Garth Lucien Wilkin v Ian Patches Liburd

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE SAINT CHRISTOPHER AND NEVIS SAINT CHRISTOPHER CIRCUIT SKBHCV 2023/0005 BETWEEN: GARTH LUCIEN WILKIN and Applicant/Intended Claimant IAN PATCHES LIBURD Respondent/Intended Defendant Appearances: Mr. Sylvester Anthony with him Ms. Rénal Edwards for the Applicant/Intended Claimant Mr. Peter Foster KC with him Mr. Terence Byron for the Respondent/Intended Defendant 2023: February 9; February 16. DECISION 1. GILL, J.: On an ex parte application, accompanied by a certificate of urgency, the applicant/intended claimant sought, and was granted, an interim injunction by this court on January 12, 2023. By the order (“the ex parte order”), the respondent/intended defendant was injuncted as follows: 1) The Respondent is hereby restrained, and an injunction is hereby granted restraining the Respondent and/or any other person under his employment or direction and/or anyone on his behalf from making any statement publicly or to any other person whatsoever in any way and by any media: (a) about the Applicant with respect to his employment or association with a nanny, babysitter or housekeeper; or (b) about “Nannygate” or any business matter the Applicant has or had with the St. Christopher and Nevis Social Security Board. 2) The Respondent is hereby restrained from publishing the statement “Let’s Investigate the Nannygate (A True Story)” or any similar language on his show titled “Straight Talk with Ian “Patches” Liburd” or any other show or public forum on which he speaks to the public. 3) The Respondent is hereby restrained, and an injunction is hereby granted restraining the Respondent and/or any other person under his employment and/or direction and/or anyone on his behalf from publishing the terms of this Order to any person other than his instructed Attorney- at-Law. 4) The Respondent shall forthwith remove all references to the statement “Let’s Investigate the Nannygate (A True Story)” or any similar language from the social media pages attributed to his show titled “Straight Talk with Ian “Patches” Liburd” or any other show or public forum on which he speaks to the public. 5) The Respondent is hereby restrained from communicating with the persons administering or otherwise associating himself in any way with the Facebook profile pages named “Tim Third-Term” and “Aizivaishe Williams”. 2. The urgency of the application by the applicant/intended claimant Garth Lucien Wilkin (hereinafter “Mr. Wilkin”) related to the fact that the respondent/intended defendant Ian Patches Liburd (hereinafter “Mr. Liburd”), a presenter of a current affairs program called “Straight Talk with Ian ‘Patches’ Liburd” broadcast weekly on a local radio station and also streamed on YouTube and Facebook on Mondays and Thursdays, advertised in a Facebook post on January 11, 2023, that the topic for his next program scheduled for January 12, 2023, at 8 p.m. was “Let’s Investigate Nannygate (A True Story)”. 3. The matter was given a return date of February 9, 2023, for an inter partes hearing. 4. On January 30, 2023, in addition to an affidavit in response to the application for injunctive relief, Mr. Liburd filed an application to discharge the ex parte order. 5. At the end of the inter partes hearing on February 9, 2023, the court reserved its decision and ordered that the ex parte order continue until further order of the court. The substance of the defamation alleged 6. Mr. Wilkin is a prominent attorney and the Attorney-General and Federal Minister of Justice & Legal Affairs of Saint Christopher and Nevis. Mr. Liburd is a former Member of Parliament and Minister of Government. A number of Facebook postings emerged (none attributable to Mr. Liburd) concerning the employment of a babysitter or nanny or housekeeper by Mr. Wilkin. Allegations were made of the employee being an “illegal Vincentian immigrant” who slaved for Mr. Wilkin’s family, and of Mr. Wilkin not paying social security contributions for her. Publications included allegations of “blatant corruption”, and among other things, accusations amounting to criminal offences including one punishable on summary conviction, committed by Mr. Wilkin under the Social Security Act.1 Mr. Liburd’s submissions 7. Mr. Liburd submits that Mr. Wilkin ought not to have succeeded on the ex parte application, and that his application to discharge the ex parte order ought to be granted because Mr. Wilkin failed to satisfy the fundamental requirements for the grant of an interlocutory injunction in a defamation matter.2 He further submits that: i. Mr. Wilkin has not demonstrated that any publication that could be made by him under the title “Let’s Investigate Nannygate (A True Story)” is defamatory; i. He has a defence that might succeed which was not put to the court at the ex parte hearing; and ii. Mr. Wilkin seriously misled the court in the grant of the ex parte injunction. Mr. Wilkin’s contentions 8. Mr. Wilkin maintains that the ex parte order was properly granted and asks that it continue until the determination of the claim which was filed on February 7, 2023. He believes that if Mr. Liburd is not restrained, his character and reputation will suffer irreparable harm. Court’s decision to proceed with the inter partes hearing as scheduled 9. Skeleton Arguments were filed on behalf of Mr. Liburd on the morning of the hearing (submitted at 6:54 a.m. and recorded on the E-Litigation Portal (ELP) as filed at 8:30 a.m.). Further, authorities cited in those submissions were filed at 11:01 a.m. The hearing was scheduled for 11:00 a.m. No written submissions were filed on Mr. Wilkin’s behalf. The court made no order for written submissions, which learned King’s Counsel for Mr. Liburd says were submitted as a courtesy to the court to assist the court in its determination of the matter. 10. At the start of the hearing, learned counsel for Mr. Wilkin requested time to respond to Mr. Liburd’s skeleton submissions on the grounds that he had sight of them at 7:30 that morning, and that the submissions included issues not raised in Mr. Liburd’s two affidavits filed on January 30, 2023. In particular, Mr. Liburd’s affidavits do not mention issues of non-disclosure or misleading the court at the ex parte hearing. 