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.

84 responses to “The Jeff Cumberbatch Column – Law as a Weapon”

  1. de pedantic Dribbler Avatar
    de pedantic Dribbler

    @Sergeant, the Dean argued the case above so I amused by your assertions @2:45. As a non lawyer I can only add that I find it incredulous that a man who refused to pay his agreed advertising contract because he was upset that the advertiser did not support him would win a libel suit today (in your view) because he was called a “contemptible creature” for that ‘fraud’!

    Are you not being too spare re the Gawker case. That deep pocket billonaire was muddied by the same Gawker and he indeed had every intent to bankrupt them (just as Bailey was muddied by the ‘Herald’. Moreover, Gawker was sued for publicizing a PRIVATE tape of sexual activity between two consenting party who never agreed that they private act be made public. Not sure I see the connection to the Wickham matter.

    That VOB case is an amazing puzzle so I’ll leave that there. But if a journalist states a fact about a man’s new found wealth and darkly asks him to validate the sources of said wealth and is then sued for libel which leads to his company settling….and that makes sense then “something is fishy in Camelot”

  2. Jeff Cumberbatch Avatar
    Jeff Cumberbatch

    The bench exposed its skirt!

    Damages would have been assessed by the same jury, not the judge. Our law has sought to restrain excessive awards in this context- Defamation Act 1996, section 27

    In directing the jury as to the quantum of damages which may be awarded, the judge may direct the jury that they may have regard to the quantum of damages awarded in personal injury cases.
    (3) It shall be the duty of the jury to assess the damages in accordance with the instructions given pursuant to subsection (2).
    (4) Without prejudice to any other powers vested in it, the Court of Appeal may, on appeal against an award of damages under subsec- tion (1) increase or reduce such award or substitute its own award of damages.

  3. Jeff Cumberbatch Avatar
    Jeff Cumberbatch

    Locally didn’t VOB settle a potential suit brought against it by a former Minister because of an alleged “libelous” comment aired on the Station by a critic? VOB settled it because it feared if the matter reached the Court it would be exposed to even more damages

    @Sarge and DPD, This matter remains a mystery. Self censorship is one thing; concession to a dubious claim is another. Insurance played a part, I feel sure..

  4. de pedantic Dribbler Avatar
    de pedantic Dribbler

    Oh dear, pkease excuse the mistrypes and grammar errors at 3:07…. Good heaven’s and too think I tutored English for a period. Contemptible, I am!

    Mr Blogmaster, don’t agree or I may consider seeking the Dean’s wise counsel to sue your blog🤣


  5. Note the VOB vs Barney Lynch was NOT tested in Court!


  6. @JC

    We can agree to disagree, and Wickham was probably a thorn in the side of the Establishment but how in heaven’s good name can this be considered fair comment?

    “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 punishment can be considered excessive but any reasonable jury would have reached the same conclusion re defamation of character.


  7. @Sargeant

    For referring to Bailey as a ‘contemptible creature’?

    #steuspe

  8. Jeff Cumberbatch Avatar
    Jeff Cumberbatch

    We can agree to disagree, and Wickham was probably a thorn in the side of the Establishment but how in heaven’s good name can this be considered fair comment?

    @ Sarge, “Fair” is not a commonsense expression, but legal term of art. I gave the legal meaning in the column-

    “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.

    The defence of fair comment is frequently relied upon by the press, as it is designed to protect statements of opinion on matters of public concern. Lord Esher, in Merivale v Carson , stated that the test was:”Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work which is criticized?”

    Given Bailey’s nefarious conduct, might not a fair “reasoning” man hold of him the same opinion as Wickham did?


  9. In some jurisdictions depending on issue some folks opt for trial by Jury others by Judge; both have their advantages. The Judges apply the law and sometimes prevailing wisdom; the juries apply the law and some are swayed by circumstances, public opinion, prior knowledge, prevailing wisdom and bias.

