Dr. Patrick Antoine v Grenada Today Limited Lloyd Noel

IN THE SUPREME COURT OF GRENADA AND THE WEST INDIES ASSOCIATED STATES IN THE HIGH COURT OF JUSTICE CLAIM NO. GDAHCV 2009/03.46 BETWEEN: DR. PATRICK ANTOINE and GRENADA TODAY LIMITED LLOYD NOEL Claimants Defendants Appearances: _ . Sir Richard Che!tenham, Q.C. with Ms. Daniella Mitchell and Ms. Dennies Burris, for the Claimant Mr. Anselm Clouden f r the First and Second Defendants INTRODUCTION October 21, 2015 February 24, 2016 JUDGMENT (1) MON DESIR, J. [Ag]: It is a well established principle of law that, generally speaking, every man is entitled to his good name and to the esteem is which he is:, h Id by others, and he has a right to claim that his_ reputation_ shall not be ged by defamatory statements made about him to a third person or I p . ,. _ – . . s without lawflfl justification or excuse. 1 . (2) This general principle is the premise upon which the present action has been commenced. The Claimant is a Grenadian citizen who currently resides in Trinidad and Tobago: He is an Economist as well as a Trade and Economic Consultant. In that regard, he provides investment and trade advice to hi’sclients, which include Governments, Governmental agencies, regional and international organisations, and multi-national corporations. At the time of publication of the article which forms the basis for his complaint, the Claimant was employed as a Consultant to the Government of Grenada for fourteen (14) days of each month and was Grenada’s Trade Ambassador to the Republic of Trinidad and Tobago. (3) On 3rd October 2008 the Second Defendant wrote and the First Defendant published an article entitled is there no end to the bad deal (the “Article”} in the then called Grenada Today Newspaper. The Article was, ostensibly an editorial pi ece.; focusing on the sale of·the freehold of land owned by the Government of ..: . Grenada· and located on Grand Anse Beach to an investment group backed by Lewis Hamilton, the race car driver. The Claimant contends that the Article was defamatory of hirn in that it impugned his integrity, reputation of competence and has caused him d mage bothpersonally and professionally. (4) The First Defendant, which is now in liquidation, was a weekly newspaper in Grenada. It had a wide, local, weekly circulation of approximately five to six thousand readers. On occasions, that readership could have amounted to as high as three times that number. Some of the newspaper’s publications, including the Article, have be,enreproduced on the internet on at least two websites. (5) The Second Defendant is a writer and political commentator. He is also an Attorney-at-Law with over forty-five (45) years practice at the private Bar and is a former Attorney General of Grenada. ;_ – .,… l . t I 1 1′ THE ARTICLE (6) As matter of expository convenience, I set out here the material aspects of the Article which forms·the basis for the instant action. These were outlined in the Claimant’s Amended Statement of Claim of 9th February 2010 and are as follows: “It appears that Lewis Hamilton had a Company Incorporated viz. “Time Bourke Holding (Grenada) Limited” … to purchase the property on his behalf… But the deal is not as straightforward as it appears. The land comprises Twenty Acres four and six-tenths Poles (20Acs.4 6/10 Pis.) it was valued for the sale in the sum of Fifteen Million Dollars United States Currency ($15,000,000.00 US) … My understanding, from fairly reliable sources, is that the Agent actingon · . behalf of the Government of Grenada was the Economic Advisor and “ rovin· gAmbas’.sador, Dr. Patrick Antoine, who resides in Trinidad- and his fees were in the region of 10% of the land value i.e. One point Five Million US dollars … but the people of Grenada who really and truly own the said land got nothing… I have n, o quarrelin one sense with Lewis Hamilton- except that he should have done his due diligence and not get himself entangled with those seasone·ddealers and wheelers of longstanding in Grenada- who had graduated with dishonors in their scams with world-renowned crooks and smart men and gangsters. He also must have paid some hard Cash to certain individuals over and above the·professionals who provided their services in implementing that sordid and shameful deal in the name of our people.v Back in th’e days of Judas Iscariot in Jerusalem, when he brought back his dirty.and bloodied thirty pieces of Silver to the Leaders of the Pharisees / ,. I f J h an·d Sadducees in remorse- they used the blood money to buy the Potters Field. I wonder aloud, if those who received their cut of what was paid were brave enough to bring it back to the Treasury- and Hon. Nazim Burke as Finance Minister decided to buy a field in their memory, how he would name it after them. I would sl!lggest a field “for corrupt and disgraced Politicians (C&DP) of all shades and colour.s” … I cannot believe that the above scampish deal was designed and executed between the diplomatic agent in T&T and the Ex-P.M. without any recou..rse to cabinet for conclusion.” THE PLEADINGS The Claimant (7) As a result of the publication of the Article, the Claimant filed his Claim Formon 7th August 2009 and his Amended Statement of Claim on 9th February 2010 in which he claimed: (a) Damages, including exemplary andlo-r _ g_gravated damages for the libel published and circulatedby the Defendan·tson the 3rd October 2008; (b) Interest pursuant to section 27 of the West Indies Associated States Supreme Court Act, Chapter 336 of the 1990 Revised Lawsof Grenada; (c) An injunction restraining the Defendants by themselves their servants and/or agents or otherwise howsoever from further publishing or causing to be published the said or similar words defamatory of the Claimant; (d) Such further or-other relief as may be just; and (e·)·-‘ – .,,. Costs. – -·.·;zI’. ,,_,:,.:,:; t • • T (8) In his Amended Statement of Claim the Claimant averred that the Article was defamatory of him, contained false statements and was maliciously published. These false allegations of fact, he says, are: (a) That the Claimant was acting as agent on behalf of the Government of Grenada while he was Economic Advisor and roving Ambassado.r (b) That the· c laimant was paid fees of USD$1.5M, or 10% of the purchase price of th-e land at Grand Anse. (c) That the land transactio,n in which the Claimant participated, was a corrupt deal. (d) That the Claimant is one of the “seasoned dealers and wheelers of long standing in Grenada, who had graduated with_ dishonors in their scams with worldrenowned crooks and smart men and gangster”s. (e) That the Claimant received and/or facilitated the payment of bribes to Government officials in order to secure the Crowri’s consent fo the “ transaction. · (D That the Claimant is a Judas, a traitor and a treasonous person. (g) That the Claimant was complicit in the creation of a “diabolical and fraudulent document” designed “to deprive the very loyal subJects of Her Majesty from receiving the true value of their lifelong heritage”. (h) That the Claimant was involved in a “deliberate and shameful fraud” on the people of Grenada. (see II. 5to_ 8 of para. 4, column 5 of the article of 3rd October, 2008). (i) That the “abnve scampish deal, was designed and executed between the diplomatic agent in T&T the Complainant and the. ex-p.m without any recoutse to Cabinet for a conclusion”. (9) • ‘:,r,r.J’/ The Defendants The Defendants, on the other hand, filed their Defences on 7th October 2009 in \y-v.