Myrna Liburd v Lorna Hunkins

• Jurisdiction: Saint Kitts and Nevis
• Judge: Blenman JA
• Judgment Date: 19 July 2019
• Neutral Citation: KN 2019 CA 3
• Date: 19 July 2019
• Docket Number: SKBHCVAP2014/0023
• Court: Court of Appeal (Saint Kitts and Nevis)

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal

SKBHCVAP2014/0023

Between

Myrna Liburd

Appellant

and

Lorna Hunkins

Respondent

Appearances:

Mrs. Emily Prentice-Blackett for the Appellant

Mr. Brian Barnes for the Respondent

Civil appeal — Slander — Whether respondent's claim for slander in relation to her profession actionable even though special damages were not pleaded nor proven — Whether slander in relation to one's profession has been overtaken by section 10 of the Libel and Slander Act of Saint Christopher and Nevis — Fair comment — Justification — Whether appellant could rely on defences of justification and fair comment — Damages — Whether learned judge ought to have granted respondent aggravated damages

The respondent, Ms. Lorna Hunkins, was an employee of the Bank of Nevis (the “bank”) and a member of skn@yahoogroups.com, a blog site whose members debated current events, many of them political in nature. Ms. Hunkins joined in the debate with others on the issue of whether citizens holding dual citizenship should be allowed to run for political office in the Federation. Ms. Hunkins spoke of the appellant's, Ms. Liburd's, daughter and used her as an example in the dual citizenship debate. Ms. Liburd complained to the manager of the bank that Ms. Hunkins had used her daughter's confidential information which was kept at the Bank. The bank investigated Ms. Liburd's complaint and concluded that Ms. Hunkins did not acquire knowledge of the statements made by her during her capacity as an officer of the bank, and that information relating to Ms. Liburd's daughter's citizenship was available in the public domain. Subsequently, Ms. Liburd appeared on a programme which aired on the Choice FM Limited radio station and alleged that Ms. Hunkins, as an officer of the bank, breached her daughter's confidentiality by utilising information that she, Ms. Hunkins, obtained from the bank's records.

Shortly after these words were published, Ms. Hunkins complained that the statements made Ms. Liburd and published by Choice FM Limited were false and constituted a malicious attack on her reputation, which she stated was critical to her as a career banker. In response to her complaint, Ms. Liburd appeared on Choice FM Limited's radio station and again alleged that Ms. Hunkins, as an officer of the bank, breached her daughter's confidentiality. As a consequence, Ms. Hunkins sued Ms. Liburd and Choice FM Limited for slander. Choice FM Limited did not defend the claim and is not a party to this appeal.

The learned acting Justice Ramdhani allowed Ms. Hunkins' claim holding that the words used by Ms. Liburd were defamatory of Ms. Hunkins in relation to her profession. He found that Ms. Hunkins did not breach the bank's confidentiality with regards to Ms. Liburd's daughter's information held by the bank, as that information was available in the public domain and Ms. Hunkins had personal knowledge of it. The learned judge also held that section 10 of the Libel and Slander Act did not replace the common law rules relating to the law of slander, and therefore Ms. Liburd's statements fell within the common law exception that allows a claim for slander in relation to one's profession to be brought without proof of special damages. Further, he held that Ms. Liburd could not rely on the defences of fair comment and justification. In the circumstances, the learned judge awarded Ms. Hunkins damages including aggravated damages, and restrained the further publication of the offending words.

Ms. Liburd is dissatisfied with the learned judge's decision and has appealed to this Court on a number of grounds. Four issues arise for this Court's determination, namely: (i) whether the learned judge erred in holding that the claim for slander in one's profession was actionable, even though special damages were not pleaded nor proven; (ii) whether the learned judge erred in holding that section 10 of the Libel and Slander Act did not replace the common law in its entirety; (iii) whether the learned judge erred in concluding that Ms. Liburd could not rely on the defences of justification and fair comment; and (iv) whether in the circumstances the learned judge erred in granting Ms. Hunkins aggravated damages.