    Judges and Juries are not infallible but I think we are looking back at this case through a 21st century mindset. Wickham is a hero because of what he did to advance the rights of the working class in Barbados, a voice for the voiceless and oppressed against the plantocracy and monied interests, any decision against him is now viewed by through that prism.

    Jeff willingly shares his knowledge on this forum and as a legal scholar is certainly deserving of the plaudits that come his way but this layman is just stating his opinion.


  10. @Sargeant

    Does it matter that this occurred back when? The factors though of a different flavour then are as applicable today.


  11. The side point to Jeff’s article is that Clennel Wickham is related to Peter Wickham. Given the ready access he has to the media one would have expected that he would have written voluminously on how Clennel Wickham was persecuted in his time. If he has done so the blogmaster will be quick to apologize.


  12. @David

    John Wickham – Clennel’s son and a journalist would have been able to paint a more contemporary portrait of his father. According to a short bio of John, he wrote his memoirs titled “World without End” perhaps it covered his father’s travails.


  13. @Sargeant

    Thanks, unfortunately Amazon is temporarily out of stock. Maybe Baffy who dropped a post on this blog will ask his good buddy Peter to fashion a comment as to why he has been silent on what seems on the surface to be a grave injustice perpetuated on Clennel Wickham by the justice system of the day.


  14. @David

    I bought a “used” copy through Amazon after it reported it was out of stock of new copies. incidentally there is a chapter on John Wickham in a book titled Double Passage sub titled “The Lives of Caribbean Migrants Abroad and at Home”

    It is by George Gmelch and I bought it several years ago.


  15. Jeff,
    I would posit that Clennel Wickham was expressing a belief and which should have been considered by the court.The words “I have an abiding conviction ” is tantamount to saying ” it is my belief,or simply I believe”.A court is in error to suggest one’s belief is not sacrosanct.
    That fine was more than punitive in 1930.Thats a lot of money even today about $7000.00 let alone a time when wages in Barbados was for the majority people ‘starvation wages’.

  16. pieceuhderockyeahright Avatar
    pieceuhderockyeahright

    @Mr. Jeff Cumberbatch

    De ole man is starved of the intellect that many here possess so I shall not venture into dese non pertinent things Amurican like you did wid dat ammmmmmm…….

    But as to the central topic of your blog it would seem to de ole man that what the luminary has outlined would suggest that factors that we and are external to the substantive matter of the legal case incorrectly and adversely impacted on the outcome of this case, to the detriment of Mr Clennel Wickham.

    De ole man is relying on John Houseman and Paper Chase when I would say that me thinks that a jury, armed with the direction of an honest judge, would have seen fit to instruct a dismissal on the basis of at least four if not five of the conditions of the act.

    But then again, De ole man has seen situations where judges and the court are just the instruments of the powers that be and those who are either less fortunate as denizens of the ghetto or those with more social capital or money in dem pocket DOES GET OFF SCOTCH FREE when similarly charged because of being the part of the brotherhood of the rose or the Masonic lodge.

    When you come into your rightful inheritance Mr Jeff Cumberbatch it is De ole man’s prayer that you will not depart from the principles that you consistently posit here pun Barbados Underground while, unlike de ole man, not cussing a feller, nor maligning nuhbody nor libelizing a feller or a lady’s name.

    In one breath, a part of me respect men like you and would want to grow up and become principled like you.

    But in de next breath, de ole man would be quick to point out that there may be some benefit to be had from situations when a feller from these dispossessed communities, when he finds the law unfairing he, like Clennel Wickham, tek de law in he hand and throw a few stick of dynamite at de Central Police station, like doctor rat in the seventies or kill an adulterous policeman…

    Whu you think…?

  17. Jeff Cumberbatch Avatar
    Jeff Cumberbatch

    Whu you think…?

    @Piece, I believe that if the chosen field of combat is law, one should fight it there. Appeal!


