Bonnick v Morris

JurisdictionUK Non-devolved
CourtPrivy Council
JudgeLord Nicholls of Birkenhead
Judgment Date17 Jun 2002
Neutral Citation[2002] UKPC 31
Docket NumberAppeal No. 30 of 2001

[2002] UKPC 31

Privy Council

Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Hope of Craighead

Lord Scott of Foscote

The Rt. Hon. Justice Tipping

Appeal No. 30 of 2001
Hugh Bonnick
Appellant
and
(1) Margaret Morris
(2) The Gleaner Company Ltd.
and
(3) Ken Alen
Respondents

[Delivered by Lord Nicholls of Birkenhead]

1

Jamaica Commodity Trading Co. Ltd, or JCTC for short, is a government-owned company with a monopoly over the import of basic foods into Jamaica. In 1990 JCTC entered into two contracts with a Belgian company, Prolacto SA, for the supply of milk powder. The first contract was made in September 1990, the other in December 1990. Throughout this period JCTC's managing director was Mr Hugh Bonnick. He left the company at Christmas 1990, shortly before the formal signing of the second contract.

2

Some time after the first contract was made a dispute arose regarding the amounts payable by JCTC. In August 1991 JCTC started proceedings against Prolacto, claiming damages for breach of contract. The claim was defended. In April 1992 Prolacto served a defence and counterclaim. On Sunday 19 April 1992 the Sunday Gleaner, a leading newspaper on the island, published on its front page an article spread across three columns under the headline "JCTC sues Belgian milk company". The article read as follows (the paragraphs have been numbered for ease of reference):

"[1] The Jamaica Commodity Trading Company (JCTC) has confirmed that they have filed suit against a Belgian company in respect of a breached contract to supply milk powder.

[2] The faxed response to the Sunday Gleaner from JCTC's Legal Officer, Karen Ford-Warner, said: 'We do not feel ourselves able to answer your questions at this stage as the matter is in the hands of our attorneys who have already filed a court action.'

[3] The newsletter Insight reported that the suit is for US$13 million and that the Belgian company Prolacto SA has filed a counter suit. Eagle Commercial Bank, named as a co-defendant with Prolacto in the Insight report, told the Sunday Gleaner that JCTC has withdrawn the suit against them.

[4] The Sunday Gleaner has learned that Mr Alfred Rattray of Rattray Patterson Rattray is representing Prolacto.

[5] A source close to JCTC confirmed that the dispute centres on two supply contracts – the first for 3,000 tonnes at US$1,264 per tonne awarded in August 1990 and the second for the same amount at US$1,325 per tonne agreed in December 1990.

[6] The attractive feature of both was that payment could be made in Jamaican dollars but the contracts were 'very unusual'. Both were cash contracts and as such prices were lower than average in a recovering and volatile world market.

[7] In respect of the first contract, JCTC was required to lodge the full amount (over J$30.2 million) in Eagle Commercial Bank and appropriate disbursements from the deposit were to be credited to Prolacto's account at the time of each shipment leaving Europe. At the same time, interest on the deposit was paid to JCTC.

[8] In the second deal, Prolacto demanded that the interest on the deposit of approximately J$31.8 million should accrue to their account.

[9] According to one authoritative source, 'nobody at JCTC could be so mad as to agree to that'. He also contended that the contracts were arranged without the normal participation of the Purchasing Department and that Prolacto was not on JCTC's list of approved suppliers.

[10] Mr Hugh Bonnick, then managing director of the JCTC, told the Sunday Gleaner that there had been a mistake in the implementation of payments on the first contract and interest should have gone to the suppliers, not to JCTC. He said that he had 'opened up the restricted lists' of all suppliers when he assumed the position at JCTC.

[11] Mr Bonnick also emphasised that the Prolacto contracts were both put out to tender, evaluated and awarded according to the rules and that the auditors were present on all occasions. He indicated that he will sue anybody who suggests otherwise. Mr Bonnick's services as managing director were terminated shortly after the second contract was agreed.

[12] An authoritative source pointed out other departures from the norm in respect of these contracts: the fact that Prolacto was late in starting delivery, and then requested a price hike to cover increased transportation costs because of the Gulf War. Much pressure was brought to bear on JCTC officers to accede to this request but the Sunday Gleaner was unable to find out the actual outcome.

[13] The second contract was agreed just weeks after delivery on the first contract had started. In the absence of any official release, it is assumed that Prolacto terminated supplies when JCTC refused to agree to release their financial conditions – for example agreeing to Prolacto getting the bank interest.

[14] Skim milk under these contracts is supplied to the condensery and ice-cream manufacturers and the import price impacts heavily on the cost of living."

