by Sir Lawrence A Joseph
On Tuesday, 3 May 2016, the Grenada High Court awarded damages of over $143,000.00, including costs in favour of Dr Keith Mitchell against newspaper columnist Lloyd Noel and then editor of the Grenada Today newspaper, George Worme for publishing certain defamatory statements. The statements were published on 3 October 2008 in the said newspaper and on the internet. It is the same publication which caused Dr Patrick Antoine to be awarded $575,000.00 in damages recently for defamation against the said Lloyd Noel and Grenada Today Limited. In general, courts usually award less damages to politicians than to non-politicians as it is felt that politicians are ‘open market’ to criticisms. Was the Defendants’ defence of ‘fair comment on a matter of public interest’ a good one?
The facts were that just prior to the Grenada general elections of 8 July 2008, the then Keith Mitchell administration entered into an agreement with Time Bourke Holdings Ltd. which is owned by one Lewis Hamilton the well-renowned Formula One racing car driver, whose father is a Grenadian by birth. That deal was for the sale of the freehold interest in a property at Grand Anse, St George, which was leased from the government by one Issa Nicholas which he used for operating the then Ramada Hotel. Hamilton was in negotiations to purchase Nicholas’ hotel.
The consideration for the freehold interest which had a paper value of US$15 million was the use of Hamilton’s name, being an intellectual property to promote tourism in Grenada for a period of four years. The deal was a bold, innovative and sophisticated initiative on the part of the government which may well have boggled the thoughts of the simple-minded. This is the same approach which is now being taken in Barbados concerning the use of the name of internationally-acclaimed Barbadian singer Rihanna to promote tourism in Barbados. Hamilton himself, as three times world champion (2008, 2014 and 2015) is presently making millions of pounds in Europe for the use of his name. The deal included restructuring the then Ramada Hotel to the extent of US$100 million, to create hundreds of jobs and to obtain the franchise of an internationally renowned hotel chain.
It so happened that a new Tillman Thomas administration which won the general elections in 2008, got into office and certain members led by Prime Minister Thomas severely criticized the Hamilton deal. It was in this context that newspaper columnist Lloyd Noel published his article entitled, “Is there no end to the bad Deals?” In that article, he alleged that the deal was made without any monetary compensation for the government, that it was a ’scampish’, ‘diabolical and fraudulent’ deal made without cabinet approval from which Dr Mitchell and his then cabinet colleagues must have benefitted personally.
Were those words really fair comment on a matter of public interest? There seems to be no doubt that public interest would be inherent in the matter as it concerned the sale of public property. However, did the words constitute fair comment? Where this defence is used, the law insists that the statements must actually be comments or opinion and must not be assertions of facts; they must be based upon true facts; must be ‘honestly’ made and that they must not be actuated by malice. The word ‘malice’ is used in the sense of ‘a corrupt or wrong motive, or making use of the occasion for some indirect purpose’. The onus is always on the Complainant to prove malice on the part of the Defendant.
In an effort to prove malice, the Complainant averred that Mr Lloyd Noel, inter alia, also published the words on the internet ensuring that the widest coverage was possible and that the defamatory words themselves imputed malice. In fact, there are cases which recognize these assertions as evidence of malice. Additionally, the Complainant asserted that Mr George Worme in a previous publication pledged to ‘wipe out NNPism from the Grenada political landscape’ and that in another statement to the media he said: “the hunter had become the hunted. I will hunt him until I get him (meaning Dr Mitchell).
Following its deliberations, the court correctly held that the defence of fair comment on a matter of public interest could not hold water. It is interesting to note that in a witness statement in the same case, Dr Patrick Antoine disclosed that the then Minister of Foreign Affairs together with the then Attorney-General of the Tillman Thomas administration had held a press conference just at the time of the said publication stating that “there was no wrongdoing in the transaction and that to so impute was wrong”. In fact, he further reported that the said Minister also disclosed that he was holding discussions with Lewis Hamilton in an effort to reactivate the deal with him. Nothing came out of that effort. It is most reasonable to conclude therefore that Lloyd Noel’s publication could never have been considered by the court to be fair comment. As a consequence, both Defendants were held to be culpable, jointly and severally.