11. I proceeded with the hearing on the urging of King’s Counsel for Mr. Liburd that the application to discharge the ex parte injunction on the basis that it should not have been granted in the first place, was in effect, a rehearing of the application. I determined that I could properly make a decision on the principles that should have been applied in granting the ex parte order. Issue 12. The court must determine whether to continue the ex parte injunction granted on January 20, 2023, or to discharge it. Law and analysis 13. Mr. Liburd invokes his right to freedom of expression enshrined in section 12 of the Constitution of Saint Christopher and Nevis. Section 12(1) reads: “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 is to the public generally or to any person or class of persons) and freedom from interference with his correspondence.” 14. He avers that as a broadcaster and a citizen of St. Kitts and Nevis, he is within his rights to speak about issues of public importance, and asserts that the title of the program is a topic of public interest and not one of malice against Mr. Wilkin. 15. Learned counsel for Mr. Wilkin submits that the Constitution does not give anyone a right to defamation, and put forward the concept of balancing rights, in that, one has a right to protection of his reputation. Debate on the publication 16. In relation to “Nannygate”, the only words published by Mr. Liburd are those advertised as the program topic, “Let’s Investigate Nannygate (A True Story)”. Mr. Liburd points out that the topic did not refer to any individual and cannot amount to a defamatory statement about Mr. Wilkin. Further, Mr. Liburd explains that there is no allegation that Mr. Wilkin never paid the social security contributions, but that Mr. Wilkin’s own evidence in support of his application shows that he was extremely delinquent in so doing. 17. Mr. Wilkin asserts that the statements in posts made about him suggest that he never paid Social Security contributions for his nanny. He exhibited copies of his contribution statements for the period November 2020 to December 2022 evidencing all Social Security Board contribution payments for the employment of his nanny before January 7, 2023, when he alleges the defamatory posts started. 18. As set out by Mr. Liburd, the evidence submitted by Mr. Wilkin reveals that the social security payments for the nanny for certain months remained unpaid for extended periods of time. Mr. Liburd demonstrated as follows: - The payments for November 2020 to March 2021 remained outstanding until April 19, 2021; - The payments for May 2021 to July 2022 remained outstanding until August 12, 2022; and - The payments for September to December 2022 remained outstanding until January 6, 2023. 19. Section 14 of the Social Security Act provides: At the end of the month in which wages are paid, or within one month thereafter, an employer shall pay, by means acceptable to the Director, the contributions payable by the employer under these Regulations in respect of wages paid by him or her to each employed person for each contribution week in that month together with the appropriate amount by way of the employer’s contributions: Provided that the employer shall, for the purpose of this paragraph, be deemed to have deducted from the last of any number of payments of wages which fall to be aggregated the amount of contributions payable by the employed person. 20. Therefore, it is clear from Mr. Wilkin’s evidence that over a two-year period of employment of his nanny, there were late payments of social security contributions. 21. Learned counsel for Mr. Wilkin, Mr. Anthony, urged upon the court that “Nannygate” is not about late payment, but that it is about “never payment”, and the publication of Mr. Wilkin hiring an illegal immigrant as a nanny. Whereas learned King’s Counsel for Mr. Liburd, Mr. Foster, told the court that there was no allegation that Mr. Wilkin never paid social security contributions, Mr. Anthony directed the court’s attention to Mr. Wilkin’s evidence to the contrary. In his evidence, Mr. Wilkin highlighted the following posts:3 (a) “It’s only now you seeking to pay up to social security for all her back wages?” (b) “My good friend at Social Security has given me a printed detailed contribution statement for the maid/babysitter for all the years the AG Garth Wilkin has not paid one $ in contributions.” (c) “Prime Minister they expecting me offer an apology for hiring an illegal immigrant as maid/babysitter for 2 years, and deducting social security from her and not paying it over.” (d) “AG Garth Wilkin you are a wicked nasty heartless man. This is pure corruption. Taking out some SS and not paying it to SS is blatant corruption.” (e) “For over two years money was deducted from my pay for social security but it never paid into the Social Security Board by my employer.” 22. It is evident that at least two of these statements suggest that Mr. Wilkin never paid social security contributions in respect of his nanny. The general principle for the grant of an interim injunction in defamation cases 23. An interim injunction in a defamation matter ought to be granted only in the clearest cases. The test was set out in Coulson v Coulson4 as follows: “To justify the Court in granting an interim injunction it must come to a decision upon the question of libel or no libel, before the jury decided whether it was libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where if the jury did not so find, the Court would set aside the verdict as unreasonable. The Court must also be satisfied that in all probability the alleged libel was untrue, and if written on a privileged occasion that there was malice on the part of the defendant. It followed from those three rules that the Court could only on the rarest occasions exercise their jurisdiction.” 24. Summarised in Gatley on Libel and Slander,5 the court will only grant an interlocutory injunction where, 1) the statement is unarguably defamatory; 2) there are no grounds for concluding the statement may be true; 3) there is no other defence which might succeed; 4) there is evidence of an intention to repeat or publish the defamatory statement. 