The Gleaner Company Ltd and another v Abrahams

JurisdictionUK Non-devolved
JudgeLord Hoffmann
Judgment Date14 July 2003
Neutral Citation[2003] UKPC 55
CourtPrivy Council
Docket NumberAppeal No. 86 of 2001
Date14 July 2003
(1) The Gleaner Company Limited
and
(2) Dudley Stokes
Appellants
and
Eric Anthony Abrahams
Respondent

[2003] UKPC 55

Present at the hearing:-

Lord Hoffmann

Lord Hope of Craighead

Lord Hobhouse of Woodborough

Lord Millett

The Rt. Hon. Justice Tipping

Appeal No. 86 of 2001

Privy Council

[Delivered by Lord Hoffmann]

Libel damages: how much is too much?

1

There are two daily newspapers in Jamaica. One is the Daily Gleaner and the other the Star. The Daily Gleaner is a morning paper; a broadsheet newspaper of record, with a reputation for good journalism. The Star is an afternoon tabloid. Although there is said to be "friendly rivalry" between them, both belong to the first appellant, the Gleaner Company Ltd. It is a very well known company (established in 1848) with substantial interests in publishing and other activities. Between 1986 and 1992 the second appellant Dr Stokes was editor in chief of both papers.

2

In September 1987 both papers published libellous articles about the plaintiff, Mr Abrahams, who had been Minister of Tourism for Jamaica between 1980 and 1984. They quoted Mr Robin Moore, an American novelist with Jamaican connections, as saying that Mr Abrahams, when Minister of Tourism, had taken bribes from US public relations and advertising agencies in return for awarding them lucrative contracts for promoting tourism in Jamaica. Mr Abrahams immediately commenced proceedings against the appellants for libel. They pleaded justification and qualified privilege.

3

For various reasons to which their Lordships will in due course return, the action took a very long time to come to trial. In an interlocutory judgment in 1994 the Court of Appeal struck out the defences on the ground that the defendants were unable to plead any facts to support them. In 1996 the action was heard by Smith J and a jury. The only remaining issue was the amount of damages. The jury heard many days of evidence and the judge gave them a careful and detailed summing up. After retiring for an hour and a half, the jury awarded J$80.7 million, which at that time was the equivalent of £1.2 million.

4

The defendants appealed. The Court of Appeal rejected all criticisms of the summing up but nevertheless decided that the damages were excessive. They set aside the award and substituted J$35 million, which was at that time the equivalent of £533,000. The defendants appeal to Her Majesty in Council on the ground that the damages are still excessive. In particular, they argue that the Court of Appeal did not have sufficient regard to the inhibiting effect which so large an award would have upon the exercise of the constitutional right to freedom of expression.

History

(a) The plaintiff

5

Mr Abrahams comes from a well known Jamaican family. He was a Rhodes Scholar and past President of the Oxford Union who, on returning to Jamaica, decided to make his career in tourism. At the age of 28 he was Chairman of the Jamaica Tourist Board, an independent statutory body charged with promoting tourism. He went into politics and, after election to Parliament for East Kingston in 1980, became Minister of Tourism. In 1984 he resigned as Minister and went into business as a tourism consultant, though remaining a Member of Parliament.

(b) The "kickback" scandal

6

The scandal in which Mr Abrahams found himself engulfed in 1987 arose out of an investigation by United States federal authorities in Connecticut. In 1981 the Jamaican Tourist Board appointed Young & Rubicam Inc, an American advertising agency, to mount an expensive advertising campaign in the United States. In 1983 the US Internal Revenue Service, which was investigating Mr Robin Moore on suspicion of tax evasion, seized some of his papers. They found documents which suggested he had been party to arrangements by which Young & Rubicam paid a share of their commission ("kickbacks") to Jamaicans as a bribe for assistance in obtaining the contract. Young & Rubicam had been paying substantial sums to a Cayman Island company called Ad Ventures Ltd which they were purporting to employ as a consultant but which rendered no services. It was in fact a vehicle for the recipients of the bribes. Further information came to the authorities as a result of a mistake on the part of a Young & Rubicam employee who sent three cheques payable to Ad Ventures Ltd to Mr Arnold Foote, a prominent Jamaican advertising man, at the address of the Jamaica Tourist Board in New York. There they came to the attention of the Board's regional manager and aroused his suspicion.