-h·.i-ch they admit that the Article· was .written by the Second Defendant. and published in the Grenada Today Newspaper on the 3rd October 2008. The publication of the Article is, therefore, not a matter in dispute between the parties. 1 t However, the Defendants deny that the Article or words set out in it were defamatory of the Claimant; or were falsely, maliciously, or recklessly published. (10) The Defendants further contend that the article and words written by the Second Defendant are justified and are fair comments on a matter of public interest, insofar as the said words consist of statements of facts, the same are in fact and substance. (11) In respect of the words used in the Article which refer to a corrupt transaction in which the Claimant acted as agent for the Government, and in which the Government of Grenada sold the lands in question to a company owned by Lewis Hamilton the Defendants deny that those words were in their ordinary and natural meaning meant, and understood to refer to the Complainant. (12) In particular, they deny that they·knew that the words published were defamatory, false or that the Defendants were reckless as to the truth or falsity of the words. (13) The First Defendant- (1) Says that they had a right to inform the public of matters of public interest. (2) Relied on a plea of justification and fair comment and stated that in so far as the article contained statements of fact, the same are true in fact and in substance. (14) The Second Defendant- (1) States that the alleged defamatory article was headlined “Is there no end to the bad deals” and contends that it is a fact “that during the past eight years there have been so many complaints and accusaitons about wrongdoings and corrupt deals in our public affairs.” (2) Contends that he outlines in the article the facts surrounding the transfer of twenty-four (24) acres 4 6/10 poles of land situated at Grand Anse l ‘ T Beach, St. George’s, valued at US$15,000,000.00to a company Time . Bourke Holding {Grenµda) Limited. · (3) Further contends thatlit is a fact that there was no monetary consideraiotn for the transfer of the !ands·to Time Bourke Holding Grenada Limited, ·and that instead the Government of Grenada would supposedly have had the right to use and reproduce approved photographs of Lewis Hamilton, for and in connection with the promotion of the State of Grenada, for a period of four years. (4) Argues that the transfer of the lands gave rise to grave suspicion that, on the facts as set out, tHe deal was scampish and fraudulent. (5) Contendisthat, in any event, the wordS’ ,USed are not defamatory of the Claiinan1t ·nor- d·o Claimant. th$y ·bear the meaning attributed to them by the (6) Argues that, as a jou· rnalisthe has a right to inform the public of matters affecting fheir economic well-being. THE ISSUES (15) These rival contentions raise ithe follbwing issues for the Court’s determination, namely: (1) Are the words published by the Defendantsdefamatory? (2) Has the defence of justification been established? (3) If the words· are def matory, has the defence of fair comment been established? (16) In respect of each of these issues, the parties have cited a number of authoritie.s I have therefore. striven in what ensues to give effect to the relevant principles derivedfrom each of those authoritie.s ! I THE LAW General Principles I • (17) This is an action in libel. In.working through the several issues that arise in this case, I direct myself as a maHer of law that a libel for which an action will lie is a defamatory statement made or conveyed by written or printed words or in some other permanent form, published of and concerning the Claimant, to a person other than the Claimant. In an action for libel, it is the practice to allege in the statement of claim, as the Claimant has done here, that the words were published falsely or maliciously2. However, the Claimant does not have to prove falsity or malice to establish hi cause of action. 3 If the words themselves are defamatory, the law presumes that they are false4, and it is for the Defendant to plead and prove that the words are true. In other words, the onus of proving justification is . (18) on the Defendant. ‘ “ “ I.also, direct myself, _.as a matter oflaw; that:the intention with which the words were written and publf hed .is irrelevant to the determination of the questions whether or not th·e wor.ds were understood to refer to the Claimant, and whether _ ..·.,’ they were understooa to bear a meaning defamatory of him, 5 although the Defendant’s intention may be relevant to the issue of damage. Are the Words Defamatory? (19) The essence of the defamatory statement is its tendency to injure the reputation of the Complainant. There is :no complete or comprehensive definition of what constitutes a defamatory statement, since the word “defamatory’ is nowhere precisely defined. Generally speaking, however, it has been held that a statement is defamatory of the person of whom it is published if it tends to lower him in the estimation of right thinking members of society generallys or if it exposes him to ‘ Bro.mage v. P ros se r (1 6)- 4 B &G 24 7 at 255, per Bayley J. 3 Belt vLawes (Supra) • Seeeg. Belt vLawes (1882) 51LJQB 359 at 361 5 E. Hulto·n& Co. v. Jones [1910)AC 20, HL 6 Sim v. S etch [1936) 2AER 1237 at 1240, HLper Lord Atkin. ‘ ‘ ;,.: · ” .,; ! t ·,. . .,j ‘ public hatred; contempt or ridicule,or if it causes him to be shunned or avoided. 7 In this context, a person’s reputation is not confined to his general character and standing but extends to his trade business or profession. (20} In deciding whether or not a statement is defamatory, the Court must first consider what meanihg the words would convey to the ordinary man.8 Having determined the 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. (21) Before it i·s possible to determine whether or not particular words bear a defamatory meaning, it is necessary to determine their meaning. In that regard; it is understood that words may have not only a literal meaning but also an inferential mea.n.ing Which goes:beyond the literalmeaning but is inherent inthem, and ma_y depen~d upQn the context in which they were published. The meaning of words for th .purpose .of the ·law of defamation is not a question of legal construction, since laymen will read into words an implication more freely than a lawyer. The meaning is that which the words would convey to ordinary persons.9 In that regard, it has been said that, “The ordinary person reads between the lines in light of his general knowledge and experience of worldly affairs. Thus, the interpretation of words may vary infinitely, and the right meaning is therefore, a question of fact. However, words may be unaerstood by one person in a different way from that in which they are understood by anothe.r Ordinary men and women have different temperaments and outlooks; some are unusually suspicious; some are unusually na’ive; and one must try to envisage people between those two extremes and determine what is the most damaging meaning they would put on the words in question.”10 ‘ :see eg, . ou55ouporrv. Meuu-G1awyo -MayerPicturesLtd. (1934) 50TLR 581, CA _•.,, 8 Slim v.Daily Telegraph Ltd.

