Samuel Commissiong Plaintiff v The News Ltd Shelley Clarke Defendants [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Mitchell, J. |
| Judgment Date | 17 November 1999 |
| Judgment citation (vLex) | [1999] ECSC J1117-2 |
| Court | High Court (Saint Vincent) |
| Docket Number | CIVIL SUIT NO. 497/99 |
| Date | 17 November 1999 |
IN THE HIGH COURT OF JUSTICE
CIVIL SUIT NO. 497/99
The Plaintiff in this case is a prominent barrister and solicitor of the Eastern Caribbean Supreme Court practicing in Saint Vincent and the Grenadines. The 1st Defendant is a newspaper publishing company bringing out the weekly newspaper 'The News.' The 2nd Defendant is its managing director and editor. This is a ruling on two summonses taken together. The first is brought by the Plaintiff to renew anex parte interlocutory injunction granted on 15th October 1999 prohibiting the continued publication of an alleged libel. The other one is brought by the Defendants to discharge the injunction.
The affidavits filed in these applications revealed that sometime in late July 1999 the Plaintiff was instructed by a Swedish lawyer (hereinafter "the Swedish colleague") to collect a debt alleged by Gourmet Foods (St Vincent) Ltd (hereinafter "Gourmet Foods") to be owed to it by Friendship Bay Hotel Ltd (hereinafter "Friendship Bay.") The writ in that matter was issued on 10th August 1999 and numbered suit no 401 of 1999. Friendship Bay entered an appearance to the writ on 13th August 1999. It would appear from one of the newspaper articles complained of that the amount of the claim in suit 401 of 1999 was EC$43,700.00, and that Friendship Bay counterclaimed in that action against Gourmet Foods for some US $68,000.00. Meanwhile, on 13th August 1999, some 3 days after the issue of the writ, and on the day Friendship Bay entered an appearance to the writ, the Plaintiff wrote to the Swedish colleague a letter as follows:
Dear Colleague,
Re: Pending Claim against Friendship Bay Hotel
The case against Friendship Bay Hotel is proceeding normally. We have enclosed a copy of the default judgment for your records. The Lawyer who works for Friendship Bay Hotel said that LAB has instructed him to apply to the court for stay of execution pending his efforts to make a claim against Gourmet Foods Ltd. You did inform me of this possibility. This has not happened yet but we heard that it is coming. If it does we shall have to get fresh instructions from you. The Goods taken in execution are kept in storage as a matter of law for two weeks before sale. The rationale is that the debtor must have the opportunity to recover hisgoods by paying the monies. If he cannot, the goods will be sold by public auction.
(sd) SE Commissiong
This letter on the face of it does not make any sense in relation to the legal proceedings to which it applied. That case had only begun days before, and it had hardly begun to proceed, far less to be proceeding normally. The writ had been served on Friendship Bay that very day, and Friendship Bay had only that day entered an appearance. Certainly, Gourmet Foods could have obtained no default judgment as described by the Plaintiff at that stage.
Accompanying this letter from the Plaintiff to the Swedish colleague was a copy of a 'Default Judgment.' It bore on its top right hand corner a facsimile of the filing stamp of the Registry of the Supreme Court (date illegible). It would appear from the copy eventually produced to the court that that stamp had been copied from some other court document and transposed onto this document. The 'Default Judgment' was dated the impossible date of 25th July 1999 (a Sunday) some two weeks before the writ was actually issued. The place for the High Court suit number was left blank and was not filled in with the suit number, 401 of 1999. This would have been a simple matter for the Plaintiff to do if there had been any intention on the part of the Plaintiff deliberately to mislead anyone with this document. The 'Default Judgment' appeared to be signed by the acting Registrar of the High Court, when we now know that she never in fact signed such a document. It would appear that either her signature had been transposed by photocopying from some other document or it had been traced on the document. A facsimile of the Registrar's office stamp appearing to validate her signature appeared underneath thefacsimile of her signature. The document was not stamped "sample" or "not valid" or some other such notice to indicate that it was not a genuine court document. The only person the Plaintiff sent the two documents to and whom the documents could be expected mislead was the client of the Plaintiff. It did not appear from any of the documents before the court that either Gourmet Foods or the Swedish colleague has any quarrel with or has been in any way misled by either of the two documents. The Plaintiff did not appear to have intended anyone else to see the documents sent to the Swedish colleague, or for any action of any kind to be taken by anyone on the documents. There was certainly no evidence of his intending to have deceived anyone over these documents.