25. The parties agree that the principle for the grant of interlocutory injunctions laid down in American Cyanamid v Ethicon Ltd6 of not considering the merits of the case where it is shown that there is a serious issue to be tried, but determining where the balance of convenience lies, is not appropriate in defamation cases.7 Whether statement unarguably defamatory 26. The only established publication by Mr. Liburd on “Nannygate” is the program topic “Let’s Investigate Nannygate (A True Story)”. Mr. Wilkin contends that the topic is defamatory as the term “-gate” is widely and colloquially used for political scandals akin to the origin of the term “Watergate”, the US presidential scandal of the 1970s. Further, Mr. Wilkin posits that the use of the words “A True Story” legitimizes the defamatory statements in the untrue posts. Whereas Mr. Liburd submits that Mr. Wilkin has not provided evidence to suggest the words in the program topic were or could be defamatory, Mr. Liburd provided two explanations of “Nannygate” from Wikipedia, an online encyclopedia, and Wiktionary, an online dictionary, which show that the term refers to political scandals involving nannies of political figures. Wikipedia describes “Nannygate” as a popular term for the 1993 revelations that caused two of President Bill Clinton’s choices for United States Attorney General to become derailed.8 Wiktionary defines “Nannygate” as any of the political scandals involving the hired nannies of politicians, e.g., where taxes are unpaid or a visa not obtained.9 Clearly, “Nannygate” is a derogatory term. 27. Mr. Liburd admits that certain allegations made by fake profiles against Mr. Wilkin are in relation to his nanny and his failure to pay social security “until shortly before the disclosures”10 and are therefore analogous to what is defined as “Nannygate”. However, he insists that Mr. Wilkin nevertheless failed to disclose material facts concerning the meaning of “Nannygate” to assist the court in deciphering whether the statement “Investigating Nannygate (A True Story)” could be defamatory. 28. I agree with Mr. Wilkin that it can be reasonably inferred that by using the term “Nannygate”, Mr. Liburd is referring to the allegations made against him involving his nanny from the posts being circulated. The evidence before the court involves allegations against Mr. Wilkin about his nanny. Mr. Liburd himself has demonstrated to the court that the term Nannygate is associated with political scandals. Mr. Liburd’s program topic declares that Nannygate is “A True Story”. However, given my reasoning to follow, I cannot conclude that the program topic is unarguably defamatory. Evidence of intention to publish defamatory statement 29. A determination as to whether the words in the program topic are unarguably defamatory is not the end of the matter under that head. Mr. Wilkin’s contentions also concern the aspect of an imminent publication of unarguably defamatory statement(s) on Mr. Liburd’s program ‘Straight Talk with Ian “Patches” Liburd’ advertised for 8 p.m. on January 12, 2023. The jurisdiction to grant interlocutory injunctions in the field of defamation arises where there has been, or is threatened, a publication of a defamatory statement. The question arises as to whether Mr. Liburd was likely to publish, on that program, allegations that Mr. Wilkin never paid social security contributions in respect of his nanny and/or that Mr. Wilkin employed an illegal immigrant in the person of his nanny or enslaved her. 30. In this regard, learned counsel for Mr. Wilkin directed the court to Mr. Liburd’s affidavit in support of his application to discharge the interim injunction. Counsel highlighted the following paragraphs of the affidavit:11 “14. On a number of occasions, it was brought to my attention that there may be a story relating to our current Attorney General, the Intended Claimant, in relation to the payments or lack thereof, of social security contributions made on behalf of his children’s babysitter/nanny. I thought it was an interesting topic, and I therefore felt it would be a good opportunity to discuss it on Straight Talk on 12 January 2023. 15. I had seen a number of posts on social media about the allegations made against the Applicant. Given the Applicant’s position as Attorney General and a member of the present government administration, I thought it to be a meaningful and important topic to discuss on Straight Talk.” 31. Since the allegations against Mr. Wilkin included publications that he never paid the requisite social security contributions, then in my view, notwithstanding Mr. Liburd’s submission that the court cannot presume what will be said, he was likely to publish those allegations on his scheduled program. That Mr. Wilkin never paid the contributions is unarguably defamatory. However, based on some of the posts, Mr. Liburd was also likely to publish that Mr. Wilkin made late payments which would be a true statement. Justification and fair comment defences 32. Mr. Liburd avers that he is aware that it is an offence not to pay social security contributions on time, and that by Mr. Wilkin’s own evidence, he had not made social security payments (apart from three timely payments) on behalf of his nanny within the time prescribed by the Social Security Act, and as a result, suffered the financial penalty for non-compliance with the regulation. Mr. Liburd submits that truth is a complete defence to a claim for defamation. The general rule is that where a defendant contends that the words complained of are true, and asserts that he will plead and seek to prove the defence of justification, the court will not grant an interim injunction unless, in exceptional cases, the court is satisfied that a justification defence cannot succeed. Mr. Liburd further submits that he would have a legitimate defence of fair comment. 33. In Fraser v Evans,12 Lord Denning MR stated: “In so far as the article will be defamatory of Mr. Fraser, it is clear that he cannot get an injunction. The court will not restrain the publication of an article, even though it is defamatory, when the defendant says he intends to justify it or to make fair comment on a matter of public interest. That has been established for many years since Bonnard v Perryman

