media presence or of the fact of media presence. In my view, the Reynolds privilege were not applicable, and the case fell to be analysed in the context of traditional qualified privilege. Application of traditional qualified privilege

[130]As indicated earlier in this judgment, the judge did consider fully the defence through the lens of traditional qualified privilege. He found that the subject matter was of public interest since the UWI project involved the use of public funds (paragraph 62). He found too that the appellant as leader of the Government and the Country’s Finance Minister had a duty to elucidate these matters (paragraph 63). The judge seemed also to have accepted that “the attendees certainly had a right to receive elucidation on this public project as it would affect the finance, education and other critical aspects of the public landscape of Grenada (paragraph 63). However, the judge held the defence failed for the reasons set out at paragraphs

[131]On a proper reading of these reasons, the judge considered that the defence failed because the statements made by the appellant were “patently false” and the appellant had not taken the time to properly interrogate the matters before he made his remarks, even though it was within his power to do so. Accordingly, he held that the public “had no interest in receiving this misinformation which was offered without the benefit of any research or investigation”.

[132]Mr. Maharaj’s SC’ submission is a simple one: the judge erred in law in rejecting the defence of traditional qualified privilege on the basis that the appellant’s statements were false and were not subjected to proper investigation by the appellant before making them. Mr. Maharaj SC submitted that qualified privilege is established by the relationship of the parties and not on the truth of the word’s published. The defence is not dependent on whether or not there was research or investigation before the words were published. The defence of qualified privilege protects the mistaken but honest publisher in respect of the accuracy of the contents of his statements.

[133]In my view, this submission correctly reflects the law. I made the point earlier in this judgment that qualified privilege is only engaged where the impugned statement is both defamatory and untrue. It is therefore an error in principle to say that the defence fails because the statement is untrue. The case of Hines v Davidson , cited by the appellant, puts the question beyond doubt: “The privilege arises not from the truth of the words complained of or the knowledge of their truth, but from the relationship in which the party making the allegation stands to the party to whom the allegation is made, and from the whole circumstances in which the allegation comes to be made. If the communication relates to a matter which the person making it would be justified in communicating, if it were true, to the person to whom the communication is made, in virtue either of an interest or of a duty, legal or moral, the occasion is deemed to be privileged and the privilege is not displaced by an averment that the communication was in fact untrue and known to be untrue.”

[134]Similarly, in Horrocks v Lowe , Lord Diplock said that where the reciprocity of duty and interest exists, what is published in good faith is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue.”

[135]It seems to me that in addition to wrongly requiring the appellant’s statements to be true, the judge imported the requirement that the appellant should satisfy the standard of responsible journalism, applicable to Reynolds principle. In invoking the case of Pinnard-Byrne v Lennox Linton to support the latter requirement, the judge failed to consider that what was said there was in the context of Reynolds privilege. This is clear from Lord Clarke’s framing of the issue in that case from the very first paragraph of the judgment: “1. This case is about Reynolds privilege…There is only one issue in the appeal, namely whether the Court of Appeal was wrong to overturn the judge’s rejection of the Reynolds privilege defence.”

[136]The judge therefore erred in rejecting the defence of qualified privilege on these bases. In my view, subject only to the question of malice, the defence of qualified privilege was established. Malice – grounds 29 -30.

[137]Because the judge held that the defence of traditional qualified privilege failed for the reasons he posited, he did not go on to consider the question of malice immediately under the section dealing with traditional qualified privilege. However, when considering the applicability of Reynolds principles, the judge directed himself on malice in the context of qualified privilege generally at paragraphs 95 – 97. The relevant part of his discourse is set out below. “Malice in respect of qualified privilege

[138]Applying these principles, the judge concluded, “Dr. Mitchell, in my view, was rather reckless in his failure to interrogate or to seek an opportunity to interrogate the matters on which he spoke publicly when, he more than anyone else could have easily verified the accuracy of his utterances before they were made or he could have easily deferred his answer to such a time as he could have properly enlightened the public. His insistence that what he was stating were facts indicate that he spoke without considering whether what he was saying was true or not. This evidence does not suggest mere inadvertence or impulsiveness or even the sort of crass and/or callous language that is oftentimes a feature of political conversations. See Horrocks and Lyndon Duncan v Edison Baird in this regard. The statements in question in this case suggest to me a sort of deliberate insistence on imparting information as facts without minding whether they were true or not. For this reason, as discussed below, I have found that Dr. Mitchell could not have held an honest belief in what he was stating as facts. The dominant motive in that moment does not appear to me to have been to shed a light on the matter under question. Rather, the statements seem to have been uttered with the primary intention to seriously disparage the members of the previous Government in general and Mr. Simmons, in particular. A finding of a primary or dominant motive of such a nature, the authorities above suggest, is generally conclusive proof of express malice which negatives the defence of qualified privilege. In this case therefore, I find that, for all the foregoing reasons, the defence of qualified privilege would have been defeated by express malice if the defence had succeeded in this case.”

