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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL JURISDICTION
Civil Action No. HBC 147 of 2012
UMA DUTT SHARMA of Lot 30, ATS Subdivision, Namaka, Nadi, Dental
Practitioner and also Trustee for Sharma Family Trust.
PLAINTIFF
vs
ISIRELI BIUMAITOTOYA of 14 Concave Road, Namaka, Nadi, Medical Practitioner.
DEFENDANT
Counsel : Mr. Victor Sharma for the plaintiff
Mr. Anil Singh for the defendant
Date of Judgment : Tuesday, 07th May 2019
JUDGMENT
(A) INTRODUCTION
(1) By writ issued on 28th June, 2012, the plaintiff, Uma Dutt Sharma, who is a dental practitioner, claimed damages from the defendant, Isireli Biumaitotoya, who is a medical practitioner, for a libel contained in an email alleged to have been sent by the defendant which reflected upon the conduct of the plaintiff.
(2) In the statement of defence, the defendant admitted that he wrote and published the words complained of. The defence was a denial that the words bore the interpretation placed upon them in the statement of claim and they amounted to a defamatory matter.
(B) THE FACTUAL BACKGROUND
(1) The statement of claim which is as follows sets out sufficiently the facts surrounding this claim from the plaintiff’s point of view as well as the prayers sought by the plaintiff.
- THE Plaintiff is and was at all material times a qualified Dental
practitioner, Lecturer at University of Fiji and Trustee of Sharma Family trust property situated at 30 ATS Subdivision, Namaka, Nadi (hereinafter referred to as “the Trust Property”).
tenant in the Trust Property situated at 30 ATS Subdivision, Namaka, Nadi. In that the Defendant as a tenant operated a medical clinic in shop number 3 and also rented out residential flat number 2 at the Trust Property.
Defendant as the Plaintiff intended to carry out repairs and maintenance to the said premises.
illegally and without any basis recognized the Plaintiff’s wife as the Landlord and refused to vacate the Trust Property.
advised the Defendant that the Plaintiff’s spouse had no contemporary interest in the Trust Property and denied other contents of the Defendants letter through its solicitors dated 15th day of June 2011.
the Defendant for Flat 2 with rental arrears in the sum $7,150.00 and for the medical clinic Shop 3 rental arrears in the sum of $11,000.00
the Trust Property and urged the Plaintiff commence legal proceedings and refused to vacate the Trust Property.
receipt of the Defendant’s email dated the 7th of January, 2012 and advised the Defendant to seek services of a legal Counsel with respect to both the Medical Clinic and Flat number 2.
Plaintiff’s Solicitors that he has vacated the Trust Property as per the eviction notice and that the keys had been handed over to the Plaintiff.
against the Defendant with respect to Flat number 2 at the Nadi Magistrates Court claiming a sum of $7,150.00 for arrears of rent Nadi Magistrates Court Reference File as UMA DUTT SHARMA –v- ISIRELI BIUMAITOTOYA, Nadi Civil Case Number 29 of 2012 and also the Plaintiff commenced legal action against the Defendant with respect to Medical Surgery at the Nadi Magistrates Court claiming a sum of $11,000.00 for arrears of rent Nadi Magistrates Court reference File as UMA DUTT SHARMA –vs- ISIRELI BIUMAITOTOYA, Nadi Civil Case Number 30 of 2012.
paragraph 10 was duly served on the Defendant on the 8th of February, 2012 and the matters were listed for first call on 6th of March, 2012 with respect to Civil Action number 29 of 2012 and 7th of March for Civil Action number 30 of 2012.
Action as per paragraph 11 the Defendant, wrote and published or caused to be written or published the following words contained in an electronic mail (hereinafter referred to as the “said e-mail”), specifically directed to the Plaintiff which are defamatory of the Plaintiff.
“Subject: SHORTLANE MEDICAL CENTER”
“Totally different issue here folks”
“As you have heard I have been vacated by my landlord Dr Uma D Sharma from Shortlane Medical Center, Namaka. This is after 12 years in that location.”
“I have moved to a better location, however, I want everyone interested that there is a LEGAL ACTION By me against Dr Uma coming up in 3 weeks at Nadi Court. I will be suing for DAMAGES.”
“those moving in there may find themselves inconvenienced by this Legal Suit.”
In its natural meaning, the abovementioned words meant and were understood to mean that the Plaintiff cannot be trusted, he is devious, intolerant, mischievous, incongruous, illogical, unfair, incompatible, unreasonable, inconsistent, and untrustworthy. Further the use of the words ‘better location’ in its natural and ordinary meaning meant and were understood to mean that the Plaintiff’s property was in a location which was not suitable, conducive, adequate, appropriate, proper, satisfactory for the purposes for which the Defendant had rented the subject premises for.
The above statement as quoted in paragraph 12 (a) is false, in that at the material time there was no legal action/s by the Defendant against the Plaintiff, when in fact, the Plaintiff had already initiated two legal actions against the Defendant as per paragraph 10 being as UMA DUTT SHARMA –vs- ISIRELI BIUMAITOTOYA, Nadi Civil Case Number 29 of 2012 and UMA DUTT SHARMA –vs- ISIRELI BIUMAITOTOYA, Nadi Civil Case Number 30 of 2012. Further, the Trust Property which was rented out by the Defendant was at all material times suitable, conducive, adequate, appropriate, proper, satisfactory for the purposes for which the Defendant had rented the subject premises for as the same is in Namaka, and that the Defendant rented the same for 12 years and refused to vacate the premises upon service of Notices.
In its natural meaning, the abovementioned words meant and were understood to mean that the Plaintiff is in the process of dissolution of marriage, abusive, intolerant, manipulative, personal life in disarray, not a family oriented person.
It is a false statement, at the material time of the publishing of this statement, no dissolution of marriage papers were filed in Court.
In its natural meaning, the abovementioned words meant and were understood to mean that the Plaintiff may be declared bankrupt, a person of weak financial means, is heavily in debt. Further, it was specifically targeted and/or directed to any future and/or prospective tenants from refraining to rent at the Plaintiff’s premises being the Trust Property, in particular any future or prospective medical practitioners from renting out the Trust Property.
It is a false statement, the Plaintiff’s property is unencumbered, further, the Property at all material times was rented out by another medical practitioner operating a Dental Clinic without any grievances.
“This is what he did to me. He is landlord that will involve you and expect you to do silly things like spying on his wife for lovers ETC. I have been through that rubbish.”
In in its natural meaning, the abovementioned words meant and were understood to mean that the Plaintiff is evil, bad, unreasonable, immoral, vile, foul, baleful, wicked, untrustworthy, noxious, villainous, manipulative, hateful, deceitful, unsound, sinful.
The above statement is false, and brings the Plaintiff reputation into disrepute and mockery.
email address to the email addresses of may person, majority if not all of those recipients were medical practitioners or professional in the area of medicine and known to the Defendant. At all material times the Defendant knew that the email was likely to be opened by those recipients in the ordinary course and in fact were by the recipients in the ordinary course. The Plaintiff was not a recipient of the same.