[1968]1AER 497 at 504, CA per Diplock LJ. 9 Slimv. Daily TelegraphLtd. (supra) a sl bu ry’s Laws of England,Vol. 28 atp.23; see also,Rubber ImprovementLtd. v. Associated Newspapers Ltd.[1964] AC 234 at – ::r5 l i , t (22) ln approaching this question therefore, I bear in mind that the Court must not put a strained or unlikely construction upon the words. If they are capable of bearing a number of good interpretions, it is unreasonable to seize upon the only bad one to give the words a defamatory sense1.1 As such, “When a plaintiff complains of words in their natural and ordinary meaning he must accept that meaning with all the derogatory connotations that it conveys; the ordinary reader takes the imputations as a whole and does not divide them up. Once the meaning has been detemr ined,the Court must decide whether the words complained of are defamatory of the plaintiff.” (23) ·1 also bear in mind that the inferential defamatory meaning of words must be deduced or inferred from the words themselves and the context in which they were pLiblistfo,q· . ff s a ‘ma:tfor of law fodhe: trlaPjudge to decide whether or ri6Fthe words:are reasonablycapabie ofibe·aririga meanriig:defamatory’oft heClaimant.’If the Court finds that they are so·capable,the judge must then go on to determine as a matter of fact whether the words did in fact bear a meaning defamatory of the Claimant,12 (24) In this case, the Defendants have, in their pleading denied that the words were defamatory. However, neither in the eviden e they have called nor in their submissions on this point, have they advance·d anybasis for their assertion. (25) The Claimant on the other hand has argued that: (1) The words are self-evidently defamatory and that the words complained of at para. 4 of his Amended Statement of Claim filed on 9th February 2009 would be understood by the reasonable reader to mean that the Claimant was a traitor who betrayed his country’s interests for private and ·;_ ……,. corrupt gain. His counsel argues that “to liken a man to Judas Iscariot is ,.1u1 Capital and Counties Bank v. Henry and.Son, (1880) 5CPD 514 AT 541 . _ i Rubber Improvement Ltd. v. Daily Telegraph Ltd [l 964] AC234 .- -: >. client suspending his contract and other persons questioning his profe_ssionalintegrity. (26) In ·my view, the evidence in support of the Claimant’s contention is simply overwhelming. I find as a matter of law that the words used in the Article are reasonably capable of bearing a meaning defamatory of the Claimant. I also find as a fact that in the particular context of the Article in which they appear, the words complained of did in fact bear a meaning defamatory of the Claimant. (27) I find as a fact that the words used do carry with them an imputationwhich tends to injure the Claiman’st reputationin business, employment, trade and profession. They clearly impute to him the undesirable qu lities of “scampishnes” and ”dishonesty”which ate obviously detrimental to the successful carrying on of his office, professio- nor tracfe· •.- It is defamatory tciimpute·fo a person in any office ariy “ corrup,tdishonest or fraudulent conduct or other misconduct, as the Defendants have done in this case in respect of the Claimant.13 I therefore find that the Claimant has established on the balance of probabilities that the words are defamatory of him. Reference to the Claimant (28) I now turn to the question of whether the words used in the Article concern or refer to the Claimant. The statement complained o·f must be published of and concerning the Claimant. Words are not actionable as libel unless they are published of and concerning the Claimant.14 The Claimant can therefore only rely on the defamatory matter contained, whether expressly or by implication: in the statement in respect of which the action is brought and not on defamatory matter contained in statements made about the Claimant by other persons on· other occasions.1s i. 13 According to Gatley: ‘ 2.26.to 2:28ReputationInbusiness, trade or profession.

14 KnQpfferv. London-NewspapeErxpressLtd[1944] AC116

15 Astl\ire V, Campling

[1965]3AER 6″66 ·-..: ….,.::. / ,,.,,,f,t f ·• 1 J ‘ (29) · ‘ ‘ Where the Claimant is referred to by name, or is otherwise clearly identified, the words are actionable even if they were intended to refer to some other person1.6 As such, in the context of the instant case where the Claimant is referred to as “the Economic Advisor and roving Ambassador, Dr. Patrick Antoine, who resides in · Trinidad;”and “the diplomatic agent in T&T” it is beyond dispute that the words used concern and refer to the Claimant. I therefore find as a fact that these statements refer to the Claimant. (30) However, it is not• at all essential th.at the Claimant should be named in the statement Where the words do not expressly refer to the Claimant, theymay still be held to refer to him if ordinary sensible readers with knowledge of special facts could and did understand them to refer to him.17 Those facts are material facts, must be pleaded in the statement of claim and must be proved in evidence in order to connect the·plaintfif withthe wordscomplaih·e•dof.18 ” . (31) In the instant case, other thari in the references that I have referred to in the . preceding par graph, the Defendants have denied that there were any oth.er references to the Claimant. Whereidentification is in issue, it is for the Court as, a matter of law to rule whether or not the words are reasonably capable of being understood to refer to the Claimant.19 In determining this quesiton, the Court must consider whether or not ordinary sensible men, having the knowledge, could understand the words to refer to the Claiman·t. 1f no reasonable person could have reasonably so understood the words, there is no question of fact to be left to the trial judge as the arbiter of the facts before him. However, if the words are such as could reasonably lead persons acquainted with the Claimant to believe that he was the person referred to, then the Court must go on to decide, as a question of fact, whetheror nof the words did in fact refer to the Claimant,20 i.: ;.:…,;-,.. . “Newoload v. Lo ndon Exp re3 New5 P<!per [1940) lKE! 377 17 Morgan v. Oddhma ·PressLtd

[1971]21\ER 1156. 18Morgan v. Oddham PressLtd (supra) ,, -1 Knufpfferv.London Express Newspaper Ltd.

