Some things are simply inevitable. Take an opposition politician and hand him a radio Talk Show and things are bound to heat up. Put in the mix clearly anti-government callers and the lawyers are bound to become interested. And so it was in the tiny ward island of Nevis.
Mark Brantley, the current Leader of the Opposition in the twin state of St. Kitts and Nevis and the deputy premier of Nevis, is the host of a radio Talk Show “On the Mark”. Apparently what he is unable to do to Prime Minister Dr. Denzil Douglas and his Labour Party in the Parliament, Brantley is more than willing to do via his Talk Show. That includes permitting government detractors to push the proverbial envelope as far as they wish.
On 14 March 2007, a senior opposition figure called and launched a scathing attack on Beulah Mills, a civil servant of twenty-five years standing who was the Executive Officer in charge of the Electoral sub office in Nevis. She also doubled up as an Assistant Registration Officer.
The caller was civil engineer Michael Perkins, at one time a government minister and a former candidate of the now opposition Concerned Citizens Movement. On the recalled date he accused Ms. Mills of registering individuals in one constituency when they clearly were resident in another.
He told the show’s host and his audience that such corruption would continue so long as Ms. Mills remained in office. He said Ms. Mills “should be removed from office,” that “she was unfit” and in his opinion “it was indecent for Ms. Mills to remain in office” as “she is corrupt and she is the one who worked hand in hand, day and night to help the change of Government . . .” Clearly Perkins was pulling no punches! Unsurprisingly, Ms. Mills was livid. So far as she was concerned Perkins had defamed her. Perkins had, in effect, called her “a reprobate, unprincipled and rotten, of a crooked and depraved character and is motivated in her duties. . . by evil feelings and . . . by an intention to do what is contrary to the law.”
She wasn’t going to stand for political has-beens tarnishing her hard-earned reputation as an elections official. Certainly not in an island so small that everyone knew everyone else. She filed a law suit in the High Court.
Did I mention the resident judge in Nevis was Saint Lucian Lorraine Williams, herself once a no-nonsense attorney general, government minister and magistrate? That alone would have generated interest in this case.
Add to the fray the fact that just over two months ago the newly minted judicial officer had sent shivers down the spines of criminals by sentencing a rapist to virtual life behind bars and you understand why this case generated attention usually reserved for cases involving the likes of O. J. Simpson.
If Perkins was perturbed by the lawsuit against him, one for which he could have become liable to pay hundreds of thousands of dollars, he certainly did not show it. He didn’t even bother to retain legal counsel. No siree, Perkins decided to represent himself, unperturbed by the truism that says a man who teaches himself has a fool for a teacher. He denied he had defamed Ms. Mills. He further denied that the words he uttered were “falsely or maliciously” spoken and that moreover the said words could not have the meaning ascribed by Ms. Mills. Importantly he was also of the view that he could support his allegations with incontrovertible evidence.
The case was heard over two days—May 20 and 23, 2014 and following submissions by both sides it was Justice Williams’ turn to deliver. She set 23 July 2014 as decision day. Promptly at 9:00am she walked slowly into the court room. All present rose in unison. The judge halted, if only briefly, as she looked towards the gallery and her normally half empty court was today bursting at the seams. It was as if commercial life in the tiny state had been put on hold. Seemed everyone wanted personally to hear the judge’s decision. Newspaper editors were at the ready. Radio news staff had their ears glued to the telephone, awaiting word from their reporters stationed at the court house. The judge, black gown glistening under the court’s bright lights, took her seat. Then in a genteel but stern voice commenced her decision.
Having reviewed the evidence, she said, it was her view that eight issues needed resolution. She listed them as follows: Whether the words complained of were capable of being defamatory; whether the words were defamatory in the circumstances they were spoken; whether the words were defamatory of Ms. Mills; whether the defendant (Perkins) could avail himself of the defence of Fair Comment on a matter of public interest; whether Perkins was accentuated by malice; whether Mills was entitled to any remedies; whether Mills had suffered Special or any damages; and whether Perkins’ failure to comply with certain court procedures was fatal to his defence.