[139]The appellant submitted that this was a serious error of law and fact by the learned judge in that the respondent did not plead or prove malice in relation to either defence as he was required to do pursuant to Rule 69. 2 (c) of the Civil Procedure Rules of the Eastern Caribbean Supreme Court ((2000) as amended). Rule 69.2 (c) provides: “[69.2] The statement of claim (or counterclaim) in a defamation claim must, in addition to the matters set out in Part 8 – (c) if the claimant alleges that the defendant maliciously published the words or matters – give particulars in support of the allegation.”

[140]The appellant also cites the following passage from Halsbury’s Laws of England : “It is for the defendant to prove that the occasion of publication is one of qualified privilege. To defeat that defence the claimant must then prove that the defendant, in publishing the words complained of, was actuated by express malice.”

[141]It was contended that there was no pleading and no evidence of malice. In any event, so it was said, the matters that the judge identified as constituting malice could not in law support a finding of malice since neither the failure to verify the matters before publication or the appellant’s assertion that he was speaking facts was capable in law of being proof of malice.

[142]The respondent submitted that if a plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in the statement of claim give particulars of the facts on which he relies in support of the allegation of malice but, if the defendant pleads fear comment on a matter of public interest or that the publication was on a privileged location and the plaintiff intends to allege the defendant was activated by express malice he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred.

[143]It is said that although malice was not expressly asserted in the statement of claim, the foundation was laid at paragraph 6 of the statement of claim where the respondent pleaded the appellant’s singling him out by name while distancing Peter Davis from the charge of corruption, and at paragraphs’ 8 and 10 where reference is made to the appellant’s mixing of truth and falsehoods. Furthermore, in its reply to the defence the respondent pleaded that the appellant knew or was otherwise reckless as to the fact that apart from his associations and friendship with some of the shareholders of the company he had no interest in the said company; at paragraph 5 he pleaded that the date of the purchase of the land by the company was June 1989 so that there was then no project or prospect of a project to interest the government in the said lands and expressly referred to the malicious and defamatory intent behind the claimants words evidenced in the separation of Peter David from the corruption charge at paragraph. At paragraph 11(a) he pleaded the failure of the appellant to act in good faith and to have an honest belief in the allegations published when he failed to obtain the respondents views on the matter and insisted on relying on cabinet papers to support the allegations. At paragraph 11(b) he pleaded that the words were spoken maliciously to the extent that they were intended to lead the audience to believe that there was evidence to support the charge of government members purchasing land knowing that government wanted it so as to sell it to government to make money and that the respondent was part of that scheme. It was further pleaded that the appellant knew when he made the statement that there could be no truth in it or was reckless as to its truth or falsehood.

[144]In so far as the evidence before the judge went, the respondent highlighted that the appellant admitted under cross examination: (i) that the respondent was apparently not a member of the company; (ii) that the land was bought by the company in 1989 but was sold to the NDC government in 2011 or 2012; (iii) that the statement he made implying or inferring that members of the NDC government had bought the land knowing government wanted it and sold it to the government was not a factual statement; (iv) that the shareholders of the company that bought the land in 1989 were not members of the government in 2012; and (v) when asked if he was not in fact saying that he had cabinet papers supporting his statements he would only concede that that could have been the interpretation and that was what was he was led to believe. Discussion – Malice

[145]In the context of qualified privilege, actual or express malice on the defendant’s part defeats the defence. Express malice refers to an absence of an honest belief by the defendant in the truth of the impugned words or indifference to their truth or falsity or any other dominant and improper motive which does not spring from or is unconnected with the duty or interest in publishing the said words and thus amounts to abusing the privilege for an improper purpose. See Horrocks v Lowe. It is for the claimant to plead and prove malice in any of these senses. Was malice pleaded?

[146]In Deldridge Flavius v Dr. Ernest Hilaire this Court considered whether the master ought to have struck out the respondent’s claim because of failure to plead and particularise express malice after the appellant had raised it as a defence. In upholding the master’s decision not to strike out the claim, the Court applied the dictum of Lord Justice-Clerk (Alness) in Hayford v Forrester-Paton addressing the absence of a particular pleading of malice. He concluded” “Although there is no particular pleading of spite or ill will, I do not find the pleadings of malice objectionable in the circumstances of this case. I find that in addition to the pleadings and particulars of the claimant, evidence of malice can be inferred by the court given the nature of this statement made, the circumstances under which it was made and an assessment by the court of whether the statements made were in fact commentary and were in fact fear. This would rebut any presumption of the defendant acting in good faith.”

[147]In commenting on this Pereira CJ stated: “I can find no fault with this reasoning… If the argument is not sufficiently made out, then in the face of a defence of fair comment where such a defence exists it may very well be that at trial the claimant may be able to defeat the defence.” (Emphasis added)

[148]I understand from these authorities that even where there may not have been a specific pleading of malice in the statement of claim or the reply, evidence of malice can yet be inferred by the court at trial, given the nature of the statement and the circumstances under which it was made.