[1891]2 Ch 269. The reason sometimes given is that the defences of justification and fair comment are for the jury, which is the constitutional tribunal, and not for a judge. But a better reason is the importance in the public interest that the truth shall out.” 34. There is no dispute that it is untrue to state that Mr. Wilkin never paid social security contributions for his nanny. In fact, learned King’s Counsel for Mr. Liburd maintains that there is no such allegation. There is also no dispute that for a two-year period, Mr. Wilkin made most of those payments beyond the time stipulated in law for so doing. It is on this basis that Mr. Liburd grounds his reliance on a justification defence. 35. In answer to the court at the inter partes hearing, learned counsel for Mr. Wilkin indicated that had the offending statements been about late payments, there would be no issue of defamation. This is an admission that Mr. Liburd would be free to discuss on his program that Mr. Wilkin was in breach of the regulation by being delinquent on payments. Mr. Anthony made it clear that, on this aspect of the alleged defamatory statements, Mr. Wilkin is attempting to restrain Mr. Liburd specifically from publishing that he never paid the requisite social security contributions. That being the case, the defence of justification does not arise. 36. Section 45(1) of the Social Security Act provides: Any insured person or employer who fails to pay at or within the time prescribed for the purpose of any contribution which he or she is liable under this Act to pay shall for each such failure be liable on summary conviction to a fine not exceeding two hundred dollars or to imprisonment for a term not exceeding six months or to both and in addition shall incur a penalty not exceeding one hundred dollars and not less than twenty dollars for every day during which such failure continues beyond six months. 37. A social security payment after the time prescribed by the legislation constitutes a criminal offence whether or not the law is strictly enforced. As long as it is done within the applicable limitation period, there is no bar on the relevant authorities to institute criminal proceedings, even where an employer has paid outstanding contributions before such proceedings are brought. In those circumstances, in my view, the employer would have a strong mitigating position that he or she made good the breach. 38. In a case like this, where it would be unarguably defamatory to publish that Mr. Wilkin never paid social security contributions for his nanny, and which Mr. Liburd was likely to publish, and in light of the fact that he was liable to prosecution even for his admitted late payments, it was incumbent on him to seek to injunct the specific allegation that he never paid. I quote from Gatley on Libel and Slander13 where it is stated: “The allegation must be specified with some precision and particularity. In British Data Management plc v. Boxer Commercial Removals plc [1996] E.M.L.R. 349, CA., the Court disapproved of a claim for a quia timet injunction restraining the defendants from “publishing any statement concerning the plaintiffs or any of them to the effect that they were guilty of civil wrongs or criminal offences in relation to the contents of company accounts, annual reports or the prospectus in March 1992 …” as being insufficiently precise. Though it was not necessary to set out verbatim the very words of which the plaintiff complains, there must (said Hurst L.J.) be reasonable certainty as to the actual words of which the plaintiff prospectively complains and seeks to restrain.” 39. Accordingly, in my respectful view, Mr. Wilkin cannot properly seek to restrain Mr. Liburd, or any other person referred to in the ex parte application, “from making any statement publicly or to any other person whatsoever in any way and by any media about [Mr. Wilkin] with respect to his employment or association with a nanny, babysitter, or housekeeper, or about ‘Nannygate’ or any business matter [Mr. Wilkin] has or had with the Saint Christopher and Nevis Social Security Board”. Mr. Wilkin’s evidence reveals that over a two-year period, he was in breach of the Social Security Act as it relates to the time within which payments should be made. This can be considered an aspect of “Nannygate” which is true. 40. The ex parte order prohibits Mr. Liburd from publishing any statement in relation to the employment of, or association with a nanny by Mr. Wilkin or any business matter Mr. Wilkin has or had with the Social Security Board. This prohibition would include the issue of the late payments, a fact which would justify and provide a complete defence to an allegation of such late payments. The clarification by learned counsel for Mr. Wilkin as to the distinction between late payment and “never payment” made it clear to the court that Mr. Liburd ought not to be prohibited from publishing an allegation of late payments. Among other things, this is what the ex parte order has done. 41. Therefore, I am of the view that the failure in the ex parte application to seek to injunct specifically the allegations of never paying, hiring an illegal immigrant as a nanny, and enslaving her, which Mr. Wilkin contends are unarguably defamatory statements about him, is fatal to the application. Accordingly, I will exercise my discretion to discharge the ex parte order. Misleading the court and non-disclosure 42. A major part of Mr. Liburd’s submissions, filed on the morning of the inter partes hearing, accused learned counsel for Mr. Wilkin of misleading the court as to whether Mr. Wilkin had satisfied the test for the injunction, and failing to provide full and frank disclosure of material facts. Mr. Foster KC provided the court with several authorities in support of these submissions.14 The submissions further accused counsel of failing to provide Mr. Liburd’s counsel with notes of the ex parte hearing which King’s Counsel submits represents a material non-disclosure which has prejudiced Mr. Liburd in defending the ex parte injunction order in a timely manner. In support of his entitlement to the ex parte notes, King’s Counsel cited the cases of Interoute Telecommunications (UK) ltd v Fashion Gossip Ltd15 and G & Anor v Wikimedia Foundation Inc.16 43. At the end of the hearing, learned counsel for Mr. Wilkin again requested the opportunity to respond in written submissions, particularly to those aspects of the submissions about the allegations of misleading the court and non-disclosure, especially given the late filing of Mr. Liburd’s authorities, that is, just about the time of the scheduled start of the hearing. The court battled with the request and at one point, decided to grant it. However, after further argument, on second thought, I determined otherwise and disallowed any further submissions in the matter. 44. It is my considered view that in light of the fact that learned counsel for Mr. Wilkin was not afforded the opportunity to respond to aspects of submissions he was unaware would be made (as they were not presented in Mr. Liburd’s affidavits), it would not be fair to Mr. Wilkin to consider those aspects of Mr. Liburd’s written submissions. Therefore, while I may accept the principles in the authorities provided on behalf of Mr. Liburd, there are several factual assertions which may well have been countered by learned counsel for Mr. 14 R v Kensington Income Tax Commissioners, Ex parte Princess Edmond de Polignac [1917] KB 486 at Wilkin had he been given the opportunity to do so. My decision to discharge the ex parte injunction, and not to continue it, having considered the arguments on both sides, is based on my finding that this is not the clearest of cases for the grant of an interim injunction in a defamation matter. In particular, I am of the view that: i. The statement published by Mr. Liburd, that is, the program title “Let’s Investigate Nannygate (A True Story)” is not unarguably defamatory of Mr. Wilkin. ii. The application for the injunction is not specific enough to the defamatory words Mr. Wilkin is seeking to injunct. iii. The defences of justification and fair comment are raised, the justification defence likely to succeed on certain aspects of “Nannygate”, in particular, that social security contributions were paid late by Mr. Wilkin, constituting breaches liable to prosecution. iv. The principles in Bonnard v Perryman17 take precedence over Mr. Wilkin’s right to the protection of his reputation. “The importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions.” 18 Order 45. In light of the foregoing, it is ordered as follows: 1) The ex parte order granted on January 20, 2023, and extended on February 9, 2023 until further order is discharged. 2) Mr. Wilkin shall pay Mr. Liburd costs to be assessed if not agreed within 21 days of today’s date.

