IN THE SUPREME COURT OF JUDICATURE OF JAMAICA IN CIVIL

In The Supreme Court Of Judicature Of Jamaica In Civil-Free PDF

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3 This article contained in Exhibit 3 was published on page 3 of the Sunday. Observer under a current affairs section described as The Agenda to. which Mr John Maxwell was a regular contributor up to the time of. publication, 4 The article which occupied the full page 3 and the section The Agenda. depicts a large photograph in colour about one third and in the center of the. page of a former Minister of Government Mr Easton Douglas At the. bottom of this photograph is the caption,DOUGLAS former Minister of the Environment and. his brother are partners in ESTECH, 5 The article consists of three sections The first without any caption the. second captioned By Order Management 1 the third captioned By Order. Management II, 6 Under paragraphs 15 18 of the last named caption Mr John Maxwell writes. the following, Environmental Impact Assessments are in the real world.
examinations made on behalf of the public but paid for by. developers They are supposed to allow a national discussion. of whether any development should be allowed and if so how it. should be regulated It is clear that the NRCA exists solely to. rubber stamp EIAs submitted in support of the development. thus eliminating the public interest from the start Most of these. EIA s are done by ESTECH in which a former Minister of. Environment Easton Douglas and his brother are partners. 7 He further writes, The character of EIAs may be gathered from the following quotation. Previous EIAs reviewed have been notoriously negligent in the. review of impact associated with drainage particularly impact. resulting from development changes that will be imposed on. previously undeveloped land and impacts associated with. building layout in flood prone areas, I don t have space for the rest of the quotation but basically the. NRCA is telling ESTECH Look chaps give us a plausible. reason for approving this without further question ok. 8 This quotation is from section 3 captioned Drainage and Sedimentation of. Addendum to the Environment Impact Assessment for Grand Palladium. Lady Hamilton Resort and Spa at Point Hanover prepared by Environment. Science Technology Limited ESTECH in February 2006 Dr Conrad. Douglas the brother of Easton Douglas is the principal of ESTECH. 9 The quotation was one of several comments raised by National. Environment Protection Authority NEPA about the Grand Palladium Hotel. development for which it sought answer from ESTECH ESTECH. responded to this serious concern about apparent failure in professional. standard of work about its EIA,ESTECH s answer which Mr Maxwell omitted is. the northern portion of the site has three areas of natural. drainage that effectively drains the site in the sea This. drainage will be preserved in the Resort and has been. incorporated into the new design See Figures 1 13 of. submitted EIA changes to drainage due to the construction of. the structures will be negligible since the buildings are being. spaced with natural vegetation and landscaped areas between. Runoff where it occurs will be channeled to the latural drains. which will be imposed during construction, 10 The article expressly refers to Mr Easton Douglas as a former Minister of. Environment and his brother as partners in ESTECH two times In the body. of caption two it associates all three 3 claimants with NRCA and NEPA. two government regulatory bodies whose duties and function regarding the. environment the author describes adversely Mr Maxwell in the other. paragraph describes other statutory bodies and government agencies in. relation to their duties as stewards of the environment. Mr Easton Douglas Dr Conrad Douglas and ESTECH the first second and. third claimants complained that the words and photograph published in this. article made defamatory imputations against each of them respectively. 11 The foundation of the defamatory imputation or the sting of the libel the. claimants assert lies in the imputation that Mr Easton Douglas during his. tenure as Minister of the Environment was a partner in a private company. with Dr Conrad Douglas his brother which was engaged in the business of. the environment and they disregarded and manipulated the rules and. regulations for the protection of the environment of Jamaica They contend. that the Sunday Observer published a serious misstatement of fact against. them respectively They say it caused them individually and separately pain. distress embarrassment and loss and damage,MISSTATEMENT OF FACT.
12 It was not true that Mr Easton Douglas a former Minister of Environment was. a partner in the firm ESTECH with his brother Dr Conrad Douglas. Mr John Maxwell wrote this statement in an article captioned Stealing from. our children from as long ago as January 14 2001 which the Sunday. Observer had published He was then criticizing ESTECH s response to. NRCA of the proposed development of Long Mountain Country Club St. Andrew which was a housing development His view was that such a. housing development woiJid destroy the natural environment water hills. plant and animal species of the area, 13 Dr Conrad Douglas pointed out this error in a reply to Mr John Maxwell s. article which was published by The Daily Observer on February 1 2001. Further Dr Douglas pointed out that certain assertions about the document. Questions and Response concerning the effect of Long Mountain Country. Club development was potentially defamatory to the technical staff of NRCA. 14 Notwithstanding Dr Conrad Douglas reply Mr John Maxwell did repeat this. misstatement on the 6th July 2006 and the Sunday Observer repeated the. publication of this misstatement yet again, 15 The Claimants through their attorney demanded on July 14 2006 anllpo1ogy. for this misstatement and the defamatory imputation of the article. The Jamaica Observer Ltd responded on the 30th July 2006 They. published in The Agenda section of the Sunday Observer a similar. photograph in colour of Mr Easton Douglas which was smaller than the size. of the original photograph It was published in the center of page and had. the caption CORRECTION Then they published the material words. we recognize that Mr Easton Douglas is not a partner in. ESTECH and we apologize for our error, The Claimants were not satisfied that this was a full apology as the. newspaper did not accept that the article bore any defamatory imputation to. 16 Under section 6 3 a of the Defamation Act 1963 it provides that if a. publisher published words innocently against a person i e did not knowingly. intend to publish the word or the words are not on their face defamatory the. publisher can offer amends This mean the publisher can publish a suitable. correction of the words and a sufficient apology to the party aggrieved in. respect of those words In the instant action the only amends the newspaper. gave was a correction but no apology The reason the newspaper stopped. short of an apology is that they contended the words which are in the article. did not bear any defamatory meaning to any of the claimants notwithstanding. the misstatement of fact Section 6 5 b the said Act requires the publisher. to establish that it has used reasonable care in the publication in order to. benefit from an offer to make amends, 17 Under section 11 of the Libel and Slander Act a defendant may plead an. apology was offered in mitigation of damages,Defamatory Meaning Imputation Pleaded.