[1944]AC 116 at121 ; 20 Morganv. Odhams Press Ltd.[1971]2AER1156 at 1168 . —h. ; ;,t’ ;,1 (32) · The Claimant is entitled to call witnesses at the trial to testify that they understood the wo’rds to refer to him.21 He may also adduce evidence as to the effect of the words complained of on others2.2 It is for the judge, as tribunal of fact, to assess the credibility and reliability of the witnesses called, what weight, if any, to be placed on all or any particular aspect of the evidence; and whether reasonaleb people would reasonably understand that the Claimantwas referred to. (33) In that regard, it should be noted that neither defence disputed that the words compal ined of would be understood by the ordinary reader to refer to the Claimant. The Claimant contends that it is not open to the Defendants, on the witness stand, for the firsttime, to make such a denial. I agree withthat contention, but this Court is neverthelessobliged to go further and consider whetheror not the words are reasonably capable of being understood to refer to the Claimant “ (34) Having read closely thewords of’the Article·,andhaving reviewed the evidenceof both sides ·regardingthis matter, I find as a matter of law that the words used in the Article, are in the particular context and manner in which they were used by the Defendantsreasonably capable of being understood to refer to the Claimant. I am of the view that ordinary sensible men, having the knowledge, would be left in no doubt that the words referred to the Claimant and further, that no reasonable personwouldhave reasonably understood the wor s to mean otherwise than as referrni g to the Claimant. (35) Having thus conclude,dI also find as a fact that the following words did in fact refer to the Claimant and carry with them the irresistible imputation that the Claimant has ascribed to them, namely that: (a) the land transactio, nin which the Claimant participated, was a corrupt deal; 21 Morganv. Odhams(supra) 22 Jozwiakv. Sadek (1954]1AER 3(whereevidenceof statements made at publicmeetings andof anonymous telephoneecsi ely defined. ,d;_, /2” “‘ ‘ (b) the Claimant is one of the “seasoned dealers and wheelers of long standing in Grenada, who had graduated with dishonours in their scams with worldrenowned crooks and smart men and gangsters”; (c) th-e Claimant · received and/or facilitated the payment of bribes to Government officials in order to secure the Crown’s consent to the transaction; (d) the Claimant is a Judas, a traitor and a treasonous person; (e) the Claimant was complicit in the creation of a “diabolical and fraudulent document”· designed “to deprive the very loyal subjects of Her Majesty from receiving the true valueof their lifelong heritage”; (n the Claimant was involved in a “deliberate and shameful fraud” on the people of Grenada; and (g) the “above scampish deal, was designed and executed between the diplomafit 9gent in T&T [the Coniplainaritl and the ex PM without any recourse to Cabinet for aconclusion”.·· (36) I therefore, hold that the st?tements complained of in the Article were, at least in respect of the aspects identified by the Claimant, published of and concerning the Claimant. Publicati·on (37) Finally, I turn to the issue of publication. No action for libel will lie unless there has been a publication. The Claimant must allege and prove that the Defendant published, or caused to be published, of and concerning the Claimant, the words complained of to a third person, namely to some person other than the Claimant. Has the o·efefrc·e of Justificafidn been established? Submissions for the Defendants i. (38) In this,,_ se, the Defendants have raised two defences, namely: (1) justification, in that thewords complained of were true in substance and in fact: and (2) that the words complained of were fair comment on a matter of public interest. The . ·-,.,_;·;/ :;. ,, Defendants contend that the Article and the words written therein are justified and fair comments on a matter of public interest, a matter which the Second Defendant was of the belief that the citizenry of the Grenada ought to have addressed their minds to. “On Justification (39) The Second Defendant in particular, also contends that: (1) The Artiele consisted of statementsof fact. According to him, among those facts are: “The facts surrounding the transfer of twenty four (24) acres 4 . 6/10 poles of Crown Lands situated at Grand Anse Beach, St. George’s, valued at $15,000,00.000 to a company, Time Bourke Holding Grenada Limited. He stated as a fact that there v,,,as no monetary consideration· for the transfer of the lands’ to Ti·me . ” ‘Bourke Holding Grenad·a Limited’asevidenced iri Indenture dated the 7ttt day of July 2008, but instead theGovernment of Grenada would have the right to use and reproduce approved photographs of Lewis Hamilton for and in connection with the promotion of the State of Grenada for a period of four (4) years.” (2) According to him, as a fact- .. “The transfer of the lands’ gave rise.to grave suspicion, that is, based on the facts set out the deal itself appeared to be scampish and fraudulent, such deal involving the Economic Advisor to the Government of Grenada, Dr. Patrick Antoine, the Claimantherein, an employee of the State.” . . . (3) He further contended that the Article stated as a matter of fact the following: · · .::. .. . J J · ;; ._……..,.. ‘ – (a) that lands situated at Morne Rouge extending to Grand Anse Beach, St. George valued at USO $15,000,00.000 was conveyed to the Company for no monetary consideration; (b) that according to the conveyance, the value of the of said lands · wouldbe realized by the grant of the Purchaser to the Vendor of the right to use and produce approved· photographsand .recordings of Lewis Hamilton and Lewis Hamilton’s name, autograph and a19proved biography for and in connection with the promotion of the State of Grenadafor a period of four (4) years; (c) that to the Second Defendant and mariy other. Grenadians, such a transfer appeared quite peculiar, especially as the subject matter was not merely Crown Lands, but valuable and prime Crown Lands·,whichthe citizenry of Grenada cherish as · prizedHeritage lands; (d) that the Deed of Indenture was in fact executed and signedone · day prior to Grenada’s 2008 General Elections, a fact that would naturally cause one to become suspicious; (e) that at all material times the Claimant was an Economist engaged as an Advisor and Negotiator for the Government of Grenada in matters relating to International Trade and on contract dated the 27th of Ju·rie2008; (D – that, according to him “the Claimant was employed as Strategic Policy Advisor on Finance Trade and Economic Development in the Ministry of Foreign Affairs. As such it was inferred from the above stated fact that serving in his capacity at the time the said property was transferred, the Claimant acted as Agent on behalf of the Government; the Defendant also stated that he _ received other related information from “fairly reliable source”s. ” (40) The Complainant, on the other hand, has argued that in respect of the words complained, namely the defamatory words, and many of the alleged facts asserted by the Defendants upon which their comments were based, are in fact untrue. (41) The defence of justificationis that the words complained of were true in substance and in fact. It has been held, therefore, that justification is a defence because the law will not permit a man to recover damages in respect of an injury to a character which he does not, or ought not, to possess2.3 However, since the law presumes that every man is of good repute until the contrary is proved, it is for the Defendant to plead and prove affirmatively that the defamatory words are true or substantially true. (42) If a Defendant pleads justification,where the words complained of consist of .statements of fad and’Commen·t, he must prove1ha·t thedefamatory ·statemenst’of factare true orsubstantially true, and thatthe defamatory inferences borne by the comment are true2.4 In that