Tamara Gill

High Court Judge

By the Court

Registrar

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE SAINT CHRISTOPHER AND NEVIS SAINT CHRISTOPHER CIRCUIT SKBHCV 2023/0005 BETWEEN: GARTH LUCIEN WILKIN Applicant/Intended Claimant and IAN PATCHES LIBURD Respondent/Intended Defendant Appearances: Mr. Sylvester Anthony with him Ms. Rénal Edwards for the Applicant/Intended Claimant Mr. Peter Foster KC with him Mr. Terence Byron for the Respondent/Intended Defendant 2023: February 9; February 16. DECISION

1.GILL, J.: On an ex parte application, accompanied by a certificate of urgency, the applicant/intended claimant sought, and was granted, an interim injunction by this court on January 12, 2023. By the order (“the ex parte order”), the respondent/intended defendant was injuncted as follows: 1) The Respondent is hereby restrained, and an injunction is hereby granted restraining the Respondent and/or any other person under his employment or direction and/or anyone on his behalf from making any statement publicly or to any other person whatsoever in any way and by any media: (a) about the Applicant with respect to his employment or association with a nanny, babysitter or housekeeper; or (b) about “Nannygate” or any business matter the Applicant has or had with the St. Christopher and Nevis Social Security Board. 2) The Respondent is hereby restrained from publishing the statement “Let’s Investigate the Nannygate (A True Story)” or any similar language on his show titled “Straight Talk with Ian “Patches” Liburd” or any other show or public forum on which he speaks to the public. 3) The Respondent is hereby restrained, and an injunction is hereby granted restraining the Respondent and/or any other person under his employment and/or direction and/or anyone on his behalf from publishing the terms of this Order to any person other than his instructed Attorney- at-Law. 4) The Respondent shall forthwith remove all references to the statement “Let’s Investigate the Nannygate (A True Story)” or any similar language from the social media pages attributed to his show titled “Straight Talk with Ian “Patches” Liburd” or any other show or public forum on which he speaks to the public. 5) The Respondent is hereby restrained from communicating with the persons administering or otherwise associating himself in any way with the Facebook profile pages named “Tim Third-Term” and “Aizivaishe Williams”.

2.The urgency of the application by the applicant/intended claimant Garth Lucien Wilkin (hereinafter “Mr. Wilkin”) related to the fact that the respondent/intended defendant Ian Patches Liburd (hereinafter “Mr. Liburd”), a presenter of a current affairs program called “Straight Talk with Ian ‘Patches’ Liburd” broadcast weekly on a local radio station and also streamed on YouTube and Facebook on Mondays and Thursdays, advertised in a Facebook post on January 11, 2023, that the topic for his next program scheduled for January 12, 2023, at 8 p.m. was “Let’s Investigate Nannygate (A True Story)”.

3.The matter was given a return date of February 9, 2023, for an inter partes hearing.

4.On January 30, 2023, in addition to an affidavit in response to the application for injunctive relief, Mr. Liburd filed an application to discharge the ex parte order.

5.At the end of the inter partes hearing on February 9, 2023, the court reserved its decision and ordered that the ex parte order continue until further order of the court. The substance of the defamation alleged

6.Mr. Wilkin is a prominent attorney and the Attorney-General and Federal Minister of Justice & Legal Affairs of Saint Christopher and Nevis. Mr. Liburd is a former Member of Parliament and Minister of Government. A number of Facebook postings emerged (none attributable to Mr. Liburd) concerning the employment of a babysitter or nanny or housekeeper by Mr. Wilkin. Allegations were made of the employee being an “illegal Vincentian immigrant” who slaved for Mr. Wilkin’s family, and of Mr. Wilkin not paying social security contributions for her. Publications included allegations of “blatant corruption”, and among other things, accusations amounting to criminal offences including one punishable on summary conviction, committed by Mr. Wilkin under the Social Security Act.1 Mr. Liburd’s submissions

7.Mr. Liburd submits that Mr. Wilkin ought not to have succeeded on the ex parte application, and that his application to discharge the ex parte order ought to be granted because Mr. Wilkin failed to satisfy the fundamental requirements for the grant of an interlocutory injunction in a defamation matter.2 He further submits that: i. Mr. Wilkin has not demonstrated that any publication that could be made by him under the title “Let’s Investigate Nannygate (A True Story)” is defamatory; 1 Cap. 22:10 of the Laws of Saint Christopher and Nevis 2 See Coulson v Coulson [1887] 3 TLR 846 ii. He has a defence that might succeed which was not put to the court at the ex parte hearing; and iii. Mr. Wilkin seriously misled the court in the grant of the ex parte injunction. Mr. Wilkin’s contentions

8.Mr. Wilkin maintains that the ex parte order was properly granted and asks that it continue until the determination of the claim which was filed on February 7, 2023. He believes that if Mr. Liburd is not restrained, his character and reputation will suffer irreparable harm. Court’s decision to proceed with the inter partes hearing as scheduled

9.Skeleton Arguments were filed on behalf of Mr. Liburd on the morning of the hearing (submitted at 6:54 a.m. and recorded on the E-Litigation Portal (ELP) as filed at 8:30 a.m.). Further, authorities cited in those submissions were filed at 11:01 a.m. The hearing was scheduled for 11:00 a.m. No written submissions were filed on Mr. Wilkin’s behalf. The court made no order for written submissions, which learned King’s Counsel for Mr. Liburd says were submitted as a courtesy to the court to assist the court in its determination of the matter.

10.At the start of the hearing, learned counsel for Mr. Wilkin requested time to respond to Mr. Liburd’s skeleton submissions on the grounds that he had sight of them at 7:30 that morning, and that the submissions included issues not raised in Mr. Liburd’s two affidavits filed on January 30, 2023. In particular, Mr. Liburd’s affidavits do not mention issues of non-disclosure or misleading the court at the ex parte hearing.

11.I proceeded with the hearing on the urging of King’s Counsel for Mr. Liburd that the application to discharge the ex parte injunction on the basis that it should not have been granted in the first place, was in effect, a rehearing of the application. I determined that I could properly make a decision on the principles that should have been applied in granting the ex parte order. Issue

12.The court must determine whether to continue the ex parte injunction granted on January 20, 2023, or to discharge it. Law and analysis

13.Mr. Liburd invokes his right to freedom of expression enshrined in section 12 of the Constitution of Saint Christopher and Nevis. Section 12(1) reads: “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 is to the public generally or to any person or class of persons) and freedom from interference with his correspondence.”

14.He avers that as a broadcaster and a citizen of St. Kitts and Nevis, he is within his rights to speak about issues of public importance, and asserts that the title of the program is a topic of public interest and not one of malice against Mr. Wilkin.

