Rishatha Nicholls v Arnhim Eustace

• Jurisdiction: St Vincent and the Grenadines
• Judge: Henry, J.
• Judgment Date: 12 July 2018
• Neutral Citation: VC 2018 HC 45
• Court: High Court (Saint Vincent and the Grenadines)
• Date: 12 July 2018
• Docket Number: SVGHCV2014/0240

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Henry, J.

SVGHCV2014/0240

CONSOLIDATED WITH SVGHCV2014/0242

Between:

Rishatha Nicholls

Claimant

and

Arnhim Eustace

Defendant

Rishatha Nicholls

Claimant

and

Arnhim Eustace

Defendant

Appearances:

Mr. Ronald Marks and Mrs. Patricia Marks-Minors for the claimant.

Mr. Bertram Commissiong Q.C. instructed by Ms. Maia Eustace for the defendant.

Tort - Defamation — Whether words complained of were defamatory — Defence of fair comment and justification.

BACKGROUND

Henry, J.

1 Mrs. Rishatha Nicholls was employed by Mr. Arnhim Eustace for over 12 years as his secretary. During that time Mr. Eustace was the President of the New Democratic Party (‘NDP’) the political party which formed the Opposition in the House of Assembly, of Saint Vincent and the Grenadines. Mr. Eustace was also the Leader of the Opposition in Parliament. Mrs. Nicholls' employment was terminated on March 28 ^th 2014. The Department of Labour found that she had been wrongfully dismissed and awarded her severance. The Appeal Tribunal confirmed that decision.

2 On 23 ^rd April 2014 and again on 24 ^th April 2014 Mr. Eustace called into a popular morning radio programme known as ‘AM MAYHEM’ and spoke certain words about Mrs. Nicholls. Mrs. Nicholls contended that the words are defamatory of her and were understood to mean that she had committed the offence of theft and was involved in corrupt practices.

3 Mr. Eustace denied that words are capable of the alleged meanings. He argued that the statements made on 23 ^rd April constitute fair comment on a matter of public interest and that the words spoken about Mrs. Nicholls on the following day are true in substance and fact.

4 Mrs. Nicholls filed two claims 1 against Mr. Eustace in respect of the statements broadcast on those days. She alleged that her character and reputation have been gravely damaged by the referenced utterances. She sought damages for defamation of character; an injunction restraining Mr. Eustace from publishing the same or similar words; interest and costs. Mr. Eustace has denied liability.

5 The claims proceeded through the system and various case management and other interlocutory orders were made by the Masters. By order dated 4 ^th July 2017 His Lordship Brian Cottle recused himself from presiding over the claims. When they came on for hearing before me on 2 ^nd October 2017, an order was made consolidating the claims. It was adjourned for trial to 17 ^th October 2017.

6 Regrettably, that trial date and two other adjourned trial dates had to be vacated due to the reported illness of Mr. Eustace's counsel (on one occasion); Mr. Eustace's illness (at another hearing); and learned Queen Counsel's absence (on the third instance) — attributable to the recent loss of his brother. 2 The trial proceeded on 26 ^th April 2018 and concluded with Mr. Eustace's testimony. I have

found that Mr. Eustace is liable to Mrs. Nicholls.

ISSUES

7 The issues are:

• 1. Whether the words complained of are capable of bearing the meanings ascribed to them by Mrs. Nicholls?

• 2. Whether Mrs. Nicholls was defamed?

• 3. Whether the defences of fair comment and justification are made out by Mr. Eustace?

• 4. To what remedies if any, is Mrs. Nicholls entitled?

ANALYSIS

Issue 1 — Are the words complained of capable of bearing the meanings ascribed to them by Mrs. Nicholls?

8 Mr. Eustace has not denied uttering the words about which Mrs. Nicholls has complained. He submitted 3 that the words cannot be taken to carry the meanings ascribed by her. He claimed in his defence that if the words spoken on 23 ^rd April bear the meaning attributed by Mrs. Nicholls, that they were fair comment on matters of public interest. He insisted that the statements made on 24 ^th April 2018 were not defamatory of Mrs. Nicholls and even if they did they were true.

9 On both occasions when the alleged defamatory words were spoken Mr. Eustace was having an exchange with the host of the radio programme. Mr. Eustace admitted:–

• 1. calling into the popular radio programme ‘AM MAYHEM’ on 23 ^rd and 24 ^th May 2014; and

• 2. making the statements which were broadcast on Hot 97.1 FM on those days.

10 On the first of the two days, the conversation progressed as follows:

‘The Defendant 4: Hello

Host: Morning! Morning!

