Kenny D. Anthony Claimant v Vaughn Lewis Defendant [ECSC]

• Jurisdiction: St Lucia
• Judge: EDWARDS J,Barrow, J.A.,Justice of Appeal,Chief Justice,Denys Barrow, SC,Brian Alleyne, SC,Hugh A. Rawlins
• Judgment Date: 14 May 2007
• Judgment citation (vLex): [2007] ECSC J0514-7
• Court: Court of Appeal (Saint Lucia)
• Docket Number: CLAIM NO. SLUHCV / 2000/0411,CIVIL APPEAL NO.2 OF 2006
• Date: 14 May 2007

[2006] ECSC J0111-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

CLAIM NO. SLUHCV / 2000/0411

Between:

Kenny D. Anthony

Claimant

and

Vaughn Lewis

Defendant

INTRODUCTION

EDWARDS J

1 The Claimant Dr. Kenny Anthony is the leader of the ruling St. Lucia Labour Party, Prime Minister of St. Lucia, and Minister of Finance.

2 The Defendant Dr. Vaughn Lewis is a former Prime Minister of St. Lucia from 1996 – 1997, and the former political leader of the United Workers Party (UWP) from February 2000 to mid 2005.

3 By his Amended Writ and Statement of Claim filed on the 29^th June 2000, Dr. Anthony alleged that he was slandered by Dr. Lewis at a public rally held by the UWP at Micoud Village on the 20^th February 2000.

4 The offending speech admittedly uttered by Dr. Lewis stated:"When your country becomes corrupt, and investors know that you have to hand the dollars before they can sign the contract, there will be no investment except investment from the mafia and money launderers, bobolists and so on. We have enough examples in our country. I want to warn you about what is happening in the financial services business. The government of this country gave contracts to those people to set up financial business and in no time the people are handing over two hundred and fifty thousand U.S. dollars to them. They have not told us what side they put that money. If somebody gives you a gift you take it to build a new hospital, to build a new school, to buy some new things for the school. Kenny Anthony just take the money and put it behind his back and nobody knows where it is".

BACKGROUND FACTS

5 The facts are not in controversy. The undisputed evidence discloses that near the beginning of February 2000, at a formal public ceremony under the glare of the media, a representative of International Financial World Investment Centre (IFWIC), handed over a cheque No 95240 to Dr. Anthony. This cheque was made payable to the Accountant General. It was in the sum of US$240,517.37, representing the deposit of US$250,000.00 (less the sum of US$9482.63 paid for duties) under an Agreement with the Government of Saint Lucia.

6 IFWIC is a United Kingdom based company with registered offices in Castries. Its business was to promote the Financial Off Shore Sector in St. Lucia. This Agreement required that the sum of US$250,000.00 be paid in order for the IFWIC to commence its operations here.

7 Subsequent to the publication of the offending speech, the Solicitors of Dr. Anthony by letter dated 8^th March 2000, informed Dr. Lewis that he had used words, which were defamatory of Dr. Anthony. This letter requested a full public retraction and apology from Dr. Lewis "in terms to be approved by us", and his undertaking not to repeat the allegations made. It also communicated Dr. Anthony's expectations for compensation, and invited Dr. Lewis to make a proposal to compensate Dr. Anthony.

8 By letter dated 12^th May 2000, the Solicitors for Dr. Lewis replied. This letter which referred to "Offer of Apology," stated at paragraphs 2 and 3 —

"Your letter imputes that the words used were defamatory of your client Dr. Kenny Anthony. No such suggestion was ever intended and our client confirms that he was referring to the fact that there was nodesignated purpose for the amount, which he was informed and believed, had been received.

Our client greatly regrets any distress or embarrassment that these alleged words may have caused to Dr. Anthony and is glad to take this opportunity of disclaiming any such imputation."

9 By letter dated 29^th June 2000, Dr. Anthony's Solicitors communicated to Dr. Lewis' Solicitors that the manner and content of this apology was wholly inadequate.

10 By letter dated 2^nd August 2000, Dr. Anthony's Solicitors communicated with Dr. Lewis' Solicitors, indicating the form of apology that Dr. Anthony was prepared to accept, by way of a draft. The letter dated 29^th June 2000 had also indicated that this apology "must be published on the front page of at least one prominent newspaper circulating on the Island and over the electronic media."

