Court will consider long-standing innuendo conflict
On Tuesday 17 June 2019 the Judicial Committee of the Privy Council (Lord Wilson, Lord Carnwath, Lady Black, Lord Briggs, Lady Arden) will hear an appeal from a decision of the Court of Appeal of Trinidad & Tobago that may resolve one of the longest standing uncertainties in defamation law.
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 in the case is 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.
The CA gave the defendants permission to appeal.
The JCPC will have to consider whether there is an exception to the general rule that the cause of action in defamation is complete on publication and, if so, in what circumstances that exception applies. In Grappelli v Derek Block (Holdings) Ltd  1 WLR 822 the Court of Appeal, including Lord Denning MR, held that the cause of action in defamation is complete on publication and the claimant in that case, could not rely upon facts coming into existence later to convert an innocent statement into a defamatory one. Six months later, a subsequent Court of Appeal, also including Lord Denning MR, held in Hayward v Thompson  QB 47, that, in certain circumstances, there could be an exception to the general rule where the publication was defamatory on its face about someone, even if that person was not named. The point has arisen only a few times across the common law jurisdictions, most recently in Australia in Fairfax Media Publications v Pedavoli  NSWCA 237.
5RB’s Adam Speker appears for the Appellants/ Defendants (instructed by Juris Chambers, Trinidad & Tobago.)