Kenny D. Anthony Plaintiff v Peter Josie Defendant [ECSC]

• Jurisdiction: St Lucia
• Judge: Farara J
• Judgment Date: 21 November 1997
• Judgment citation (vLex): [1997] ECSC J1121-2
• Docket Number: SUIT NO: 144 OF 1997
• Court: High Court (Saint Lucia)
• Date: 21 November 1997

[1997] ECSC J1121-2

IN THE HIGH COURT OF JUSTICE

(CIVIL)

A.D. 1997

Farara J In Chambers

SUIT NO: 144 OF 1997

Between:

Kenny D. Anthony

Plaintiff

and

Peter Josie

Defendant

Appearances:

Mr. A. D. Astaphan in association with Miss Michel Anthony and Miss Loraine Jolie for the Plaintiff/Applicant

Mr. Marius Wilson for Defendant/Respondent on 25th September, 1997

No appearance by the Defendant or his Counsel on October 14th, 1997

1 In this action, commenced by Writ of Summons indorsed with Statement of Claim issued 17th February, 1997 the Plaintiff claims, against the Defendant, an injunction restraining further publication of certain pleaded or similar words defamatory of the Plaintiff; damages for slander published by the Defendant of the Plaintiff on 4th September, 1996 and 7th November, 1996 and on divers other occasions; aggravated and/or exemplary damages; interest and costs. A Defence was filed herein on 5th March, 1997.

2 By Summons filed 17th April, 1997 the Plaintiff sought (1) an interlocutory injunction restraining further publication by the Defendant of the words complained of in the Statement of Claim; and/or (2) an order that the Defence be struck out under Order 18 r. 19 of RSC 1970 and/or under the Court's inherent jurisdiction; (3) an order permitting the Plaintiff to enter judgement against the Defendant for damages to be assessed and costs; and (4) costs of the application.

3 The Summons is supported by the Plaintiff's affidavit filed 17th April, 1997. The Defendant filed his opposing affidavit on 2nd May, 1997 and on the same day an affidavit of Simon Phillip was filed on behalf of the Plaintiff. This latter affidavit dealt with the publication by the Defendant of similar defamatory words on 16th April, 1997 with an audio cassette exhibit.

4 In a written judgement delivered 4th June, 1997 d'Auvergne J, who heard the first limb of the Plaintiff's application only, granted the injunction sought until the determination of the action or further order.

5 At page 10 of her judgement the Learned Judge found that the words complained of in the Statement of Claim were capable of having a defamatory meaning. She stated —

6 "In my view, the ordinary sensible person hearing those words complained of, would understand them to mean that the Plaintiff was a thief and a dishonest person, one morally unfit to be elected to public office".

7 And at page 11—

8 "As I have said, in my judgement, the words complained of, would convey imputations of misconduct and dishonesty to the reasonable man on the part of the Plaintiff in relation to his profession as a barrister and as someone morally unfit to hold public office".

9 There has been no appeal from the said judgement.

10 The further hearing of the Plaintiff's summons were listed and gazetted for hearing before me on 25th September, 1997. This fixture was made at the call over in July, 1997 and a copy of the published list of fixtures circulated to all legal practitioners by the Registry of the High Court of Justice.

11 At the hearing on 25th September, 1997 Counsel for the Defendant, Mr. Marius Wilson, appeared and requested an adjournment on the grounds that (1) he was of the view that the matter would be heard by Justice d'Auvergne, and that in light of a circular notice sent by the Registrar to all legal practitioners informing of the Learned Judge's absence from the State on that date, he assumed that this matter would be adjourned; and (2) that he would prefer that his client be present when the matter is heard. This application was, quite understandably, opposed by Learned Counsel for the Plaintiff who had, to the certain knowledge of Counsel for the Defendant, travelled from overseas to attend this fixture.

12 I considered the first ground for an adjournment advanced by Counsel for the Defendant to be devoid of merit since, as Counsel admitted, he had received the list of court fixtures which has this matter clearly listed for hearing before me.

13 As regards the second ground advanced by Counsel for the Defendant for the adjournment, while the presence of the Defendant was certainly not necessary on the hearing of an application to strike out the Defence, I nevertheless, with reluctance, acceded to Counsel's application on terms for payment of the Plaintiff's costs of the day, so that Counsel for the Defendant could have his client present whilst the matter was being argued. Incidentally, Counsel for the Defendant when pressed, admitted to the Court, that he was not really prepared to argue the matter that day. At the Court's request, he agreed to provide skeleton arguments with copies of authorities to be cited (the Plaintiff's Counsel had already made his available to me) in advance of the adjourned fixture of 14th October, 1997 at 9:30 a.m.