PARTICULARS OF RECIPIENTS
| 51. Dr Kanna Dasan Goundar 52. Dr Katerhine Yen-hee kim 53. Dr Kavita Kiran Chandra 54. Dr Keshwan Nadan 55. Dr. Dr Kinisimere Nadredre 56. Dr Komal Kavita Ram 57. Dr Korina Waibuta 58. Dr Lalita Devi 59. Dr Loata Musudole 60. Dr Lorina Chandra 61. Dr. Louise William 62. Dr Lubna Rizvia Mohammed 63. Dr Madhukar Mavin Kumat 64. Dr Mahendra Hazratwalal 65. Dr Mandeep Kaur 66. Dr Maria Lilia Seeto 67. Dr Maria Lourdes N Villaruel 68. Dr Mary Lou Santillan 69. Dr Masood Husnoor Ali 70. Dr Maung Maung Mon 71. Dr Medel A Labuguen 72. Dr Meena Devi 73. Dr Melissa Payumo 74. Dr Michael Thomas nagan 75. Dr Miliana Vadei 76. Dr Miriama Waqainabete 77. Dr Mohammed Ishaq 78. Dr Monica Ratudradra 79. Dr Monita Nileshni Devi Sharma 80. Dr Mridula Prasad 81. Dr Muhammed Ali Qureshi 82. Dr Muhammed Saiyad Riaz Ud Dean 83. Dr Mukesh Bhagat 84. Dr Munir Hassan 85. Dr Murari Lal 86. Dr Nata 87. Dr Neil Prakash Sharma 88. Dr Pardeep Kuamr Ram 89. Dr Pardeep Singh 90. Dr Paula Lagoia Sili 91. Dr Prashant Sharaf 92. Dr Prem Chand 93. Dr Premmani B Ratiram 94. Dr Purushottam Lal Shrestha 95. Dr Rajendra Kumar Bali 96. Dr Rajendra Singh 97. Dr Rajesh Kumar 98. Dr Rajeshwar Prasad Maharaj 99. Dr Ram Krishna Reddy 100. Dr Ram Prasad Lochan | 101. Dr Ram Raju 102. Dr Ram Sami Naidu 103. Dr Ramaswamy Ponnu Swamy Goundar 104. Dr Rangeeta Singh 105. Dr Ravinesh Goundar 106. Dr. Rober Bancod 107. Dr Robin Mitchell 108. Dr Roman Chute 109. Dr Ronald Yip 110. Dr Rosario Palo 111. Dr Dose Elaine Cruz De Asa 112. Dr Rosemary Mitchell 113. Dr Roveena Farjana Khan 114. Dr Rufina Ratumaitavuki 115. Dr Sainesh Kumar 116. Dr Sanjay Rao 117. Dr Sanjesh Singh 118. Dr Saras Wati Nandan 119. Dr Sarat Naidu 120. Dr Sarika Shalini Chandra 121. Dr Satish Chandra Awadh 122. Dr Shabina Nisha 123. Dr Sheem Asgar 124. Dr Shalini Poonam Kumar 125. Dr Sharma Reddy 126. Dr Shannet Shaneel Chand 127. Dr Sanita Seen 128. Dr Shyamendra Sharma 129. Dr Siddharth Krishna Naidu 130. Dr Sonal Singh Nagra 131. Dr Sundressan Pillay 132. Dr Swaran Nandita Singh 133. Dr Tebana Taoruru 134. Dr Theresa Yee Chief 135. Dr Tin May Kyaw 136. Dr Tupou Wata 137. Dr Vigilo Aquino De asa Jnr 138. Dr Vigilio De Asa 139. Dr Vishal Bhindi 140. Dr Vyas Paras Rao 141. Dr William May 142. Dr Yenkat Raju 143. Dr Yonegdra Prasad 144. Dr Zen Min Low |
(2) The plaintiff claims from the defendant;
- Damages for libel or alternatively slander
- Damages for libel
- Compensatory damages due to the injury of reputation and injury to feelings.
- Damages for loss of rental income from shop 3 medical clinic due to libel under paragraph 12.
- Interest on the judgment sum under Law Reform (miscellaneous Provisions)
- Exemplary and/or punitive and/or aggravated damages.
- Costs on indemnity basis
- Such further or other Orders this Honourable Court considers just and equitable in the circumstances.
(3) The defendant in his statement of defence pleaded, inter alia;
- That the Defendant admits the allegations contained in the paragraph 1
of the Statement of Claim.
the Statement of Claim..
Defendant does not have not any knowledge of the allegation contained in the paragraph 3 of the Statement of Claim therefore cannot admit or deny the same.
Statement of Claim and further put the Plaintiff to strict proof thereof.
the Statement of Claim.
the Defendant denies owing any monies to the Plaintiff as per the allegations contained in the paragraph 6 of the Statement of Claim.
the Statement of Claim.
the Statement of Claim.
the Statement of Claim.
the Statement of Claim and further say that the defendant has filed his statement of defence and counterclaim to the Nadi Civil Action Nos 29 of 2012 and 30 of 2012 respectively.
the Statement of claim and therefore cannot admit or deny the same.
denies the allegations contained in the paragraph 12 of the Statement of Claim and further say as follows:
12.1 That the Defendant denies the allegations contained in
the sub paragraph (1) and further say that the natural meaning referred to is totally different from the actual meaning and further say as follows:
12.1.1 The upon the Plaintiff’s advertisement a number of medical practitioners asked the Defendant for the Defendant’s relocation from the plaintiff’s premises as the Defendant has marketed the premises for the past 11 years.
12.1.2 The Defendant with good faith by way of an email dated 28th February 2012 informed his colleagues of the problems faced by the Defendant and of the Defendant’s relocation.
12.1.3 The Defendant also informed that the Defendant would be claiming against the Plaintiff for damages for his relocation and other expenses the Defendant expanded in the Plaintiff’s premises.
12.1.4 The Defendant denies meaning any of the meanings stated in the paragraph 12 (a) of the Statement of Claim.
12.2 That the defendant denies the allegation contain in the sub paragraph (b) and further say natural meaning is totally different from the actual meaning and further say as follows:
12.2.1 That the Defendant meant by the statement that the Plaintiff’s wife would be also filing of Dissolution of marriage and;
12.2.2 That the Plaintiff’s wife has filed for Dissolution of marriage at the Nadi Magistrates Court action no. 07 NAN 0186.
12.2.3 The Defendant only made the statement as he was informed that the Dissolution of marriage would be filed.
12.2.4 The Defendant denies meaning any of the meanings stated in the paragraph 12 (b) of the Statement of Claim.
12.3 That the Defendant denies the allegation contained in the sub paragraph (c) and further say that the natural meaning is totally different from the actual meaning and further say as follows:
12.3.1 That the Defendant meant by the statement that the property may go into receivership upon Dissolution of Marriage as the Plaintiff needs to do the property settlement with his wife.
12.3.2 That due to the property settlement between the plaintiff and his wife it might cause problems to the tenants of the property.
12.3.3 The Defendant denies meaning any of the meanings stated in the paragraph 12 (c) of the Statement of Claim.
12.4 That the Defendant denies the allegations contained in the paragraph (d) and further say that the natural meaning is totally different from the actual meaning and further say as follows:
12.4.1 That the Defendant meant by the statement that the Plaintiff interferes into the rented premises, the Plaintiff does not repair the premises and also does not provide legal lease agreement after first 5 years of tenancy.
12.4.2 That the Defendant denies meaning any of the meanings stated in the paragraph 12 (d) of the Statement of Claim.
the Statement of Claim.
contained in the paragraph 14 of the Statement of the Claim therefore cannot admit or deny the same.
the Plaintiff was an educated and a Dental practitioner the Defendant does not have any knowledge of the allegation contained in the paragraph 16 of the Statement of Claim.
apology to the Plaintiff the Defendant denies the allegations contained in the paragraph 17 of the Statement of Claim and further say that the Defendant did not spread false, destructive and defamatory rumours about the Plaintiff.
Statement of claim the Defendant say that the Defendant did not publish any false, destructive and defamatory rumours about the Plaintiff and by way of a letter dated 16th April 2012 the Defendant solicitors wrote and advised the Plaintiff’s solicitors accordingly.
21 of the Statement of Claim.
the paragraph 22 of the Statement of Claim and therefore cannot admit or deny the same.
contained in the paragraph 23 of the Statement of Claim and therefore cannot admit or deny the same.
ought to be struck out with costs to the Defendant.
and an abuse of the court process.
(4) Wherefore, the defendant prays;
- (1) That the plaintiff’s claim against the defendant be struck out.
- (2) The plaintiff pays costs to the defendant on a solicitor client indemnity basis.