15.Learned counsel for Mr. Wilkin submits that the Constitution does not give anyone a right to defamation, and put forward the concept of balancing rights, in that, one has a right to protection of his reputation. Debate on the publication

16.In relation to “Nannygate”, the only words published by Mr. Liburd are those advertised as the program topic, “Let’s Investigate Nannygate (A True Story)”. Mr. Liburd points out that the topic did not refer to any individual and cannot amount to a defamatory statement about Mr. Wilkin. Further, Mr. Liburd explains that there is no allegation that Mr. Wilkin never paid the social security contributions, but that Mr. Wilkin’s own evidence in support of his application shows that he was extremely delinquent in so doing.

17.Mr. Wilkin asserts that the statements in posts made about him suggest that he never paid Social Security contributions for his nanny. He exhibited copies of his contribution statements for the period November 2020 to December 2022 evidencing all Social Security Board contribution payments for the employment of his nanny before January 7, 2023, when he alleges the defamatory posts started.

18.As set out by Mr. Liburd, the evidence submitted by Mr. Wilkin reveals that the social security payments for the nanny for certain months remained unpaid for extended periods of time. Mr. Liburd demonstrated as follows: – The payments for November 2020 to March 2021 remained outstanding until April 19, 2021; – The payments for May 2021 to July 2022 remained outstanding until August 12, 2022; and – The payments for September to December 2022 remained outstanding until January 6, 2023.

19.Section 14 of the Social Security Act provides: At the end of the month in which wages are paid, or within one month thereafter, an employer shall pay, by means acceptable to the Director, the contributions payable by the employer under these Regulations in respect of wages paid by him or her to each employed person for each contribution week in that month together with the appropriate amount by way of the employer’s contributions: Provided that the employer shall, for the purpose of this paragraph, be deemed to have deducted from the last of any number of payments of wages which fall to be aggregated the amount of contributions payable by the employed person.

20.Therefore, it is clear from Mr. Wilkin’s evidence that over a two-year period of employment of his nanny, there were late payments of social security contributions.

21.Learned counsel for Mr. Wilkin, Mr. Anthony, urged upon the court that “Nannygate” is not about late payment, but that it is about “never payment”, and the publication of Mr. Wilkin hiring an illegal immigrant as a nanny. Whereas learned King’s Counsel for Mr. Liburd, Mr. Foster, told the court that there was no allegation that Mr. Wilkin never paid social security contributions, Mr. Anthony directed the court’s attention to Mr. Wilkin’s evidence to the contrary. In his evidence, Mr. Wilkin highlighted the following posts:3 (a) “It’s only now you seeking to pay up to social security for all her back wages?” 3 Paragraph 45 of the 1st Affidavit of Garth Lucien Wilkin filed on January 12, 2023 (b) “My good friend at Social Security has given me a printed detailed contribution statement for the maid/babysitter for all the years the AG Garth Wilkin has not paid one $ in contributions.” (c) “Prime Minister they expecting me offer an apology for hiring an illegal immigrant as maid/babysitter for 2 years, and deducting social security from her and not paying it over.” (d) “AG Garth Wilkin you are a wicked nasty heartless man. This is pure corruption. Taking out some SS and not paying it to SS is blatant corruption.” (e) “For over two years money was deducted from my pay for social security but it never paid into the Social Security Board by my employer.”

22.It is evident that at least two of these statements suggest that Mr. Wilkin never paid social security contributions in respect of his nanny. The general principle for the grant of an interim injunction in defamation cases

23.An interim injunction in a defamation matter ought to be granted only in the clearest cases. The test was set out in Coulson v Coulson4 as follows: “To justify the Court in granting an interim injunction it must come to a decision upon the question of libel or no libel, before the jury decided whether it was libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where if the jury did not so find, the Court would set aside the verdict as unreasonable. The Court must also be satisfied that in all probability the alleged libel was untrue, and if written on a privileged occasion that there was malice on the part of the defendant. It followed from those three rules that the Court could only on the rarest occasions exercise their jurisdiction.”

24.Summarised in Gatley on Libel and Slander,5 the court will only grant an interlocutory injunction where, 1) the statement is unarguably defamatory; 2) there are no grounds for concluding the statement may be true; 3) there is no other defence which might succeed; [1887] 3 TLR 846 5 Ninth Edition, Chapter 25, rubric 25.2 4) there is evidence of an intention to repeat or publish the defamatory statement.

25.The parties agree that the principle for the grant of interlocutory injunctions laid down in American Cyanamid v Ethicon Ltd6 of not considering the merits of the case where it is shown that there is a serious issue to be tried, but determining where the balance of convenience lies, is not appropriate in defamation cases.7 Whether statement unarguably defamatory

26.The only established publication by Mr. Liburd on “Nannygate” is the program topic “Let’s Investigate Nannygate (A True Story)”. Mr. Wilkin contends that the topic is defamatory as the term “-gate” is widely and colloquially used for political scandals akin to the origin of the term “Watergate”, the US presidential scandal of the 1970s. Further, Mr. Wilkin posits that the use of the words “A True Story” legitimizes the defamatory statements in the untrue posts. Whereas Mr. Liburd submits that Mr. Wilkin has not provided evidence to suggest the words in the program topic were or could be defamatory, Mr. Liburd provided two explanations of “Nannygate” from Wikipedia, an online encyclopedia, and Wiktionary, an online dictionary, which show that the term refers to political scandals involving nannies of political figures. Wikipedia describes “Nannygate” as a popular term for the 1993 revelations that caused two of President Bill Clinton’s choices for United States Attorney General to become derailed.8 Wiktionary defines “Nannygate” as any of the political scandals involving the hired nannies of politicians, e.g., where taxes are unpaid or a visa not obtained.9 Clearly, “Nannygate” is a derogatory term.

27.Mr. Liburd admits that certain allegations made by fake profiles against Mr. Wilkin are in relation to his nanny and his failure to pay social security “until shortly before the disclosures”10 and are therefore analogous to what is defined as “Nannygate”. However, he insists that Mr. Wilkin nevertheless failed to disclose material facts concerning the [1975] AC 396 7 See Gatley on Libel and Slander, Ninth Edition, Chapter 25, rubric 25.2 8 https://en.wikipedia.org/wiki/Nannygate 9 https://en.wiktionary.org/wiki/Nannygate 10 Phrase used in the Wikipedia description meaning of “Nannygate” to assist the court in deciphering whether the statement “Investigating Nannygate (A True Story)” could be defamatory.