The Defendant: Yeah, Eustace here

Host: Mr. Eustace, this thing, with this, what is the real deal with this thing?

The Defendant: Well let me just, you know, I have refused from making any statement on this matter all the time you know, I want to simply say this; there's a lot of things that's been said. I've kept quiet all the time and I have not made any real statement to the press on the matter and today is the first time I am going to say something. First of all, I want to point out that by registered letter on the 14 ^th of April, I sent the severance pay to Mrs. Nicholls.

Host: 2014

The Defendant: 14 ^th of April

Host: Ok

The Defendant: By registered mail. I am surprised that I am hearing that she has not gotten it but that was done on the 14 ^th of April, that is the first thing I have to say, so I am hearing a lot of talks on this matter secondly I want to point out that I have and the New Democratic Party when we get into office we'll have zero tolerance for corruption and petty theft, you hear me?

Host: I hear you, I hear you.

The Defendant: I never expected to win at the Tribunal. The Tribunal is a legal process but I know how it works. All I am saying, the payment was made and the New Democratic Party Administration will have no tolerance for corruption and petty theft.’ (bold added)

11 On the following day, the host and Mr. Eustace engaged in further conversation in the following terms:–

‘Host: Is it that you are….

The Defendant: To what I was saying yesterday, we are going to take in a strong stand on theft and corruption and so on once we get into office.

Host: Ok.

The Defendant: Because there is too much of that going on in the country.

Host: Ok. So you were in no way hinting that your former Secretary was pinching little bit off the edges and not nice

The Defendant: Look, what happened is that she took money that she should not have taken.

Host: Oh, ok.

The Defendant: Many times.

Host: Oh.

The Defendant: Ok, and that is what she was in fact paying it back.

Host: Oooh…. So any of this was reported to anyone, this was like you know…

The Defendant: It was brought to my attention after a while.

Host: Right, and did you report it to anyone to say well you know…

The Defendant: Yes man but in my dismissing her I raised that as one of the issues in her dismissal not the only issue one of the issues.’ (bold added)

12 Mrs. Nicholls was not happy that Mr. Eustace made those remarks about her. On the contrary, she was aggrieved and felt that they had injured her character. She instructed her lawyers to write to him complaining of the words published on the radio programme. On the 12 ^th day of November, 2014, her lawyer — Mr. Ronald Marks sent two formal letters before action to Mr. Eustace demanding an apology and an appropriate sum of money as compensation.

13 Mr. Eustace did not respond to those letters. Mrs. Nicholls proceeded to file the instant claims. She pleaded that the words meant or were understood to mean that she had committed the criminal act of theft which is an offence punishable by imprisonment. She claimed that they also meant that she was involved in corrupt practices. She testified that that is how she understood them in their natural, ordinary and inferential meanings.

14 Mrs. Nicholls contended that from the context and the words uttered, the ordinary listener was left, on both days, with the clear allegation that she was a dishonest person, had committed several acts of dishonesty, had lost her job as a result of her criminal conduct and that Mr. Eustace was justified in terminating her employment notwithstanding the ruling of the Hearing Officer in her favour and the subsequent decision of the Appeals Tribunal upholding that decision.

15 Under cross- examination Mr. Eustace said:

‘… I mentioned Mrs. Nicholls' issue at the time and pointing out that she was being paid by the public purse and we would not be tolerating in the party that kind of behavior. I referred to petty theft and other types of corruption and that type of behavior. I indicated that I was particularly concerned that the claimant was paid by the government even though she worked for the party and there are a lot of those cases going on in the public service at the same time and she was already repaying the missing money to Mr. Lynch.’

16 He amplified his testimony and indicated: ‘I was convinced that as Leader of a party at the time when our country was having a number of thefts; I had to speak out, particularly as the claimant herself was paid by the public purse. We had statements being made by a number of persons in public departments who were being charged at the time. I indicated to the public that we could not stand by as a party seeking to form government and not condemn theft, petty theft and other types of corruption without making a statement on the matter because I knew that the money was being paid by installments, the last of which was repaid on 9 ^th April, the year the matter occurred.’

17 He acknowledged that he was referring to Mrs. Nicholls in his statement on the radio broadcast on 23 ^rd April 2014 when he said: ‘… I want to point out that I have and the New Democratic Party when we get into office we'll have zero tolerance for corruption and petty theft, you hear me?’ Later in his testimony he said, ‘She removed the money so I concluded she stole the money.’ He accepted that his evidence about corruption and petty theft included reference to Mrs. Nicholls.

18 Mr. Eustace departed from his pleadings in two...