Lall & National Media and Publishing Company v Ramsahoye
| Jurisdiction | Caribbean States |
| Judge | Nelson, J. CCJ. |
| Judgment Date | 29 July 2016 |
| Court | Caribbean Court of Justice |
| Docket Number | CCJ Appeal No. GYCV2015/006; GY Civil Appeal No. 168 of 2008 |
| Date | 29 July 2016 |
Caribbean Court of Justice
Nelson, J. CCJ. Saunders, J. CCJ. Hayton, J. CCJ. Anderson, J. CCJ. Rajnauth-Lee, J. CCJ.
CCJ Appeal No. GYCV2015/006; GY Civil Appeal No. 168 of 2008
Mr. Sanjeev Datadin and Mr. Stephen A. Singh for the appellants.
Mr. Anand Ramlogan SC, Mr. Roopnarine Satram, Mr. Chandrapratesh V. Satram, Mr. Mahendra Satram, Mr. Ganesh Hira, Mr. Alvin Paraigsingh and Mr. Douglas Bayley for the respondents.
Civil Appeal - Defamation — Whether the award of damages for libel by the Court of Appeal was appropriate — Whether the Court of Appeal failed to take into account relevant factors — Whether interest should be awarded — Court's discretion to grant interest-Whether the Court of Appeal should have interfered with the trial judge's assessment of damages.
[1] This appeal and cross-appeal concern the sole issue of whether the increase in the award of damages for libel from G$4.5 million to G$15 million by the Court of Appeal was appropriate having regard to the reputational damage suffered by the defamed respondent, Dr. Walter Ramsahoye.
[2] The dispute arose from the publication of an article and two caricatures with accompanying captions between 21st January 2000 and 10th February 2000 (‘the publications’) by the appellants, Glen Lall and National Media and Publishing Company Limited (‘National Media’). Dr. Ramsahoye, a highly qualified medical practitioner of long standing in Guyana, claimed damages on the ground that the publications depicted him in disparaging terms causing injury to his character and professional reputation, making him the subject of public ridicule, odium and contempt, and occasioning him great distress and humiliation.
[3] On 4th December 2008, Persaud, J. found that the publications were libellous and awarded damages of G$4.5 million, which he expressed to be the highest such award in Guyana at the time, and costs of G$125,000. The judge also made permanent the injunction granted by Kissoon, J. in March 2000 restraining further writing, printing, publication or circulation of the same or similarly defamatory materials. The appellants obtained a stay of execution pending appeal on condition that the judgment sum was paid into court. The sum was paid in on 6th April 2009.
[4] Dr. Ramsahoye appealed to the Court of Appeal against the quantum of damages and Glen Lall and National Media cross-appealed against both liability and the award of damages but at the hearing the issue of liability was abandoned as the appellants conceded that the publications were defamatory.
[5] The Court of Appeal by majority (Roy, J.A. and Insanally, J. (Additional Judge)) set aside the award of G$4.5 million determining that it was ‘wholly inadequate’ to compensate Dr. Ramsahoye, and substituted an award of G$15million. Cummings-Edwards, J.A. dissented on the basis that there was no justification for disturbing the award as Persaud, J. had taken a balanced view of all the circumstances of the case.
[6] The appellants appealed to the CCJ on the ground that the substantial increase in the award was unjustified. Alleging error by the Court of Appeal, they noted the absence of a finding of perversity or fundamental violation of legal principles by Persaud J; the failure of the award to take into account socio-economic factors, specifically, the low Gross Domestic Product of Guyana; the absence of evidence of specific injury to the respondent; Kaieteur News' tabloid status; and the trend towards more modest awards of damages including in personal injury cases.
[7] Dr. Ramsahoye contended that the Court of Appeal's award was too low. He complained of the court's failure to expressly find a case for punitive and/or aggravated damages. He also urged that in assessing damages, a court should have regard to awards made in other territories and, in particular, Caribbean jurisdictions. Dr. Ramsahoye also cited as an error the failure to award interest.