It did not take the judge long to conclude that the defence of justification was not available to Perkins, as his arguments in that regard had not met the required threshold. Interestingly, the judge made this ruling not at the conclusion but quite early during her judgement. That must certainly have heartened the Camp Mills.
Ever the thorough jurist, Williams quickly disabused the minds of those who imagined victory was in the air. According to Justice Williams that defence had failed, not because Perkins was not justified in making his allegations, but rather because he had not set this as a defence in his pleadings. By the judge’s reckoning, Perkins could not set right in the course of the trial what he was bound to do prior to the trial and that which he had in fact failed to do.
The judge went on: “Whilst she [Mills] came across as a witness of truth for the better part of her testimony, I am disturbed by parts of her evidence, particularly her evidence on registering persons who were non-nationals . . .” According to Justice Williams, while Perkins had been “scathing in his criticism” she was not of the view that he harboured any hatred, spite or ill will towards Mills. Williams ruled that she was of the view that “Perkins honestly held the view he expressed.”
You could have heard a pin drop in the crowded court room.If by now Perkins was breathing easier the judge’s next words must have hit him squarely in the solar plexus. Notwithstanding the foregoing, she went on, “Mr. Perkins came across in delivering his evidence as being pompous and arrogant.” The smile flew away from Perkins’ face.
Williams then got down to the meat of her decision: as to determining whether the words were capable of being defamatory, Williams turned to a text she first referenced at Law School: “Gatley on Libel and Slander.” Citing cases of both regional and international import, among them Youssoupoff v Metro-Goldwyn-Mayer; and Woolford v Bishop; and Wayne v Neville Cenac (yes that Rick Wayne), Williams concluded the words spoken by Perkins were in fact defamatory. Score one for Ms. Mills.
The judge also held that the words would have the effect of lowering Ms. Mills “in the estimation of right thinking members of Nevis society and that they could expose her to hatred, contempt or ridicule and cause others to shun her . . .” Score again for Ms. Mills.
With two in the bag Mills would by now have begun to feel better about her chances and as Williams began to address the aspect of whether Perkins could plead Fair Comment. Do or die time. Again referencing Gatley, Williams would meticulously review the evidence presented.
While the often-cited Reynolds v Time Newspapers would feature heavily in her reasoning, perhaps most instructive–for me, at least–was the case Silkin v Beaverbrook Newspaper Ltd, about which Lord Diplock had this to say: “It is important to keep in mind that this defence is concerned with the protection of comment, not imputations of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere.” Not for nothing is Lord Diplock considered among the most revered of judges.
Based on that dictum, Williams concluded thus: “In applying the principles of law outlined, this Court is of the view that to the ordinary reasonable man, Mr. Perkins’ pronouncements on the radio were mostly comments in his honest opinion.”
She continued. “This court is of the deliberate view that the words spoken by Mr. Perkins in relation to Ms. Mills are comments . . . Ms. Mills as a public officer has to be held accountable and must be subjected to the most searching, scathing criticism of her performance in public office. That criticism, once it is done by a person honestly and without malice, amounts to fair comment on a matter of public interest.”
Williams would nail this point for the defence when she said: “I am also of the view that the words spoken by Mr. Perkins were germane to the criticism of the functioning of the Electoral Office and that he honestly believed that there was a corruption of the Electoral system by Ms. Mills and that she was an unfit person in that office.
In matters of defamation it matters not how many parts of the decision fall to the claimant, all the defendant requires one leg and Perkins got that under the Fair Comment rubric. Whatever else Williams had to say about Damages etc would be moot, at least as far as Perkins was concerned. For having prevailed on Fair Comment he had in effect prevailed in the entire case.
As we go to press there has been no word on whether Justice Williams’ decision is to be appealed. From the facts presented, I would say this is most unlikely!