28.I agree with Mr. Wilkin that it can be reasonably inferred that by using the term “Nannygate”, Mr. Liburd is referring to the allegations made against him involving his nanny from the posts being circulated. The evidence before the court involves allegations against Mr. Wilkin about his nanny. Mr. Liburd himself has demonstrated to the court that the term Nannygate is associated with political scandals. Mr. Liburd’s program topic declares that Nannygate is “A True Story”. However, given my reasoning to follow, I cannot conclude that the program topic is unarguably defamatory. Evidence of intention to publish defamatory statement

29.A determination as to whether the words in the program topic are unarguably defamatory is not the end of the matter under that head. Mr. Wilkin’s contentions also concern the aspect of an imminent publication of unarguably defamatory statement(s) on Mr. Liburd’s program ‘Straight Talk with Ian “Patches” Liburd’ advertised for 8 p.m. on January 12, 2023. The jurisdiction to grant interlocutory injunctions in the field of defamation arises where there has been, or is threatened, a publication of a defamatory statement. The question arises as to whether Mr. Liburd was likely to publish, on that program, allegations that Mr. Wilkin never paid social security contributions in respect of his nanny and/or that Mr. Wilkin employed an illegal immigrant in the person of his nanny or enslaved her.

30.In this regard, learned counsel for Mr. Wilkin directed the court to Mr. Liburd’s affidavit in support of his application to discharge the interim injunction. Counsel highlighted the following paragraphs of the affidavit:11 “14. On a number of occasions, it was brought to my attention that there may be a story relating to our current Attorney General, the Intended Claimant, in relation to the payments or lack thereof, of social security contributions made on behalf of his children’s babysitter/nanny. I thought it was an interesting topic, and I therefore felt it would be a good opportunity to discuss it on Straight Talk on 12 January 2023.

15.I had seen a number of posts on social media about the allegations made against the Applicant. Given the Applicant’s position as Attorney General and a 11 Filed on January 30, 2023 member of the present government administration, I thought it to be a meaningful and important topic to discuss on Straight Talk.”

31.Since the allegations against Mr. Wilkin included publications that he never paid the requisite social security contributions, then in my view, notwithstanding Mr. Liburd’s submission that the court cannot presume what will be said, he was likely to publish those allegations on his scheduled program. That Mr. Wilkin never paid the contributions is unarguably defamatory. However, based on some of the posts, Mr. Liburd was also likely to publish that Mr. Wilkin made late payments which would be a true statement. Justification and fair comment defences

32.Mr. Liburd avers that he is aware that it is an offence not to pay social security contributions on time, and that by Mr. Wilkin’s own evidence, he had not made social security payments (apart from three timely payments) on behalf of his nanny within the time prescribed by the Social Security Act, and as a result, suffered the financial penalty for non-compliance with the regulation. Mr. Liburd submits that truth is a complete defence to a claim for defamation. The general rule is that where a defendant contends that the words complained of are true, and asserts that he will plead and seek to prove the defence of justification, the court will not grant an interim injunction unless, in exceptional cases, the court is satisfied that a justification defence cannot succeed. Mr. Liburd further submits that he would have a legitimate defence of fair comment.

33.In Fraser v Evans,12 Lord Denning MR stated: “In so far as the article will be defamatory of Mr. Fraser, it is clear that he cannot get an injunction. The court will not restrain the publication of an article, even though it is defamatory, when the defendant says he intends to justify it or to make fair comment on a matter of public interest. That has been established for many years since Bonnard v Perryman [1891] 2 Ch 269. The reason sometimes given is that the defences of justification and fair comment are for the jury, which is the constitutional tribunal, and not for a judge. But a better reason is the importance in the public interest that the truth shall out.”

34.There is no dispute that it is untrue to state that Mr. Wilkin never paid social security contributions for his nanny. In fact, learned King’s Counsel for Mr. Liburd maintains that [1969] 1QB 349 at 360; see also Greene v Associated Newspapers Ltd [2005] 1 All ER 30 at paragraph there is no such allegation. There is also no dispute that for a two-year period, Mr. Wilkin made most of those payments beyond the time stipulated in law for so doing. It is on this basis that Mr. Liburd grounds his reliance on a justification defence.

35.In answer to the court at the inter partes hearing, learned counsel for Mr. Wilkin indicated that had the offending statements been about late payments, there would be no issue of defamation. This is an admission that Mr. Liburd would be free to discuss on his program that Mr. Wilkin was in breach of the regulation by being delinquent on payments. Mr. Anthony made it clear that, on this aspect of the alleged defamatory statements, Mr. Wilkin is attempting to restrain Mr. Liburd specifically from publishing that he never paid the requisite social security contributions. That being the case, the defence of justification does not arise.

36.Section 45(1) of the Social Security Act provides: Any insured person or employer who fails to pay at or within the time prescribed for the purpose of any contribution which he or she is liable under this Act to pay shall for each such failure be liable on summary conviction to a fine not exceeding two hundred dollars or to imprisonment for a term not exceeding six months or to both and in addition shall incur a penalty not exceeding one hundred dollars and not less than twenty dollars for every day during which such failure continues beyond six months.

37.A social security payment after the time prescribed by the legislation constitutes a criminal offence whether or not the law is strictly enforced. As long as it is done within the applicable limitation period, there is no bar on the relevant authorities to institute criminal proceedings, even where an employer has paid outstanding contributions before such proceedings are brought. In those circumstances, in my view, the employer would have a strong mitigating position that he or she made good the breach.