[149]Adopting this approach to the issue of the respondent’s pleading of malice, I am satisfied that the issue of malice was sufficiently pleaded in the respondent’s reply to the defence, having regard to the matters set out at paragraphs

[64]to [69]: “[64] However, looking at matters more closely and I do think this is the point borne out by the cases and by Mr. John for the claimant, did the public have a right to receive the impugned material? Elsewhere it has been said apropos of the qualified privilege defence that “[If] the thrust of the article is true, and the public interest condition is satisfied, the inclusion of an inaccurate fact may not have the same appearance of irresponsibility as it might if the whole thrust of the article is untrue.” At the town hall meeting, Dr. Mitchell Was asked the following question by an attendee: “I would like to know…why were the people of Grenada [sic] told that the land was purchased by the NDC from the shareholders and sold to the Government?” Dr. replied by stating, among other things that “…I don’t see how any member of my Government will go and buy a piece of land knowing that the Government wants it, buy it and then sell it to the Government. Clearly, they are not buying it for charity. They clearly was buying it as a part really of making money…”

[150]If the claimant proves that the defendant did not believe that what was published was true, that is generally conclusive evidence of express malice. The test of express malice and how it may be proved was explained by Rawlins JA in David Carol Bristol v Dr. Richardson St. Rose : “The test of express malice requires the claimant to prove that the defendant did not honestly believe that the words were true because the defendant was either aware that they were not true or was indifferent to their truth or falsity. Express malice arises as a question of fact countries to be drawn or inferred, inter alia, from the contents and source of the statements and the circumstances in which the statements were made. The defendant might be indifferent to the truth or falsity where he took no investigative steps to ensure there veracity when he could have done so weather in defendant was indifferent to the truth of the defamatory statement is subjective to defender and depends among other things on his level of knowledge education and intelligence.”

[151]Moreover, as Lord Diplock explained in Horrocks v Lowe, “If the defendant publishes untrue, defamatory matters statements recklessly, without considering whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false” (paragraph 150). At the same time, it is to be noted that the authorities caution that carelessness, impulsiveness or irrationality in arriving at an honest belief is not to be equated with indifference to the truth.

[152]The evidence of malice may thus be inferred from the impugned words themselves or gleaned from extrinsic facts or circumstances or indeed from the evidence of the defendant himself. It has been held that where the judge has to determine the existence of malice on no other material than the speech itself, the circumstances in which it was made and the defendant’s own evidence, the test of malice is very simple: “Has it been proved that the defendant did not honestly believe that what he said was true, that is, was he either aware that it was not true or indifferent to its truth or falsity.”

[153]In this case, the judge made a finding of fact that the appellant did not honestly believe that the words he uttered were true and was indifferent to its truth or falsity. He found that the dominant purpose actuating the appellant was not connected with the duty-interest purpose but that they were uttered “with the primary intention to seriously disparage the members of the previous Government in general and Mr. Simmons, in particular.” He held that the appellant was rather reckless in his failure to interrogate or to seek an opportunity to interrogate the matters on which he spoke publicly when, he more than anyone else could have easily verified the accuracy of his utterances before they were made or he could have easily deferred his answer to such a time as he could have properly enlightened the public. His insistence that what he was stating were facts indicated that he spoke without considering whether what he was saying was true or not. This evidence does not suggest mere inadvertence or impulsiveness.”

[154]Contrary to the appellant’s contentions, I do not regard these reasons as a finding that malice was established merely because the appellant had failed to verify the matters before publication or had asserted that he was speaking facts or was careless or impulsive in forming his belief in the truth of his statements. After all, the appellant had specifically pleaded: “The words complained of contained a fair and accurate report gleaned from Cabinet papers ranging from 20 10- 20 12 and other matters of record known to the Defendant concerning the Company and the said land purchase.”

[155]I understand the judge to be saying that since the appellant was undoubtedly in possession of the Cabinet papers and the Company documents, which he had perused and upon which he assured his listeners he was relying to base his statements, he must have known or had the opportunity to know that it was patently false that the company had bought the land knowing that the government was interested in purchasing and then selling it to the government for profit. The fact that the company purchased it in 1989 and that government’s decision to and purchase of it occurred in 2012 made the falsity of this assertion manifest. The appellant must also have known that the respondent was not a member of the company and that at the time of the sale of the lands to the government none of the members of the company was a minister of government, with the exception of Mr. Lett.

[156]The judge was entitled to consider that evidence in assessing the appellant’s assertion of honest belief. On the evidence before him and having seen and heard the appellant testify, the judge was well-placed to assess the evidence. It was entirely open to the judge to conclude that the appellant either did not hold an honest belief in the truth of what he was saying or was indifferent to the truth and actuated by an improper purpose. By definition, that is malice, and it operates to defeat the defence of qualified privilege.

[157]I would therefore hold, that although the judge was wrong to hold that the defence of traditional qualified privilege was defeated because the statements were untrue, he was right to hold that in any event the defence was defeated by malice. Damages – grounds 30 -32

[158]Having found the appellant liable, the judge awarded the respondent $100,000.00 in general damages and $30,000.00 in aggravated damages. The reasons for these awards were stated as follows: “[120] Mr. Simmons' case is that the offending words uttered by Dr. Mitchell damaged his reputation, credit and calling as a politician and he has been seriously injured. Mr. Simmons testifies that he has been brought in public odium, contempt and ridicule. I have found earlier that the offending words were defamatory, in that they tended to lower Mr. Simmons' reputation in the eyes of right-thinking members of the society or caused him to face ridicule or contempt in his office or calling….”

