The Montserrat Reporter Ltd et Al v Osborne

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Liverpool J.A.
• Judgment Date: 26 April 1993
• Neutral Citation: MS 1993 CA 1
• Docket Number: Civil Appeal No. 1 of 1991
• Date: 26 April 1993

The Montserrat Reporter Ltd. et al

and

Osborne

Floissac, C.J.; Byron, J.A.; Liverpool J.A.

Civil Appeal No. 1 of 1991

Court of Appeal

Defamation — Libel — Appellant's published series of articles which were held to be defamatory — Damages awarded — Whether articles were defamatory — Whether damages awarded were excessive.

Appearances:

Mr. L. Moore, Mr. T.W.R. Astaphan and Miss E. Henry for the Appellants.

Mr. L Luckhoo Q.C. and Mr. J. Kelsick for Respondent.

Liverpool J.A.

1 In June 1988, when the respondent was the Chief Minister and Mister of Finance of the island of Montserrat, he was referred to in three contentious publications in three issues of a newspaper called “The Montserrat Reporter” which circulated in the island and of which the first-named appellant (The Montserrat Reporter Ltd.) was the proprietor and publisher, the second-named appellant (The Montserrat Printery Ltd.) was the printer and the appellant David Edgecombe was the Editor. These publications all related to the payment by the Montserrat Port Authority to the respondent of the sum of $11,506 purporting to represent the value of three boxes of telephone tapes which the respondent claimed to have been lost while they were in the possession or under the control of the Authority.

2 The respondent, at the time of the action, also managed a shipping business, Great Western Shipping, which owned two ships — the Western Sun and the Western Star, His brother Mr. Joseph Thomas Osborne was the captain of the Western Sun which journeyed from Puerto Rico sometime in November 1986, called at St. Kitts on 29th November, 1986 and arrived at its home port in Montserrat on 3rd December, 1986.

3 When the ship left St. Kitts one of the boxes of cargo which had been destined for that country and which contained plumbing tapes had not been landed. On arrival in Montserrat, three boxes which bore the marks “St. Kitts” and the numbers and quantity (three) indicated by three strokes (111) in the port s tally sheet were landed. It is not clear what commodities were contained these three boxes; but above the words “St. Kitts” in the “Marks (column the figure “215.02” appears; and in the column headed “Nos. & Quantity” above the three strokes appears the following (((2)(1) St. Kitts.” It is the cargo relating to these entries in the tally sheet which has brought about this litigation. In particular, as learned counsel on both sides agreed, the important question seems to be whether one, or three boxes were over-landed in Montserrat on that voyage.

4 After the ship had discharged its cargo in Montserrat the respondent claims to have visited the port where he was shown by Alston Thomas the port's cargo checking clerk, three boxes marked “St. Kitts” only. Alston Thomas stated that he showed the respondent only one box, but the learned judge for reasons stated by him preferred the evidence of the respondent on this matter. The respondent told Thomas to put the boxes aside to be later returned to the ship. Acting on information received from the captain of the ship, the respondent subsequently approached Alston Thomas about the boxes when he was told that only one box was over-landed and that it could not be found. On receiving the same information from Thomas two days later, the respondent reported the matter to the Manager of the Port and the Commissioner of Police. Both officials conducted enquiries and searches without success. The respondent submitted a claim to the Manager of the Port, Mr. John Wilson, for the goods which were contained in the boxes. He claims that he asked Wilson not to process the claim unless it was followed up by the owner of the goods. Mr. Wilson denied this conversation, but the learned Judge gave reasons why he believed the respondent. On 23 January, 1988 the appellants newspaper reported that on 23 December 1987, the Executive council had met and issued a directive that for stated reasons, which were also reported in the January 1988 issue of the newspaper, the Board of the Montserrat Port Authority was to be dismissed, and that Mr. Wilson(s contract as Manager was not to be renewed when it expired on 19 January, 1988.

5 On 18 April, 1988, the respondent submitted a copy of his original claim to the new Manager of the Port Authority requesting payment. He enclosed therewith a copy of an undated invoice from one Adolpho Fesser Luchessi of Puerto Rico for the sum of US$4,235 representing the cyst of the contents of the three boxes. By the time he received payment on 22 April, 1988 a new Board and Manager had been appointed. A few weeks later, publication of the allegedly offending articles began.