(5) The plaintiff’s reply to defence is as follows;
- THAT the Plaintiff notes all the admission set out in the Defendant’s
Statement of Defence.
15, 16, 17, 18, 19, 20, 21, 22 of the Defendant’s Statement of Defence.
of Defence and Counter Claim be struck out and dismissed with indemnity costs.
(6) The minutes of the pre-trial conference record, inter-alia, the following;
PRE - TRIAL CONFERENCE MINUTES
Agreed Facts
practitioner, Lecturer at University of Fiji and Trustee of Sharma Family trust Property situated at 30 ATS Subdivision, Namaka, Nadi.
a tenant in the Trust Property situated at 30 ATS Subdivision, Namaka, Nadi, specifically flat number 2 and a shop/medical office situated at the Plaintiff’s trust property.
the Defendant.
vacate the Trust property and urged the Plaintiff commence legal proceedings and refused to vacate the Trust Property.
receipt of the Defendant’s email dated the 7th of January 2012 and advised the Defendant to seek services of a legal Counsel with respect to both the Medical Clinic and Flat number 2.
Plaintiff’s Solicitors that he has vacated the Trust Property as per the eviction notice and that the keys had been handed over to the Plaintiff.
against the Defendant with respect to Flat number 2 at the Nadi Magistrates Court claiming a sum of $7,150.00 for arrears of rent Nadi Magistrates Court Reference File as UMA DUTT SHARMA –v- ISIRELI BIUMAITOTOYA, Nadi, Civil Case number 29 of 2012 and also the Plaintiff commenced legal action against the Defendant with respect to Medical Surgery Nadi Magistrates Court Reference File as UMA DUTT SHARMA –vs- ISIRELI BIUMAITOTOYA, Nadi Civil Case Number 30 of 2012.
served on the Defendant on the 8th of February, 2012 and the matters were listed for first call on 6th of March, 2012 with respect to Civil Action number 29 of 2012 and 7th of March for Civil Action number 30 of 2012.
Civil Action, the Defendant, wrote and published or caused to be written or published the contained in a electronic mail.
email address to the email addresses of many persons, majority if not all of those recipients were medical practitioners or professionals in the area of medicine and known to the Defendant. At all material times the Defendant knew that the email was likely to be opened by those recipients in the ordinary course and in fact were opened by the recipients’ in the ordinary course. The Plaintiff was not a recipient of the same.
that the Plaintiff was and is an educated, respected professional in the community and a Dental practitioner of 38 years standing a Senior Lecturer in Anatomy at University of Fiji and also acted as the Dean of the Medical faculty.
Agreed Issues
the said premises.
and refused to vacate the Trust Property.
no contemporary interest in the Trust Property.
the Plaintiff were defamatory?
Plaintiff were to disparage the Plaintiff in his said business and as a Dental Practitioner among the Medical community and as a lecturer in the University of Fiji.
email resulted in the Plaintiff incurring business losses.
Reform (miscellaneous Provisions) (Death and Interest) Act Cap 27, Laws of Fiji.
(C) ORAL EVIDENCE
Plaintiff’s case
❖ Dr. Uma Dutt Sharma (the plaintiff)
❖ Dr. Ram Raju
❖ Dr. Rajendra Kumar Bali
Defendant’s case
Dr. Isireli Biumaitotoya (the defendant)
(D) DOCUMENTARY EVIDENCE
Plaintiff’s exhibits
PEx - 1 Email by the defendant dated 28th February, 2012. circulated to
144 medical practitioners, Re-Short lane Medical Centre.
PEx – 2 Plaintiff’s Diploma and Bachelor of Dental Surgery.
PEx – 3 Certificate of Title No. 280099.
PEx – 4 Deed of Trust, Sharma Family.
PEx – 5 Letter addressed to the defendant dated 05th January, 2012 by
the plaintiff’s Solicitors – Re-Notice to Vacate.
PEx – 6 Letter addressed to the defendant by the plaintiff’s Solicitors,
dated 13th January, 2012, Re-Notice to Vacate. CT 28009, Medical Clinic.
PEx – 7 Letter addressed to the defendant by the plaintiff’s Solicitors
dated 14th June, 2011 – Re-Notice to Vacate.
PEx – 8 Letter addressed to the defendant’s Solicitors, dated 28th June,
2011 by the plaintiff’s Solicitors, Re-Notice to Vacate.
PEx – 9 Email by the defendant dated 06th February, 2012.
PEx – 10 The ruling of Nadi Magistrate’s Court Criminal Case No. 262 of
2011, State v Sharma, ruling dated 28 -11- 2011.
PEx – 11 The ruling of Nadi Family Court Case No. 07 NAN 186, Sharma
V-Devi, ruling dated 30 – 11- 2011.
PEx – 12 The statement of defence in the Civil Action No. 30 of 2012,
Nadi Magistrate Court. Uma Dutt Sharma v Isireli Biumaitotoya.
Defendant’s Exhibits
DEx – 1 Letter dated 13th June, 2011.
DEx – 2 Pre-Trial Conference Minutes of Nadi Magistrate’s Court Civil
Action No. 29 of 2012, Uma Dutt v Sharma v Isireli Biumaitotoya.
DEx – 3 Commercial Tenancy Agreement, dated 29th January 2011
between Shanti Devi and Isireli Biumaitotoya.
DEx – 4 Fiji Times article dated 10th October 2007, Re-Dentist Bound-
Over, Fined.
DEx – 5 The statement of claim of Nadi Magistrate’s Court Civil Action
No. 30 of 2012, Uma Dutt Sharma v Isireli Biumaitotoya.
(E) THE SUMMARY OF EVIDENCE
The plaintiff is and was at all material times a qualified Dental Practitioner, Lecturer at University of Fiji and Trustee of Sharma Family trust Property situated at 30 ATS Subdivision, Namaka, Nadi. By a written agreement with the defendant sometimes in year 2000, the plaintiff let to the defendant part of the trust property situated at Lot 30, ATS subdivision, Namaka, Nadi, in particular the medical surgery at a monthly rental of $ 1000.00. The defendant under the said agreement was to occupy the property for the purpose of operating a medical surgery, and it was also agreed between the plaintiff and the defendant that the monthly rental in the sum of $1000.00 shall be due on 01st day of every month. The initial agreement expired in 2005 and thereafter the plaintiff verbally renewed the agreement and gave an extension for another five years. On the 14th of June, 2011 the plaintiff issued a “notice to vacate” to the defendant. The defendant via email dated 7th of January 2012 refused to vacate the Trust property and invited the plaintiff to commence legal proceedings. The plaintiff via letter dated 13th January 2012 acknowledged the receipt of the defendant’s email dated 7th of January 2012 and advised the defendant to seek services of a legal counsel with respect to both the Medical Clinic and Flat number 2. The defendant via email dated 6th of February 2012 advised the plaintiff’s solicitors that he has vacated the Trust Property as per the eviction notice and that the keys had been handed over to the plaintiff. On the 8th of February, 2012, the plaintiff commenced legal action against the defendant with respect to Flat number 2 at the Nadi Magistrates Court claiming a sum of $7,150.00 for arrears of rent (Nadi Magistrates Court Reference -UMA DUTT SHARMA –v- ISIRELI BIUMAITOTOYA, Nadi, Civil Case number 29 of 2012) and also the plaintiff commenced legal action against the defendant with respect to Medical Surgery (Nadi Magistrates Court Reference - UMA DUTT SHARMA –vs- ISIRELI BIUMAITOTOYA, Nadi Civil Case Number 30 of 2012). The writ of summons with respect to the Civil Actions was duly served on the defendant on the 8th of February, 2012 and the matters were listed for first call on 6th of March, 2012 with respect to Civil Action number 29 of 2012 and 7th of March for Civil Action number 30 of 2012. On the 27th of February, 2012, viz, 8 days prior to the first call of the Civil Action, the defendant, wrote and published a libel by way of an electronic mail which reflected upon the conduct of the plaintiff. The libel was sent via the internet through the defendant’s email address to the email addresses of 144 medical practitioners known to the defendant and to the plaintiff. The plaintiff wrote to the defendant demanding an apology. The defendant refused to tender an apology. The defendant says that a number of medical practitioners asked him about the reasons for moving out from the plaintiff’s place and he, the defendant, in good faith informed his colleagues by way of an email the problems he encountered and the reasons for relocation.