18 Mr Easton Douglas the 1st Claimant pleaded the words by themselves and. together with his photograph bear the defamatory meaning that. 1 He corruptly used his status as a former Minister of the. Environment and Housing to control or influence a system of. granting development approvals from which he benefited. financially as a partner in the Third Claimant, 2 He was a partner in a business which acted illegally in its. handling of Environmental Impact Assessments EIAs, 3 He was a partner in a business which carried out EIA s in a. negligent and unprofessional manner, 4 He treated the environment of Jamaica and the interest of the. Jamaican people therein with contempt See Particulars of Claim. 19 Dr Conrad Douglas pleaded the words of this article bear the following. defamatory imputation towards him, 1 He was carrying out EIAs illegally and in breach of. relevant regulations, 2 He was negligent and unprofessional in preparing EIAs.
3 He corruptly produced EIAs which were biased in,favour of deve lopers. 4 He treated the environment of Jamaica and the interest. of the Jamaican people with contempt See Particulars. ESTECH pleaded the article defamed them by imputing that. 1 They prepared EIAs illegally and in breach of the rules. 2 They were negligent and unprofessional in preparing. 3 They corruptly produced EIAs biased towards the,developers. 4 They treated the environment of Jamaica and the people s. interest in the environment with contempt, 20 The Jamaica Observer Ltd admits it used the words in the article. complained about but it contended the words were a criticism of the. statutory organization and executive agencies which were not vigilant in. exercising their duty to protect and preserve the natural resources and. environment Thus they deny each and every defamatory imputation. asserted by the claimants The words they contend are true or substantially. true See Particulars of Defence,The test of meaning of words single meaning rule. 21 It is my duty as a matter of law to give the article the natural and ordinary. meaning it would have conveyed to the ordinary reader of the Sunday. Observer reading the article once Lord Nicholls of Burkekenhead. explained in the Privy Council decision Bannick v Morris and Ors 2003. 1AC 300 at pages 306 307 para 9 that this test was conveniently. summarized by Sir Thomas Bingham MR in Skuse v Granada Television. Ltd 1996 EMLR 278 285 287, Lord Nicholls then identified the ordinary reasonable reader had the.
following characteristics, The ordinary reasonable reader 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 The Court must. read the article as a whole and eschew over elaborate analysis. and also too literal an approach The intention of the publisher. is not relevant,Claimant s Submission on Meaning, 22 Lord Gifford Q C submits with reference to Gatley on Libel and Slander 11 1 h. edition paragraphs 3 15 3 16 and 3 17 that, The rule in defamation is that words have only one single. right meaning,The natural and ordinary meaning may also include. implications or inferences A defamatory imputation may. be conveyed by direct words or by suggestion and the. latter may be more mischievous, It is the imputation contained in the words which had to.
be justified not the literal truth of the words nor some. other similar charges not contained in the words, 23 The essence of Lord Gifford s Q C submission is that each of the three 3. Claimants is relying on defamatory imputation by implication He co ncludes. that this article By Order Management bears separately the defamatory. meaning alleged in the respective particulars of claim. First Defendant s Submission on Meaning, 24 Mr Piper submitted the test or the principle that a Court ought to apply. whether words are capable of defamatory meaning was enunciated by Lord. Reid in the House of Lords in Rubber Improvement Ltd v Daily. Telegraph and Associated Newspaper Ltd 1964 A C 234 at 258 para. What the ordinary man would infer without special knowledge. has generally been called the natural and ordinary meaning of. the words But the expression is rather misleading in that it. conceals the fact that there are two elements in it Sometimes it. is not necessary to go beyond the words themselves where the. plaintiff is called a thief or a murderer But more often the sting. is not so much in the words themselves as in what the ordinary. man will infer from them and that is also regarded as part of. their natural and ordinary meaning, 25 Lord Morris of Borth Y Gest addressed the issue whether an innuendo was. pleaded on the facts of the case He said that a plaintiff may plead an. innuendo This means he says that the plaintiff may establish that. because there are extrinsic facts which were known to the readers of the. words such readers would be reasonably induced to understand the words. in a defamatory sense which went beyond or which altered their natural and. ordinary meaning and which would be regarded as secondary or an. extended meaningn ibid Page 264 para 2, He went on further to explain the nature of an innuendo He said the following I. A defamatory meaning which derives no support from extrinsic. facts but which is said to be implied from the words which are I. used is not a true innuendo, He found on the facts the plaintiff did not really allege that the words were.
used in a defamatory sense other than in their ordinary meaning. 26 The observation of the House of Lords about innuendo is akin to Mr Piper s. submission He noted after reciting the Claimants Particulars of Claim that. they do not contain any specific plea of innuendo He further submitted the. pleadings to not plead any extrinsic facts on which they rely to support an. innuendo and the claimant has not called any witnesses to state the. Lord Gifford Q C submits with reference to Gatley on Libel and Slander 11 1 edition paragraphs 3 15 3 16 and 3 17 that The rule in defamation is that words have only one single right meaning The natural and ordinary meaning may also include implications or inferences A defamatory imputation may be conveyed by direct words or by suggestion and the latter may be more mischievous

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