Privy Council assesses $60,000 in costs against Dominica opposition leader

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By Caribbean News Now contributor

LONDON, England — Some 18 months after delivering its judgment in a defamation case involving Dominica’s opposition leader Lennox Linton as respondent, the Judicial Committee of the Privy Council (JCPC) on Thursday assessed costs against Linton at £45,992.19 (US$60,000).

The appeal to the JCPC was heard on April 22, 2015, with judgment given on October 12, 2015, and arose out of a defamation action in which the claimant, Kieron Pinard-Byrne, alleged that he was defamed by Linton, in a radio broadcast on February 26, 2002. and in an article posted on a website in May 2002.

Pinard-Byrne succeeded against Linton and two other defendants in the Eastern Caribbean Supreme Court. The defendants all appealed to the court of appeal. The appeals succeeded on one point, namely, that the speaking, writing and publishing of the words complained of attracted qualified privilege.

Pinard-Byrne appealed to the JCPC against Linton only.

According to the background facts, on May 30, 1995, Pinard-Byrne was appointed the owners’ representative for the so-called Layou River Project, in respect of which the government of Dominica signed an agreement in 1993 with Grace Tung, who was Dominica’s honorary consul general to Taiwan and consul general to Hong Kong, to develop and build a hotel on the bank of the Layou river, an area of great natural beauty.

Tung undertook to procure investors from Pacific Rim countries to purchase shares in the undertaking. In return for their investment these persons would be accorded citizenship and passports of Dominica. The project also included plans to build an international airport.

At about the same time Pinard-Byrne became the liquidator of Fort Young Hotel, whose operating assets were sold to Grace Tung. As a result of contract problems, construction fraud and natural disaster the project was never completed and the shareholders lost the funds they had invested.

On February 26, 2002, Pinard-Byrne was a guest on a local radio programme on the topic “The Layou River Economic Citizenship Programme”. In the course of the programme, which was broadcast live, Linton called the programme and made a number of statements that Pinard-Byrne said were defamatory of him. The words complained of were also published in an article on a website in May 2002, which remained live until September 2003.

The judge at first instance accepted the submissions made on behalf of Pinard-Byrne that, giving the words their ordinary and natural meaning, they were defamatory, and rejected the submissions made on behalf of the defendants.

The judge said that the only meaning he could reasonably ascribe to the website article was that Pinard-Byrne was involved in professionally discreditable behaviour to the detriment of the shareholders of Fort Young Hotel Ltd and that he wished to hide this from the public. It was telling, the judge added, that no shareholder of Fort Young Hotel Ltd had come forward to say that he or she was at all disadvantaged by the way in which KPB performed his duties as liquidator.

The judge ordered that Linton and the second defendant each pay Pinard-Byrne damages in the sum of $50,000 and that the third defendant pay damages in the sum of $10,000. He awarded costs of $14,000 each against Linton and the second defendant and $3,333.33 against the third defendant.

Linton appealed to the court of appeal but in a judgment handed down on March 25, 2013, the court held that there was ample evidence upon which the judge could properly conclude that the words were defamatory and that there was no basis upon which the court could find that they were justified.

The court of appeal also upheld the judge’s rejection of the defence of fair comment advanced on behalf of Linton. The defence was rejected principally on the basis that, although the words complained of related to a matter of public interest, they were not comment but statements of fact.

However, the court of appeal allowed Linton’s appeal against the decision of the judge rejecting his defence of a type of qualified privilege known as Reynolds privilege.

Reynolds privilege is a form of qualified privilege that may be more accurately described as a public interest defence, which is designed to strike an appropriate balance between the right to freedom of expression and the right of an individual to protect his reputation.

The judge had accepted that the case revolved around matters of considerable public interest and that the issues surrounding the economic citizenship programme and the Layou River Hotel project were matters of public importance but concluded that the defamatory statements injured Pinard-Byrne in the performance of his profession and accused him of criminal conduct.

However, the court of appeal took a different view on the issue of privilege and unanimously reversed his decision.

In Pinard-Byrne’s subsequent appeal to the JCPC, it found that it is not sufficient for the court to focus on the underlying circumstances. Thus is not sufficient to say, as the court of appeal did, that the underlying project was a matter of public interest or a matter of public importance.

The JCPC recognised that evidence that Pinard-Byrne was guilty of wrongdoing would be a matter of public importance. However, before making allegations to that effect it was Linton’s duty of to carry out a reasonable investigation to ascertain whether they were true. The problem is that Linton did not carry out an investigation to that end, and no evidence was led to establish the truth of the defamatory words complained of.

The JCPC said that the judge was entitled to reach the conclusion that Linton continued to insist that his statements “were based on facts, revealed by his very ‘thorough’ investigation, although at the trial no evidence was led to establish the truth of those statements”. He was also entitled to conclude that, as he put it, “[Linton’s] demeanour in the witness box was more consistent with personal animosity towards the claimant rather than an unbiased search for truth. The overall tone of the offending publications also reeked of rancour rather than even handed reporting.”

The JCPC therefore concluded that the court of appeal was wrong to allow Linton’s appeal and that Pinard-Byrne must be entitled to his costs.

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