IN THE HIGH COURT OF JUSTICE (CIVIL) A.D OLIVIER GARON. and 1. JEAN EBRARD 2. RADIO CARIBBEAN (1982) LTD.

Transcription

1 #048 SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) A.D Sui No. 6 2 o 1990 BETWEEN: OLIVIER GARON and 1. JEAN EBRARD 2. RADIO CARIBBEAN (1982) LTD. Mr. C. Malaykhan or Plaini Mr. K. Monplaiir Q. C. and Mr. C. Hink on - Deendan Ouhla or Plaini De endan c r - < [' : Ocober 22 and 24; November 6. J U D G M E N T MATTHEW J. The Plaini wa he General Manager o he econd Deendan company in Sain Lucia rom unil The ir Deendan wa a he ime and ill i he Chairman o he Board o Direcor c. r - o h e econd Deendan company. On Ma r ch 1, 1989 he ir Deendan wroe in French o he Plaini he ollowing which ha been admied by boh o be a correc ranlaion in Englih - "Mr. Olivier Ga r on La Ferme/Redoue For de France Ma rinique. Dear Sir, For everal year you occupied he po o Direcor o Radio Caribbean (1982 ) Limied. 1

2 Variou inve recenly in ha company audi which I revealed a di in he ra accoun. You were che one in and or everal year you were he he company by your one o have commied Ye I wa ed make exernal enquirie o a rue picure he iuaion. I i in conuing iuac on ha I have noed or eve year now, many were your ionaure rom he company' accoun in he Credi Mariniquai in For de France, and ied in anoher accoun, ly l o he domiciliaion men your name, or ome your predeceor. Ac o he, you were only o ha accoun a Francaie Commerciale in Dominica, an accoun which wa ued o ele he company' expene in Dominica. Now i appear ha 1982 more EC $5 rg 0 (ive hundred and EC dollar) wa d=poied ino accoun bu or many o he rom ha accoun were no annexed; ohe word, wihdrawal were no ed he re evan Thi vexing ae o aair canno paricularly we have no documen oever you, our poeion ince 1 10/86, no bank aemen, voucher, receip ec. Thi i we are requeing ha you end u mo urgenly all documen relevan o ha accoun which may ill be your poe We ll end you a deailed i o expene or which we have no voucher, ill or invoice, o ha you can urnih he nece explana I am peruaded ha you ully appreciae he need o e 2

3 u have ha inormaion, and ha you will i your mo urgen aenion. Jean Ebrard Chairman o he Board." A e1. rpul o ha leer he Pla i on 28, 199 niued a 1 1 ac De. In paragraph 5 o hi aemen o: claim Pla heir ordinary and naural meaning he he econd o he leer, ha i - "Ye I wa ore o make ex rie o a rue picure o he iua " aken in he conex o he leer a a e, in i ar/ in he conex o he ir and econd a le er 1 mean and were o mean ha he Pla i a he peron o 1982 ed di a ale picure he accoun and ial deparmen o company/ and he aid are deamaory. In paragraph 6 o hi aemen o claim he Pla i al heir ordinary and naural meaning/ he word he hi ourh and ih o he aid leer conex he leer a a e 1 mean and were underood o mean ha Plaini had deal ly h und o, and accordingly, he aid word are deamaory. In heir deence iled on April 24, 1990 he Deendan ed ha word complained o bore or were underood o bear or are e o be any meaning deamaory Plaini and ion hey relied on qualiied lege. 3

4 Plaini' icaion wa malic il on 23, 1990 a hink Par are cae. are a llow: on iue e 1. her wa a 2. I o are e Pl i. 3. I ar a mean whe occaion wa 1 4. I occaion wa 1 whe i wa mal ce. hall o deal wi hee iue in he order icaion i VI on 1 can be rna ained o have been 22 ae 1 or l unle i Lord Eher.R. a 1 cae: "The ma caue o ac 1 ing, 1 1. II 222 ae ica i mean he de maer, aer en, o ome han peron o whom i i en. In hi cae i canno e i wa icaion o a uppor o ha here wa a In 3 o he aemen o cl Pl all ha ir Deendan wroe and publi o i aed in he leer o March 1, In 1 ence he Deendan admied paragraph 1, 2 3 o 4