(F) THE CONSIDERATION AND THE DETERMINATION
(1) Counsel for the plaintiff and the defendant have tendered extensive written submissions in support of their respective cases. I am grateful to counsel for those lucid and relevant submissions and the authorities therein collected which have made my task less difficult than it otherwise might have been.
(2) This is an action for libel brought against the defendant by the plaintiff. The function of the tort of defamation is to vindicate reputation.
It was said by A.L.Smith M.R. in ‘Sadgrave v Hole’ (1901) 2 K.B. at p.4 that
“The Plaintiff in order to succeed in the action must prove a publication of and concerning him of the libellous matter, and if he does not satisfy the onus of proof which is on him this respect, there is no cause of action.”
(3) Therefore, to establish a cause of action in libel it must be shown that the defamatory words of and concerning the plaintiff have been published.
(4) Let me now turn to the evidence to address the issue. The action arises out of the publication by the defendant of an electronic mail written by him and sent to electronic mail addresses of 144 medical practitioners through the defendant’s electronic mail address.
It was a hard hitting criticism of plaintiff’s conduct. The sting of the electronic mail is;
“This is what he did to me. He is landlord that will involve you and expect you to do silly things like spying on his wife for lovers ETC. I have been through that rubbish.”
(5) In his evidence the defendant admitted that he was the architect of the electronic mail. He admitted the words contained in the electronic mail on which the allegation of libel is based. Moreover, he admitted sending the electronic mail to 144 medical practitioners. Put another way, in the statement of defence the defendant admitted that he wrote and published the words complained of. This finding is based on paragraph 12 of the statement of defence filed on 23rd July 2012. Moreover, the above mentioned facts have been agreed upon and recorded as an agreed fact at the pre-trial conference. See paragraph (9) and (10) of the agreed facts at the Pre-Trial Conference Minutes. I am clear that the defendant is the architect of the electronic mail. There is no issue as to writing the electronic mail and sending the electronic mail. There is no doubt that the electronic mail refers to the plaintiff by his name. Out of 144 recipients, two recipients namely Dr. Ram Raju and Dr. Rajendra Bali gave evidence for the plaintiff and said they read the electronic mail and they believed it refers to the plaintiff. Thus, I see evidence of publication. Dr. Ram Raju and Dr. Rajendra Bali said that the words contained in the electronic mail are injurious to the plaintiff and a wrong has been done to the good name and reputation of the plaintiff. The transcript of Dr Ram Raju’s evidence-in-chief contains this; (page 03 of the transcript of evidence)
Q: Now Mr Raju I’m going to ask you, did you receive an email from the defendant?
A: Yes I received the mail some time ago, I think it was the year 2012.
V.S: I’m going to show you the email Mr Raju. My lord its number 7 on the plaintiff’s bundle of documents, page 9 & 10. There’s a repetition of 9 & 10 my Lord, if you can bear with me.
Q: Have a look at the email.
A: Yes I do recall seeing this particular email, it was sent to me as well as many other doctors in Fiji.
Q: Yes. And who sent this email to you?
A: It was sent by Dr. Isireli Biumaitotoya.
Q: And did you read the contents of the email?
A: Yes I did.
And further down at page 5 of the transcript of evidence he says;
Q: Now as I was asking my questions, when you received the email and you read the contents, what it mean to you about the plaintiff, Mr Raju?
A: Well I thought it was rather unprofessional for him to be assassinated in this form of what you call a character assassination, an uncalled for email that should have been kept between the two parties rather than mass circulating this particular mail.
I couple with that evidence, the evidence given by Dr. Rajendra Bali in his examination in chief (page 32 and 33 of the transcript).
Q: Now did you read the whole email?
A: Yes and I also went through all the names of various
Doctors that it was sent to, maybe close to more than 50 at least.
Q: Now you can refer to the exhibit, were you a recipient of
the email as well?
A: Yes in my copy, the receptionist has underlined my name and it’s at the bottom of page 1, fourth last line, Dr Rajendra Kumar Bali, drbali@yahoo.com. It’s here.
Q: And after reading this email what was your understanding of Dr Uma Dutt Sharma and, I mean after reading the contents what did it mean to you?
A: First of all I didn’t expect a colleague writing or making any differences between colleagues public. I was upset and when I read some personal attack on Dr Uma Dutt Sharma I felt disgusted. I’d say I felt rotten about it. I said, “a colleague should not be saying such things in public because we didn’t invite the sender of this email that you tell us about his relationship about Dr Uma Dutt Sharma and I was more or less forced to receive it which I was least bit interested in knowing about his personal life.
Thus, the plaintiff’s claim passes the test mentioned in paragraph (3) of the judgment. The plaintiff has proved that defamatory words of and concerning the plaintiff have been published.
I think it is advisable to lay down what I consider would be a true exposition of the law.
(6) “Any statement which tends to lower the plaintiff, to whom the article refers, in the estimation of right-thinking persons generally or bring them into hatred, ridicule or contempt, is defamatory”. – Broome v Castell & Co. (1972)2. WLR 645.
The question as to whether the words which are complained of are capable of conveying a defamatory meaning is a question of law. This
question is one for the trial Judge to determine. In Hopwood v. Muirson [1945] 1 K.B. 313 at p.316 Lord Goddard C.J. said:
“Whether or not words are capable of bearing a defamatory meaning is always for the court and is therefore to be regarded as a question
of law”.
In Gatley on’ Libel and Slander’, 7th Edition, at paragraph 93 the learned author states:
“Words are normally construed in their natural and ordinary meaning, i.e. in the meaning in which reasonable men of ordinary intelligence, with the ordinary man’s general knowledge and experience of worldly affairs, would be likely to understand them. The natural and ordinary meaning may also include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words.”
“The law of defamation does not even look to the meaning intended by the writer or speaker, but to the meaning attached by a reasonable reader or listener” – The Law of Torts by John F.Fleming, 9th Ed. 1998, p.590.
It is further stated at Lee v Wilson (1934) HCA 60, 51 C.L.R. 276 at 278 (Dixon J)
“A person charged with libel cannot defend himself by showing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff is in fact he did both”
‘In 1825 it was finally settled that absence of ill-will against the persons defamed and honest belief in the truth of the allegation did not excuse’. Broomage v Proser, [1825] EngR 42; (1825) 4 B & C 247, 107 ER 1051.
‘Whether statements which have a clearly disparaging meaning are to be found defamatory depends very much on the context in which they are made, and the audience to whom they are made.’ Law of Torts by Balkin & Davis at 558.
‘Case of a newspaper article the hypothetical reader or listener is less concerned with the precise words used and more with the overall impression gained.’ (Balkin & Davis – supra at 562-563)
The defamatory words must refer to the plaintiff. If it is defamatory, liability in defamation is imposed irrespective of the actual intention of the defendant. (Hulton & Co, v. Jones [1909] UKLawRpAC 57; [1910] AC 20 (H.L.).
All that is important or relevant is that;
‘Some ordinary reasonable people reading the publication would understand it to refer to the plaintiff.’ (Balkin & Davis – supra).
What would the words convey to an ordinary man? How an ‘ordinary man’ looks at them? Lord Reid in the classic judgment in Lewis v Daily Telegraph Ltd [1964] A.C. 234 at 258-260 said as follows:
“There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs... What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But the expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning... Generally the controversy is whether the words are capable of having a libelous meaning at all, and undoubtedly it is the judge’s duty to rule on that.”
