Jenny Lindsay v Harriet Carty (Representative of the Epresentative of the Estate of Thomas Edward Carty)

• Jurisdiction: Anguilla
• Judge: Baptiste JA
• Judgment Date: 07 December 2021
• Judgment citation (vLex): [2021] ECSC J1207-1
• Docket Number: AXAHCVAP2015/0007
• Court: Court of Appeal (Anguilla)

[2021] ECSC J1207-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

The Hon. Mr. V. Dexter Theodore Justice of Appeal [Ag.]

AXAHCVAP2015/0007

Between:

[1] Jenny Lindsay

[2] Jenny Lindsay & Associates

Appellants

and

Harriet Carty (Representative of the Epresentative of the Estate of Thomas Edward Carty)

Respondent

Appearances:

Ms. Jenny Lindsay for the Appellants

Ms. Navine Fleming for the Respondent

Civil Appeal-Slander — Defamation Actionable per se — Presumption of injury to reputation — Principles governing appellate court's interference with findings of fact by lower court — Whether master erred in finding that the slander complained of caused the appellant to suffer no or minimal actual damage — Whether master erred in the assessment and award of damages — Whether master failed to place sufficient weight on aggravating conduct of respondent — Whether judge erred in awarding prescribed costs vs assessed costs — Costs on discontinuance of claim

Thomas Carty — now deceased — instituted a claim against the appellants, Ms. Jenny Lindsay, an attorney-at—law and her business, Jenny Lindsay & Associates, alleging damages for breach of contract. He claimed that Ms. Lindsay collected funds for legal services but failed to provide the same. Jenny Lindsay counterclaimed seeking damages for slander, on the grounds that in the days prior to the claim, Mr. Carty published the slanderous statements “Jenny Lindsay is a thief”, “Jenny Lindsay has not done anything on my file” and “other lawyers are saying Jenny Lindsay is no good” to her clients and members of the public. Ms. Lindsay claimed that the slander resulted in serious damage to her personal and professional reputation and caused her great distress and embarrassment. The matter eventually went to mediation, and a mediation agreement was arrived at which included, inter alia, entry of judgment on Ms. Lindsay's counterclaim with damages to be assessed. At the assessment of damages hearing, Ms. Lindsay was awarded $15,000.00 in damages for slander. Being dissatisfied with the judgment and regarding the amount awarded as manifestly low, Ms Lindsay appealed to this Court. In summary, Ms. Lindsay's proffered five grounds of appeal: (i) the learned master erred in fact when she determined that the slanderous words caused Ms. Lindsay no or minimal actual harm; (ii) the learned master erred in law and fact in assessing the award of damages; (iii) the learned master failed to give sufficient weight to certain elements of the respondent's conduct; (iv) the learned master erred in awarding prescribed costs on Ms. Lindsay's counterclaim rather than assessed costs on the whole proceedings; (v) no costs were made on the discontinuance filed by the respondent.

Held: dismissing the appeal and affirming the award of damages for slander in the sum of $15,000.00; ordering the appellant to pay the respondent's costs of the appeal being two-thirds of the prescribed costs in the counterclaim and making an order as to costs on the assessment of damages hearing in the court below, that:

• 1. It is a well-established principle that findings of fact made by lower courts should not be disturbed by an appellate court except in very limited circumstances. To be overturned on appeal, a finding of fact must be one which no reasonable judge, based on the evidence before him, could have reached. This principle extends to instances where the findings of fact are made on written rather than oral evidence. Accordingly, where the findings of fact and the inferences drawn therefrom involve the trial judge's assessment of different factors, the correctness of the assessment is not merely undermined by the appellant challenging the weight given to any particular factor unless it is shown that the judge was clearly wrong. It is pellucid from a perusal of the judgment of the lower court that the master embarked on a thorough evaluative exercise of the evidence before her on paper and in so doing acknowledged that the defamatory statements did hurt Ms. Lindsay's feelings and caused her embarrassment and distress however there was no or minimal actual damage to her reputation and business. Additionally, the law is clear that while there is an irrebuttable presumption that reputational damage is presumed in cases of slander which are actionable per se, pecuniary loss caused by the publication of the slanderous words may be recovered in addition to general damages but must be proved. The master's observation that there was no proof of a ‘drop off of work’ was merely that, an observation in response to Ms. Lindsay's assertion that she suffered a ‘drop off of work’ which implies pecuniary loss. The master did not require Ms. Lindsay to prove a ‘drop off of work’ nor did the learned master consider it as a factor in making the award of general damages. Consequently, there is nothing from the master's findings which warrants appellate interference.

