Simon and Others v Lyder and another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Briggs |
| Judgment Date | 29 July 2019 |
| Neutral Citation | [2019] UKPC 38 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0097 of 2018 |
| Date | 29 July 2019 |
[2019] UKPC 38
Lord Wilson
Lord Carnwath
Lady Black
Lord Briggs
Lady Arden
Privy Council Appeal No 0097 of 2018
Privy Council
Trinity Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellants
Adam Speker
(Instructed by Juris Chambers)
Respondents
Ulric Skerritt
Thalia Francis-Brooks
(Instructed by Charles Skerritt and Associates)
Heard on 18 June 2019
This appeal from the Court of Appeal of Trinidad and Tobago raises the well-known conundrum in the common law of defamation, namely the extent to which (if at all) two or more different statements made upon different occasions by the same defendant may be aggregated for the purpose of giving rise to a cause of action in defamation, when none of those statements would do so, viewed on its own.
The conundrum arose from two decisions of the English Court of Appeal, Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822 and Hayward v Thompson [1982] QB 47, decided six months apart, in both of which Lord Denning MR gave the leading judgment. The first ( Grappelli) appeared to decide that in no circumstances could this be done. The second ( Hayward) appeared to reach the contrary conclusion, upon the basis of a distinction drawn by Lord Denning which has not found favour thereafter, with academics, practitioners, or courts around the world which habitually apply the common law.
Readers of this judgment who hoped that it might finally resolve this conundrum will be disappointed. The Board does not consider that there is an entirely satisfactory conceptual solution to the problem but, for the reasons which follow, we have concluded that, on the particular facts of this case, the appeal can be satisfactorily resolved without doing so. It is a feature of the common law of defamation that neat conceptual solutions do not always provide satisfactory answers to the endlessly varied fact-sets with which judges and (in some jurisdictions) juries have to wrestle, for the purposes of achieving an outcome which properly accords with justice and common sense.
At about 5.30 pm on 17 August 2007 there occurred in the residential district of Wallerfield, in the town of Arima, Central Trinidad, a shooting incident in which four male occupants of a car, and a woman in her home nearby, were all shot dead by police officers: (“the Wallerfield shooting”).
The second defendant in these proceedings, Trinidad Express Newspapers Ltd (“Express Newspapers”), who publish the Daily and Sunday Express in Trinidad, reported the Wallerfield incident at the time. Then, in December 2008, a little more than a year later, the second defendant published an article headed “Fatal Blunder — Report reveals innocent Wallerfield five killed in police mistake” and a further editorial article headed “A clear call for justice” on the following day. They will be referred to as “articles A and B”. The gist of them was that an unidentified person within the Trinidad Police Service had put together a police assassination squad (also unidentified) with a view to obtaining revenge against the supposed killer of a well-known female drugs dealer with whom he was connected, and that the killer had been believed to be one of those travelling in the car, although all those killed in the Wallerfield shooting were in fact innocent citizens. Article B encouraged its readers “to pay close attention to the proceedings of the ordered inquest when it does come up in the Arima Magistrates Court, the better to ascertain whether justice is being served”.
Neither article A nor B identified any of the police officers alleged to have been involved in planning or executing the shooting. They were, however, as the court later held, thoroughly defamatory in nature, although they did not defame any particular identified individuals.
The inquest into the Wallerfield shooting was held in May and June 2009, some six months after the publication of articles A and B. On 5 June, while the inquest was ongoing, the second defendant published a further article (“article C”) headed “Forensic expert testifies in Wallerfield shootings”, explaining that the inquest was to ascertain the circumstances of the 17 August 2007 incident, and describing the testimony of the pathologist called to give expert evidence. Article C identified by name nine police officers whose conduct was said to have come into question following the shootings. They are the claimants in these defamation proceedings.
The inquest concluded on 30 June 2009, with findings that the officers involved were not culpable in any way for the deaths of any of the five people killed during the Wallerfield shooting. On 5 July 2009 the second defendant published a further article (“article D”) headlined “Self-preservation important”. The first line of the article was “kill or be killed”. It named the nine officers again, reporting that they had all been cleared by the inquest, and that the court had ruled that the actions of the officers were in no way negligent against the four men killed and further ruled the death of the young woman hit in the cross-fire was a misadventure. Article D reported that the officers had been vindicated by the court, but it also reported statements by relatives of the deceased and one of their representatives suggesting a sense of continuing injustice on their part about the outcome of the inquest.
The ensuing defamation proceedings by the named police officers against Express Newspapers and its general editor were issued in May 2010 and tried before Seepersad J, without a jury, in March 2013. In his reserved judgment dated 24 May 2013 dismissing the claim, he held that references to “police officers” in articles A and B could not have been understood at the time to refer to the claimants, although they were plainly defamatory in nature, and that articles C and D could not be relied upon to identify the claimants as the subjects of the defamatory content of articles A and B. The judge had also, during the trial, ruled against the admission of evidence that the claimants were in fact identified as the subject of articles A and B at the time of their publication, because the facts supportive of that conclusion had not been pleaded.
The Court of Appeal (Bereaux, Moosai and Pemberton JJA) unanimously allowed the claimants' appeal. They concluded that articles C and D were admissible for the purposes of identifying the claimants as the subject of articles A and B, and that the judge had been wrong to exclude evidence that the claimants were in fact identified as such at the time of the publication of articles A and B. The defendants' cross-appeal (about which nothing has turned before the Board) was at the same time dismissed.
There are the following three grounds of appeal before the Board:
i) That material subsequent to publication of an alleged defamatory statement cannot be prayed in aid for the purposes of founding a cause of action based upon that statement, because a cause of action in defamation (if there is one) is complete at the moment when a statement is published.
ii) That, if subsequent material can in principle be relied upon for that purpose, the Court of Appeal was wrong to reverse the finding of the judge that articles C and D were not available for that purpose, mainly due to the passage of time between them and the publication of articles A and B.
iii) That the Court of Appeal was wrong to reverse the judge's ruling about the admissibility of evidence of contemporaneous identification of the claimants.
It is convenient to deal with ground three first, before addressing grounds one and two, which need to be considered together.
The claimants sought at trial to introduce (without prior warning) evidence from the claimants themselves that they had received telephone calls shortly after the publication of articles A and B suggesting that the callers had identified them as the subject of those articles. No attempt was made by the claimants to call any person who made that identification. The judge ruled that identification of that kind (extraneous to the defamatory statements themselves) had to be pleaded with particularity, and had not been.
The Court of Appeal regarded that analysis by the judge as “plainly wrong” although there had been no ground of appeal making any such assertion. Their view was that the admissibility of the claimants' evidence was a matter of weight, rather than one to be resolved on the pleadings.
In the Board's view the judge made no error of law in relation to this question. He was better placed than the Court of Appeal or (for that matter) than the Board to judge whether the absence of the requisite pleading rendered the introduction of that evidence unfair to the defendants, and his conclusion that it did cannot be faulted. Furthermore, there having been no ground of appeal to the Court of Appeal on that issue, it was not one which the Court of Appeal ought to have decided against the judge.
After a careful analysis of the relevant authorities (referred to below) the judge concluded that the law did permit reference to subsequent statements by the defendant for the purposes of identifying the (otherwise unnamed) subjects of an earlier defamatory statement in certain circumstances, but that articles C and D could not be used for that purpose in the present case. His main reasons were, first, that there had been too long a lapse of time between December 2008 (when articles A and B were published) and June and July 2009 (when articles C and D were published) for readers of articles C and D to make the necessary connection between the police officers there named,...
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