Anselm Caines v Janette Nisbett-Meloney

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: Thompson Jr J
• Judgment Date: 09 February 2024
• Judgment citation (vLex): [2024] ECSC J0209-6
• Docket Number: NEVHCV2021/0061

Between:

Anselm Caines

Claimant

and

Janette Nisbett-Meloney

Defendant

NEVHCV2021/0061

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Mr. Perry Joseph for the Claimant

Mr. Patrice Nisbett for the Defendant

Thompson Jr J

1 “ Iago:

Good name in man and woman, dear my lord,

Is the immediate jewel of their souls.

Who steals my purse steals trash. 'Tis something, nothing;

'Twas mine, 'tis his, and has been slave to thousands.

But he that filches from me my good name

Robs me of that which not enriches him

And makes me poor indeed. 1”

2 Mr. Caines, the Claimant says that Mrs. Nisbett, Meloney, the Defendant has ‘filched’ from him his good name by publishing a post on Facebook that is defamatory of him.

3 There is no dispute about the date or time or content of the Facebook post which was alleged to be defamatory of the Claimant. On May 15 ^th, 2020, an unknown person styled as ‘Simi Yah’ posted the offending post. The Defendant accepts that on May 18 ^th, 2020, she shared or reposted the offending words to the following persons. Henena Francis, Andrew Advizor Prentice, Sherina Chapman, Polius

Matthew, Halstead Byron, Shaquana Williams, Anesta Nisbett, Iona Dore, Daniel Da Costa, Sistah C Griffin, David Griffin, Edwin Meloney and Hazel Brandy-Williams

4 There was some debate about how long the post subsisted for, but the Defendant does not dispute sharing or reposting the offending post to the foregoing persons in the jurisdiction. Publication within the meaning of the Court of Appeal's analysis in DOMHCV2011/0017 – Lennox Linton and others v Keiron Pinard Byrne was thus made out. In this court's view, the question of how long the post subsisted for is critical on the question of damages (if the post is found to be defamatory) but there is no dispute that the Defendant republished the alleged offending post.

5 This court has carefully considered the matter and does not propose to set out the post in this judgment since this judgment is likely to attract considerable public attention thus inadvertently leading to a republication of what was characterized in the case of Simon Blake and Colin Seymour v Laurence Fox and Nicola Thorp [2024] EWHC 146 as ‘inherently grave allegations’. Allegations of that nature, whether proved or unproven should not be lightly repeated and should be properly ventilated in their appropriate forums. Even if there is some common law exemption for inadvertent defamation via a judgment, analogous to that found in the United Kingdom, reciting the details of allegations for the purpose of saying that they were made is unlikely to be helpful to anyone.

6 In her defence, the Defendant asserted that the post is substantially true and thus relied on the defence of justification.

7 In fairness to the Defendant, the defence of fair comment was also pleaded but no real argument was advanced to this Court on how fair comment was a viable defence. In SLUHCVAP2015/0003 – Deldrige Flavius v Dr. Ernest Hilaire, the Court of Appeal confirmed that in order to succeed on a defence of fair comment, a defendant is required to show that: (i) the comment is on a matter of public interest; (ii) the comment, though it can consist of or include inferences of fact, must be recognized as comment, distinct from an imputation of fact – to this end, it is generally necessary that the words complained of should explicitly indicate, at least in general terms, the factual basis for the comment; (iii) the comment must be based on facts which are true or protected by privilege; and (iv) the comment must be one which an honest person could have made on the proved facts.

8 The inner workings of the Nevis Debating Club at the Sixth Form College and/or Charlestown Secondary School, though a subject of some local interest, could not rise to the requisite threshold for matters of public interest.

9 Additionally, the Facebook post did not qualify as commentary and the Defendant liked and tagged the post of Simi Yah as opposed to offering any commentary herself on the said post. This Court does not have to resolve this point but had the Defendant offered some fair comment within the meaning of the authority cited above then it may have been arguable that fair comment applied.

10 Moreover, at common law, the defence of fair comment does not allow the Defendant to argue that he or she was simply regurgitating the opinions of others without any knowledge of or reference to underlying facts. See Lowe v Associated Newspapers [2007] QB 580 and Galloway v Telegraph Group Ltd [2006] EWCA Civ 17.

11 In any event, if justification is established there is no need to consider whether fair comment applies. See Dakhyl v Labouchere [1908] 2 KB 325.

12 In those circumstances, the Defendant's case was an all or nothing position. Either the Defendant would establish that the post was substantially true or not. The Facebook post when broken down alleged that the Defendant's son was unjustly removed from the Debating Society team in 2018 as retaliation for speaking up about a fellow student who had complained about the Claimant's inappropriate behavior towards her. The Facebook post also suggested that the Claimant was indulging in sexually inappropriate conversations and/or behaviors with female students.

13 On any analysis both foregoing imputations in the Facebook post are prima facie defamatory, more so the latter than the former. All the same, the combined effect of the entire post was defamatory of the Claimant, unless of course the Defendant established that the post was substantially true in fact. To his credit, counsel for the Defendant did not seek to argue that the post was not at first blush defamatory (it was difficult to see how he could say otherwise) but sought to argue that the post was true in substance.

14 For reasons that do not require extensive treatment in this judgment, the Defendant failed to file her witness statements in time and pursuant to the order of Master Gill dated November 21, 2022 (as she then was) was not allowed to remedy this failure. The absence of any witness statement from the defendant or her proposed witnesses meant that the task of establishing justification became more difficult since there was no counter narrative from the Defendant or any witnesses she may have been minded to call.

15 Therefore, the Defendant's only tool for making good her case was in cross examination of the Claimant. Mr. Nisbett's cross examination of the Claimant did not bear fruit. Put another way, Mr. Nisbett's task was to demonstrate a clear factual matrix, established by the evidence that supported his client's case. This Court can do no better than to quote Collins Rice J in Simon Blake and Colin Seymour v Laurence Fox and Nicola Thorp [2024] EWHC 146 that:

“The drawing of inferences is not a process of speculative guesswork. It is a process whereby a court concludes that the evidence adduced enables a further inference of fact to be drawn”

16 Mr. Nisbett's cross examination of the Claimant occupied 10 typed pages of evidence, at 1 ¹/₂ line spacing with each answer occupying a separate line. The first page confirmed the Claimant's familiarity with the Defendant and the fact that he was a staff sponsor of the Literary and Debating Society at the Nevis Sixth Form College in 2018.

17 On page 2 of his cross examination of the Claimant, Mr. Nisbett got Mr. Caines to confirm the nature of his duties as staff sponsor. Mr. Caines confirmed to Mr. Nisbett that as staff sponsor, he did not have any unilateral selection powers and that selection of the team was by consensus.

18 It would have been extremely helpful for Mr. Nisbett to have either called evidence from other selectors of the Debating Society or applied for witness summonses for such persons on this issue. He was unable to do the former and did not appear to address his mind to the latter. This meant that there was no real challenge to Mr. Caines' evidence that selection to the team was not an imperial decision taken by him.

19 On page 3, Mr. Nisbett got Mr. Caines to admit...