(Emphasis added)
“A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally”. Lord Justice Neill in Gillick v British Broadcasting Corporation and Anor., 20 October 1995 The T.L.R. 527 at 528
Sir Thomas Bingham M.R. in Dr. Frank Skuse v Granada Television Ltd (1993) EWCA Civ 34 said;
“[14] There was no substantial dispute between the parties about the correct approach of the court in determining this preliminary issue, although naturally the parties tendered to lay emphasis on different features. It is, however, relatively unusual for the court to be asked to decide the meaning actually to be attributed to the words used and the sense (if any) in which they are defamatory; its usual function is to rule whether in law words are capable of bearing a defamatory meaning. For that reason it is appropriate to summarize the principles upon which we have approached the task:
(1) The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable viewer watching the programme once in 1985.
(2) “The hypothetical reasonable reader [or viewer] is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer, and may indulge in a certain amount of loose thinking. But he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.”
(per Neill L.J., Hartt v Newspaper Publishing PLC. Unreported, 26th October 1989 (Court of Appeal (Civil Division) Transcript No. 1015): our addition in square brackets).
(3) While limiting its attention to what the defendant has actually said or written, the court should be cautious of an over – elaborate analysis of the material in issue. We were reminded of Diplock L. J.’s cautionary words in Slim v. Daily Telegraph Ltd. [1968] 2 Q.B 157 at 171:
“In the spring of 1964 two short letters appeared in the correspondence columns of the ‘Daily Telegraph’. Written by Mr. Herbert, they formed part of a robust though desultory controversy about the prospective use by motor vehicles of a public footpath forming part of Upper Mall in Hammersmith. Neither letter can have taken a literate reader of that newspaper more than 60 seconds to read before passing on to some other, and perhaps more interesting, item. Any unfavourable inference about the plaintiff’s characters or conduct which he might have drawn from what he read would have been one of first impression. Yet in this court three lords justices and four counsel have spent the best part of three days upon a minute linguistic analysis of every phrase used in each of the letters. If this protracted exercise in logical positivism has resulted in our reaching a conclusion as to the meaning of either letter different from the first impression which we formed on reading it, the conclusion reached is unlikely to reflect the impression of the plaintiffs’ character or conduct which was actually formed by those who read the letters in their morning newspaper in 1964.”
In the present case we must remind ourselves that this was a factual programme, likely to appeal primarily to a seriously minded section of television viewers, but it was a programme which, even if watched continuously, would have been seen only once by viewers many of whom may have switched on for entertainment. Its audience would not have given it the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to the content of a learned article. In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable viewer we are entitled (if not bound) to have regard to the impression it made on us.
(4) The court should not be too literal in its approach. We were reminded of Lord Devlin’s speech in Lewis v Daily Telegraph Ltd. [1964] A. C 234 at 277:
“My Lords, the natural and ordinary meaning of words ought in
theory to be the same for the lawyer as for the layman, because the
lawyer’s first rule of construction is that words are to be given their natural and ordinary meaning as popularly understood, the proposition that ordinary words are the same for the lawyer as for the layman is as a matter of pure construction undoubtedly true. But it is very difficult to draw the line between pure construction and implication, and the layman’s capacity for implication is much greater than the lawyer’s. The lawyer’s rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory.”
(5) A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right- thinking members of society generally (Sim v. Stretch [1936] 2 All E.R 1237 at 1240) or would be likely to affect a person adversely in the estimation of reasonable people generally (Duncan & Neill on Defamation, 2nd edition, paragraph 7.07 at p.32).
(6) In determining the meaning of the material complained of the court is “not limited by the meanings which either the plaintiff or the defendant seeks to place upon the words” (Lucas – Box v. News Group Newspapers Ltd [1986] 1 W.L.R. 147 at 153H).
(7) The defamatory meaning pleaded by a plaintiff is to be treated as the most injurious meaning the words are capable of bearing and the questions a judge sitting alone has to ask himself are, first, is the natural and ordinary meaning of the words that which is alleged in the statement of claim and, secondly, if not, what (if any) less injurious defamatory meaning do they bear? (Slim v. Daily Telegraph Ltd. Above, at p.176.)
(8) The Court of Appeal should be slow to differ from any conclusion of fact reached by a trial judge. Plainly this principle is less compelling where his conclusion is not based on his assessment of the reliability of witnesses or on the substance of their oral evidence and where the material before the appellate court is exactly the same as was before him. But even so we should not disturb his finding unless we are quite satisfied he was wrong.
(9) The court is not at this stage concerned with the merits or demerits of any possible defence to Dr. Skuse’s claim.”
In Capital & Counties Bank v. George Henty & Sons [1881] 7 App. Cases 741 Lord Selbourne at p. 745 said:
“The test, according to the authorities, is whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libelous sense.”
(7) Applying those authorities, I come to the conclusion that the words complained of and concerning the plaintiff are capable of bearing the meaning pleaded in paragraph 12 of the statement of claim and as a result the words complained of and concerning the plaintiff would lower him in the estimation of right-thinking members of medical community in Fiji and the words cause him to be regarded with feelings of hatred, contempt, ridicule and dislike. There is no doubt that the words in the e-mail is libellous and the medical community in Fiji would think less of the plaintiff as a result of the e-mail.
(8) I have concluded in the preceding paragraphs that the plaintiff in this case has proved a publication of statements adversely affecting his personal reputation. Since the defendant in his statement of defence put forward No defence of justification, the plaintiff is not required to prove that the words in the electronic mail are false. Nor, in the case of publication in a written or permanent form, as in this case, is he required to prove he has been damaged. He is not required to establish actual harm to his reputation. See; Reynolds v Times Newspapers Ltd and Others [1999] UKHL 45; (1999) 4 All E.R. 609 at page 614. The law presumes that defamatory words are false.
Duncan and Neill on Defamation, 1978, Edition at paragraph 26.08 writes;
“The law presumes that defamatory words are false. In consequence, the claimant need do no more than prove that defamatory words have been published of him by the defendant. It is then for the defendant to prove, if he can, that words are triue. This rule is long standing.
(Emphasis added)
(9) If the defendant relies upon the truth viz, the defence of justification, as an answer to the action, he must plead that matter specifically in his statement of defence. He has not done so in this case. The defence of justification is a complete defence. The truth (viz, the defence of justification) is an answer to the action, not because it negatives the charge of malice, (for a person may wrongfully or maliciously utter slanderous matter though true, and thereby subject himself to a law suit) but because it shows that the plaintiff is not entitled to recover damages. The law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not, to possess. Therefore, to constitute a good defence to an action, where the publication of the slander is not intended to be denied, the defendant must negative the allegation of malice (which in its legal sense denotes a wrongful act done intentionally without just cause or excuse), or show that the plaintiff is not entitled to recover damages.
(10) Bearing that in mind, I now turn to the pleadings. The plaintiff in paragraph
12 of his claim pleaded inter alia;
12) ON the 27th of February, 2012, 8 days prior to the first call of the Civil
Action as per paragraph 11 the Defendant, wrote and published or caused to be written or published the following words contained in a electronic mail (hereinafter referred to as the “said e-mail”), specifically directed to the Plaintiff which are defamatory of the Plaintiff.
“Subject: SHORTLANE MEDICAL CENTER”
“Totally different issue here folks”
“As you have said I have been vacated by my landlord Dr Uma D Sharma from Shortlane Medical Center, Namaka. This is after 12 years in that location.”
“I have moved to a better location, however, I want everyone interested that there is a LEGAL ACTION by me against Dr Uma coming up in 3 weeks at Nadi Court. I will be suing for DAMAGES.”
“Those moving in there may find themselves inconvenienced by this Legal Suit.”