[159]In relation to the award of aggravated damages the judge explained:

[160]In relation to the award of general damages the appellant submitted that it was inordinately high, having regard to the facts and circumstances of this case. It was submitted that the judge failed to take into account the following matters which were all relevant to the quantum of general damages: (i) the mode of the publication and the extent of the publication; (ii) the conduct of the respondent himself, who was involved in the decision of cabinet which involved a clear conflict of interest, and the inquiries he made in relation to payment of the purchase price after he had demitted office.

[161]In relation to the quantum awarded as aggravated damages, the appellant submitted that the judge erred in making an award of aggravated damages, and, in any event, the quantum awarded was inordinately high. The judge failed to take into account that there was no evidence of the extent of the publication or evidence from the respondent of injured feelings, distress, embarrassment and humiliation. The appellant suggested that an appropriate range of award would have been between $75,000.00 to $45,000.00 given that there was no evidence of the adverse effect on the claimant’s political reputation.

[162]The respondent countered with the reminder of the need for appellate restraint in interfering with a trial judge’s assessment of damages. It was submitted that the judge properly directed himself on matters relevant to the assessment of damages. Among these factors were that the allegation was a very serious one against the respondent, who was a former minister of government, the appellant declined to apologize and persisted with his defence, and the appellant was actuated by malice, as found by the judge. The judge’s assessment of quantum was informed by authorities, which he considered at paragraph

[163]In relation to the award of aggravated damages the respondent submitted that the judge correctly directed himself on the basis of which aggravated damages are awarded in accordance with principles stated in Lester Bryant Bird v Winston Baldwin Spencer . Discussion

[164]When challenge is made to a trial judge’s assessment of damages, the starting point must be to acknowledge the necessary restraint which an appellate Court is required to exercise in such cases, as the assessment of damages engages in a fundamental way the exercise of a trial judge’s discretion. The need for restraint does not mean that an appellate court will never interfere. It does mean, however, that it ought not to do so unless it is clear that having regard to all the circumstances of the case the award is out of all reasonable proportion in relation to the loss sustained. Interference may also be warranted where the judge took irrelevant factors into consideration or omitted relevant ones or applied a wrong principle of law or applied the wrong measure of damages, such that it is a wholly erroneous assessment of the damage suffered: Alphonso and others v Deodat Ramnath.

[165]The award of general damages for defamation has as its objective the provision of adequate compensation to the claimant for the injury to his reputation and feelings occasioned by the tort. Settling on the appropriate monetary measure of compensation requires consideration of factors such as the gravity or seriousness of the libel; the extent and manner of its publication; the relationship between the claimant and the persons to whom the libel is published; the presence of express or actual malice; the defendants refusal to apologize; and the defendants persistence with the libel or the defence of justification which he fails to prove; the conduct of the defence and the probability of loss of earnings by the claimant: David Carol Bristol v Dr. Richardson St. Rose. Not all of these will be relevant to every case.

[166]In his judgment the judge considered the seriousness of the allegations and the injury to the respondent’s reputation and guided himself on quantum by reference to cited authorities from the Eastern Caribbean which both awarded general damages in the sum of $100,000.00. These are all relevant matters. The appellant has not sought to argue otherwise. What is said is that the judge failed to take account of other relevant factors: (i) the mode of the publication and the extent of the publication; (ii) the conduct of the respondent himself, who was involved in the decision of cabinet which involved a clear conflict of interest, and the inquiries he made in relation to payment of the purchase price after he had demitted office.

[167]I am unable to appreciate how consideration of these factors would have mitigated the quantum of general damages. As to the mode and extent of publication, the publication occurred at a town hall meeting in New York which was hosted for and attended by Grenadians in the diaspora. The appellant’s statements were uploaded to the very popular YouTube platform, where it remained for some time even after the respondent’s lawyers had drawn this to the appellant’s attention and at least up to the date of filing the claim. As to the respondent’s conduct, whereas there can be cases where the claimant’s conduct can serve to mitigate damages, such as where he has a general bad reputation, the conduct complained of here was simply irrelevant in circumstances where the judge had found that the respondent’s conduct in no way justified or supported the appellant’s defamatory statements.

[168]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. I heed the words of Satrohansingh JA in Alphonso and others v Deodat Ramnath: “If the judge had taken all the proper elements of damage into consideration and had awarded what he deemed to be fair and reasonable compensation under all the circumstances of the case we ought not, unless under very exceptional circumstances, to disturb his award. The mere fact that the judge’s award is for a larger or smaller sum than we would have given is not of itself a sufficient reason for disturbing the award… The award of damages is a matter for the exercise of the trial judge’s judicial discretion and unless we can say that the judges award exceeded the generous ambit within which reasonable disagreement is possible and was therefore clearly and blatantly wrong we will not interfere.” (At pp. 11 -12.) Aggravated damages

[169]Aggravated damages are awarded as compensation beyond the basic award to which the claimant would have been restricted on account of conduct by the defendant or some feature of the case which aggravates the injury to the claimant’s feelings. Examples of such features include a failure to make any or any sufficient apology, the motives of the defendant and the presence of express or actual malice. The judge may have regard to a defendant’s conduct up to the time of judgment.

