The Jeff Cumberbatch Column–Non – litigious Resolution of Defamation Lawsuits
I had no intention of returning this soon to a discussion of the law relating to freedom of expression, even if indirectly as I propose to do today, after last week’s excursus on that topic and its contemporary broadening. However, some items in another section of the print media during the past week might conceivably have led to a woefully confused public on a topic that is of clear public interest import currently.
In my perceived role as a public scholar of law, I therefore thought it important for me to clarify the matter in the best way I could and to thereby provide some general learning on the matter.
On Tuesday, October 31, under the headline, “Money for Mia after lawsuit”, a section of the press other than the Barbados Advocate reported on page 5 of its edition the outcome of a defamation action filed by the Honourable Leader of Her Majesty’s Loyal Opposition, Ms Mia Mottley against the publishers of the online newspaper Barbados Today and its editor, Ms Kaymar Jordan, in respect of two articles published in the newspaper whose imputations are by now doubtless in the public domain and not of current relevance to this essay.
The report in the newspaper suggested that there was a hearing before a named High Court judge and that Ms Mottley’s eminent counsel, who were also identified by name, had “successfully argued that Ms Mottley was qualified to practice law in Barbados since December 1987”, the date of her admission to the local Bar.
Doubts as to the authenticity of this report began to surface almost immediately on a Whatsapp thread to which I subscribe, although owing to the sensitive political nature of the matter and the possible implications of one being mulct in damages through defamation by repetition, no details were given.
Nevertheless, on Friday last, in a letter to the Editor of the same newspaper, Mr C. Anthony Audain, attorney-at -law and one of those reported as appearing on behalf of the defendants in the matter, averred that in fact “there were no arguments before the court…” and that “a consent order was agreed between the parties and the actions were withdrawn”.
This would understandably have left readers and the general public nonplussed as to how a matter as serious as this could have been reported in such a horribly incorrect manner to the extent of inventing a court hearing with arguments advanced and all. However, that is a matter for the organ to address and no concern of mine, either immediate or at all. My present remit extends solely to helping the public to understand how it may be possible under Barbados law amicably to resolve a defamation action without a court trial and what might have happened in the instant case.
Barbados, in its Defamation Act 1996, does not expressly include it as one of the desiderata of the statute as does Jamaica, for instance, but both pieces of legislation include provision for the offer of amends that is intended, as the Jamaica Defamation Act 2013 states as one of the principal objects of its Act “to promote speedy and non-litigious methods of resolving disputes concerning the publication of defamatory matter…” Indeed, Part III of that statute is captioned “Resolution of Defamation Without Court Proceedings” and includes, in addition to the offer of amends (called there an offer to make amends), the apology in mitigation of damages.
The corresponding Barbados statute, the Defamation Act, Cap 199, also makes provision at sections 16 to 18 for the offer of amends. According to section 16 (1) –
A person who has published a statement alleged to be defamatory of another may, if he claims that he did not do so intentionally, make an offer of amends under this section.
The subsection further establishes a presumption of unintentional publication, while section 16 (2) provides for the circumstances in which a defamatory publication will be deemed to have been intentional.
In Barbados, as in Jamaica, the offer of amends contemplates three elements. First, an offer by the defendant “to publish or join in the publication of a suitable correction of the statement complained of and a sufficient apology to the party aggrieved; second, where copies of the statement have been distributed by or with the knowledge of the person making the offer, to take such steps as are reasonably practicable on his part for notifying persons to whom copies have been so distributed that the statement is alleged to be defamatory of the party aggrieved; and third, and perhaps most crucial, to pay compensation to the party aggrieved.
The procedural details for making the offer are set out in section 16 (4) –(7), but it is further stipulated in section 17 that on acceptance of the offer by the aggrieved party “no proceedings for defamation in respect of the publication concerned may be brought or continued by him against the person making the offer, but he is entitled to enforce the offer of amends…”
If there is any dispute as to the adequacy of the compensation to be paid, then the matter is referred to a judge for determination. If however, the offer is not duly accepted, then section 18 provides that the defendant may rely, if it so chooses, on the offer of amends by way of defence and, in any case, in mitigation of the damages that may be payable in respect of the defamation.
“A defendant in proceedings for defamation may rely in mitigation of damages on an offer of amends not relied on, or not successfully relied on as a defence.”
Of course, not having been privy to these confidential proceedings or, as it is more crudely put, not having a dog in that fight, I cannot assure the reading public that the above is precisely what occurred in this case, but I trust that it may now be appreciated that not every case of defamation needs be resolved by court action and that the local law makes adequate provision for amicable resolution through an offer of amends that is accepted by the putative claimant.
And Mr Audain’s letter would certainly comport with such a procedure, especially when he affirms, …[t] here could therefore have been no “winning” of any lawsuit as suggested in your article. There was no determination and/or adjudication upon any of the issues before the law court on that day or at all. There was no determination of any matter whether procedural or substantive. The parties themselves agreed on the manner of disposing of the court actions…” [Emphasis added]