  18. For all the sobbing Cosby supporters, this should make you feel much better.

    Cosby juror: Comedian’s talk of quaaludes led to conviction
    Canadian Press Canadian Press
    By MICHAEL R. SISAK, Associated Press
    3 hrs ago

    “FILE – In this April 18, 2018 file photo, Bill Cosby arrives for his sexual assault trial at the Montgomery County Courthouse in Norristown, Pa. The prosecutors who put Cosby away said Sunday, April 29, 2018, they’re confident the conviction at his suburban Philadelphia sexual-assault retrial will stand.

    PHILADELPHIA — The jury that convicted Bill Cosby at his sexual assault retrial said that its decision was only influenced by what happened in court, and the youngest member of the panel said that the comedian’s own words sealed his fate.

    Harrison Snyder said in an interview aired Monday on ABC’s “Good Morning America” that Cosby’s deposition — in which he admitted giving women drugs to have sex with them — was the evidence that made him believe he was guilty.

    “I think it was his deposition, really. Mr. Cosby admitted to giving these quaaludes to women, young women, in order to have sex with them,” Snyder said of a deposition that was part of a civil case brought by accuser Andrea Constand”


  19. Will these human traffickers in Barbados and the Caribbean names be made public, now that they are known to Interpol and local police.

    http://www.nationnews.com/nationnews/news/152936/caribbean-countries-named-interpol-report-human-trafficking

    “BRIDGETOWN – Several Caribbean countries have been named in a new report by the Interpol released on Monday showing that hundreds of suspected victims of modern slavery were rescued in a major crackdown on human traffickers in 13 countries.
    .
    According to Interpol, the 350 possible victims of sexual exploitation and forced labour were discovered and 22 people arrested this month in an Interpol-led swoop in countries such as Barbados, Belize, Brazil, Jamaica and Venezuela.”


  20. Did u read the deposition and its legal briefings in reference to Andrea Constance case.


  21. Operation Libertad saved victims in 13 different countries – all photos were taken on an operation in Guyana
    Nearly 350 victims of human trafficking have been rescued by police in 13 Caribbean and Latin American countries.
    The Interpol-coordinated Operation Libertad saved men, women and children trafficked abroad and forced into work.
    Victims were found working in night clubs, factories, markets, farms and mines. Some worked in spaces “no bigger than coffins,” said Cem Kolcu of Interpol’s human trafficking unit.
    Officers arrested 22 people and seized cash, mobile phones and computers.
    The co-ordinated raids were the result of a two-and-a-half year project funded by the Canadian government, which also trained specialist officers for the team.
    The scale of human trafficking in numbers
    Human trafficking ‘in plain sight’
    Police throughout the Caribbean were involved, including on the Dutch islands of Aruba and Curacao and the UK’s Turks and Caicos islands, as well as in Brazil and Venezuela.
    Operations were directed from Barbados and supported by Interpol command centres in Lyon, France and Argentina’s capital Buenos Aires.
    Tim Morris, Interpol’s executive director of police services, told the BBC conditions in Guyana were “particularly horrific”.
    There, investigators rescued young women who were forced to work as prostitutes near remote gold mines – locations from which they cannot escape and which are hard for investigators to find.
    “Isolated locations make it difficult for officers to avoid detection,” said Diana O’Brien, Guyana’s assistant director of public prosecutions, explaining that often, by the time they can act on intelligence, traffickers have moved their victims.
    Women victims were forced into prostitution in remote locations
    Meanwhile, bosses at a factory in Saint Vincent and the Grenadines stripped Asian trafficking victims of their passports and forced them into total dependence, taking all their money and means of transport from them.
    “To all intents and purposes, you enslave the person,” Mr Morris said.
    ‘Such a widespread crime’
    Traffickers target vulnerable people seeking to cross borders for work or a better life, or even moving from a poorer to a richer region in their own countries.
    Mr Morris explained that this often makes it harder to prosecute the perpetrators. “Some people don’t acknowledge they are being exploited,” he said, so they can continue to earn cash or stay in their new country.
    Others still are intimidated into lying to investigators, complicating prosecution further.
    Officers confiscated fake and real travel documents from those arrested
    NGOs and social services were on hand to give support to the rescued and to ask them about their experiences to further the investigation.
    “We don’t just leave them be,” Mr Morris said. “[Victims] get the proper social support they need.”
    Local authorities will decide whether to care for trafficking victims in dedicated facilities, release them or send them home.
    “It all depends on the particular person’s circumstances,” Mr Morris said. “And often on the country’s resources.”(Quote)

