No neat answer to Grappelli/ Hayward conflict
On Monday 29 July 2019 the Judicial Committee of the Privy Council (Lord Wilson, Lord Carnwath, Lady Black, Lord Briggs, Lady Arden) handed down judgment allowing the media defendants’ appeal from a decision of the Court of Appeal of Trinidad & Tobago.
The appeal concerned the conundrum which has arisen from two decisions of the English Court of Appeal in Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822 and Hayward v Thompson [1981] QB 47 and the extent, if at all, two or more different statements made upon different occasions by the same defendant may be aggregated for the purpose of giving rise to a cause of action in defamation.
The Board considered that the rigorously exclusionary principle laid down in Grappelli, whilst consistent with the conceptual basis of defamation, went too far but that it was not possible to resolve with any precision the question how the exception to the exclusionary principle is to be framed.
Useful guidance was provided by the Board, however. Lord Briggs, who gave the judgment of the Board, stated that there must, in the mind of the reasonable reader, be created a sufficient nexus, connection or association between the two statements made by the same person so that there comes a moment in time at which, in the mind of the reader, the claimant is identified as the subject of the defamatory accusation. That nexus or connection may be established by varying means.
The facts revolve around the shooting dead of five civilians by nine police officers on 17 August 2007 in Wallerfield, a residential area in the town of Arima, located in central Trinidad.
The defendants, the editor-in-chief and publisher of Trinidadian newspapers, The Daily Express and The Sunday Express, published two articles in December 2008, said to be based on a Special Branch report, that alleged that the police officers had deliberately killed the civilians.
The issue on the appeal was whether the claimants, who were not named in the defamatory articles from December 2008 sued upon, could rely upon subsequent newspaper reports of the inquest hearing from June and July 2009, in which they were named but also vindicated, to complete the cause of action.
The first instance judge, Mr Justice Seepersad, heard the trial in 2013 and dismissed the action holding that, whilst the law allowed the claimants to seek to rely upon subsequent publications, the facts were such that they could not do so here. The defendants never defended the article as true and did not call the journalist who wrote the report at trial. The Judge rejected their responsible journalism defence.
On appeal, the Court of Appeal ruled, in March 2018, that the Judge was plainly wrong and held that the claimants could rely upon the June and July publications.
In its judgment handed down on 29 July 2019, the Board held that the first instance judge came to a conclusion he was entitled to reach and the CA should not have overturned his decision.
5RB’s Adam Speker appeared for the Appellants in the JCPC, instructed by Juris Chambers.