Benjamin et Al v the Honorable Minister of Information and Broadcasting et Al

• Jurisdiction: Anguilla
• Judge: D'Auvergne J
• Judgment Date: 18 January 2002
• Neutral Citation: AI 2002 HC 1
• Docket Number: Civil Suit No. 56 of 2997
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Date: 18 January 2002

High Court

D'Auvergne, J.

Civil Suit No. 56 of 2997

Benjamin et al

and

the Honorable Minister of Information and Broadcasting et al

Appearances:

Mr. Thomas Astaphan, instructed by Lake & Kentish and Mr. Elson Gaskin with him for the applicants.

The Hon Attorney General, Mr. Ronald Scipio and Senior Crown counsel, Stanley Reid with him for the respondents.

Damages - Assessment of damages for infringement of the appellants' right of freedom of expression — What was a reasonable amount in the circumstances — Case not fit for aggravated or exemplary damages — $70,000 awarded.

D'Auvergne J

1 On the 14th of February, 2001, the Judicial Committee of the Privy Council delivered the decision in Privy Council Appeal No. 2 of 1999, originating from Anguilla, affirming the decision of Saunders J., that damages be awarded to the first-named applicant in respect of the infringement of his right to freedom of expression guaranteed and enshrined in the Constitution of Anguilla.

2 Consequent upon this decision, the first-named applicant on the 12th of June, 2001, filed a summons supported by affidavit seeking an appointment for the assessment of damages.

3 The matter was heard on the 28th day of November, 2001, and learned counsel for the first-named applicant argued that based on the stature of the said applicant in the community he was entitled to exemplary, as well as aggravated damages. He quoted extensively from the judgment of Saunders, J., pointing out the judge's finding on the caliber of the said first named applicant.

FACTS

4 John Benjamin, the first-named applicant, is a belonger to Anguilla, and by profession a lawyer of over 20 years standing, who has sat as Additional Magistrate for Anguilla on many occasions. He is also a trained social worker with vast experience in Social Education work in England and the Caribbean. Mr. Benjamin has headed various private sector groups including, but not limited to, the Bar Association, the Financial Services Association, the Chamber of Commerce, the Carnival Committee and Rotary Club of Anguilla. Mr. Benjamin was the host of a radio talk show “Talk your mind,” the format of which he personally arranged and paid for. The programme appeared to have been a success from its inception, viz 19th October, 1994, but by July 1996, there was much criticism of the Government, and the Minister of Information and Broadcasting suggested that the programme should be changed to one with no phone-in participation by the public. Mr. Benjamin objected and refused and eventually the programme was closed. It was subsequently reinstated in or about the third week of September 1996, with an expanded listening audience.

5 On the 16th day of July, 1997, about one month after a new privately owned lottery (with the blessing of the Minister of Finance) had commenced business in Anguilla a caller to “Talk your mind,” raised the matter of the introduction of the new lottery. Mr. Benjamin expressed the view that the lottery was not appropriate for Anguilla, that it had been turned down by the House of Assembly and it was his view that it was illegal. The following day, Mr. Todd Washington, the Vice President of the Anguilla Lottery and Gaming Company Limited, expressed his views and by letter dated 17th July, 1997, gave notice of the Company's intention to sue Radio Anguilla and Mr. Benjamin “for defamation, malicious intent to injure and destroy the economic interests of the Company in Anguilla and for other serious tortious actions.” This was followed by the suspension of “Talk your mind,” without any discussion with Mr. Benjamin. The latter filed a motion in the High Court, seeking inter alia a declaration that the suspension of the programme was a contravention of his rights as guaranteed by the Constitution of Anguilla and for damages and costs. He was successful at the court of first instance and eventually at the Judicial Committee of the Privy Council (noted earlier).

ARGUMENTS OF COUNSEL

6 At the hearing, after much discussion by counsel concerning the tardiness in the serving of documents upon each other the matter was argued.

7 Learned counsel for the first-named applicant commenced his arguments by quoting the case of Fuller v. Attorney General(1998) 56 W.I.R. 337, a case in which an award of damages was made for the contravention of a fundamental right. In that case, Patterson, J.A. had this to say at page 402:

“Where an award of monetary compensation is appropriate, the crucial question must be what is a reasonable amount in the circumstances of a particular case. The infringement should 6e viewed in its true perspective, an infringement of the sacrosanct fundamental rights and freedoms of the individual and a breach of the Supreme Law of the land by the State itself. But that does not mean that the infringement should be blown out of all proportion to reality, nor does it mean that it should be trivialized. In like manner, the award should not be so large as to be a windfall, neither should it be so small as to be nugatory.”

8 He quoted from Tynes v. Barr (1994) 45 W.I.R., Page 1, from Justice Sawyer who had this to say: “I think that damages for breach of the plaintiffs constitutional right would also be at large.”

Learned counsel urged the court to grant damages at large to the first-named applicant, for he argued that there was no limitation placed by the framers of the Anguilla Constitution on the court's power to order an appropriate remedy.

9 He contended that the elements for an “at large” award of damages as stated by Lord Hailsham, L.C. in Broome v. Cassell S Co. [1972] A.C. 1021 were to be found in the case under review.

10 In the above quoted case at page 1073, Lord Hailsham, L.C. had this to say: “The expression at large should be used in general to cover all cases where awards of damages may include elements for loss of reputation, injured feelings, bad or good conduct by either party or punishment, where in consequence no precise limit can be set in extent.”

11 He argued that the elements of bad conduct on the part of the respondents can be deduced from the judgment of Saunders, J. on pages 18 & 19 where he had this to say: “I was asked to find that the Minister acted in bad faith when he suspended the programme. That the reason given for the suspension of the programme was a cover for affecting some other purpose. There are indeed facts established that might raise such an inference.”

12 He further argued, that the bad faith has continued and can now clearly be seen even after the decision of the Judicial Committee of the Privy Council, for, to date the Executive has failed to restore “Talk your mind” to the airways of Radio Anguilla. He reiterated page 41 of the judgment by Saunders, J. who had this to say:

“For a democracy to operate effectively it has been said that a certain comity should exist between the three branches. Each should respect the role and function of the other. The court is subject to and must enforce laws passed by Parliament that are intra vires the Constitution. The Executive should respect and obey the decisions and accept the intimations of the court. If this comity does not exist, then the wheels of democracy would not turn smoothly. A jarring and dangerous note would resonate from them.”

13 Learned counsel also argued that the respondents should be punished, for the second-named respondent informed the board of the Judicial Committee of the Privy Council, through counsel, that the Government was awaiting their Lordship's decision before a final determination as to the restoration of the programme was made and that nine months later the programme had not been restored.

14 He vociferously argued that the first named applicant had been embarrassed and humiliated by the suspension of the “Talk your mind” programme for...