[8] Prior to the hearing of the appeal Dr. Ramsahoye sought to adduce fresh evidence in a 17th February 2014 publication in the Kaieteur News which he alleged was defamatory of him. The Court dismissed the application for failure to comply with the conditions for admission of fresh evidence as set out in Ladd v. Marshall. [1954] 3 All E.R. 745
[9] In disposing of the appeal and cross-appeal, the CCJ reiterated the well-established principle that to justify reversing a trial judge, it is not sufficient that the appellate court itself would have awarded a greater or lesser sum. Instead, it must be shown that the trial judge acted on a wrong principle of law, misapprehended the facts, or had, for these or other reasons, made an award so extremely high or low as to make it a wholly erroneous estimate of the damages to which the defamed person is entitled: Flint v. Lovell [1935] 1 K.B. 354, 360 (Greer LJ); and Jagan v. Burnham. (1973) 20 W.I.R. 96, 106 (Luckhoo, C.J.).
[10] Where the appellate court does decide to interfere and does vary the award, the CCJ, as the apex Court, would review the decision of the Court of Appeal on the basis of whether it conforms to the well-established test for interference with the trial judge's assessment of damages. The deference naturally accorded to decisions of the Court of Appeal did not justify a variation of this fundamental test. The Court, noting that its mandate to develop Caribbean jurisprudence through the judicial process presupposed a close affinity between itself and the Caribbean people, stated that an important aspect of the orderly development of indigenous jurisprudence is that in appellate review of the award of damages, especially where those damages are at large as in defamation cases, the discretion of the appellate court is not substituted for that of the trial judge. The Court held that the trial judge's award can only be disturbed where it is an entirely erroneous estimate of the damages that ought to have been awarded to the person who was defamed.
[11] The CCJ found it difficult, on Persaud, J.'s reasoning which carefully weighed all relevant considerations on the materials before him, to find any error which would warrant a variation of the award. It also noted the Kaieteur News' restricted reach and general principles concerning the awarding of damages in justifying assessment of the damages in accordance with the law, practice and traditions of Guyana as opposed to merely comparing with awards from other jurisdictions with different socio-economic conditions. The Court also drew a distinction between this case and the Gleaner case, noting the absence of evidence of loss suffered by Dr. Ramsahoye and the absence of a claim for special damages. In relation to the appellants' reliance on personal injury cases, the Court found that at their core, awards of damages in defamation and personal injury cases were incommensurables.
[12] The Court recognised its jurisdiction to award interest even where not pleaded or argued below but stated that it would only exercise that jurisdiction in exceptional circumstances. The bare assertion of the fall in purchasing value of money did not constitute exceptional circumstances. It therefore refused to award interest pursuant to section 12(1) of the Law Reform (Miscellaneous Provisions) Act. [Cap 6:02 of the Laws of Guyana] The Court noted that while payment into court does not necessarily affect an award of interest, it does have an impact on costs. [ Jefford v. Gee [1970] 2 Q.B. 130, 144 (CA).]
[13] The Court concluded that there was no justification to vary the award of G$4.5million made by Persaud J and that the trial judge had properly taken account of the aggravating and mitigating factors. There was no basis for awarding special damages as they were neither pleaded nor proved. The Court was not convinced that there was any legal basis for ensuring awards of damages accord with those in other Caribbean jurisdictions. Further, it would not increase the award simply on account of the currency's depreciation. As regards interest, the CCJ held that no exceptional circumstances were placed before it to justify an exercise of its discretion in awarding interest.
[14] The Court allowed the appeal with costs to the appellants both before it and in the court below, to be taxed if not earlier agreed. The Cross-Appeal and consequential orders were dismissed save that the sum of G$4.5 million (with interest accrued thereon), lodged on 6th April 2009, be paid to the respondent.
Glen Lall is the editor/proprietor of the Kaieteur News, a weekly newspaper which is printed by the National Media and Publishing Company Limited (‘National Media’). Between 21st January 2000 and 10th February 2000, Kaieteur News published an article and two caricatures with accompanying captions (‘the publications’) all of which referred to Dr. Ramsahoye in disparaging terms. The publications suggested that he had demonstrated dictatorial tendencies in relation to the Guyana Medical Association (‘GMA’), had an elevated sense of importance, held himself out as being competent in areas outside his profession, and had failed to serve his country in any significant way. They also insinuated that he had mental health problems and had caused the death of several patients in his care. The published materials are now conceded to have constituted a libel on Dr. Ramsahoye's reputation.
In an action brought by Dr. Ramsahoye against the publishers, Glen Lall and the National Media, the High Court awarded Dr. Ramsahoye G$4.5 million in damages. The Court of Appeal increased this award to G$15 million. Glen Lall and National Media appeal this decision arguing for a reinstatement of the original award while Dr. Ramsahoye cross-appeals on the ground that the award ought to have been further enlarged. There is no issue of liability, Glen Lall and...
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