Pinard-Byrne v Linton (Dominica) [2015]
In Pinard-Byrne v Linton (Dominica) [2015] UKPC 41 (12 October 2015) this Appeal before the Lords Clarke, Wilson, Sumption, Carnwath and Toulson came from the Court of Appeal of the Eastern Caribbean Supreme Court (Commonwealth of Dominica) and related to Reynolds privilege. The Claimant, a Chartered Accountant, had alleged he was defamed by the Defendant, a journalist, who had phoned in to a radio show where the Claimant was appearing as a guest, on the 26th February 2002 and made comments which the Claimant considered were defamatory of him.
The words appeared again in an article posted on a website in May 2002. The case succeeded against all three Defendants, the Claimant, the radio station and the website operator. The Defendants appealed to the Court of appeal and succeeded on one point being that the speaking, writing and publishing of the words were qualified privilege, also known as Reynolds privilege. The Claimant appealed against this but, only in respect of the First Defendant and questioned whether the Court of Appeal had been correct in overturning the rejection by Judge Cottle of the Reynolds Privilege defence.
The term Reynolds privilege, a form of qualified privilege, emanated from the case of Reynolds v Times Newspapers Ltd 2001, a public interest defence balancing the right to freedom of expression and the right for an individual to safeguard its reputation.
The Board concluded the Court of Appeal had acted incorrectly in allowing the appeal by the First Defendant. The Judge held “that the words in their natural and ordinary meanings were defamatory of KPB because they would have the effect of lowering him in the esteem of the public and they ascribed to him both criminal and professionally discreditable conduct. The Court of Appeal upheld those conclusions, which are not challenged in this appeal”. The question for the Board was that by publishing the words complained of had the Defendant acted responsibly and was he under a duty to the general public to publish them.
The Board observed that it was not enough for the Court of Appeal to just look at reaching a decision as to whether it was either of public interest or of public importance which both the Judge and the Court of Appeal had correctly decided it was. The Board considered that the First Defendant should have undertaken an investigation of the Claimant before making any allegations, which he did not do. The Board noted that he did make some investigation of the project which the Claimant had been connected to but there had been no evidence that he had carried out investigation as to whether the Claimant was involved in wrongdoing as alleged in the words complained of.
The Board considered that the Judge had been correct in his submission “The judge was entitled to reach the conclusion that LL continued to insist that his statements “were based on facts, revealed by his very ‘thorough’ investigation, although at the trial no evidence was led to establish the truth of those statements”. He was also entitled to conclude that, as he put it in para 42, “[LL’s] demeanour in the witness box was more consistent with personal animosity towards the claimant rather than an unbiased search for truth. The overall tone of the offending publications also reeked of rancour rather than even handed reporting.”
The Board decided that the First Defendant had failed on all but one point to put the allegations to the Claimant before making them. The Judge had noted the Defendant had failed to complain to either the Police or the Claimant’s professional body, which the Board considered was relevant on examining the facts but, as to the comments of the Judge suggesting that it would not be possible to prove the privilege without complaints being made, they referred to the Court of Appeal judgment “As Lord Nicholls makes clear, the relevant exercise is to decide whether it was the duty of a responsible journalist to publish the material concerned”.
On reading through the judge’s judgment the Board observed that his negative response to the question posed, whether the First Defendant owed such a duty and, had it been responsible of him to publish the defamatory statements, was based upon the First Defendant not carrying out any investigation to substantiate this with allegations made of criminal behaviour and professional misconduct.
The Board considered the Judge had justification in reaching the conclusion he had in his judgment noting that “The judge has an advantage over the Court of Appeal in that he has seen the witness (here LL) give evidence and in a case where there are many factors in play, considerable respect must be paid to the balance struck by the trial judge”.
The Board considered the facts before them noting that there was no evidence to support the allegations made. The Claimant had not been approached to make any reply to those allegations before the defamatory statements were made. They noted that the Judge had made one small error of principle. “He recognised that LL did not act responsibly in making the serious allegations he did. By contrast the Court of Appeal focused on the public interest in the scheme and not on the particular allegations made against LL. In that, it erred in principle. If the correct approach is for the Board to approach the issue of Reynolds privilege for itself, on the footing that both the judge and the Court of Appeal made errors of principle, for the reasons it has given it reaches the same conclusion as the judge”.
The Board concluded that the Claimant’s appeal should be allowed and be entitled to his costs although the Board would consider any written submission made by the parties in respect thereof. They invited the parties to make written submissions as to the form of the order which should include the position of other parties to the action, if relevant.