regard, it should be noted that the concept of the “rolled-up plea” is a plea of fair comment only; the averment that the facts are true merely lays the necessary basis for the defence of fair comment. However, this is not a case in which the Defendants have sought to rely on a rolled-up plea, which is quite different from the plea of justification, which the Defendants haverelied on and in respect of which the Defendants musf prove_thetruthof both the facts and any comments upon them.25 (43) Further, the defenee of justification admits the substance of the publicatino of the wholeor so mu.ch of the defamatory statement as is justified, and asserts that it is true in substance and. in fact. A Defendant should only plead justification where there is clear and sufficient evidence that the allegation is true. Failure to establish 23McPherson v.Daniels (1829) •2 Broadway Approvals Ltd. v.Odham Press. Ltd. (1965] 2AER 523@ 535. • _ 25 SEil;. Sutherland v. Slopes (1925] AC 47 @63, 63, HL per Viscount Finlay. , >{ ,.,; … ,- ,,, the defence at the trial may_ properly be taken into account in aggravation of darhages.26 (44) The Defendants may justify the words complained of in their natural and ordinary meaning or any inrluendo meaning that has been pleaded. Where, as is the case here, the Complainant relies on the natural and ordinary meaning, he will, except in the most obvious cases, be required to plead the meaning that the words bear. In this case, the Complainant has done so, in fairly explicit terms, at paragraphs 4 to 10 of his Statement of Claim. (45) Have the Defendants therefore justifie the words complained of in this case? The answer in my view is that they have not. First of all, the matters which were cited as facts by the Defendants (referred to at paragraph 39 above), the veracity of which th-e Defehgants have established and- relied upoh-, are not the· matters ·complainedof by the Complainant. The defence of justification is that the words complained of were true in substance and in fact ok. The Defendant’s have therefore failed to even address the question of the truthfulness or not of the words complain·edof. They have led no evidence on the point and have also in my view, failed to prove that the facts and the inferences from both fact and comment are true and to justify the comments2.7 (46) As the law presumes that the defamatory words are false, it is for the Defendants to satisfy this Court that the statement which they seek to justify is true in substance and in fact. If, as is the case here, the statement complained of imputes the commission by the Claimant of a criminal offence, (namely corruption and fraud), to succeed in their plea of justification the Defendants must prove the commission of the offence charged, albeit the standard of proof is proof on a balance of probabilities.28 This, the Defendants have neither sought to nor i. :;;,_- .- 26 A5:iociated LeisureLtd. (Phonographic EquipmentCo. Ltd) v. Associated Newspapers Ltd. (1970] 2QB 450 @456, CA 27 oadway Approvals Ltd. v. Odhams Press Ltd. (1965) 523 @535, CA . 28 Hornal v.Neuberger Products Ltd.[1957) 1QB 247 @258, CA, per Lord DenningMR. ,.,.;,r,..- succeeded in doing. I find therefore that they have failed to discharge thsi burden that that law has placed on them. (47) Further, even in respect of those matters complained of by the Claimant, which do not impute the commission of a criminal offence (for example the assertion that­ (1) the Complainant was acting for and on behalf of the Government in the transaction; (2) that he received in excess of one million dollars for his services; and (3) the transaciotn was entered into without the approval of Cabinet the Defendants must satisfy the Court that the statement justified is substantially true. Every material particular must be proved. 29 In this case not only have the Defendants failed to prove that these statements were true, but both the Claimant and his witness, Mr. G_regory Bowen, testified that these statements were all false. Neither witness was shaken in cross- examination on this or any of the matters to which they·testifle,dand I find· them· both to be extremely credible and reliable witnesses of truth·. However, what is even more compelling is the fact that when asked under cross examination specifically about these matters, both the Defendant and his Witness, Mr. George Worme ,admtitedto never even bothering to confirm the accuracy of the statementsbeforethey were included in the Article. (48) I therefore find that the Defendants have failed to establish the defence of justification and that although they have pleaded it, they have failed to prove affirmatively, or at all, that the defamatory words are true or substantially true. Has the Defence of Fair Gomment been established? (49) I now turn to th_e issue of fair comment upon which the Defendants have placed heavy reliance. The Second Defendant submitted and the First Defendant c,.oncurred that- …..- .- . ._ . 2; .Weaver v. Lloyd (1824) 2B&C 678 ,la,’ ,….-I·””-, ,., ,· 1 fo \ . (1) . “On Fair Comment: In writing.the Articles he was “commenting not only in his capacity as Political Commentato’r but as also as patriotic Grenadnia, on topical issues of public interest and concern.” Further, that the Article was, as his learned counsel submitted “a fair comment on a matter concerning one of Grenada’s finest assets, that is, the Grand Anse Beach, and included statements of undeniable fact as well as opinion”. He also argued that in so doing the Second Defendant “did not purport to disseminate information, but merely weighedin on a topical issue, expressing his viewsbased on fact and information received from “fairly rel_iable sources”, for the purpose of public discussion as with any other commentary column of any local newspaper of weekly circulation.” • (2) Finally he avers that the Article, having been placed in the commentary section of the newspaper- Was as could be gleaned on its face, in fact a comment and opinion on a matter of public concern. He by no means purported to write an artide so as to disseminate information to the public; the article was recognisable by the ordin ry reasonable Grenadian as comment or political commentary on a topical issue, touching and conce’rning the citizens of Grenada. The Law on Fair Comment (50) The defence of fair comment is in the nature of a general right, and enables any member of the public to comment on matters of public interest.30 Like the defence of justification,it must be based on facts proved to be true, but, it differs from justification in that it is available only in relation to statements which are expressions of opinion and not defamatro·y statements of fact. Where the Def; A,£19_rit seeks. to justify his comme·nt, he must prove that the facts and inferences from both fact and comment are true. 30 Cam bell v. Spottiswoode(1863)3B&S 769. \. (51) The Claimant contends that the Defendants have also failed to establish the defence affair comment. • (52) The Defendants ml!lstsatisfy the Court that; (i) the statements complained of must be comment and not fact; (ii) the comments must have a sufficient factual basis, that is, they must be based on facts which are, themselves, true; (iii) the comments must be ones which a fair-mindedman could honestly hold (this is an objective test and is unrelated to reasonalbeness);and (iv) the subject matter of the comment mustbe <?ne of legitimate public interest. (53) The elements .of the defence are discussed at length in Chap. 12 of Gatley on Libel and Slander, 12th Ed. However, the elements are more succinctly set out at ara. 9-02 of Defan:ation Law, Procedure and Practice, 3rd Ed. by David Price. · 1n order to establish:lhe defence of fair comment the·Defen·dan·ts’rmists tisfy the Court that each of:the elements is present. (54) Whether the matter is one of legitimate public interest is a question of law for the” judge. It is a question of fact for the trial judge, as the tribunal of fact, to decide whether the fact or facts on which the