[170]In his judgment, the judge identified the factors that informed his decision to award aggravated dames. These were the failure of the appellant to offer an apology even after it became apparent that his assessment of the involvement of the respondent in the transaction which he spoke of was erroneous. Secondly, the judge found that he was actuated by malice.

[171]In relation to malice, the Court of Appeal in Edwardo Lynch v Ralph Gonsalves explained the impact of a finding of malice on the award of damages: “One of the consequences of malice being established is that it becomes irrelevant that the publisher of the slanderous statements may not have intended to harm the claimant’s reputation. The existence of malice generally saves to inflate the damages that may be awarded.”

[172]It is plain therefore that both factors taken into account by the judge are sufficient in law to ground an award of aggravated damages, so the judge did not err in principle in this regard.

[173]In relation to the quantum, the judge awarded $30,000.00 Curiously, before the judge, the appellant had put forward and relied on an authority where $40,000.00 was awarded as aggravated damages. The judge, noting that the case had been overturned on liability on appeal, did not follow it and awarded a sum less than the range suggested by the appellant. This sum is not out of all reasonable proportion in relation to the injury to respondent’s reputation and feelings. There is therefore no basis for this court to interfere. Disposition

[146]above. It was clearly pleaded that the appellant mixed truth and falsehoods; failed to act in good faith and to have an honest belief in the allegations published when he failed to obtain the respondents views on the matter; that the offending words had no basis in truth; that the appellant knew when he made the statement that there could be no truth in it or was reckless as to its truth or falsehood. Was there evidence of malice

[174]I would dismiss the appeal and affirm the decision of the learned judge for the reasons given in this judgment. The respondent is awarded its costs on this appeal to be assessed if not agreed within 21 days of delivery of this judgment. I concur. Mde. Vicki Ann Ellis Justice of Appeal I concur. Mde. Esco L. Henry Justice of Appeal By the Court Chief Registrar

1.In an action for defamation the claimant is expected to plead the meaning which he or she invited the court to ascribe to the offending words. 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 reasonable interpretation.” The impugned words must be construed in their natural and ordinary meaning, which is the meaning that would occur to the ordinary reasonable person. Thus, 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. There can be no viable argument that the meaning that the judge attributed to the appellant’s words was outside the range of reasonably available meanings open to him. 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 and that the respondent was a member of the company at the time of the transaction. The appellant raised the spectre of corruption by stating that “some people are talking corruption”. While it may be said with justification that the judge did not expressly state that in determining the meaning to be ascribed to the impugned words he took into consideration the context in which they were made, even when due allowance is made for the fact that the statements were uttered as an impromptu response to a question posed at a Town Hall meeting, there is no more understanding or generous or less injurious way in which to interpret the words than as interpreted by the judge. Bonnick v Morris & Others [2002] UKPC 31 applied; Jones v Skelton [1963] 1 WLR 1362 applied; Ramadhar v Ramadhar [2020] UKPC 7 distinguished.

2.Words are not actionable in a claim for defamation unless they are published of and concerning the claimant. Where the claimant is clearly identified by name or otherwise clearly identified, little difficulty can arise in concluding that the defamatory words refer to him or her. However, it is not essential that the claimant be named in the statement. In a case where the statement does not expressly refer to the claimant, they may yet be held to refer to him if reasonable people with relevant knowledge could and did understand them to refer to the claimant, if not, the claim fails. From the appellant’s words, the ordinary and reasonable Grenadian would have understood that the person to whom the words referred was the respondent. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 applied.

3.It is a defence to an action for defamation if the defendant can show that the statement complained of was fair comment on a matter of public interest. The elements of the defence of fair comment are: (i) the statement in issue must be comment and not fact and the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made so that the reader can understand what the comment is about; (ii) the matter in respect of which the comment is made is a matter of public interest; (iii) where that matter consists of facts alleged to have occurred, the comment must be founded on facts that are true; (iv) the comment is objectively “fair” in the sense that the comment was one that was capable of being honestly founded on the facts to which it related, even by someone who was prejudiced and obstinate; (v) the comment represented the defendant’s honest opinion and is not made maliciously. The defendant’s honesty is assumed, and it is for the claimant to prove malice. To bring oneself within the protective ambit of the defence of fair comment, the statement in question must clearly appear and be recognisable as comment, as distinct from an imputation of fact. The defence is concerned with the protection of comment, not imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere. Viewing the appellant’s statements as a whole and in context, the statements were assertions of facts or imputations of facts and not comment. The judge did not err in concluding that the defence of fair comment should fail on this basis. Spiller v Joseph [2010] UKSC 53 applied; Hunt v Star Newspaper Co. Ltd [1908] 2 KB 319 applied; Reynolds v Times Newspapers Ltd [2001] 2 AC 127 applied.