14 On 14th October 1997 when this matter was called at 9:37 a.m. neither the Defendant or his Counsel appeared, and their being no explanation for their non-appearance, the matter proceeded.

15 At 12:35 p.m., when Counsel for the Plaintiff had almost completed his submissions, a letter then delivered to the Registry from someone on behalf of Counsel for the Defendant, was passed to the Court. It was a request for an adjournment to the next day (Wednesday) on the basis that Counsel for the Defendant was ill and at home. It was not accompanied by a medical certificate. Further, as Counsel for the Defendant would be well aware, the following day was my usual chamber day, when over fifty (50) matters are normally listed for hearing.

16 At 1:28 p.m., after Counsel for the Plaintiff had completed his submissions, the Defendant was again called and there was no appearance by him or his Counsel. I then reserved my decision on paragraphs 2 and 3 of the Plaintiff's Summons.

17 As of delivery of this judgement there has been no approach made to this judge, or as far as I am aware to the Registrar, by Counsel for the Defendant regarding his non-appearance.

18 Learned Counsel for the Plaintiff relied on the submissions made, and numerous authorities cited in his rather lengthy skeleton arguments filed 24th September, 1997 and supplementary skeleton arguments dated 13th October, 1997 except that, at the hearing, Counsel informed the court that he would not be making any submissions on the issue of qualified privilege as he concluded, quite rightly, that this defence had not been pleaded by the Defendant. This is confirmed by the Defendant in paragraphs 3 and 4 of his affidavit filed 2nd May, 1997.

19 In fact at page 7 of the judgement of d'Auvergne J granting interlocutory injunctive relief, she noted:—

"He [Mr Marius Wilson, Counsel for the Defendant] contended that the Defendant was not denying that certain words were used but that it was fair comment on a matter of public interest which he could and will justify. "

20 However, it is clear to me from a careful examination of the Defence filed herein, that the defenses raised are justification and fair comment on a matter of public interest in relation to the first publication and a denial of the second publication.

Striking Out Pleading

21 The Plaintiff's application is made under Order 18 r 19(1) (a), (b), (c) and (d) on the grounds that the Defence discloses no reasonable defence, is frivolous, vexatious and embarrassing; and/or it is an abuse of the process of the Court.

22 On an application under Order 18 r. 19 the Court has power to make an order that the action be stayed, or dismissed and that judgment be entered. No evidence is admissible where the ground is that the pleading discloses no reasonable cause of action or defence, RSC Order 18 r. 19(2).

23 This rule also empowers the Court to amend any pleading or indorsement or any matter therein. In a suitable and proper case, the Court may exercise its coercive and curative powers at the same time. A Court will generally give leave to amend a defect in pleading, rather than give judgment in ignorance of facts which ought to be known before rights are definitely decided.

24 The Supreme Court Practice 1995, Vol. 1, para. 18/19/3 at page 320. Steeds v. Steeds [1889] 22 Q.B.D. 537at 542

25 However, unless there is a reason to suppose that the case can be improved by amendment leave will not be given, (paragraph 18/19/3 ibid). Hubbuck v. Wilkinson [1889] 1 Q.B. 86at 94

26 Republic of Peru v. Peruvian Guano Co. [1887] 36 Ch.D. 489 (leave to amend granted unless no amendment will cure the defect in pleading).

27 The Plaintiff's application to strike out is also made under the inherent jurisdiction of the Court. This power of the Court to stay proceedings or to strike out actions or indorsements which are frivolous, vexatious or an abuse of its process, is in addition to its powers under Order 18 r. 19, and is in no way affected or diminished by the said rule. Supreme Court Practice 1995 paragraph 18/10/36.

28 The exercise of the Courts powers under Order 18 r. 19 or under its inherent jurisdiction to stay or dismiss an action is discretionary.

29 Supreme Court Practice 1995 paragraph 18/19/39

30 Gleeson v. J. Wippell and Co Ltd [1977] 3 AER 54 , followingCarZeiss Stiftung v. Rayner and Keeler Ltd (No.3) [1969] 3 AER 897

31 The jurisdiction will not be exercised except with great circumspection, and unless it is perfectly clear that the plea cannot succeed (paragraph 18/19/37(1) ibid and cases cited therein).

32 Under the inherent jurisdiction all the facts can be gone into and affidavits as to the facts are admissible (paragraph 18/19/37(2) ibid).

33 An application under Order 18 r. 19 though it may be made at any stage of the proceedings, it should always be made promptly and, as a rule, before the close of the pleadings. Supreme Court Practice 1995 paragraph 18/19/4.

34 Where the defence is being attacked the application ought to be made as soon as practicable after service of the...