Held: dismissing Ms. Liburd's appeal and affirming the learned judge's decision; and awarding costs in the appeal of two thirds of the prescribed costs in the court below to Ms. Hunkins, that:

• 1. At common law, there are four categories of slander that can be sued upon without proof of special damages. These are where there is an: (a) imputation of a crime; (b) imputation of certain diseases; (c) imputation of unchastity or adultery; or (d) imputation affecting professional or business reputation. These categories of slander are deep rooted in the common law, and if they are to be overturned or restricted, this must be done by Parliament by clear, definite and positive enactment. In the absence of any clear indication to the contrary, Parliament is presumed not to have altered the common law. Therefore, there is no doubt that section 10 of the Libel and Slander Act of Saint Christopher and Nevis did not alter the common law exception of slander in relation to one's profession. It simply does not address it. Accordingly, Ms. Hunkins' claim for slander in relation to her profession was actionable even though special damages were not pleaded nor proven. The learned judge did not err in so holding.

  R v Morris (1867) LR1 CCR90 applied; Henry Boot Construction (UK) v Malmaison Hotel (Manchester) Ltd [2001] 1 QB 388 applied; National Assistance Board v Wilkinson (1952) 2 QB 648 applied.

• 2. To establish the defence of fair comment, a defendant must prove that the facts on which the comment is founded are true and that the comments on these facts are fair. In addition, the defendant must also prove that the words complained of are comments and not facts. It is settled law that the defence of fair comment does not cover misstatements of fact. If the words complained of contain allegations of fact, then the defendant must prove that those allegations of facts are true; it is insufficient for the defendant to merely plead that he or she honestly believed them to be true. In the present case, the learned judge quite properly held that the statements that Ms. Liburd made were statements of fact and therefore she could not have relied on the defence of fair comment.

  Reynolds v Times Newspaper [2001] 2 AC 127 applied; British Guiana Rice Marketing Board v Peter Taylor and Co. Ltd (1967) 11 WIR 208 applied; Vaughn Lewis v Kenny Anthony SLUHCVAP2006/0002 (delivered 14th May 2007, unreported) followed.

• 3. In relation to the defence of justification, a defendant is required to prove the truth of every defamatory fact or statement made or that it is substantially true. Against the learned judge's findings, including his finding that Ms. Hunkins, as an employee of the bank had not breached Ms. Liburd's daughter's confidentiality, and in view of the fact that Ms. Liburd has not appealed against those findings, the learned judge's conclusion that Ms. Liburd could not rely on the defence of justification cannot be assailed.

  Convery v The Irish News Limited [2008] NICA 14 applied.

• 4. There is no basis for this Court to interfere with the learned judge's award of aggravated damages to Ms. Hunkins. On the evidence before the learned judge, it was clearly open to him to have found that Ms. Liburd was actuated by malice, sufficient to justify an award of aggravated damages. In any event, there is another basis upon which the learned judge could have awarded aggravated damages; that is, on the basis of the defence of justification that was relied on by Ms. Liburd, even up to this appeal. It is settled law that a failure to establish the defence of justification will usually inflate any damages awarded, the court treating it as an aggravation of the original injury.

  Elwardo G. Lynch v Ralph Gonsalves SVGHCVAP2005/0018 (delivered 18th September 2006, unreported) followed; David Carol Bristol v Dr. Richardson St. Rose SLUHCVAP2005/0016 (delivered 20th February 2006, unreported) followed.

Introduction

Blenman JA

1 This appeal brings into sharp focus the question whether the common law exception to slander in relation to one's profession, which is actionable without proof of damage, has been overtaken by the Libel and Slander Act 1 of Saint Christopher and Nevis. It principally interrogates the question whether without specifically pleading and proving special damages, a litigant can succeed on a claim for slander in relation to his/her profession. The appeal also examines the circumstances in which the defence of fair comment and/or justification can prevail against a claim for slander and whether the learned judge erred in concluding that they were not available to Ms. Myrna Liburd (“Ms. Liburd”). In addition, it seeks to determine whether the learned judge erred in awarding Ms. Lorna Hunkins (“Ms. Hunkins”) aggravated damages.

2 In a nutshell, the appeal is against the judgment of the learned acting Justice Darshan Ramdhani in which he awarded damages to Ms. Hunkins for slander committed by Ms. Liburd. The learned judge held that Ms. Hunkins' claim that was based on slander by words used in relation to her profession was maintainable, even though she did not plead nor prove special damages. The learned judge also held that section 10 of the Libel and Slander Act did not override the common law exceptions in which slander was actionable without proof of specific damages. The judge therefore allowed Ms. Hunkins' claim for slander against Ms. Liburd, even though special damages were not pleaded nor proved.

3 In addition, the learned judge...