4.A defence is available to a person who on certain occasions utters defamatory statements even though untrue where that person is acting in good faith and without any improper motive. Such occasions are regarded as occasions of qualified privilege and arise where the defendant was under a legal, moral or social duty to communicate the defamatory statements to persons who have a corresponding interest in receiving it. The rationale underpinning the defence of qualified privilege is the principle that it is in the public interest that such statements should be made. It is the occasion that attracts the privilege, and the defence can be defeated by malice. The duty-interest concept of the defence was extended by the Reynolds privilege to defamatory publications to a wide range of readers or listeners or the world at large in the general public interest. This was designed to strike an appropriate balance between the right to freedom of expression and the right of an individual to protect his reputation. Adam v Ward [1917] AC 309 applied; Reynolds v Times Newspapers Ltd [2001] 2 AC 127 applied; Pinard-Byrne v Lennox Linton [2015] UKPC 41 followed; Jameel v Wall Street Journal Europe Sprl [2006] UKHL 44 applied.

5.To succeed on Reynolds privilege two conditions must be fulfilled. Firstly, the subject matter of the publication must be a matter of public interest in respect of which there is a real public interest in communicating and receiving the information. Secondly, the publisher must have taken the care that a responsible publisher would verify the information published. In these circumstances, where the appellant did not intend and did not know or have reason to know that his words would be published to the public at large, the Reynolds principles would not apply. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 applied; Seaga v Harper [2008] UKPC 9 distinguished.

6.The defence of qualified privilege is not dependent on whether or not there was research or investigation before the words were published. The defence of qualified privilege protects the mistaken but honest publisher in respect of the accuracy of the contents of his statements. The learned judge erred in requiring the appellant’s statements to be true and also wrongly imported the requirement that the appellant should satisfy the standard of responsible journalism applicable to Reynolds privilege, and on this basis, determined that the defence of traditional qualified privilege did not apply. The judge also erred in holding that Reynolds privilege applied in circumstances where the appellant did not intend and did not know or have reason to know that his words would be published to the public at large. Hines v Davidson (1935) SC 30 applied; Horrocks v Lowe (1975) AC 135 applied; Pinard-Byrne v Lennox Linton [2015] UKPC 41 applied.

7.Notwithstanding, the judge’s error in applying Reynolds privilege, actual or express malice on the defendant’s part defeats the defence of traditional qualified privilege. Express malice refers to an absence of an honest belief by the defendant in the truth of the impugned words or indifference to their truth or falsity or any other dominant and improper motive which does not spring from or is unconnected with the duty or interest in publishing the said words and thus amounts to abusing the privilege for an improper purpose. It is for the claimant to plead and prove malice in any of these senses. The evidence of malice may be inferred from the impugned words themselves or gleaned from extrinsic facts or circumstances or indeed from the evidence of the defendant himself. Although the judge was wrong to hold that the defence of traditional qualified privilege was defeated because the statements were untrue, he was right to find that the appellant was actuated by malice, thus defeating the defence of qualified privilege. Horrocks v Lowe (1975) AC 135 applied; David Carol Bristol v Dr. Richardson St. Rose SLUHCVAP2005/0016 (delivered 20th February 2006, unreported) applied.

8.Appellate courts must generally exercise restraint when reviewing a trial judge’s assessment of damages, as it involves the judge’s discretion. However, they may interfere if the damages awarded are clearly disproportionate to the actual loss, if relevant factors were ignored, irrelevant ones considered, or if the wrong legal principles or methods were applied in making the assessment. In the circumstances of this case, the awards for general and aggravated damages were not unreasonable in relation to the injury to the respondent’s reputation and feelings. Therefore, there is no basis for this Court to interfere. Alphonso and others v Deodat Ramnath (1997) 56 WIR 183 applied. David Bristol v Dr. Richardson St. Rose SLUHCVAP2005/0016 (delivered 20th February 2006, unreported) applied. JUDGMENT

[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.”

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.”

[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.”

[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.

7.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.”

[2]Those who moved motions of no confidence against the leader of this party knew full well, that they grounded their ambitions in an effort to destroy this party by attacking the leader. They made it clear in other statements that their intent was to destroy this party and that their efforts had nothing to do with the lack of confidence in the leader, but everything to do with their wanting to destroy the leader and therefore the party. The party today resoundingly rejected them and they know full well they could not have succeeded [and] did not pursue their trouble making efforts in the face of the National Council.

[3]They would do so in the media, in solitary effort where they had open space to spread their poison but here where it mattered, where their voices would have been heard so the party would say whether we agree or reject you, they ran away like cowards.

[5]And let me explain why [a membership list] is important, when people join a political organisation they are much afraid by that they may be discriminated against by the mere fact that they hold membership in a party. Many may not feel that way, but many do feel that way, [and that is] why we held it in terms of a high level of confidentiality. If it is true that they did do these things, then that is the highest level of treachery that we condemn in politics generally and in the COP unreservedly.

[7]The party has been condemned for not being decisive, but that is to confuse process with doing what is right and what is proper, and in these circumstances where the allegations were so strong and so high, we say step aside and let the investigation be concluded, and then whatever necessary steps be taken after that, the party will engage.”