38.In a case like this, where it would be unarguably defamatory to publish that Mr. Wilkin never paid social security contributions for his nanny, and which Mr. Liburd was likely to publish, and in light of the fact that he was liable to prosecution even for his admitted late payments, it was incumbent on him to seek to injunct the specific allegation that he never paid. I quote from Gatley on Libel and Slander13 where it is stated: 13 Ninth Edition, Chapter 25, rubric 25.3 under the sub-head ‘Precise words unknown’, Footnote 12 “The allegation must be specified with some precision and particularity. In British Data Management plc v. Boxer Commercial Removals plc [1996] E.M.L.R. 349, CA., the Court disapproved of a claim for a quia timet injunction restraining the defendants from “publishing any statement concerning the plaintiffs or any of them to the effect that they were guilty of civil wrongs or criminal offences in relation to the contents of company accounts, annual reports or the prospectus in March 1992 …” as being insufficiently precise. Though it was not necessary to set out verbatim the very words of which the plaintiff complains, there must (said Hurst L.J.) be reasonable certainty as to the actual words of which the plaintiff prospectively complains and seeks to restrain.”

39.Accordingly, in my respectful view, Mr. Wilkin cannot properly seek to restrain Mr. Liburd, or any other person referred to in the ex parte application, “from making any statement publicly or to any other person whatsoever in any way and by any media about [Mr. Wilkin] with respect to his employment or association with a nanny, babysitter, or housekeeper, or about ‘Nannygate’ or any business matter [Mr. Wilkin] has or had with the Saint Christopher and Nevis Social Security Board”. Mr. Wilkin’s evidence reveals that over a two-year period, he was in breach of the Social Security Act as it relates to the time within which payments should be made. This can be considered an aspect of “Nannygate” which is true.

40.The ex parte order prohibits Mr. Liburd from publishing any statement in relation to the employment of, or association with a nanny by Mr. Wilkin or any business matter Mr. Wilkin has or had with the Social Security Board. This prohibition would include the issue of the late payments, a fact which would justify and provide a complete defence to an allegation of such late payments. The clarification by learned counsel for Mr. Wilkin as to the distinction between late payment and “never payment” made it clear to the court that Mr. Liburd ought not to be prohibited from publishing an allegation of late payments. Among other things, this is what the ex parte order has done.

41.Therefore, I am of the view that the failure in the ex parte application to seek to injunct specifically the allegations of never paying, hiring an illegal immigrant as a nanny, and enslaving her, which Mr. Wilkin contends are unarguably defamatory statements about him, is fatal to the application. Accordingly, I will exercise my discretion to discharge the ex parte order. Misleading the court and non-disclosure

42.A major part of Mr. Liburd’s submissions, filed on the morning of the inter partes hearing, accused learned counsel for Mr. Wilkin of misleading the court as to whether Mr. Wilkin had satisfied the test for the injunction, and failing to provide full and frank disclosure of material facts. Mr. Foster KC provided the court with several authorities in support of these submissions.14 The submissions further accused counsel of failing to provide Mr. Liburd’s counsel with notes of the ex parte hearing which King’s Counsel submits represents a material non-disclosure which has prejudiced Mr. Liburd in defending the ex parte injunction order in a timely manner. In support of his entitlement to the ex parte notes, King’s Counsel cited the cases of Interoute Telecommunications (UK) ltd v Fashion Gossip Ltd15 and G & Anor v Wikimedia Foundation Inc.16

43.At the end of the hearing, learned counsel for Mr. Wilkin again requested the opportunity to respond in written submissions, particularly to those aspects of the submissions about the allegations of misleading the court and non-disclosure, especially given the late filing of Mr. Liburd’s authorities, that is, just about the time of the scheduled start of the hearing. The court battled with the request and at one point, decided to grant it. However, after further argument, on second thought, I determined otherwise and disallowed any further submissions in the matter.

44.It is my considered view that in light of the fact that learned counsel for Mr. Wilkin was not afforded the opportunity to respond to aspects of submissions he was unaware would be made (as they were not presented in Mr. Liburd’s affidavits), it would not be fair to Mr. Wilkin to consider those aspects of Mr. Liburd’s written submissions. Therefore, while I may accept the principles in the authorities provided on behalf of Mr. Liburd, there are several factual assertions which may well have been countered by learned counsel for Mr. 14 R v Kensington Income Tax Commissioners, Ex parte Princess Edmond de Polignac [1917] KB 486 at 504-505; Re First Express Ltd [1992] BCLC 824 at 828; Re OJSC Ank Yugraneft [2008] EWHC 2614 at paragraph 72; Cable & Wireless BVI Limited v The Telecommunications Regulatory Commission BVIHCV2012/0179 at paragraph 88; NCB v Olint [2009] 5 LRC 370 at 374; Lloyds Bowmaker Ltd v Britannia Arrow Holdings plc [1988] 3 All ER 178 at 181, 182, 187; Brink’s-MAT Ltd v Elcombe and others [1988] 3 All ER 188 at 192 15 The Times, November 10, 1999 16 (2009) EWHC 3148 QB Wilkin had he been given the opportunity to do so. My decision to discharge the ex parte injunction, and not to continue it, having considered the arguments on both sides, is based on my finding that this is not the clearest of cases for the grant of an interim injunction in a defamation matter. In particular, I am of the view that: i. The statement published by Mr. Liburd, that is, the program title “Let’s Investigate Nannygate (A True Story)” is not unarguably defamatory of Mr. Wilkin. ii. The application for the injunction is not specific enough to the defamatory words Mr. Wilkin is seeking to injunct. iii. The defences of justification and fair comment are raised, the justification defence likely to succeed on certain aspects of “Nannygate”, in particular, that social security contributions were paid late by Mr. Wilkin, constituting breaches liable to prosecution. iv. The principles in Bonnard v Perryman17 take precedence over Mr. Wilkin’s right to the protection of his reputation. “The importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions.” 18 Order

45.In light of the foregoing, it is ordered as follows: 1) The ex parte order granted on January 20, 2023, and extended on February 9, 2023 until further order is discharged. 2) Mr. Wilkin shall pay Mr. Liburd costs to be assessed if not agreed within 21 days of today’s date. Tamara Gill High Court Judge By the Court Registrar [1891] 2 Ch 269 18 Ibid per Lord Coleridge at 284