comment is based have been sufficiently proved and whether the comment on such fact or ! tsis faiL (55) The Claimant accepts_ that the sale or lease of prime_beachfrontlands owned by the Crown is a matter of public interest. However, they contend that none of the other elements of the defence can be or have been proved by the Defendants. They further submit that in any event, the public does not have an interest in comments that are not based on facts which are themselves substantially true. The comments, they contend, cannot exist in ‘thinair’. The Defendants had a duty ,. to pr0_–v-e-·-that the·tactualbuilding blocks6n which the comments were based were I , ‘.1:;:/· true or substantially so. For those reasons the Claimant contends that the defence of fair comment fails31. (56) The question of whether the words complained of are fact or comment is important. The defence of fair comment does not protect statements of fact which are defamatory. Defamatory statements of fact must be defended by a plea of justification. The test to be applied in determining whether words are statemetsn of fact or statements of opinion was·set out by David Price in Defamation Law, Procedure and Practice where the learned author state that- “The test is how the words would be understood by the ordinary reader. 1· One way of considering the matter, which is not conclusive, is whether or not the statement is capable of proof3’2, (57) If the words complained of are facts, then the defence of fair comment fails. In this case there- we’re”s·everal assertions ·of fact which were provable ‘butwere riever ” . establishedby thEf Defendants. Further, in order for the defence to succeed the comment must be based on facts which are themselves true3.3 The Defendants have set out several facts wt:lich wer:e untrue. The defence of fair comment cannot protect defamatory statements of fact and any comment contained in the article must be based on true facts. (58) Several false statements were made in tl.ie rti e, namely: (i) that the Claimant was the Government”s agent in this ‘scampish’ deal; (ii) that he received USD$1.5M for his role in the transaction which the author described as treasonous; and (iii) that the Claimant, along with the former Prime Minister, had ‘designedand exe;cuted’ the corrupt scheme without recourse to Cabinet. If those statements of purported fact are false there can be no defence of fair comment. At trial it was established by the Claimant that those statements had no bas·isin truth and the Defendants could produce no evidence to support those statements ,. o,t -!_act. Indeed, the Defendants continually stated that they relied on the 31 See the case of Broadway ApprovalsLimited v. Oldham Press Limited[1964) 2 Q.B. 683. J2 At para. 9-03 – Fair Comment . . see para. 9-04 of Defamation Law, Procedure and Practice. r.;i// ” .. .,- T conveyance as the· factual basis on which the author’s comments rested. However, the conveyance makes no reference to any of those alleged facts as set out in the article. (59) The liberality of the defence of fair comment is justified on the basis that the reader can recognise an ‘Opinionas the st1bjective view of the publsiher or editor and make up his or her mind whether to accept it or not. The inclusion of words suggesting a comment will notnecessarily suffice to turn a statement of fact into a comment.34 A matter which does not indicate, with reasonable clarity, that it purports to be a comment and not a statement of fact, cannot be protected by a plea of fair comment. 35 Statements of fact, however, are far more damaging because they are•likely to be accepted at face value. Readers are disposed to accept statement;sof fact or what purports to be fact published in a newspaper as true·…• Coili’m nts>mus(·therefore, not’ be·sorni ed up with· fads th t’ the. reader cannot distfrigliish ‘betweenwhat is comment and whatis not.36 ” (60) Further, even based on the facts which were true, namely that the Government had arranged to sell the land to Time Bourke Grenada Holdings Limited in exchange for intellectual property belonging to Lewis Hamilton, the Defendants were not entitled to make the comments made by the author in the Article. The factual allegations of corruption, frau’d and trea on must be justified. The defence can only succeed if the comments can be considered fair based on the facts which the Defendants aver to be true. In this case, the Claimant contends, and this Court agrees, that no reasonable person would regard the comments in the article as fair based on .the proven facts. The author himself, on the witness stand, agreed that the intellectual property of Lewis Hamilton had a value and it could not be said that the people of Grenada would receive nothing in exchange for the land. i. 34 London Artists Ltd. v. Littler, [1969) 2QB 375@ 392 “,’ 35 Hunt v. Star Newspaper [1908) 2KB 3Q9 @319, 320 . ,.• ; , 36 Davis v. Shepstone (1886) 11App Ca$ 187@ 190 , …/.. ,.;-.A’; ” /’-‘ ,r ,._ r i i (61) In the circumstances, the Defendants have failed to satisfy this Court that the requirement that the words are comment and not facts, or that the facts on which the comments are based are substantially true. Additionally, the Defendants have not established t at the comments based on the facts which have been established are ‘fair’. (62) In his submissions on this point, learned counsel for the Defendants citing the dicta of Fletcher Moulton L.J. in Hunt v Star

[1908]2 K.B at p 319, submitted that­ “lf the fac.t are stated separately and comment appears as an inference drawn from those facts, any injustice that it might do will be to some extent negatived :by the reader seeing the grounds upon which the unfavorable inference is based. But if fa’Ct and comment be intermingled so that it is not rea·sonably clear what portion purports to be inference, he will naturally $Uppose that the injurious statements are based on adequate grounds known to the writer, though not necessarily set out by him. In the one ca_sethe in ufficiency of facts to support the.inference. will lead fair minded men fo ‘rejecthe inference… _;,_ . . . (63) He argues, therefore, that in the Article, there was no intermeddling of fact and .comment, but that if there was, given the fact that the Article was, in his words- “a mere commentary published in the commentary section of the Newspaper, and certain information was claimed to be in the Second Defendant’s understanding, from fairly reliable sources, the fair-minded man would reject any unfavourable inferences made where he is of the belief that there exists an insufficiency of ‘facts to support the inference made.” (64) I do not accept those arguments as applicable to the instant case, and I am of the view that even the fair-minded reader who is prejudiced, obstinate, guilty of gross exaggeration and given every latitude in his right to comment would not have commented as the Defendants did on the proved facts. The defence of fair com nt therefore, fails. Indeed, .quiteapart from the unestablished veracity of the underlying material facts upon Which the comments were based, in this Court’s view, the use of the following language is far from fair: r ., 7 i (a) (b) “seasoned dealers and wheelers of long standing in Grenada, who had graduated with dishonours in their scams with world renowned crooks and smart men:andgangsters”; “diabolical !and fraudulent document” designed “to deprive the very loyal subjects of Her Majesty from receiving the true value of their lifelong heritage”;· (c) the “above scampish deal, was designed and executed between the diplomati,cagent in T&T [the Complainant] and the ex-PM without any recourse to Cabinet for a conclusion”; (65) Further, on the ba is of the evidence before this Court, I am of .the view that the Defendants were reckless as to the truth of a defamatory statement, and seemed not to care whether the statements published about the Claimant were true or false. The eviden.c.e under cross-·examinatio’onfbothMr;Worrne, a.nd’theSecond Defendant .himself; portray