Whatever the explanation for this covering letter and the 'Default Judgment,' they subsequently got into the hands of Messrs Hughes & Cummings the solicitors for Friendship Bay, the alleged debtor. They made enquiries of the Registrar as to how such a mistake in granting a default judgment in a suit that had hardly begun could have been made. The Registrar examined the files and realized that she had never signed such a document as the one shown to her and which purported to bear her signature. She enquired of the Plaintiff as to what he had done. He explained to her that he had only intended to send his Swedish colleague a precedent of what such an order would look like when prepared. The Registrar informed Messrs Hughes & Cummings accordingly. The Registrar was concerned that actions of such a nature could have serious and far-reaching consequences in the operation of the Registry business. On 26th August 1996 she wrote a memorandum to the Attorney General acquainting him of the incident.
The story, together with copies of the Plaintiffs letter to his Swedish colleague and the 'Default Judgment,' got into the hands of the press. On 8th October 1999 an article appeared on the front page of the Defendant's weekly newspaper 'The News' under the headline "Lawyer Forges Court Order?" In commenting on the incident, the article used such phrases as "a dark cloud of uncertainty and doubt hovered over the 'noble profession;"' and asked the rhetorical question, did one of the leading lawyers in fact "forge a Judgment of the High Court?" The article claimed, "The phantom order is now creating some controversy and unease." The article noted, "The News has not yet heard of any disciplinary action, if any, that will be taken against the lawyer for the action."
The Defendants now obtained a copy of the Registrar's memorandum of 26th August to the Attorney General. On 15th October, under the by-line of Duggie 'Nose' Joseph at page 3, there was a follow-up article in 'The News.' The story was illustrated with photographs of the Plaintiff and the Registrar under the headline "Registrar Denies Signing Judgment." Most of the article was a straight forward report of the incident, but it concluded with a last paragraph, "One source here has expressed concerns, similar to some expressed by a Trinidadian newspaper relating to the legal controversy there, questioning 'if anyone has the testicular fortitude' to take any action." Yet a third article on the same page dealt with the incident under the headline, "That Mysterious Order!" It commented on and highlighted the discrepancies in the "Default Judgment."
On 15th October counsel for the Plaintiff applied to the courtex parte for an injunction to restrain the Defendants from publishing anything defamatory of the Plaintiff. The application was supported by a Certificate of Counsel of Extreme Urgency, and an affidavit of the Plaintiff explaining that the Defendants had threatened to publish his name as the forger of a court order, and that if they were not restrained their actions could cause irreparable harm to his professional and personal reputation, and further setting out reasons why it was extremely urgent that an injunction be granted ex parte.
On 15th October this court heard counsel on the Plaintiffsex parte application, and granted the Plaintiff the injunction he applied for on condition that he gave an undertaking as to damages, and issued a writ within 7 days. The order as applied for and granted was in these words:
That the Defendants be restrained and an injunction is hereby granted restraining them, whether by themselves, or by their servants or agents or any of them or otherwise howsoever from publishing, republishing, circulating and/or distributing the defamatory allegation contained in two articles published by the said Defendants in two issues of The News newspaper on 8th October 1999 and the 15th October 1999, of and concerning the Plaintiff or any other defamatory matter, until after the hearing of a summons to continue this injunction returnable on the 5th day of November 1999 or until further order.
The Plaintiff later the same day 15th October 1999 caused to be issued a generally endorsed writ claiming $1,000,000.00 general damages for libel, gave the undertaking in writing, and served the writ and the injunction and supporting documents on the Defendants. On 19th October the Plaintiff issued a summons tocontinue the injunction, and on 22nd October the Defendants issued a summons for the injunction to be discharged. These are the two summonses with which we are concerned. Neither the statement of claim nor the defence has as yet been delivered or filed.
Meanwhile, on 22nd October 1999, after the service on them of the injunction and the writ, the Defendants published further articles on page 1 of 'The News' illustrated by photographs of the Plaintiff, his counsel Mr Matadial, and the 2nd Defendant....
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