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Court: Judicial Committee of the Privy Council

Judge: Lord Wilson, Lord Carnwath, Lady Black, Lord Briggs, Lady Arden

Date of judgment: 29 Jul 2019 Summary: Defamation - Libel - Appeal from Court of Appeal of the Republic of Trinidad and Tobago - Reliance upon subsequent facts - The extent which, if at all, two or more different statements made upon different occasions by the same defendant may be aggregated for the purpose of giving rise to a cause of action in defamation

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Appearances: Adam Speker KC (Appellant) 

Instructing Solicitors: Juris Chambers for the Appellants

Facts On 17 August 2007 there occurred a shooting incident in Wallerfield in Arima, central Trinidad, in which four male occupants of a car, and a woman in her home nearby, were all shot dead by police officers. The second defendant, the publisher of a well-known Trinidadian newspaper, and the first defendant, its editor, published articles about the incident. In December 2008, an article and an editorial were published, the gist of which was that an unidentified person within the Trinidad Police Service had put together a police assassination squad with a view to obtaining revenge against the supposed killer of a well-known female drug dealer with whom he was connected and that the killer was believed to be in the car. The editorial encouraged readers to pay close attention to the proceedings in the inquest when it happened. Neither the December 2008 article nor editorial identified any of the police officers alleged to have been involved in the planning or the shooting.

The inquest was held in May and June 2009, some six months after the publication of the December 2008 article and editorial and the officers were named in articles on 5 June and 5 July 2009 about the inquest. Both of the later articles named the officers in terms which were exculpatory of them.

The claimants sued and at the trial in 2013 the judge, Seepersad J, dismissed the claim holding that references to the officers in the June and July 2009 articles could not be relied upon to identify the officers in the article and editorial of December 2008. The Court of Appeal unanimously allowed the claimants’ appeal.

The defendants appealed to the Judicial Committee of the Privy Council.

Issue That material subsequent to publication of an alleged defamatory statement cannot be prayed in aid for the purpose of founding a cause of action based upon that statement, because a cause of action in defamation (if there is one) is complete at the moment when a statement is published. That, if subsequent material can in principle be relied upon for that purpose, the Court of Appeal were wrong to reverse the finding of the judge that the two later articles were not available for that purpose, mainly due to the passage of time between them and the publication of the first two articles. That the Court of Appeal was wrong to reverse the judge’s ruling about the admissibility of evidence of contemporaneous identification of the claimants. Held Allowing the appeal and dealing with the third issue first,

On the third issue, the judge made no error of law in refusing to allow the claimants to adduce evidence without prior warning at trial that they had received telephone calls shortly after the 2008 publications from people they said identified them in those publications and the CA should not have overturned the judge’s decision, particularly where there had been no ground of appeal before the CA.

On the first two grounds, which had to be taken together, it was not necessary to resolve the conundrum arising from the English CA decisions of Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR and Hayward v Thompson [1982] QB 47. The rigorous exclusionary principle laid down in Grappelli goes too far but it is not necessary to resolve with any precision how far the exception to the exclusionary principle is to be framed. Here, the first instance judge was entitled to come to the decision he did, it was not plainly wrong, and there was no proper basis for the CA to have overturned him. To that end, ground 1 failed but ground 2 succeeded.

Obiter, If the Board was considering the matter afresh, it would have been significantly influenced by the fact that the later articles were exculpatory of the claimants.

Comment The JCPC concluded that there was no entirely satisfactory conceptual solution to the problem posed by the Grappelli and Hayward decisions. Lord Briggs, giving the opinion of the Board said, as defamation practitioners know only too well,  that ‘it is a feature of the common law of defamation that neat conceptual solutions do no always provide satisfactory answers to the endlessly varied fact-sets with which judges and (in some jurisdictions) juries have to wrestle, for the purpose of achieving an outcome which properly accords with justice and common sense.’

However, valuable guidance is provided on how to approach this issue at [26] and [27]. What is said is that, for two statements made by the same person, but published at different times, to be aggregated for the purpose of giving rise in conjunction to a completed cause of action in defamation, there must in the mind of the reasonable reader be created a sufficient nexus, connection or association between the two of them, so that (where one is defamatory and the other identifies the subject) there comes a moment in time at which, in the mind of that reader, the claimant is identified as the subject of the defamatory accusation. The nexus or connection may be established by varying means which was essentially a question of fact or evaluation.

It also said, obiter, that any subsequent statement had to be read as a whole and that the question in such cases is, do reasonable readers of the two statements, if aggregated in their minds, come away with a perception that the common maker of the statement is, by the time of the second one, asserting matters defamatory of the claimants. If the effect of the later statement is to take away the defamatory sting, then the aggregation may well not be defamatory taken as a whole.

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