7

These sources pointed to the involvement of Foote and Moore. But they did not as yet implicate anyone else. In April 1986 Moore pleaded guilty to tax avoidance and, as part of the plea bargain, agreed to assist the federal authorities with their investigation into the payments by Young & Rubicam. The United States Attorney in Connecticut empanelled a grand jury to consider indicting Young & Rubicam and the other conspirators. Moore spoke freely about his evidence to the grand jury to Ms Lisa Marie Petersen, a staff writer on the Advocate of Stamford, Connecticut. She drafted an article based on what Moore had told her. This contained allegations by Moore that he had suspected that Mr Abrahams was receiving bribes.

(c) The publications

8

There followed an unfortunate chapter of accidents. For reasons unexplained, Ms Petersen's draft was released to Associated Press (AP) before it had been published in the Advocate and, indeed, before she had completed her inquiries. On Wednesday 16 September 1987 she telephoned Mr Abrahams in Jamaica and read him her draft. He reacted strongly; told her that Moore's story was a libel and that he, as Minister, had no power to award advertising contracts. That was a matter for the Jamaica Tourist Board, an independent body. Ms Petersen took note of his comments and when her article eventually appeared in the Advocate on Saturday 19 September 1987, it included a balanced account of Moore's allegation and Mr Abrahams's denial, including his statement:

"I was minister of tourism. I was not on any tourist board and I had nothing to do with spending money. I didn't award contracts and any suggestion that I have anything to do with any kickbacks is highly preposterous."

9

Meanwhile, however, the original draft had been released by AP on its wire service on 16 September. It was received by the Star, where Ms Cherice Brown, an experienced sub-editor, decided that it would be an interesting item to fill a space on her international page. She did not think it necessary to consult anyone or check the story with Mr Abrahams or anyone else. Within half an hour, someone (presumably at the Advocate) told AP that a mistake had been made and AP sent out a message "killing" the story. But apparently the correction was not sent to Jamaica.

10

On Thursday 17 September 1987 the Star published the first article of which complaint is made:

"Stamford, Connecticut

Author Robin Moore says his personal diary and files contributed to Federal authorities suspicions that New York business executives paid kickbacks to Jamaican officials for lucrative tourism promotion contracts.

'All I can say is that I suspected the Minister of Tourism was exacting a toll', the writer, Robin Moore of Westport told the Advocate of Stamford in a copyright story published Tuesday.

'Call it a bribe, call it anything you want' said Moore, the author of ' The French Connection', a novel on drug smuggling.

The Advocate reported Sunday that Federal authorities in Connecticut are investigating public relations and advertising executives suspected of paying Jamaican officials one million dollars for contracts worth $40 million from 1981-1985.

The Advocate, quoting anonymous sources close to the probe has said five or six executives of the public relations firm Ruder Finn and Rotman and the advertising firm Young and Rubicam are the focus of the investigation.

Officials of both firms have denied any wrongdoing and said they are co-operating with the investigators.

KEY FIGURE

Moore said on Monday that his files helped lead Federal agents to suspect that Anthony Abrahams, Jamaica's former Tourism Minister was being paid by American businessmen for the multi-million-dollar tourism contracts.

Sources close to a federal grand jury have said Abrahams is a key figure in the investigation, the newspaper said. Abrahams, however, has not testified before the grand jury empanelled in New Haven, the Advocate reported.

The newspaper said efforts to reach Abrahams and his successor, Hugh Hart, during the past two weeks were unsuccessful, and Hart didn't return telephone calls to his office on Monday.

Moore, 61, said the notes in his diary are impressions of what was going on between Abrahams and the United States companies. The subjects also appeared in letters between him and friends in Jamaica.

'I have no definitive proof that this ever happened - it was just a suspicion of mine', Moore said. 'People were talking. There were certain things everybody knew. There was no secret about the situation with the (former) Minister of Tourism'.

Moore said IRS agents seized his diary and other documents in June 1983, when he was being investigated for his part in phony literary tax shelters. Moore is now awaiting sentence on his 1986 conviction of evading taxes.

Moore, who has lived in Jamaica periodically for the past 27 years, said that in 1981 he volunteered his services to the Jamaican government to find advertising and public relations companies that would help the country's tourist trade.

'I was a sort of self-appointed liaison, although I asked to help. I said, "Let's try to do something about the image here, which is very bad at the moment". I did indeed help introduce the advertising agency of Young & Rubicam to Jamaica but I certainly had nothing to do with any...

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