The Jeff Cumberbatch Column – Law as a Weapon
There is no sense of duty to the individuals of the island as a whole. There is no sense of responsibility for broad and reasonable treatment. There is merely a sense of class –Clennell Wickham on the planter assembly of his day.
Material for my weekly musings come from the most unlikely sources. My current reading here, a judicial decision there, a matter in the public domain elsewhere. This week’s fodder comes from, of all places, Facebook and the public group, Old Time Photos Barbados where members post thematic contributions ranging from scenes of bygone Bridgetown, to photos of past sports teams and of clippings from old newspapers.
In this last mentioned category are to be found some true historical gems such as an account of then Trinidad & Tobago Premier, Dr Eric Williams, burning a copy of the Constitution of the West Indies Federation and some other documents in Woodford Square on April 27 1960; a report on the final hours of the Federation on April 11, 1962; and an April 15, 1930 item on the outcome of the Bailey v Wickham libel case.
I consider a commentary on this last most apt for today’s “Musings” since it is published on the day immediately following National Heroes’ Day in Barbados and, ever since the nominations to that category, voices have been raised in support of the inclusion of the defendant in that case, Mr Clennell W Wickham. Too besides, I am a keen student of the law relating to defamation and the admittedly brief case report provides some intriguing points of inquiry.
Moreover, that case itself is inextricably interwoven with the claim for Wickham’s national hero status, given that it was as a consequence of his journalistic advocacy against the planter class that the imputation in question was published and that it was as a consequence of the comparatively substantial award of compensation to the claimant Bailey that Wickham was forced into exile to Grenada from Barbados where , according to one account, he suffered “several years of frustration and great hardship” before dying there in 1938, aged 43.
The historians have been kinder by far. According to Sir Hilary Beckles in his book, A History of Barbados (1990), Wickham, when he became editor of the Barbados Herald, “used its pages to provide working people with information and analyses relevant to their political condition…” And Sir Keith Hunte has remarked, “The Herald provided a medium through which its editor, Clennell Wickham, “poured trenchant criticism on the political behaviour of the local oligarchy and called attention to social ills that needed to be remedied.”
It was such a piece of trenchant criticism that instigated the action for defamation. In the offending article, Wickham recounted how Bailey, who had unsuccessfully contested the seat for the City of Bridgetown, had cancelled his advertising in the Herald and refused to pay for an advertisement that had already been run on his behalf, “ostensibly because Wickham had publically (sic) supported two of the other candidates” in the election.
Wickham wrote further that it was disturbing when men like Mr Bailey, “who make a boast of their wealth are deficient in the qualities of good taste, good humour, and that indispensible quality of gentility which enables a man to take defeat like a man. I have an abiding conviction that he is the only one of the five candidates who could be such a contemptible creature.”
The case was tried before a judge and jury and it is safe to assume that a jury in 1930’s Barbados would scarcely have comprised people similarly situated as Mr Wickham, what with the property and income criteria to be satisfied.
Indeed, these still find place in our existing Juries Act, Cap 115B, though now to a much reduced extent. By section 4 (1)(d) of that Act, qualification to serve requires either a payment of taxes of not less than $ 960 immediately before the qualifying date, or actual receipt of a yearly income of $1440 or, according to section 4(2)(b), marriage to such a person and be otherwise qualified.
In a defamation trial with a jury, the panel plays a critical role. While it is for the judge to determine whether the imputation is capable of being defamatory, it is the jury who decides whether it is in fact so -whether it would tend to lower the claimant in the estimation of right-thinking members of society. The judge would also determine the applicability of any defences. Once that matter has been concluded, it then falls to the jury again to assess the level of compensation payable, if any.
Clearly, the judge here would have found that the words were capable of being defamatory and the jury would also have considered that they were in fact defamatory of Mr Bailey. The brief newspaper report gives no indication of whether the attorneys representing Wickham raised any defence, but the level of compensation awarded -£1450 plus costs-, appear in hindsight almost punitive.
One contributor to my FB page where I shared the post suggests of the sum awarded, “today’s value is about £87,140. This answer is obtained by multiplying £1,450 by the percentage increase in the RPI, but there are other ways of calculating the present value which give values ranging up to £654,400…”
So far as a defence is concerned, the matter appears ripe for an argument that the impugned words were at least a fair comment on a matter of public interest, now known in Barbados law simply as comment –see section 8 of the Defamation Act, Cap 199. Here, Wickham would have had to establish (i) that the imputation was comment and not a statement of fact; (ii) that the comment was based on true facts; (iii) that it was on a matter of public interest; (iv) that it was the honestly held opinion of the publisher; and (v) that the statement was not actuated by malice.
Given the value judgment of “contemptible”, the uncontroverted assertion that Bailey had refused to honour his contractual undertaking and that the matter related to the conduct of a would-be Member of Parliament , I should think that the first three elements would have been immediately satisfied.
As to honesty, since 1887 it had been decided that “fair criticism is bona fide criticism, criticism which represents a possible view of the case, i.e., a view of the case which it would be possible for a reasoning man to hold.
Having not read a transcript of the decision, I cannot comment on whether malice on Wickham’s part was pleaded and established to the jury’s satisfaction. Nevertheless, given the other circumstances, the award appears to be punitively excessive and presumably designed to teach Wickham a lesson. It succeeded.