5 aemen o claim. only evidence o publicaion come rom he Jean, one wo winee or de aid cro ion ha a ar a could i wa ian Bonnel, o wine and preen r econd endan company, who leer Ma'::'ch 1, 198 When Bonnel aave ev r cro- ion, he aed ha i pc: e he he eer bu could no real recall he maer. he aini can only rely icaion endan o an employee e Deendan I PULLMAN and ANOTHER v. WALTER HILL & CO. LTD QB 524 he Cour o held an acion or l ha here wa icaion rom ion wa no privil wrier leer o clerk laer cae o BRYANSTON FINANCE LTD and OTHERS v. DE VRIES and ANOTHER AER 609 eem o have i ew lman' cae. wa a maj y deci o Cour l. In cae Lord Denning M. R. he e held ha dica a ineman o, re he dicaion wa he acceped mode o : he e r, gave e o an l lege, wa e he inended recipien migh or whe leer wa ac en. Baed on he iion o i would eem icaion o Bonnel would no give e o an acionable icaion or hi would be barred by ori l Lord Juice Lawon, who agreed wih Lord ha he al would be lowed, did no go along wih hi noion original 5

6 lege beween he wrier o he leer and. Lawon L J. wa o he view ha a lea ome o he inended re ien he leer in he cae a common ere wih he rece he complain and ica o would eced by qualiied privilege; and o he ld icaion o he i ier would alo nave Pc..:.ed i he icaion o hem had in uual coure buine which every empl had an ere enurlng wa ucceul. Lawon L.J. wa ~hu advoca an ancl ary lege ch i more clearly deined in he j Lord I I were o adop he view or he ime ha he eer March 1, 1989 o he Plaini wa clohed wi would come o he concluion on he he publicaion o Bonnel woild be privil ied privilege o Lawon L.J. and o here would be acionable icaion. co~plee he pic~re ~ hould ae ew o Lord ock who h~ diening judgmen ook he view ha wa unable o he broad and novel propoi o Lord i an original privi ege ou o conracual aionhip o employer and employee ch auomaical a every occaion on which a buineman dicae a eer a ypi in oice; ice. Lord Dip ock can be placed ha i wa no an orig proo o lege bu one ancillary o, and. dependen on, ence o a lege or he publicaion o he de conen o er o i addreee. Lord k came o he conclu ha he main publicaion o he Plaini wa any ancillary privileqe or i: prior e o aracing icaion o clerical oyee o he deendan in he coure o ng i or depach o him. Worhy o noe i he view o Lord Diplock a page 623 o he judgmen ha he member o he Cour o Appeal in Pul ' cae 6

7 no appear o have regarded i a being in he coure o buine pracice a ha dae o dicae leer o i. he auhori o Bryanon' cae, reaon Lord Denning M.R. and Lawon L.J. I would d re wa no icaion o he leer o March 1, 1989 ha would e o a caue o acion o a i 1 r icaion o Bonnel be regarded a an lege or a an ancillary privilege. Bu I would no wih o re my deciion on hi o icaion and o I pa on o con r ained o are capable a deamaory 119 o Galey ae a ollow: "I i well eled he queion r are complained o are e o i a queion o law Dd ls hereore one deciion o Cour. I word are o e i i a queion or he jury her he word do in ac convey a amaory me I a publicaion, eiher a or aken in connecion wih o circumance, ls capable o a libellou conrucion, i or ury, no or Cour, o ay wheher a l llou conrucion hould be pu upon i." e 1311 wi and I "Where he Plaini relie on he naural and meaning o he word complained o, no evidence i admiible o heir meaning or he ene in which hey were underood or o any ac giving e o any erence o be drawn he word ued, or i i or he jury o deermine ene in which he word would reaonably have been underood by an 7

8 ordinary man he ligh o general known ac and meaning o word. For inance, evidence o he mean o a lang expreion which ha paed ino common ue would no admi e." In hi juridicion o coure 1 and in hi cae I perorm he uncion o he Cour and h~ -i11.rj. I read he leer o March in i oali ee a concern by he Chairman o he Board o Direcor he e endan company in repec o he adminira I accoun ial deparmen o he company in ha i wa no clear whoe name wa he Dominica accoun; and here The Chairman hereore requeed he Pl i o end all in poeion which could he o cl poi and when he end hee he company would end a deai ed o he could urnih any r explanaion. I am a a lo o ee any aion o di he a i e her in a ale picure he ra, accoun and inancial deparmen o he company or in deal wih und o he company. I agree wih learned Counel or he De ha he naure o he leer wa one o enquiry. In my judgmen he word complained o in he leer o March wrien by he ir Deendan did no bear and are e o bearing a deamaory impuaion o he Plaini. Bu I hall aume or he ime being ha he word did bear a amaory meaning and I hereore go on o conider he de ence iied privilege. 8