a dispositio·n·of ·disinterest on· their part to avali themselves of mec;1ns of information readily to hand which would have shown the imputation to be groundless. (66) While the failure to make an inquiry before publication may not, by itself, constitute recklessness, wheh it is combined with the flippant way in which they spoke to the issues, their callous demeanour on the witness stand, and the fact that the statements mad-e in the Article are unsupported even by the singular document which was relied on by the Defendant,snamely the conveyance, there arises in this Court’s assessment of an irresistible inference of recklessness on their part in the publication of tJ,is Article. Even as at the date of the trial neitherthe Defendant nor indeed Mr. Werme has bothered to enquire as to whether the words complained of by the ciaimant were true or not. In my view, it is an incredible indifference Whic; h· borderson being malicious. That said, malice should only be fouhp _lNherethe Defendant’s dominanfmotive is malicious. Therefore, although I have found that tHe Defendant acted recklessly, I do not, however, find that they were actuated by malice in publishing the comments complained of. l \·x: :f,;;: f’- ,1. .r “ ) I i ·· LIABILITY ,·• -· (67) Every person who takes part in or procures the publication of a libel, is prima facie liable jointly and severally for all the damage caused by it. Thus, ff the libel appears in the newspaper, as it does here, the author of the libel, and the proprietor, editor, printer, publisher and vendor of the newspaper are prima facie jointly arid s·everallyliable. (68) There is sufficient publication to a third person if there is publication to astranger, or the Claimant’s relatives, employees or employers. This is because, for the purposes of a civil action for libel, publication is the· communication of the defamatory matter to a third person.37 In that regard, publication consists in making known the defamatory statement after it has been reduced to some permanent form. Publication occurs at the place where communicaiot n is · effected3.8 A”s such,if the Defendant is withinthe jurisdiction, he may be sued for publication abroad:if th-e publicatio·ins actionableaccording to Grena·dalaw and it is not justifiable by the law of the place where publication occurred 39, or is actionable by that law.40 (69) A newspaper proprieto’r, printer or editor is answerable civilly for his employee’s or agent’s acts in conducting the paper, even thoughhe has in fact nothingto do with the publication. The Defendant will, therefore, be liable as the publisher of the libel if he requests, procures or, as is the case he·re; he authorizes the publicationto a third person. In this case, the evidence, the facts as found and the inferences that can be drawn from the surrounding circumstance, point irresistibly to the conclusion that the First Defendant authorized the repetition in written form, or at the very least anticipated and wished that his words be repeated in that form or another41. ,, Bee Punmanv waner HIii &co.ua {lll Sl J l QB524@529 36 Bata v. Bata (1948] WN 3 66, CA 39 Phillips v. Eyre(1870)LR 6 QB 1 @29 · 40 Chaplinv. Boys (1971] AC 356,@ 389, (1969] 2AER 1085@1102, HL, per Lord Wilberforce . i_1i See.Weld-Blundell v. Stephens(1920]AC956@ 999per LordWrenbury : : I,’;!/ “‘ .f f I I (70) I therefore find botmDefendants liable for the publication of the defamatory article and the resultant damage to the Claimant. DAMAGES (71) The Damage whi h the Claimant has suffered by the publication of these defamatory statem nts is best gleaned from the evidence of the Claimant himself, which is substanti lly undisputed by the Defendants. The Claimant, Dr. Patrick Antoine, provided a witness statement filed on 3rd May 2010, which was tendered into evidence at the trial. In his evidence the Claimant testified that he is a Grenadian citizen living in Trinidad and Tobago and that he is a trained economist, having obtained hi$ BSc in Economics from the Universitfof the West Indies.The Claimant further testified that he has an MSc in Economics from the University of Florida as well as PhD in Economics with a specialisation in International Trade arid-Econometrics’lrom the same institution· . ” (72) At para. 5 of th, e Claimant’s witness statement he set out in some detail the clientele he services, including regional and international organisations, regional Governments andImultinational corporations. The Claimant gave evidence that he provided consulting services on investments to those clients and gave advice on tax policy, structuring tax regimes, trade policies (helping countries and large conglomerates to take advantage of opening opportunities regionally, hemispherically and globally) and advice in an area known as competitiveness. (73) At para. 7 of his witness statement, the Claimant stated that he became aware on , .the 5th October 2008 of the publicat1on of the article under dispute. The Claimant testified that he was overseas in Latin America when he received telephone calls about the publication of the ·article· . The Claimant further t stified that his immediate family, including his parents and brothers, felt pain because the alleg&tto,.-n.-s were untrue and had received such wide circulation. His family also felt pain because it went against the values of truth and honesty to which they, as a J”” ‘ 1 i family, were committed. The Claimant testified that for the first time his family was confronted with a predicament which they could not fix collectively. (74) The Claimant test),fied that, as stated at para. 14 of his witness statement, he called the Second pefendant. The call was motivated by his disbelief and total lack . . of comprehension ias to how the Second Defendant could write an article about him when the two men had had no contact and yet the article so savagely defamed him. The Claimant testified that he found the cruelty of it difficult to accept since he elieves in the Caribbean view that there is a bond between . . Caribbean citizens. The Claimant state· dthat he felt pain, confusion, hurt and disbelief. (75) The Claimant further testified that it was not true that in the course of their telephone call tne:SecondDefendant offered to pLiblist anyfacts submitted to him by the Claitn·ant as was pleaded·by the· secondDef.enclanl At para. 18 of his witness stateinentlthe Claimant testified about the adverse impact of thearticle on his professional r,elationship with Archer Daniel Midland, one of his corporate clients. The corp0rate compliancedepartment of the company intervened and stopped payments to the Claimant following the publication. Payments were resumed fifteen rrionths later and only after the company had conducted its own independent and 9ruelihg investigation of the allegations contained in the article which took over a year. That investigation included information gathering. The relationship continued thereafter but the Claimant’s integrity stood in question for the duration of the:investigatio.n · . (76) The claimant :testfiied that he also saw the article online at www.spiceislandertalkshop:com approximately a week after the article was brought to his att ntion: The articieis no longer on that website but the fact that it appears on othei websites continliJes to be a matter of deep distress to the Claimant. He testified -that as recently as two days prior to his testimony the article continued to be bn the website www.grenadaconnection.com. Whenever it is , r ,_ • raised it is a matt r of deep embarrassment to the Claimant to whom questions are addressed on this issue about a dozen times a year. The Claimant testified that he starts business relations·iphsby ‘having to clear the deck’, as it were, since in today’s world the first thing people do is ‘google’ someone. He testified that the Prime Minister, Mihister of oreign Affairs and the Attorney General in the. new administration, follpwing publication of the article, stated the facts and issued a statement that there was nothing