Finding certain words published by the Kaieteur News (KN) against former Head of the National Industrial and Commercial Investments Limited (NICIL), Winston Brassington, to be defamatory, the High Court yesterday awarded him damages to the tune of $18M and $220,000 in costs pertaining to five cases.
Brassington had filed the cases against Kaieteur News in 2014 for damages for libel. The court directed that five of those claims be heard together but they were not consolidated under section 17 of the Defamation Act and were as a result addressed separately.
Brassington through his attorney Timothy Jonas had complained that in 2014 edition, the KN and its then Editor Adam Harris (the defendants), published in the column, “Dem boys seh,” words pertaining to him which defamed his character. One of the columns related to the Marriott Hotel.
The newspaper company through its attorney Shaunella Glen admitted publication of the column but denied that the words complained of were: (a) of, or pertaining to Brassington (the Plaintiff) (b) were published maliciously or falsely or (c) libelous to the Plaintiff personally or professionally.
The defence sought to argue that the words were justified, of fair comment on a matter of public interest and that in the alternative; they were published on an occasion of qualified privilege. In the circumstances, they relied on corresponding defences.
The judge noted in her ruling that in response to interrogatories filed by the plaintiff, the defendants admitted that it printed and published verbatim the words averred in the statements of claim; that the plaintiff was at all material times engaged in the project for construction of the Marriott Hotel; and that Harris intended the words complained of used in the defamatory article to refer to Brassington and intended a reasonable person reading it to infer that those words referred to him.
Among the issues determined by the court were whether the words were capable of a defamatory meaning; whether the defendants were justified in using them; and whether they were protected by the defences raised.
On the first issue, referencing case law authority, the judge said that that plaintiff is admittedly referred to in the publications as “Brazzy that fat crook”. The word “crook” she said is informal English and means a person who is dishonest or a criminal. The use of the word she added suggests disparagement and reasoned that is therefore capable of being defamatory.
Brassington in his statement of claim argued that the words meant or were understood to mean “that the Plaintiff was dishonest, had been guilty of criminal activity and was habitually guilty of criminal activity and had engaged in criminal fraud for personal gain and in the conduct of his offices.”
The Court noted, however, that while the defence denied that the words were capable of the pleaded meanings, it proffered no other meaning.
Justice Corbin-Lincoln said that considering the article as a whole, and in so far as it can be said to be referring to the plaintiff, it implies that Brassington gave misleading information regarding the true ownership of the Marriott hotel and entered into a deal to swap “wha dem got in de hotel fuh de new lotto people in Guyana.”
“I find that the real sting of the words is that the Plaintiff is referred to as a crook. This would convey to an ordinary reasonable reader whether in or out of this jurisdiction that the Plaintiff is dishonest and was thus defamatory of him,” the judge said.
On the issue of whether the defendants were justified in using the defamatory words, the judge first cited Section 7 of the Defamation Act which states, “In any action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.”
Referencing case law as well, the judge said that the burden is on the defendants to prove, on a balance of probabilities, that the words are true; but noted that they were unable to so prove and so the defence of justification failed.
The judge next turned her attention to the defence of fair comment.
She said that the defendants made several averments with respect to the alleged facts upon which their reliance of the defence of fair comment is based, but that they, however, failed to prove that any of the alleged facts were true or even substantially true and so this defence of fair comment failed as well.
In assessing damages, Justice Corbin-Lincoln noted that while libel is actionable per se there is no evidence of any significant loss or impairment of the plaintiff’s reputation as a result of the publication.
The judge said that there is no evidence of it affecting him professionally or his ability to attract or engage in business, while noting that “the sweeping and generalized assertion that “google searches” are the “first port of call for potential clients who interact” with him are in my view speculative.”
The judge said that Brassington’s assertion that the first information which comes to light on a google search of his name concerns the publications from Kaieteur News is unsupported by any other evidence.
The judge said, too, that while the plaintiff asserts that he was “confronted” with the publication when he applied for a loan from an unnamed bank in Miami there is no evidence that he was denied the loan or suffered any other disadvantage as a result of the publication. “More importantly, there is no evidence that he suffered any actual loss of income or business as a result of the publication. Indeed no such loss was pleaded as special damages.”
The judge said that the libel was a grave form as it touched upon the plaintiff’s integrity; but added that while serious, there was no evidence of any significant damage to his reputation and standing; and further that there was no evidence that he was shunned or suffered a loss of prestige among his business and accounting circles as a result of the publication.
The Court recalled that Brassington’s evidence was that he was made the subject of ridicule and suspicion as a result of this and other publications and that his friends would telephone him about the publications.
The judge said too, that the plaintiff gave evidence with respect to what his children reported to him was allegedly being said by their school mates and teachers, but said the Court found no evidence that he suffered psychological trauma, mental anguish or social loss as a result of the publication.
The judge granted an award of damages totaling together $18M which KN and Harris to pay to Brassington across the five cases filed and a total of $220,000 in costs