9 A indicaed earlier I l aume here wa an aci e icaion rom he Chairman o he Board Direcor o he General Manager o he econd Deendan company. no e o any publ.icaion o any oher Learned Counel or he Plaini in her exen ion o he ir Deendan uggeed ha peron. ro leer may h~ve 0cen publihed o a Mi Gibon. When he.ne aid did know a Mi he uggeion wa l a ao. And in her cloing addre l i admi ha he y e o Counel or licaion wa Bonnel. ubjec qualiied pr lege ls al h ourh ion o Halbury' Law o I Volume 281 rela communicaion rom he wrier o he ee. 108 Volume 28 deal wi he ence o ii lege. I ae: "On ground o public he law a ecion cerain occaion o a peron acing in h and wi any improper moive who make a aemen abou anoher peron which i in ac unrue and de called occaion o qualiied privilege. Such occaion are I i no poible o e ou all he occaion a common law whi will be held o be pr leged bu, a a general rule, here mu a common and correponding duy or inere beween he peron who make communicaion and he peron who rece i." Learned Counel or he Deendan ha quie ly aed i wa a duy o he irman o he Board Direcor o wrie he alleged deamaory leer o he General Manager o radio aion who had a correponding duy o receive i. 111 o he aid Volume 28 o Halbury 1 Law o and ae ha an occaion i privileged where he peron who make a 9

10 caion ha an inere or a duy, l oci or i o he peron o whom i i made, and o ::_ o made a correponding inere or o rece i. am o he view ha i he leer o March 1, 1989 could ever a deamaory deence o quali ed lege could o avoid acion. i rie law ha malice can deea he de ence o iied ilege. 109 Volume 28 o Hal ' Law o land deal wih eec o malice ae li ls he De o prove he occaion icaion i one iied lege. ea deence Plaini mu prove ha he Deendan, publihing he word complained o, wa acuaed expre malice." he burden i on he Pl i o expre malice on he o he De. 762 o Galey ae ha i will ue exience o i he can how ha he Deendan wa no u malice he occa ly or purpoe or whi he law ec, bu wa acuaed ome indirec mo no conneced wih lege, i.e. acual malice. 765 ae ac mal ce doe no neceari mean peronal p e or ill l. any indirec moive oher han a ene i he law l malice. Boh Counel re o he cae o HORROCKS v. LOWE AER 662, H. L. on he queion o malice. In cae he Plaini brough an acion claiming damage or lander ln which acceped he Deendan r plea ha. che word were on a privileged occaion bu alleged ha he De wa acuaed by expre malice. Judge ound ha Deendan no been acuaed by peronal pie and ha he had ieved ha wha he wa aying wa rue and juiiable. He held however ha, owing o he Deendan' anxiey o have he 10

11 i removed rom he ee, ae wa one unreaoning prej expre he i De IS i Houe o Houe o De or rra o had a wa eni o a ha al e an i o h or o wha cae i him o were no circumance rom Houe mi he who gave 1 expre clo addre learned Counel or he i ed De no i o he e no o ion cona in he leer. e. I no De he Plaini o he reul o heir no lieve o wroe. i rel on he ac leer wa en o him mon aer he ini a i c De or ee owed o him a ice on o he De. I i rue cro ion ir De a wa no Garon had iled a cae he company bu more i no uicien o ai he burden on he Pla i 11

12 wa expre malice on he o he De. An iue wa o he ac ha he ir De ed accoun o 1985, 986 and 8 erence being i accoun he d no er que any maer relaed o accoun. ::: Sbr?rd anwered he renee correc when he a "I approved ial ae~en or 1 8, 1986 and ~ 8 approved documen hac were o he Board. doe no mean ha I apprc or raud covered ub ha did no come o my a i mu have aiied learned Counel or he Pla never menioned he accoun in her clo addre. my judgmen no expre malice ha been a~ni in cae. on he he For he reaon a above he ac ed h co o Deendan o be axed, i no A. N. ne MATTHE"\1 12