11 Subsequent to the parties' Counsel meeting on the 6^th August 2002, by letter dated 7^th August 2002, Dr. Anthony's Solicitors gave Dr. Lewis' Solicitors an ultimatum. Dr. Lewis was required to make the public apology in terms of the form of apology mentioned in the letter dated 2^nd August, and compensate Dr. Anthony "before the end of the summer vacation failing which" they would proceed to trial.

12 Dr. Lewis never issued the requested retraction and apology as prescribed by Dr. Anthony's Solicitors, so this action proceeded to trial.

THE LAW

13 Section 10 of the Saint Lucia Constitution Order 1978 protects the freedom of expression by providing that—

"(i) Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of expression, including freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons)…"

14 However Section 10 (2) of the Constitution states that"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Section to the extent that the law in question makes provision – (a) … (b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons … andexcept so far as that provision or, as the case may be the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society."

15 The right to freedom of expression therefore, does not include freedom to orally publish defamatory statements about another person without lawful justification or excuse.

16 Articles 985, 989F to 989L, and 989Q to 989S ofThe Civil Code of St. Lucia Chapter 242 are the applicable provisions, which deal with libel and slander. Article 917A of the Civil Code requires that I apply the law of England for the time being relating to torts in the absence of conflicting and/or local statutory provisions. I am also required to construe the provisions in Articles 989 to 991 as far as practicable in accordance with the law of England for the time being on torts.

17 At common law, a speaker who utters defamatory words about a claimant in the hearing of a third person, which impute a crime for which the claimant can be physically punished, commits slander which is actionable, without proof of special damages: (Webb vs. Beavan (1883) 11Q.B.D 609).

18 Article 989H of the Civil Code of St. Lucia provides that"In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business."

19 The offending speech of Dr. Lewis may be found to be slanderous if it conveys a defamatory imputation, tending to lower Dr. Anthony in the estimation of right thinking members of the society generally. If a substantial and respectable proportion of the society might shun or avoid Dr. Anthony in consequence of this offending speech, it is defamatory. If it tends to expose Dr. Anthony to hatred, contempt or ridicule, it will be regarded as defamatory. If from this speech reasonable suggestions or insinuations can be made which are disparaging or injurious to Dr. Anthony in his office as Prime Minister and Minister of Finance, then this offending speech is defamatory:(Halsbury's Laws of England (4^th ed.) Vol.28, paras. 1, 10,42, 58–60). The law is quite clear that in deciding whether or not this speech of Dr. Lewis is defamatory, I must first consider what meaning the words convey to the ordinary person. Having determined that meaning, the test is whether under the circumstances in which the words were published, a reasonable man to whom the publication was made would be likely to understand it in a defamatory sense: (Halsbury's (supra) para.43).

THE PLEADINGS

20 Dr. Anthony in substance contends that the natural and ordinary meanings of the offending speech are, that in the discharge of his office as Prime Minister and Minister of Finance, he has been dishonest, and is guilty of taking a bribe, fraudulently diverting public funds for his personal benefit, corruption, and a criminal offence punishable by imprisonment in St. Lucia.

21 Dr. Anthony also maintains that the offending speech suggests that he has committed an act of bribery, or some other fraudulent or dishonest act, in connection with a person or persons holding a contract with the St. Lucia Government, to set up financial business, and pay to him the sum of over US$250,000.00.

22 Dr. Anthony further alleges among other things, that Dr. Lewis published the defamatory words maliciously or spitefully, knowing that they were false, and/or with reckless disregard as to whether they were true or false. That he Dr. Anthony has been seriously injured in his character and reputation, and as Prime Minister and Minister of Finance, has been brought into doubt, public scandal, odium and contempt. He has claimed against Dr. Lewis, an injunction, aggravated and/or exemplary damages, interest and costs.

23 Dr. Lewis has denied that his spoken words are capable of the alleged or any defamatory meaning, or that he published these words with malice and gross negligence. He has also denied that Dr. Anthony suffered any injury alleged. He has pleaded that the words were fair comment upon a matter of public interest made without malice and in good faith. Further or in the alternative, Dr....