    What about our sovereignty? However serious the case, if Interpol or any other police force is interested in crime committed in Barbados they must operate under our jurisdiction, not that of Canada’s.
    How independent are we?


  22. Was a racial animus at play in the Wickham case as well as control of the levers of power. Was a racial animus at play in the Cosby case in the Philly suburbs? What is clear in the Cosby matter is that an agreement between defence counsel and the prosecution, even if not reduced to writing, is sacrosanct. When a new District attorney seized the levers of power none of that mattered. Also, the deposition was taken and sealed for trial of a civil matter which never went to trial. Hopefully the levers of power that facilitated the unsealing or the racial animus at play will be subjected to further examination.


  23. It would seem to me that this case is ripe for relief and the next administration should vacate the judgement and remove the ‘conviction’ from the records, to preserve the character of Mr Wickham and correct an obvious wrong.Further,a chair in linguistics should be established in Wickham’s honour at UWI and the Cave Hill Campus should be renamed the Clennell Wickham Campus abbreviated Wickham Campus


  24. Cosby paid the female 3.8 million in settlement so the case could be sealed, you do not pay that amount of money in settlement unless you are guilty as hell of something and trying to cover it up to avoid a trial..

    ac yardfowl…..ya should be more worried about the international agencies that will be contacted to monitor any voting irregularities and fraud in the election that is being reported yall are trying to tief, ya should be worried about who can go to jail for that..

    what Cosby what, he is 80 years old, wearing a GPS monitor, laying in his mansion, he does not even register on the scale of things to care about.


  25. Recall the St Kitts election of 2015 and the debacle of the late arriving airplane from the USA bearings voters, throwing the final count in jeopardy for the then incumbent administration of Dr Denzil Douglas. Are we likely to see a similar influx of Dems and Bees from the Big Apple coming in to do their duty.Beware the NY unregistered.


  26. Gabriel what are you worried about .the election would be called the Bees would emerge as the biggest losers making in right in the history books and life goes on


  27. So exactly what is going on with this new DPP…she rushes to arrest a mother for the death of her 11 year old boy, did not arrest the person Maloney who built the structure that caused the childs death, but cannot answer calls regarding. the 11 year old case lingering in the closed Supreme Court of someone who is actually charged and on bail for killing a mother…she appears to be just an extension of the deceased DPP.

    While these disgusting dishonest lawyers want the Supreme Court to close for recess in May, when they could have all completed and closed these cases they deliberately left lingering for over decade in the Supreme Court.

    …what is the matter with the registrar’s office…why are cases not being listed.

    People are now advising others to walk with their own lawyers who can practice in the Caribbean, do not use any Bajan lawyers…and stay away from the courts if you can, in my mind that is good advice.

    http://www.nationnews.com/nationnews/news/153019/son-justice-mum

    The man eventually arrested and charged with the offence was Valentine Stevenson, of Hope Road, St Lucy. He was interviewed by the police at the scene. After he was charged, he was granted bail and has been on bail since then.
    The case took about seven years to get through the Holetown Magistrates’ Court. It was heard at least four times per year. André would either have to leave work or not go to work at all. For the majority of those days, the case would be adjourned.

    Though André said the case was supposed to be heard last October and Donna Babb-Agard, now the Director of Public Prosecutions (DPP), was identified

    as the prosecutor, no listing of it was found in a search of the High Court schedule.
    Also, attempts to clarify the present status of the case with Babb-Agard were unsuccessful as repeated calls to her were not answered, and neither were calls returned.