In its natural meaning, the abovementioned words meant and were understood to mean that the Plaintiff cannot be trusted, he is devious, intolerant, mischievous, incongruous, illogical, unfair, incompatible, unreasonable, inconsistent, and untrustworthy. Further the use of the words ‘better location’ in its natural and ordinary meaning meant and were understood to mean that the Plaintiff’s property was in a location which was not suitable, conducive, adequate, appropriate, proper, satisfactory for the purposes for which the Defendant had rented the subject premises for.
The above statement as quoted in paragraph 12 (a) is false, in that at the material time there was no legal action/s by the Defendant against the Plaintiff, when in fact, the Plaintiff had already initiated two legal actions against the Defendant as per paragraph 10 being as UMA DUTT SHARMA –vs- ISIRELI BIUMAITOTOYA, Nadi Civil Case Number 29 of 2012 and UMA DUTT SHARMA –vs- ISIRELI BIUMAITOTOYA, Nadi Civil Case Number 30 of 2012. Further, the Trust Property which was rented out by the Defendant was at all material times suitable, conducive, adequate, appropriate, proper, satisfactory for the purposes for which the Defendant had rented the subject premises for as the same is in Namaka, and that the Defendant rented the same for 12 years and refused to vacate the premises upon service of Notices.
In its natural meaning, the abovementioned words meant and were understood to mean that the Plaintiff is in the process of dissolution of marriage, abusive, intolerant, manipulative, personal life in disarray, not a family oriented person.
It is a false statement, at the material time of the publishing of this statement, no dissolution of marriage papers were filed in Court.
In its natural meaning, the abovementioned words meant and were understood to mean that the Plaintiff may be declared bankrupt, a person of weak financial means, is heavily in debt. Further, it was specifically targeted and/or directed to any future and/or prospective tenants from refraining to rent at the Plaintiff’s premises being the Trust Property, in particular any future or prospective medical practitioners from renting out the Trust Property.
It is a false statement, the Plaintiff’s property is unencumbered, further, the Property at all material times was rented out by another medical practitioner operating a Dental Clinic without any grievances.
“This is what he did to me. He is landlord that will involve you and expect you to do silly things like spying on his wife for lovers ETC. I have been through that rubbish.”
In in its natural meaning, the abovementioned words meant and were understood to mean that the Plaintiff is evil, bad, unreasonable, immoral, vile, foul, baleful, wicked, untrustworthy, noxious, villainous, manipulative, hateful, deceitful, unsound, and sinful.
The above statement is false, and brings the Plaintiff reputation into disrepute and mockery.
(11) The writing and the publication of the libel is not denied by the defendant. As an answer to the action, the defendant pleaded in his statement of defence inter alia; (Reference is made to paragraph 12 of the statement of defence)
12. Save to admit sending the email dated 28th February 2012 our client
denies the allegations contained in the paragraph 12 of the Statement of Claim and further say as follows:
12.1 That the Defendant denies the allegations contained in
the sub paragraph (1) and further say that the natural meaning referred to is totally different from the actual meaning and further say as follows:
12.1.1 The upon the Plaintiff’s advertisement a number of medical practitioners asked the Defendant for the Defendant’s relocation from the plaintiff’s premises as the Defendant has marketed the premises for the past 11 years.
12.1.2 The Defendant with good faith by way of an email dated 28th February 2012 informed his colleagues of the problems faced by the Defendant and of the Defendant’s relocation.
12.1.3 The Defendant also informed that the Defendant would be claiming against the Plaintiff for damages for his relocation and other expenses the Defendant expanded in the Plaintiff’s premises.
12.1.4 The Defendant denies meaning any of the meanings stated in the paragraph 12 (a) of the Statement of Claim.
12.2 That the defendant denies the allegation contain in the sub paragraph (b) and further day natural meaning is totally different from the actual meaning and further say as follows:
12.2.1 That the Defendant meant by the statement that the Plaintiff’s wife would be also filing of Dissolution of marriage and;
12.2.2 That the Plaintiff’s wife has filed for Dissolution of marriage at the Nadir Magistrates Court action no. 07 NAN 0186.
12.2.3 The Defendant only made the statement as he was informed that the Dissolution of marriage would be filed.
12.2.4 The Defendant denies meaning any of the meanings stated in the paragraph (b) of the Statement of Claim.
12.3 That the Defendant denies the allegation contained in the sub paragraph (c) and further say that the natural meaning is totally different from the actual meaning and further say as follows:
12.3.1 That the Defendant meant by the statement that the property may go into receivership upon Dissolution of Marriage as the Plaintiff needs to do the property settlement with his wife.
12.3.2 That due the property settlement between the plaintiff and his wife it might cause problems to the tenants of the property.
12.3.3 The Defendant denies meaning any of the meanings stated in the paragraph 12 (c) of the Statement of Claim.
12.4 That the Defendant denies the allegations contained in the paragraph (d) and further say that the natural meaning is totally different from the actual meaning and further say as follows:
12.4.1 That the Defendant meant by the statement that the Plaintiff interferes into the rented premises, the Plaintiff does not repair the premises and also does not provide legal lease agreement after first 5 years of tenancy.
12.4.2 That the Defendant denies meaning any of the meanings stated in the paragraph 12 (d) of the Statement of Claim.
(12) As I understand the defendants’ pleadings, the defendant has not put forward (A) the plea of justification (B) the plea of privileged occasion (C) the plea of fair comment on a matter of public interest. If the defendant relies upon the plea of justification, the plea of privileged occasion or the plea of fair comment on a matter of public interest, he must plead that matter specifically. The defendant has not done so. The defendant during the trial unsuccessfully contended to rely upon the defence of justification as an answer to the action without pleading that matter specifically. The chief defence taken at the trial was justification; that is to say, the truth. The defendant cannot claim the protection of justification because the defendant in his statement of defence has not specifically pleaded the defence of justification in an answer to the libel. Therefore, I dismiss the chief defence taken at the trial by the defendant. I need not pronounce a finding as to the defence of justification (the truth). I cannot resist in saying that it is not the function of the trial judge in the context of an adversarial trial to assist a party to overcome the problems consequent to the position taken by that party in the pleadings. The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them.
(13) The foundation of an action of defamation is malice. If words are used which are defamatory and untrue the law implies malice. The word malice in its legal sense denotes a wrongful act done intentionally without just cause or excuse. In law if a man writes or says what is not true and what is libellous or slanderous of another, it is presumed to be malicious; but when the occasion is privileged then we require something more, we require what the law calls ‘express malice’. The phrase ‘express malice’ means; it does not mean that hatred and charitableness which are usually associated with the word malice. Malice in law means this – a wrongful act done intentionally without just cause or excuse that is what malice means.
(14) Applying those principles to the case before me what do we find?
(15) Since the defendant has not specifically pleaded the defence of justification;
(A) The plaintiff is not required to prove that the words in the electronic mail are false. The law presumes that the defamatory words are false. See; Duncan and Neill on Defamation, Para 26.08. Therefore, I hold that the defamatory words contained in the defendant’s email are false.
(B) The plaintiff is not required to prove the actual harm to his reputation.
There is a realistic threat that the statements in the e-mail, in its full context, would reduce a reasonable person’s opinion (in the medical community of Fiji) of the plaintiff and posed a realistic threat to his reputation in the medical community.
(16) The foundation of an action of defamation is malice. If the words are used which are defamatory and untrue the law implies malice. That presumption is rebutted if the occasion when the words were used is privileged. The privilege destroys the presumption. See; Reynolds v Times Newspapers Ltd and Others (1999) 4 All .E.R. 609 at page 649.
I have already reached the conclusion that the words contained in the electronic mail are libellous and false. Since the defendant has not specifically pleaded the defence of privileged occasion the law presumes that the words contained in the electronic mail are malicious. In the result, I hold that the words contained in the electronic mail which reflected upon the character and conduct of the plaintiff have been written and published by the defendant falsely and maliciously and the words are libellous.
