Barbados Rediffusion Service Ltd v Mirchandani et Al (No.2)

JurisdictionCaribbean States
CourtCaribbean Court of Justice
Judgede la Bastide, P.
Judgment Date26 Oct 2005
Docket NumberNo. AL0001 of 2005

Caribbean Court of Justice

de la Bastide, President; Nelson, J.A.; Saunders, J.A.; Bernard, J.A.; Hayton, J.A.

No. AL0001 of 2005

Barbados Rediffusion Service Ltd.
and
Mirchandani et al (No. 2)
Appearances:

Sir Henry de B. Forde Q.C., Mr. Hal Gollop and Mr. C. Anthony Audain for the applicant

Mr. Clement E. Lashley Q.C., Mr. David J.H. Thompson, Ms. Onika E. Stewart and Ms. Shaunita Jordan for the respondents.

Civil practice and procedure - Defamation — Amended defence — Striking out — Leave to appeal to CCJ — Defendant playing on radio stations calypsos alleging that respondents selling to public diseased chickens — Respondents bringing defamation action — Applicant's amended defence struck out for non-compliance with an order of Chief Justice and judgment entered against defendant for damages — respondents applying for special leave to appeal to CCJ — Whether leave to be granted — Constitution (Amendment) Act, 2003 — Caribbean Court of Justice Act, ss. 3–8 — Right of appeal to CCJ — Special leave to appeal granted.

de la Bastide, P.
1

This case has the distinction of being the first to reach the Caribbean Court of Justice. It is an application for special leave to appeal to this Court from a decision of the Court of Appeal of Barbados dismissing an appeal against an order made by Husbands J. striking out the amended defence in an action for defamation brought by the respondents to this application (to whom I shall sometimes refer as ‘the plaintiffs’) against the applicant (to whom I shall sometimes refer as ‘the defendant’). Husbands J. also ordered that judgment be entered against the defendant for damages to be assessed and costs.

2

The defamatory matter complained of in this action is contained in three calypsos which were alleged to have been played frequently by the defendant on its radio stations in June and July 1989, during the ‘run-up’ to the annual ‘Crop Over’ Festival and were broadcast live by the defendant when sung at the semi-finals and finals of the calypso competition held in connection with that festival. The nub of the plaintiffs’ complaint is that all three calypsos alleged that they were selling to the public or for consumption by the public, diseased chickens which had died and not been slaughtered. The amended defence filed did not admit the broadcasts in question and contained a plea of justification.

3

The ground on which the defence was struck out, was the failure of the defendant to comply with an order made by Chief Justice Williams that if the defendant did not file by a specified date a further and better list of documents that were or had been in its possession, custody or power relating to the matters in question in the action, the defence should be struck out and judgment entered against the defendant for damages and costs.

History of the Proceedings,
4

The original order for discovery was made on the summons for directions on the 7th July, 1992, by Husbands J. and required both sides to file and serve their respective lists of documents within 42 days. In fact the plaintiffs did not file their list of documents until the 15th September, 1993 and the defendant filed its list on the 23rd November, 1993.

5

The plaintiffs believing the list filed by the defendant to be incomplete, applied by summons dated the 12th October, 1994, for an order inter alia that the defendant file a further and better list of documents within 14 days. The defendant not appearing, an order in terms of the application was made by Chief Justice Williams on the 24th November, 1994. The defendant not having filed any further and better list of documents within the prescribed time, the plaintiffs by summons dated the 30th December, 1994, applied for the ‘unless’ order which was made by the Chief Justice after hearing counsel on both sides on the 20th February, 1995.

6

The defendant filed what purported to be a further and better list of documents and a verifying affidavit within the time allowed by the ‘unless’ order. The only respects, however, in which the further and better list differed from the original list was that it corrected an error by substituting a ‘record’ of one of the calypsos for a ‘tape’ of that calypso in the list of documents in the defendant's possession, and added to that list four letters that were quite inconsequential.

7

The plaintiffs insisted that the defendant had, or had had, in its possession custody or power other documents which had not been disclosed, notably tapes of the three calypsos and a record in electronic or other form of the occasions when they were played on the defendant's radio stations. Accordingly, the plaintiffs applied by summons on the 13th March, 1995, for an order that the amended defence be struck out and that judgment be entered for the plaintiffs for damages and costs. The hearing of that summons by Husbands, J. was completed on the 19th September, 1996. His reserved judgment was not delivered until the 24th November, 1999, that is, more than three years later. As already indicated, he made the order sought by the plaintiffs.