48.Examining the various statements made at the press conference, the Board considers that it is clear that the appellant qualified what he said about the respondents by stating that the authenticity of the letter was in question and that there had to be an investigation to determine what had happened. He made no secret of the fact that he considered that handing over the memberships lists to the PNM would be an act of treachery and that serious consequences would have to follow but this was only by reference to the situation which would arise if in an investigation it were established that the respondents had written the October letter. The bane and the antidote have to be taken together. Since the attacks on him were effectively undermining his leadership, he was entitled to meet them in a robust fashion.”

[31]Dr. Mitchell defended his statements by asserting that “the Defendant spoke the words in the belief that the transaction was orchestrated with blatant disregard for the Integrity in Public Life Act and the Prevention of Corruption Act”. This pleading by Dr. Mitchell further imputes corrupt, unethical and reprehensible conduct by the Cabinet ministers in breach of the laws of Grenada. Therefore, I find that the above meanings are defamatory and/or capable of being defamatory.”

[33]Mr. Simmons served as a minister during the 2008-2013 NDC Government when the land was sold to the Government of Grenada. A minister of Government is also a member of the Cabinet. The Cabinet is made up of a limited class or group of people in a small island state like Grenada and as such they can be easily identified by members of the public. Dr. Mitchell’s comments were in reference to the Cabinet. His reference to “Simmons” could only be properly made with respect to the claimant since Mr. Simmons was the only member of Cabinet with that surname. Compounding matters, Dr. Mitchell singled out or identified Peter David. Peter David served with Mr. Simmons as a government minister during the tenure of the very Cabinet to which Dr. Mitchell alluded. Dr. Mitchell imputed corruption to the Cabinet members of the previous Government, save and except Peter David. I find that any reasonable person hearing Dr. Mitchell’s speech in the context in which it was made would conclude that it was the claimant, Mr. Simmons who was implicated.

[34]Further evidence of this conclusion lies in Dr. Mitchell’s fair comment defence when he outlined that Pauline Andrew was Mr. Simmons’ are close friend and part of Mr. Simmons’ political campaign. The connection was made to Pauline Andrews, a shareholder of the company, seemingly to bolster Dr. Mitchell’s charge that there was some level of impropriety in the sale transaction. As such, it is somewhat difficult to accept that Dr. Mitchell was not referring to Mr. Simmons in his speech at the town hall meeting.

[36]In view of the foregoing, I find that the offending words uttered by Dr. Mitchell are capable of the meanings ascribed to them by Mr. Simmons and are defamatory of him. I find the offending words were capable of disparaging and did disparage Mr. Simmons in his office as a former Cabinet minister and/or calling as a politician. The question then arises whether the defamatory statements can be defended on grounds of fair comment and qualified privilege.” Discussion – identification

[47]of the judgment. That is as far as agreement goes as the parties adopt rival positions as it relates to whether the appellant has established the other elements of the defence. Was the statement in issue comment or fact?

[45]and

[46]of the judgment as appears below: “[45] Mr. Maharaj SC submits that Dr. Mitchell’s statements were comment which was a deduction or conclusion from other facts referred to by him which have been established to be true. Counsel submits that it is a fact that the 2008 to 2013 NDC government purchased the land for the establishment of a university campus from a company which was owned by former minsters of government. In the circumstances of the case, Dr. Mitchell’s reference to “Simmons” is not a statement of fact but rather based on Simmons’ admission that he made enquiries about the balance of the purchase price after he demitted office.

[46]Counsel Mr. Maharaj SC further argues that whether the words are comments or facts must be considered in the context in which they were spoken. In this context, the words were spoken at a town hall meeting. Mr. Maharaj SC submits that Dr. Mitchell, as Prime Minister at that time, did not know of the question before hand, did not have the relevant documents before him and could not speak with precision. Therefore, counsel posits, Dr. Mitchell’s statements should be regarded as comment on the matter. Counsel points to para. 12.12 of Gatley in support of his submission that Dr. Mitchell is not confined to reliance on facts to which he has referred in the publication complained of. Dr. Mitchell was entitled to rely on the Cabinet conclusions and the company’s registration documents. Further, counsel says, the comments are a matter of public interest since they concern political and state matters. See paras.12.30-31 of Gatley.”

[48]“[48] Dr. Mitchell in his response to the attendee repeatedly stated that his statements were “facts”. In his first response to the attendee, Dr. Mitchell stated “And it is a fact sister…” When challenged by the attendee, he stated “No, my dear the facts are there…I’m talking from Cabinet papers my dear…these are facts…” I therefore agree with Mr. John that Dr. Mitchell’s statements were presented as facts and not comments. Dr. Mitchell even went as far as stating that he is “talking from Cabinet papers”. This statement suggests a deliberate effort by Dr. Mitchell to convince the attendee that he was aware of or conversant with documentary evidence to substantiate his assertions. The fact that the assertions made by Dr. Mitchell, were in his words, presented as “facts” and not comments on the topic under discourse at the event is, in my view, more than a sufficient basis for one to conclude, and I so conclude that the defence of fair comment fails.”