(17) Turning to the pleadings of the instant case, as an answer to the action, the defendant in paragraph 12 of his statement of defence pleaded (inter alia) that;
❖ The natural meaning referred to of paragraph 12 (a), (b), (c) and (d) of the statement of claim is totally different from the actual meaning.
❖ The upon the Plaintiff’s advertisement a number of medical practitioners asked the Defendant for the Defendant’s relocation from the plaintiff’s premises as the Defendant has marketed the premises for the past 11 years.
❖ The Defendant with good faith by way of an email dated 28th February 2012 informed his colleagues of the problems faced by the Defendant and of the Defendant’s relocation.
❖ That the Defendant meant by the statement that the Plaintiff’s wife would be also filing of Dissolution of marriage and;
❖ The Defendant only made the statement as he was informed that the Dissolution of marriage would be filed.
❖ That the Defendant meant by the statement that the property may go into receivership upon Dissolution of Marriage as the Plaintiff needs to do the property settlement with his wife.
❖ That due the property settlement between the plaintiff and his wife it might cause problems to the tenants of the property.
❖ That the Defendant meant by the statement that the Plaintiff interferes into the rented premises, the Plaintiff does not repair the premises and also does not provide legal lease agreement after first 5 years of tenancy.
I can dismiss the above as follows.
(18) It falls within the province of the judge to give his interpretation of defamatory statements and he does that in the way that an ordinary reasonable person would. In the case of the defamatory statements the hypothetical reader or listener is less concerned with the precise words used and more with overall impression gained. See; Law of Torts by Balkin & Davis at 562 – 563.
If the statements are defamatory, liability in defamation is imposed irrespective of the actual intention of the defendant. See; Hulton (E) & Co v Jone (1910) A.C.L. 20 (H.L.). All that is important or relevant is that ‘ some ordinary reasonable people reading the publication would understand it refer to the plaintiff. See; Balkin & Davis, Law of Torts. The reader is presumed to consist of “ordinary reasonable, fair-minded” people.
In an action for libel it is a question for the judge and the judge only, whether the words complained of are a libel on the plaintiff. The statement of the writer with respect to his own intention is irrelevant. It is immaterial what the writer meant. Libel is a tortious act. What does the tort consist in? It consists in using language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and injured by it. A person sued for libel cannot defend himself by showing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff.
As I concluded in paragraph (15) of this judgment, the defamatory words complained in the defendant’s email are false. Under those circumstances, the defendant has no defence to the action, however excellent his intention. The intention of the writer is immaterial in considering whether the matter written is defamatory. The defendant cannot absolve himself from liability by proving that he wrote it in the most benevolent spirit. In the publication of matter of a libellous character, there is responsibility for the words used being taken to signify that which readers would reasonably understand by them. It is out of the question to suggest what is meant in the mind of the writer or of the publisher.
“The law of defamation does not even look to the meaning intended by the writer or speaker, but to the meaning attached by a reasonable reader or listener” – The Law of Torts by John F.Fleming, 9th Ed. 1998, p.590.
It is further stated at Lee v Wilson (1934) HCA 60, 51 C.L.R. 276 at 278 (Dixon J)
“A person charged with libel cannot defend himself by showing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff is in fact he did both”
(19) As regards the statement, “Dr. Uma’s wife is also filing for divorce”, the defendant unsuccessfully contended that “the defendant only made that statement as he was informed that the dissolution of marriage would be filed”. See paragraph 12.2.3 of the statement of defence filed on 23rd July 2012.
I dismiss this at once. Because the defendant has written the words in the email in an unqualified sense. At the time of writing and publishing the electronic mail, the defendant has not declared that he had heard and been told, “Dr Uma’s wife is filling for divorce”. The words in the electronic mail imported an unqualified assertion made by the defendant in the words stated in the electronic mail. Moreover, it is not an answer to an action for libel for a defendant to show that he heard it from another without naming the person at the time of writing the statement and without showing that the defendant believed it to be true.
Every publication of a libellous matter is prima facie a violation of the right which every individual has to his good name and reputation. Reputation is an important element of human dignity and must be protected. Therefore, a person cannot be justified in writing and publishing a libellous matter that he heard from another unless he believes it to be true. That alone is not sufficient. It can only be repeated upon a justifiable occasion. Here, the defence has not set up the plea of privileged occasion. Thus, the defendant has no defence except as to damages.
Damages
(20) I shall now consider what damages should be allowed.
Damages – General (On compensatory basis)
(21) The plaintiff is claiming an award of $100,000.00 as general damages.
The effect of libellous statements
(22) As I said in paragraph (15) of this judgment, since the defendant has not specifically pleaded the defence of justification, the plaintiff is not required to prove actual harm to his reputation. As I said earlier there is a realistic threat that the statements in the e-mail, in its full context, would reduce a reasonable person’s opinion (in the medical community) of the plaintiff and posed a realistic threat to his reputation in the medical community. However, the reader is presumed to consist of “reasonable and fair-minded” people. See; Reynolds v Times Newspapers Ltd and Others, [1999] UKHL 45; (1999) 4 ALL.ER 609 on page 614. The court can give damages as the court thinks fit, having regard to the conduct of the parties respectively, and all the circumstances of the case.
The transcript of the plaintiff’s evidence in chief contains this; (Reference is made to page 57 of the transcript of evidence)
Q: What are you seeking against the defendant?
A: Well the defendant has practically destroyed my reputation for
which I had worked for 40 odd years of my life by a stroke of his internet pen and I’m seeking damages for that action and for also the loss of income. No tenant is ready to come in and I’m losing $3000.00 a month, now you multiply that by 12, 24.
(23) At this stage, it is pertinent to quote some of the important aspects of the law.
In ‘Reynold v Times Newspapers Ltd and Others’ [1999] UKHL 45; (1999) 4 All.ER 609,
Lord Nicholas of Birkenhead said at p.622;
“Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognize that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others”.
As stated by Duncan and Neill on Defamation (1978 Edition) at page 130 for compensatory damages, the ‘basic rule of common law is that in civil action damages are awarded as compensation for injury, not as punishment for wrongdoing’. (18.03). The authors go on to state:
“The purpose of an award of compensatory damages is to restore the plaintiff, as far as money can do so, to the position he would have been in if the tort had not been committed. This principle of restitution in integram was stated by Lord Blaskburn in Livingstone v Rawyards Coal Co as follows:
‘Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which would put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.’”
The nature of damages and the purposes for which it is awarded has been well expressed by Windeyer J in Uren v John Fairfax & Sons Pty Ltd [1967] 117 CLR at 150 ;
“It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways – as vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.”
“That is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libeled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being “at large”.”
What factors should be considered in awarding General damages on
compensatory basis ?
As stated in Neill (supra) at 18.09 the factors which are to be taken into account in assessing damages, apart from the ‘seriousness of the libel are: (a) special damages; (b) injury to the plaintiff’s feelings including aggravating factors; (c) extent of the publication; and (d) mitigating factors.’
What are the factors relevant in considering the measure of damages in defamation cases?
In the Singapore Court of Appeal case of Tang Liang Hong v Lee Kuan Yew & Anor and other appeals [1998] 1 SLR 97 (CA) (also reported in Commonwealth Law Bulletin – January and April 1998 at 195) said;
“First, a defamation action was fundamentally an action to vindicate a person’s reputation on a matter as to which he had been falsely defamed, and the damages awarded had to be regarded as the demonstrative mark of that vindication. Thus, the amount of damages awarded in defamation actions was only given in relation to circumstances of the past and present but it must be sufficient to vindicate the plaintiff’s reputation in the relevant respect in the future. Damages, and the size of the award, were the only means which ordinarily were available to attract the public or private attention involved in the vindication of the plaintiff’s position; Dingle v Associated Newspapers Ltd & Ors [1964] AC 371, Broome v Casell and Co Ltd [1972] UKHL 3; [1972] AC 1027 and John Fairfax & Sons Ltd v Carson (1991) 24 NSWLR 259 followed. The defamation award also had to reflect the aggravation caused to the plaintiff by the defendant’s subsequent conduct or any mitigation, in addition to the need to vindicate the plaintiff’s good name; Sutcliffe v Pressdram Ltd [1991] 1 QB 153, Rantzen v Mirror Group Newspapers (1986) Ltd & Ors [1993] EWCA Civ 16; [1994] QB 670 and Carson v John Farifax and Sons Ltd (1993) HCA 31, (1993) 178 CLR 44 followed.”