improper about the transaction between the Government and the Hamilton Group. However, neither the publisher not the author has never offered the Claimant an apology. (77) In his evidence the Claimant stated that the fact that the article continues to be on the internet remains a matter of deep pain to his family, including his son who is now studying economics and politics, and continues to cause damage as well. He testi_fied that the facts tated by the Claimant at para. 22 are not historic and that the damage identified there is contemporaneous and ongoing. At the timeof his witness statement the- Claimant’s son was at secondary school, but he is now at university. And as he tries to develop professional relationships the defamation against his father adversely impacts him. The Claimant made reference to one of his teachers George Brizan, among others such as Professor Frank Alleyne, Andrew Downes and Nobel Laureate, Henry Tyre, air of whom were particularly affected. He stated that Mr. Brizan and Profes·sor Tyre were in tears when they called him about the article. (78) Under cross-examination the Claimant stated that he spoke with Mr. Noel, the Second Defendant only once. The Claimant testified that he called the Second Defendant following the publication but did not call him again after fhe initial call. The Claimant stated that he had to retain Counsel to deal with the investigation · with ADM and had to suffer fifteen (15) months of not being paid: He was also .,_ overlook.ed: _ for a position as Department Head at the Arthur Lok Jack School Graduate School of Business. He stated that the matter continues to have · currencyand he has presented the evidencehe has. Further, while there is ‘ ‘;;.:;_;t;, f’ corroborating docuirnentary eviden, ceby way of letters and emails, these could not be disclosed for reaso s of compliance and confidentiality. (79) The Claimant testifjed further that foll:owing the publication of the article the special purpose vehicle wijich came into being in Grenadato facilitate the investment was disbanded becaus$ the project was frustrated. The·Law (80) In considering thisiissue of damage to the Claimant, the Court must bear in mind that the damages awarded in defamation must be proportionate to the loss suffered by the Claimant. The High Court of Australia in Carson v. John Fairfax and Sons identifi d the three purposes to be served by damages in defamation. The principles underlying those purposes were applied in the case Dr. Philbert Arron V; Abel Jncf Baptiste, ‘akaChecko’42. The three purposes are: ‘ ; (1) consolatioh for the claimant’s personal distress and hurt; (2) reparatib:fnor the harm done to the claimant’s reputation (including where relevant :businessreputation; and (3) vindication of reputation. (81) The guidelines in determining damages have been well-established as follows: (1) the gravity of the allegation; (2) the extentof the publication;, (3) the exte, ntandnature of the Claimant’s reputatio; n (4) . the effect of the publication; and (5) · the condu t and behavior ofthe Defendant. (82) These guidelines were applied in the case of Marina Marshall v. Lenisha . Augustine et al4: 3 whichconcerned an email circulated over the World Wide Web· whid( ._w_,- a. s distribliited by the Defendants defaming the Claimant as a whore. In 41 SuitNo. DOMHCV201/03015) at para; 51 “‘ DOMl\iCV2001/0318 . _;;: ,! •’ determining quant9m the Judge relied at para. 20 of his judgment on the decision ‘ of Mitchell J in thefcase of Murio Ducille_v. Robert Hoffman et a:I.At para. 23 of the decision, the Learned Judge made the following finding: “The exte t and nature of the Claimant’s reputatio. nThe pubilcation of photograpbs on the World Wide Web cannot be retracted or recalled it is not possible to recall or retract any defamation published on the internet. he defamation is available for viewing as long as the World Wide Web’ exists.” (83) At para. 25 the Learned Judge went on to consider the conduct of the Defendants as follows: “The conduct and behaviour of the defendants, The defendants have never off¢red an apology, they have not withdrawn the defamatory allegation’ snor expressed any·remorse for’ the ‘Sald defamation; in the ..: ; . · circumstmaces·; the defendants shoulcrbe tield or deemed to· have persisted 1n the defamation;.’ . (84) The absence of apology in this case, as in the Marina Marsha:11 (supra), shows an absence of contrit’ion, an insistence on the humiilation of the Claimant, almost ; evidencing a degree of malice and high-handedness on the part of the Defendants. (85) The Claimant sought, in his Claim Form filed herein on 7th August 2009 and his Amended Statement of Claim on 9th February 2010 damage,sincluding aggravated and/or exemplary dama9es. Sections 2 and 3 of Chap. 9 of Gatley on Libel and Slarider, 10thEd. proy,ides as follows: ” 9.13. Aggravated da:mages. The conduct of the defendan,this conduct of the case, and his state of mind are all matters which the claimant may rely on asraggravatingthe damages. i _ . – – ·.• 9.15. Natiiire of exem:plary damage.sExemplary damages are intend.ed to punish the defendamt for the willful commission of a tort or to teach him .> !..JI,:.-• ( + ‘· ‘• that tort does not pay. They are not, even in the attenuated sense, concerned with compensaiotnof the claimant. 9.16; The fdeferidant’s stat of mind in relation to the statement. The defendan!tmayof course know that he is committing the tort of defamation but thatis /not necessary. Recklessness will do and recklessness here has a meaning analogous to that of the mental element of deceit, that is to say, the statement mu:st be made withoutbelief in its truth. ‘The publisher mt;1s·t hav suspected.that the words were untrue and have deliberately refrained from taking obvious steps which, if taken, would have turned suspicion lnto certainty. However, mere negligence will not do … Conduct which shows a high degree of negligence is, of course, capable of being evidence bf recklessness. At the moment it is established that there is vicariousliability for exemplary damages…” (86) Dr. Antoine is a Well-quafliied and accomplished Caribbean man. He serves the private sector thrtjughout the region and the public sector in Grenada at a high level. His tradinigassets are his professional skills and his reputation. This . l , . . . . , . • ,unwarranted.a ssiiµlt . on his persona·.lintegri.ty and p ofessional reputation continues, as it isipermanentlayccessible on the World Wide Web. It is not likely to be forgotten artd it re-emerges ftom Ume to time. He has been put through a i painful and intens ordea,l which has not fully abated, and quite likely, never will. (87) At paras. 31 to 136 of the decision in Marina Marshall (supra) the Court considered the aggravating factors in that case. The Court awarded general damages in the amount of $225,00,0 aggravq.ted..damages in the amount of $180,000 and exemplary damages in the amount of $120,000, that is, total damages in the sµm of $525,000.00. The Court was persuaded to award such damages based on the intentional and calculated conduct of the defendantsin persisting in the defamation and the permanent accessibility of the defamation. In that case the Cou’rt considered it highly probably in the event that the defamation would re-emergi eHowever, in this case the Claimant’s evidence is that the def mation again t him re-emerges several times a year. (88) In the particular circumstances of this case, I therefore award damages to the Claimant in the amount of $575,000.00,itemized as follows: (a) General O:amages – $275,000.00 (b) Aggravated Damages – $180,000.00 (c) Exemplary, Damages-$12O,OOO.OO DISPOSAL (89) in the circumstanc s: (1) 1.award ju gment for the Claimantfor libel as a result of the publication of the Article!. · (2) The Defeddants are Ofdered to pay the Claimants damages in the amount of $575,0tDO.OO. (3) The Defemdants are ordered to pay the Claimant’s costs, which costs are to be taxed in·defaultof agreement.

Andre A. Mon Desir

High Court Judge (Ag.)