Aggravating factors

The Gleaner Company Ltd and Dudley Stokes v Eric Anthony Abrahams, Privy Council appeal from the Court of Appeal of Jamaica, 14 July 2003

Heralded by some media commentators as pushing open the door to telephone number libel awards, and therefore resulting in a chilling effect on freedom of expression, this case is perhaps best considered as an extreme warning to defendants of how aggravating factors in defending a libel action can come home to roost in terms of damages.

The matter concerned a libel published in the Star and Daily Gleaner newspapers, a Jamaican broadsheet and tabloid respectively, concerning false and defamatory allegations about the claimant Eric Anthony Abrahams - a tourism consultant, minister of tourism and member of parliament.

The allegations were that he had taken bribes from US public relations and advertising agencies in return for awarding them lucrative contracts.

A US federal investigation in Connecticut was under way over the appointment of one US advertising agency.

As part of a plea bargain, the US citizen under investigation gave evidence that he suspected that Mr Abrahams was receiving bribes.

He spoke of his evidence to a US reporter.

A draft of her unfinished article, containing the serious defamatory allegations but not the claimant's comments or exhorted denials of the 'preposterous' allegations, was released to the Associated Press (AP).

Although the publication was a mistake, there then occurred serious aggravating factors that caused greater damage to the claimant.

On reading the initial article, which was published in September 1987, Mr Abrahams contacted the Star, asking that a rebuttal be published, which was agreed.

However, the very next day the paper repeated substantially the same original article.

The following day, there was still no rebuttal, but a clarification, repeating the libel but at pains to clarify that the paper did not mean to refer to the current tourism minister, thus pointing the finger unequivocally at Mr Abrahams.

Mr Abrahams' statement was printed in the Sunday Gleaner a couple of days later, but this was really considered to be too little too late.

After issue of proceedings, and notwithstanding that the original AP journalist retracted the allegations, the defendant newspapers chose to defend their articles through the defences of qualified privilege and justification.

They sought to rely, as a source, on the former director of tourism and chairman of the Jamaica Tourist Board at the time of the Connecticut investigation into the US advertising agency contract.

He had left under a cloud, as Mr Abrahams dismissed him after that investigation, and perhaps he was not the most independent of sources.

In 1994, the Court of Appeal struck out the defences on the grounds that no facts were pleaded to support them.

Although the newspapers' source had provided a statement, he did not put this in affidavit form until 1988.

In addition, the evidence, according to the Privy Council, was poorly particularised and 'raises far more questions than it answers'.

The defendants appealed against this decision, and the appeal was not heard for three years.

However, in the meantime, the Connecticut grand jury had investigated in private; it concluded that corruption charges should be brought against the US advertising agency investigated, and likewise, against Mr Abrahams.

He immediately instructed lawyers and offered full disclosure to the prosecutors, who had not interviewed him.

Subsequently, no link between him and the corruption was found.

The indictment against him was dismissed, and the advertising agency pleaded guilty and stated that its own investigations had revealed no evidence of any payments to Mr Abrahams.

At last, vindication.

Or was it? Although the indictment had been dropped against Mr Abrahams, when the defendants' appeal against the dismissal of its defences came on, it persisted in its plea of justification.

And amazingly, it was successful in that appeal.

Under the headline: 'True', the Daily Gleaner then published the judgment, which the claimant saw as another repetition of the libel.

The effect of the articles had been devastating on the claimant.

He had been ostracised, his nascent business failed, he became depressed, obese, withdrawn and prone to weep.

Despite wishing to plead defences of qualified privilege and justification, the defendants were not able to provide any further particulars.

The affidavit had had not been elaborated, and the defendants told the court, at a hearing considering an application for further and better particulars, that they would probably be unable to get any information from the grand jury before another year had elapsed.

The Court of Appeal said the claimant was entitled to a fair trial within a reasonable time, and that a trial on dishonesty without particulars would not be fair.

It struck out the defences.

The defendants had one more shot.

They issued a third-party notice against the AP, seeking to join the news agency on the basis that it had published the libel in the first instance.

Mr Abrahams objected that this would only lead to further delay, but the defendants retaliated that his objection must be on the basis that he did not want the grand jury evidence getting out.

This was another aggravating factor, as it suggested the defendants still considered they had only to get hold of the evidence to prove dishonesty.

However, the defendants' application was not allowed.

The Daily Gleaner then published an apology, without any reference to the claimant to negotiate the wording, but stressing the reliability of the AP and, by implication, the truth of the story.

By 1996, the only issue remaining to be decided was damages.

In mitigation, the defendants referred to their 'full and ample apology', the responsible and reputable news agency from where the story had come and the presentation of the grand jury indictment in Connecticut.

What it said in cross-examination suggested that it continued to believe it had good grounds to suspect the claimant.

Mr Abrahams brought evidence of his resultant medical condition, his humiliation, ostracism and suffering.

The jury awarded some 1.2 million.

Perhaps unsurprisingly, given the history, the defendants appealed.

Numerous extensions for further time were made by the defendants to put forward further grounds for appeal and judgment was not given until 2000.

The award was reduced by the Court of Appeal to 533,000.

However, the defendants, still believing the Court of Appeal's reduced sum to be excessive, appealed to the Privy Council.

A particular thread of its appeal was that the Court of Appeal did not have sufficient regard to the inhibiting effect that so large an award would have upon the exercise of the constitutional right to freedom of expression.

The Privy Council ruled that although the court had simply substituted an award, with no further clarification of the method it had used to come to that sum, it did not find that the court had acted incorrectly.

It had considered the relevant case law from the UK as it was made, including the well-known damages cases of Rantzen v MGN [1994] QB 670 and John v MGN [1996] 3 WLR 593.

The Privy Council found that all the relevant considerations had been weighed by the court.

It did not find that awards of this size would inhibit free speech or responsible journalism.

It would not interfere with the award of the appeal court, which was perfectly entitled to take the view that, if the decision had a chilling effect on the kind of conduct seen in this case, then 'that would be no bad thing'.

By Amber Melville-Brown, Schillings, London