8

An application for leave to appeal against that judgment was filed on the 7th December, 1999. Leave was granted and the appeal heard by the Court of Appeal on the 17th July, 2000. Judgment was reserved and was delivered by the Court of Appeal on the 20th August, 2004, that is, more than four years later. The Court of Appeal dismissed the appeal and affirmed the order of Husbands J.

9

On the 10th September, 2004, the defendant applied by motion to the Court of Appeal for leave to appeal to the Judicial Committee of the Privy Council against the judgment of the Court of Appeal. That application was heard on the 7th and 8th March, 2005. On the 23rd June, 2005, the Court of Appeal gave judgment refusing leave to appeal to the Judicial Committee. In fact, on a cross-application made by the respondents, the Court of Appeal struck out the application for leave as frivolous and vexatious and an abuse of the process of the Court. In doing so, the Court of Appeal rejected a number of technical grounds advanced by the respondents but accepted the submission that an appeal to the Privy Council was bound to fail as it sought to challenge concurrent findings of fact made by the Courts in Barbados. I should state here that it is the view of this Court that the respondents' counter-motion should not have been entertained. It merely served to add unnecessarily to the costs as the same arguments by which it was supported, could and should have been used in opposition to the motion.

10

On the 15th July, 2005, the present application for special leave to appeal to this Court, was filed.

The jurisdiction issue
11

The application to this Court is based on the premise that subject to the applicant obtaining from this Court the special leave which it seeks; it has a right of appeal to this Court. The respondents never sought to challenge the existence of this right and even after the matter was raised by the Court with the applicant's counsel in the course of his oral submissions, counsel for the respondents did not accept the implied invitation to address this issue. Nevertheless, since it is an issue which goes to our jurisdiction, I think we must address it. The question put broadly is whether the legislation by which the Judicial Committee of the Privy Council was replaced by the Caribbean Court of Justice as the final court of appeal for Barbados, has any, and if so, what impact on the applicant's right to pursue an appeal against the Court of Appeal's decision affirming the order of Husbands J.

The Legislation
12

The legislation in question consists of two principal Acts. The first is the Constitution (Amendment) Act, 2003 (‘the 2003 Act’). This Act amended the Barbados Constitution firstly by substituting the words “the Caribbean Court of Justice” for the words “Her Majesty in Council” wherever the latter appeared in the Constitution. The 2003 Act also inserted in the Constitution a number of new sections numbered and lettered consecutively 79B to 79I dealing with various aspects of the Caribbean Court of Justice.

13

The new section 79C provides:

“There is constituted a Judicature consisting of

  • (a). The Caribbean Court of Justice Established by the Agreement; and

  • (b). the Supreme Court of Judicature and Magistrates' Courts that shall exercise jurisdiction under the Constitution or any other law.”

The Supreme Court of Judicature is defined in the amended section 80 (1) as consisting of the Court of Appeal and the High Court.

14

The new section 79D (1) provides in part:

“The Caribbean Court of Justice

  • (a). shall be the final court of appeal from any decision given by the Court of Appeal. …”

15

This Act was assented to by the Governor General on the 24th April, 2003, but was by section 10 to come into effect on a date to be fixed by proclamation.

16

The second principal Act was the Caribbean Court of Justice Act (‘the C.C.J. Act’). This Act provides in section 3 that the Agreement Establishing the Caribbean Court of Justice (‘the C.C.J.’) shall have the force of law and in section 4 (1) that the C.C.J. shall have “appellate jurisdiction provided for in this Act as is conferred on it in accordance with the provisions of Part III of the Agreement.”

17

Section 6 provides for appeals as of right to the C.C.J. from the decisions of the Court of Appeal in a number of different categories of case, none of which catches the instant case. Section 7 provides for an appeal to this Court with leave of the Court of Appeal inter alia “in any civil proceedings where, in the opinion of the Court of Appeal, the question is one that by reason of its great general or public importance or otherwise, ought to be submitted to the Court”.

Section 8 provides:

“Subject to section 7, an appeal shall lie to the Court with the special leave of the Court from any decision of the Court of Appeal in...

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