    “October has come and gone and nothing happened. Trying to get hold of the DPP after that time has been unsuccessful. Every time I go to their office to enquire about it, the only thing the secretaries can tell me is that it was supposed to have happened. But there is no movement on it,” said sullen-faced André.
    He is now worried that the ongoing environmental problems at the Supreme Court Complex will further delay justice for his mum.”


  28. I have stated for the record that I believed the women who accused Cosby of sexual assault and I also wrote earlier that Cosby’s conviction was mainly on the strength of the statements he made during the earlier civil case which was settled out of Court. There was an agreement that those statements should not be used against Cosby in any criminal matter but the Prosecutor reneged on that agreement. This case is unique because generally civil suits are launched after guilty verdicts have been handed down against the accused but the plaintiff in the civil suit received a settlement from Cosby and then testified against him in the criminal matter.

    Under US law, accused in criminal matters have the right to “plead the Fifth” which grants them the right to refrain from making statements that are self- incriminating when facing potential criminal liability. Generally, that right is not recognized in Civil cases and some States expressly forbid it but Cosby could have used it and one wonders if Cosby was reassured by the promise that his statement would not be used against him and felt free to talk about his interactions with many women. Cosby’s lawyers tried to prevent the Prosecution from introducing the statement into evidence at trial but were overruled by the trial judge.
    It will be interesting to see if Cosby’s lawyers pursue that issue in lodging their appeal.


  29. @Hal Austin April 30, 2018 1:58 PM “Operation Libertad …Operations were directed from Barbados and supported by Interpol command centres in Lyon, France and Argentina’s capital Buenos Aires…The co-ordinated raids were the result of a two-and-a-half year project funded by the Canadian government, which also trained specialist officers for the team.What about our sovereignty? However serious the case, if Interpol or any other police force is interested in crime committed in Barbados they must operate under our jurisdiction, not that of Canada’s. How independent are we?

    No where is the passage which you quoted did I see anything to support your view that the action was conducted under Canadian jurisdiction? I read, and please correct me if I am wrong that the Canadian government funded the project and trained specialist officers (presumably officers of the countries where the actions were carried out, including Barbados). No where did I see anything which I would lead me to believe that Canada infringed on Barbados’ independence.

    i am glad that Canada provided money, and or training and money. Nobody should be forced into slave like conditions, and no young woman, no woman should be forced into a an isolated area to serve as a sexual thing for any man.

    i ain’t right Hal.

    If it was your mother, wife or daughter being forced into prostitution you would be singing a different tune.

    Do you have no good feelings for other people’s mothers, wives and daughters?


  30. @Mariposa April 29, 2018 8:12 AM “Hate to take away from the intented analysis of the article. However i am trying to understand the justice in convicting Bill Cosby of a crime on he say she say evidence. One would think that the justice system would be more prudent in relying on evidence which would be forthright and within the bounds of clarification towards beyond reasonable doubt

    Look you I…Sexual assault rarely takes place in the presence of witnesses, so there will always be an element of he say, she say. The jury listens to all parties, and then makes a decision based on the evidence presented.

    The Cosby jury had decided.

    He has plenty of money, access to high priced lawyers, and the right to appeal.


  31. @Hal Austin April 29, 2018 9:09 AM “Historic allegations are always suspicious.”

    Why are historic allegations always suspicious?


  32. @Georgie Porgie April 29, 2018 1:45 PM “WHEN HE WAS FINISHED A LAD SOUNDED FROM THE TOP OF THE LECTURE THEATRE “SIR, WHAT IS A “DAR”?

    I am willing to bet anything that that lad was none other than GP.

    Lol!!!


  33. @Jeff Cumberbatch April 29, 2018 3:11 PM “VOB settled it because it feared if the matter reached the Court it would be exposed to even more damages.”

    Or because it feared mariposa clones on the jury.


  34. Dear Prof:

    Should a wealthy man who refuses to pay his bill not be held in contempt?

    is he not a creature worthy of contempt, a contemptible creature?

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