[9]of this judgment.

54.Lord Nicholls was speaking in the context of a publication in a newspaper but the defence is of course available to anyone who publishes material of public interest in any medium. The question in each case is whether the defendant behaved fairly and responsibly in gathering and publishing the information. But I shall for convenience continue to describe this as “responsible journalism”.

[65]In my view, and as I have more than often recited above, the entire thrust of Dr. Mitchell’s statement imputed corruption not only to Mr. Simmons but to other members of the company and the 2008 to 2013 NDC Government. The corruption was couched as a scandal whereby land was purchased by a company in which members of the 2008 to 2013 NDC government held interest for the sole purpose of being sold to the government for use in the UWI project. While the public had a vested interest in knowledge about the project, they had no interest in receiving this misinformation which was offered without the benefit of any research or investigation.

[66]By personally calling Mr. Simmons’ name in his speech as a member of the company, Dr. Mitchell suggested that Mr. Simmons was a beneficiary of the alleged corruption. The imputations were made even the more emphatic by the statement apparently exculpating Mr. Peter David from involvement in the alleged corruption. Peter David was a sitting member of the same 2008 to 2013 Cabinet which approved the land transaction.

[67]Further compounding all of this and as I have observed with respect to the defence of fair comment, when the attendee challenged Dr. Mitchell’s statements that members of the 2008 to 2013 NDC Government did sell land to the Government for profit, Dr. Mitchell replied by stating “[t]hese are facts. Ask Simmons if he wasn’t a member of that company as an example, just ask him”. Dr. Mitchell’s rejoinder could not have left his audience with any clearer impression than that, as Prime Minister and Finance Minister, he was presenting, not opinion, but facts to his listeners.

[68]In my view, therefore the defence fails on the question of qualified privilege. There could be no moral or social duty to disseminate this patently false information without research or comment from the person(s) traduced. These matters were entirely within Dr. Mitchell’s power to properly interrogate before he made his remarks. Mr. Maharaj SC made the point that Dr. Mitchell was asked the question which he did not know beforehand, did not have documents present with him to consult or verify and that he answered imprecisely. Certainly if Dr. Mitchell was not equipped with the material to give an accurate answer then caution would have dictated a more prudent response than the emphatic statement which he insisted to his audience was fact.

[69]Even more significantly, prudence would have dictated restraint with respect to implicating Mr. Simmons’ good name and reputation in an affair which Dr. Mitchell now states that he could not adequately address at the time because he did not have sufficient material available to him to give an informed response. It seems to me that this was the very essence of the dicta in Pinard which advises that, at the very least Dr. Mitchell should have interrogated the matter or deferred the question to a time when he could have properly interrogated the matter before attempting to enlighten the public on any problems with the land sale deal.” (Emphasis added).

[95]With respect to the defence of qualified privilege, it is said, as noted in Mansoor above at paragraph 88 of this judgment that: “[I]n whatever context malice is raised, evidence tending to show, or from which it can be inferred, that the defendant had no honest belief in the truth of the defamatory statement will usually be powerful evidence of malice.”

[96]Ratlins JA made the point more succinctly in David Carol Bristol v Dr. Richardson St. Rose when he stated that: “Where words are published under circumstances which create qualified privilege, the claimant might still prevail on a claim for defamation if he proves that the person abused the privilege because of express or actual malice. The test of express malice requires the claimant to prove that the defendant did not honestly believe that the words were true because the defendant was either aware that they were not true or was indifferent to their truth or falsity. Express malice arises as a question of fact, which is to be drawn or inferred, inter alia, from the contents and source of the statements and the circumstances in which the statements were made. A defendant might be indifferent to their truth or falsity where he took no investigative steps to ensure their accuracy when he could have done so. Whether a defendant was indifferent to the truth of the defamatory statements is subjective to the defendant and depends, among other things, on his level of knowledge, education and intelligence. To a great extent, it is an enquiry as to the motive for the publication.” (Judge’s emphasis)

[145]to

[125]“I find that the most glaring evidence of aggravation is exhibited by the failure to apologize. Counsel for Mr. Simmons, Mr. John, in his pre action letter dated 22nd August 2014 demanded a written apology from Dr. Mitchell, which was refused. At trial, Dr. Mitchell acknowledged that his statements were erroneous in material regards for instance, Mr. Simmons’ membership of the company. In my view this acknowledgement should have been forthcoming much earlier. Certainly, the company documents which showed who were the shareholders of the company, ought to have impelled Dr. Mitchell to immediately retract his assertions about Mr. Simmons’ involvement in the alleged affair.

[126]Equally, the Cabinet papers which Dr. Mitchell relied on in his evidence ought to have advised him at least by the time of disclosure that his assessment of the conduct of the 2008 to 2013 Government was flawed in material respects. He ought to have issued some retraction, correction or apology. His failure to do so, in my view, added to the injury caused to Mr. Simmons’ reputation and must be compensated as aggravated damages.” Submissions

[122]of the judgment. Accordingly, it cannot be said that he acted on any wrong principle or that the award was so high as to be out of step with other awards.