6 The first publication was an article written by the appellant Edgecombe. That article appeared on the front page of the issue of the 10th June and was headed “C.M. gets $11,000 windfall.” This was followed by a quadruple publication in the issue of the 17th June. That second or quadruple publication comprised an article written by the appellant Edgecombe on the front page and under the caption “Hanky Panky at the Port,” two other articles on the front page under the captions “Reporter Probe,” and “B. Osborne calls for investigation” respectively and an Editorial entitled “Play it clean!” The third publication was a dual publication in the issue of the 24th June. That third or dual publication comprised an article written by the appellant Edgecombe on the front page and under the caption “Hassie's Fishy Claim” and an article on page 12 under the caption “Osborne says Tally Sheet will prove goods landed.”

7 As a result of these publications, the respondent sued the appellants for damages for libel. In paragraph 20 of his Amended Statement of Claim, the respondent specified the natural ordinary meanings which he alleged should be ascribed to the words of the publications and on which he relied. In paragraph 21 of that document, he stated that:

8 “The said three publications when taken separately and or collectively are all to the effect that the Chief Minister is dishonest, has made a false and fraudulent claim on the Port Authority and is unfit to hold public office and has committed a criminal offence, or criminal offences.”

9 In their Amended defence, the appellants admitted the publications but denied that the words published were defamatory of the respondent. The appellants also pleaded justification and fair comment.

10 The action was tried by Redhead, J. who gave judgment for the respondent on the 22nd March 1991. By that judgment, the learned judged awarded the respondent damages in the sum of $60,000.00 which purported to include aggravated damages.

11 The learned judge also made the following specific findings fact:

• 1. captain of the “Western Sun” was given three cartons of varying sizes the two largest being the size of a beer box and the other slightly smaller, by Luchessi. The captain Thomas Osborne wrote” St. Kitts” on the boxes. He was supposed to have sold the tapes which were in the boxes in St. Kitts by virtue of a special arrangement between the Captain and Luchessi.

• 2. The goods were not manifested and were not consigned to any particular person. Having sold them the captain would account to Luchessi who would then pay him a commission for his efforts.

• 3. The three boxes marked “St. Kitts” were landed in Montserrat and they were put into the warehouse by Alston Thomas who showed them to the respondent. The judge did not accept Thomas' evidence, that only one box marked “St. Kitts” had been landed in Montserrat.

• 4. Captain Osborne called on Thomas requesting the return of the boxes, but was told that because of the congestion in the warehouse, the captain should return at a later date. The Captain returned and Thomas, told him that he could not find the boxes. The captain then reported the matter to his brother (the respondent).

• 5. The respondent approached Thomas about the three boxes which had previously been seen by both parties. Thomas first told him that he could not find the boxes, but two days later Thomas claimed that only one box marked “St. Kitts had been shown to him. The respondent reported the matter to Mr. John Wilson, Port Manager, and also to the Commissioner of Police.

• 6. He rejected the evidence of John Wilson whenever it conflicted with that of the respondent. He found that the respondent did tell John Wilson that three boxes marked “St. Kitts” were shown to the respondent by Alston Thomas; and he inferred that John Wilson subsequently became upset because his contract was not renewed.

• 7. He accepted the evidence of Mr. Thomas Richards, who was then the Commissioner of Police, that the respondent made a report to him and subsequently handed him a tape, and that the Commissioner caused enquiries to be made about the missing tapes including a search of the appellant(s home, and that of his grandmother.

• 8. He accepted that Luchessi made a claim on the respondent for the loss of the three boxes; that the claim was given to Wilson early in 1987; that the respondent told Wilson that he need not pay the claim until it was followed up but that if the money had to be paid the port would have to pay it.

• 9. He stated that the facts as he found them, and with all the liberality at his disposal, did not allow him to draw a conclusion in favour of the appellants assertions of corruption or dishonesty on the part of the respondent in relation to the claim.

• 10. He was of the view that the Editor of the newspaper had no more than a suspicion that the payment of the money was not above board; and as a result he saw this as an opportunity to injure the respondent and he spared no effort in doing so.

• 11. He felt satisfied that the appellants could not believe that the entire Board was sacked to facilitate payment the claim; since about five months prior to writing the article of 10 June 1987; the appellants wrote and published in the same newspaper (on 23...