3

Mr Bonnick's response was immediate. Three days later he issued the writ in these defamation proceedings against the journalist who wrote the article, Margaret Morris, the publisher of the newspaper and its editor. He asserted that the article bore several defamatory meanings: that his services as managing director of JCTC were terminated because of his impropriety in the formation, conclusion and implementation of very unusual contracts with Prolacto; that, irregularly and in breach of normal procedures, he had caused JCTC to enter into these contracts without the participation of the purchasing department and with an unapproved supplier; and that he was insane, stupid or incompetent. The pleadings raised issues on meaning, justification, qualified privilege, honest comment and malice.

The trial

4

At the trial Mr Bonnick gave evidence that there was nothing irregular about the making of the contracts. Nor did his dismissal have anything to do with the Prolacto contracts. He was told by the chairman that the incoming minister wanted to appointed his own man as managing director. Mr Bonnick refused to resign, but insisted on being dismissed so he would be paid compensation.

5

Mrs Morris gave evidence that her Sunday Gleaner article was prompted by the Insight report mentioned in paragraph 3. She approached JCTC, but the company was unwilling to answer questions on the record. Her sources comprised one anonymous source, knowledgeable about JCTC, and Mr Bonnick himself. The anonymous source gave her information to the effect stated in the article. She made no enquiries about the reasons for Mr Bonnick's dismissal. Over the telephone Mrs Morris sought information from Mr Bonnick for a proposed article on JCTC. She told him she had information of irregularities concerning the Prolacto contracts. Mr Bonnick responded as summarised in paragraphs 10 and 11 of the article. She asked him whether he had been "fired" from JCTC. He said he had made them fire him because, based on the advice he had received, this would enable him to obtain more compensation. He said there was no connection between the termination of his employment and the Prolacto contracts. She considered both sources honestly believed their versions of the disputed events. She did not know whose account was correct. She left it to the readers to make up their minds.

6

Langrin J found in favour of the plaintiff, Mr Bonnick. He held that the crucial words at the end of paragraph 11 of the article meant, and would be understood by the ordinary reader to mean, that Mr Bonnick was dismissed as a result of the irregularities mentioned by the "authoritative source". The judge rejected the defences of justification and honest comment. He held that the occasion was privileged but malice was proved: given her belief in Mr Bonnick's honesty, Mrs Morris ought not to have printed the anonymous source's conflicting version. Moreover, she failed to mention Mr Bonnick's statement that his dismissal had nothing to do with the Prolacto contracts. Persistence in the plea of justification attracted aggravated damages, which he assessed at J$750,000.

The Court of Appeal

7

The Court of Appeal allowed an appeal by the defendants. Downer JA held that the article was not defamatory. The ordinary reader would not have concluded that Mr Bonnick's services were terminated because of impropriety in the making of the Prolacto contracts. Downer JA considered that, additionally, the defences of justification, qualified privilege and honest comment were all well founded. Bingham JA was also in favour of allowing the appeal. He too differed from the judge's conclusions on justification, qualified privilege and honest comment. He did not expressly set out his own view on the meaning of the article.

8

Forte P dissented. He agreed with the judge on the defamatory meaning of the article. He considered the article did not attract qualified privilege. Further investigation should have been undertaken, and the article failed to report Mr Bonnick's denial of any connection between his dismissal and the Prolacto contracts. He rejected the defence of justification, but would have reduced the damages to J$650,000.

The defamatory meaning

9

Before their Lordships' Board the issues were reduced to two: meaning and qualified privilege. As to meaning, the approach to be adopted by a court is not in doubt. The principles were conveniently summarised by Sir Thomas Bingham MR in Skuse v Granada Television Ltd [1996] EMLR 278, 285-287. In short, the court should give the article the natural and ordinary meaning it would have conveyed to the ordinary reasonable reader of the Sunday Gleaner, reading the article once. The...

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2 firm's commentaries
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2 books & journal articles
  • Lange and Reynolds qualified privilege: Australian and English defamation law and practice.
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    • Melbourne University Law Review Vol. 28 Nbr. 2, August 2004
    • 1 August 2004
    ...(Court of Appeal). (51) James Gilbert Ltd v MGN Ltd [2000] EMLR 680, 700 (Eady J). (52) Jameel [2004] EMLR 196. (53) Bonnick v Morris [2003] 1 AC 300, 309 (Lord (54) Ibid. (55) [2002] EMLR 215 ('Al-Fagih'). (56) See Shah v Standard Chartered Bank [1999] QB 241. (57) Al-Fagih [2002] EMLR 215......
  • What Conversation? Free Speech and Defamation Law
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    • The Modern Law Review Nbr. 73-5, September 2010
    • 1 September 2010
    ...Evolu-tion of Common Law Quali¢ed Privilege in England andWales’(2011) 31OJLS forthcoming.136 BonnickvMor ris [2002] UKPC 31; [2003] 1 AC 300 at [24].Free Speech and Defamation Law714 r2010 The Author.Journal Compilation r2010 The ModernLaw Review Limited.(2010) 73(5) [W]hereas the question......

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