  Lachaux v Independent Print Ltd and Another [2019] UKSC 27 considered; Fage UK Limited v Chobani Limited [2014] EWCA Civ 5 applied; Langsam v Beachroft LLP [2012] EWCA Civ 1230 considered; Wheeldon Brothers Waste Limited v Millennium Insurance Company Limited [2018] EWCA Civ 2403 applied; Perry v Raleys Solicitors [2019] UKSC 5 applied; DB v Chief Constable of Police Service of Northern Island [2017] UKSC 7 considered; Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75.

• 2. Similarly, the appellate court is chary to interfere with the assessment of damages by a lower court unless it is satisfied that the trial judge erred in principle or, having regard to all the circumstances of the case, made an award so inordinately low or unwarrantably high that it cannot be permitted to stand. This court is not justified in substituting a figure of its own simply because it would have awarded a different figure if it had tried the case at first instance. There is no precise arithmetical formula which a court can employ when assessing damages in defamation however the guiding principle is that the award must be proportionate to the injury and no more than is necessary to compensate for damage to reputation; vindication of good name; and the distress, hurt and humiliation caused by the defamatory publication. The master considered all the circumstances including Ms. Lindsay's position and standing; the nature of the libel; the mode and extent of the publication; the impact on Ms. Lindsay's feelings, reputation and career and the respondent's motive of malice and weighed them against each other to arrive at a global figure inclusive of aggravated damages. The master engaged in a careful account of the evidence, applied correct legal principles and adopted a correct approach to the assessment of damages. Accordingly, there is no basis for this court to disturb the award.

  Calix v Attorney General of Trinidad and Tobago [2013] UKPC 15 applied; Cairns and Modi; and KC and MGN Limited [2012] EWCA Civ 1382 considered; Alphonso et al v Ramnath British Virgin Islands Civil Appeal No. 1 of 1996 applied; Lachaux v Independent Print Ltd and Another [2019] UKSC 27 considered; Bray v Ford [1896] AC 44 at 53 considered; John v MGN Limited [1997] QB 586 considered; Sir Kevin Barro MP et al v Jane Collins MEP [2017] EWHC 162 (QB) applied; Phonographic Performance Limited and Andrew Ellis Trading [2018] EWCA Civ 2812 considered; Bristol v St. Rose [2005] ECSCJ No. 268 considered.

• 3. Ms. Lindsay contended that the learned master failed to give any or any sufficient weight to certain factors in assessing damages. As enunciated above, a challenge to the weight the master gave to certain elements is not enough to undermine the correctness of the master's evaluation. It must be shown that the master was plainly wrong or reached a conclusion not supported by the evidence. It was clear that the master made a thorough examination of all factors. Critically, Ms. Lindsay failed to present any evidence of the other factors such as Mr. Carty's threats to kill her, which she claims the master failed to consider. Therefore there was no basis on which this ground of appeal could succeed.

  Manzi v King's College NHS Foundation Trust [2018] EWCA Civ 1882 considered; Langsam v Beachroft LLP [2012] EWCA Civ 1230 considered.

• 4. The appellate court is constrained from interfering with the judge's exercise of the discretion in the lower court on costs matters unless it is satisfied that the conclusion on costs was not open to him to make. There was nothing to show that the master incorrectly exercised her discretion in awarding prescribed costs on Ms. Lindsay's counterclaim as opposed to assessed costs on the whole proceedings. In the same vein, the court has a discretion whether or not to order costs on the discontinuance of a claim and the absence of such an order, having regard to all the circumstances, is not an indication of an error on the part of the master. Notwithstanding, having regard to Rule 37.6 (1) of the Civil Procedure Rules 2000, the appropriate costs order on the discontinuance is prescribed costs and not assessed costs. Consequently, there is no merit in these grounds of appeal. However, in the exercise of this court's discretion, costs were awarded on the assessment of damages hearing which was not dealt with in the judgment of the court below.

  R (Parveen) v Redbridge LB [2020] EWCA Civ 194 applied; Rule 64.4 of the Civil Procedure Rules 2000 considered; Rule 37.6 (1) of the Civil Procedure Rules 2000 applied.

Introduction

Baptiste JA

1 The appellant, Jenny Lindsay, an attorney at law, was awarded $15,000.00 by the Master upon an assessment of damages for slander. The slanderous words in respect of which the award was made were: “Jenny Lindsay is a thief”, “Jenny Lindsay has not done anything on my...