Assessing damages for defamation is fraught with difficulties; Lord Atkin in Ley v Hamilton (1935) 153 L.T. 384, H.L. said:
“The damages for defamation were not arrived at as the Lord Justice seems to assume by determining the ‘real’ damage and adding to that a sum by way of vindictive or punitive damages. It is precisely because the ‘real’ damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation. No doubt in newspaper libel injuries take into account the vast circulations which are justly claimed in present times. The ‘punitive’ element is not something which is or can be added to some known factor which is non-punitive.”
As for damages a greater amount can be awarded where “the publication of a libel was irresponsible. No effort was made to check the report’s accuracy and the plaintiff’s name was included” (Kiam v Neill and Another ,TLR 26.7.96 p.33 C.A.)
The Court of Appeal in Kiam (supra) went on to say further:
“The libel jury could properly take into account the prominence of the plaintiff’s reputation when deciding what figure was required to vindicate it. They were also entitled to take account of the fact that it struck at the core of his life’s achievement and that, according to the unchallenged evidence, it had a prolonged and significant effect on him personally”.
Sir Thomas Bingham M.R. said in John v MGN Ltd [1995] EWCA Civ 23; [1996] 2 All ER 35, 48
“The most important factor is the gravity of the libel; the more closely it touches the plaintiff’s person, integrity, professional reputation, honor, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant; a libel published to millions has a greater potential to cause damage than a libel published to a handful people.”
In the case of Sakiusa Rabuka and Volau Rabuka vs Fiji Daily Post Company Limited and Others, Civil Action No. 511 of 2000, a sum of $40,000.00 was granted by the High Court as damages for the Permanent Secretary of Justice in respect of an article which reported that Mr Rabuka’s wife had been caught in a raid by New York Police at a house suspected by Police as a base for a migration racket. Mrs Rabuka was given an award of $38,000.00. These awards have been confirmed by the Fiji Court of Appeal.
In the case of Mohammed Hassan –v- Fiji Times and Herald Limited, Supreme Court Decision no. 304 of 1983, Honourable Justice Kermode said in respect of a Prison Officer who had been alleged to have offered $1500.00 in a bribe to protect his name following the bashing of a prisoner.
“National Newspapers overseas have a very wide publication and this has some bearing on the high damages that juries overseas award. Those national dailies make profits out of circulating a sensational libel which juries consider justify very substantial awards.
In Air Fiji Ltd v Shandil, High Court of Fiji Civil Action No. 380 of 1999, the court awarded general damages of $80,000 and special damages of $120,000 with respect to a media broadcast after there had been a fatal air crash.
(24) Damages in defamation are awarded generally to compensate the plaintiff for the injury done to his or her reputation.
The libellous material was sent via the internet through the defendant’s email address to the email addresses of 144 medical practitioners (the size of the circulation) in the medical community in Fiji. The medical community in Fiji have no interest in knowing what passed within the plaintiff’s and the defendant’s walls at ‘Shortlane Medical Centre’. The defendant has no duty to publish to the medical community in Fiji. The defendant’s explanation (viz, the practitioners asked the reason for moving out) is unintelligible or plain nonsense. The defendant has no duty to make it to the persons to whom it is made, and the persons’ to whom it is made has no corresponding interest or duty to receive it. There is a wide publication to persons who lack the requisite interest in receiving the information. At the time the document in question was made the defendant and the plaintiff were not on friendly terms and it was circulated without any honest or legitimate object, for the purpose of annoyance and injury to the plaintiff. The document contained much that was unnecessary (viz, the history of quarrels between the plaintiff and his wife, the plaintiff’s wife’s divorce action and the property settlement) to the medical community in Fiji. The 144 medical practitioners (the recipients) had no corresponding interest in receiving the information the defendant gave them. This is some evidence of an indirect and improper motive on the defendant’s part in making the communication complained of. Besides, the lack of foundation for the statements made and their tendentious quality lead me to hold that there was gross and unreasoning prejudice and malice. I consider this as an aggravating factor and it leads to a very substantial award.
In my view, the statements contained in the e-mail taken in the context of the plaintiff being a dental practitioner of 38 years standing, a senior lecturer in Anatomy at University of Fiji and the former Dean of the medical school and the email having being circulated widely to 144 medical practitioners in the medical community is calculated to disparage the plaintiff in his profession and bring the plaintiff into contempt, hatred, or ridicule, or to injure his character.
From the circumstances in which the statements were made an inference of deliberate and calculated view to prejudice or to impute blame to the plaintiff can easily be drawn. There is evidence to satisfy the court that the publication of the libel was wanton conduct and was made in contumelious disregard of the plaintiff’s right to his good name. Therefore, the conduct of the defendant had been high-handed, insolent, vindictive or malicious. He had exhibited a ‘contumelious’ disregard of the plaintiff’s rights.
The evidence show that the statements contained in the defendant’s email were very wounding to the plaintiffs feelings. What is more, the oppressive or contumelious behavior of the defendant increased the mental pain and suffering caused by the libel. The plaintiff has written to the defendant demanding an apology. Here no apology was tendered despite being written in that regard. There were no mitigating factors. The statements complained of were made with a deliberate and calculated view to tarnish the reputation of the plaintiff. Can we simply put the clock back as if nothing has taken place? Presumably the plaintiff has suffered much at the really extraordinary treatment meted out to him. There was no opportunity to vindicate the plaintiff’s reputation and the damage was forever. I must confess to surprise and even to some degree of indignation, that the defendant has not tendered the plaintiff the smallest expression of regret at the really extraordinary treatment meted out to him.
I award $70,000.00 as general damages on a compensatory basis. This award includes factors for (1) injury to the plaintiff’s feelings (2) the anxiety and uncertainty undergone by the plaintiff in the litigation (3) the absence of apology by the defendant and (4) the malice of the defendant.
Damages – Special
(25) The plaintiff claims damages for loss of rental income. The paragraph
22 of the statement of claim includes the following plea;
“As a consequence of the publication and circulation of the e-mail as referred to in paragraphs 12 and 13, the plaintiff’s shop number 3, the medical clinic part of the Trust Property remains vacant from the date which the Defendant vacated the Trust Property”.
The transcript of plaintiff’s evidence in chief contains this passage; (reference is made to page 48 of the transcript of evidence)
Q: After he vacated this property what did he do?
A: Well not immediately but after a lapse of sometime
may be days, weeks, I started looking for other doctors who might be interested to come and practice there.
Q: After you were searching for clients then?
A: Well quite a few interests .....that Doctor Tui Taoi from Lautoka came down, saw the place and she had given her approval that she’ll take over or open up her own practice there, she was a Gynaecologist and after a few days of her assurance, the ...... to open up her practice, she declined to come because that is when this email was circulated to all the doctors, almost all the doctors in Fiji, painting a very picture about me. As you know it’s all there and the idea was to discourage anybody coming in there to open their practice and unfortunately it worked.
Q: Did anyone open their clinic in your property till now?
A: To date because of that email, nobody wants to come in there and it is vacant to date.
Q: Since February 2012?
A: Yes Sir.
Q: And how much was the rental?
A: If I may add a little there I had given a very nominal amount since I just opened up the medical centre to Dr. Sailasa Vueti for $1000.00 a month where the market value even at that time would have been $3000.00 and when Dr. Isireli came over their rental remained the same and we’d agree for the rest of his tenure therefore well over 10 years I never ................the rent.
Dr. Tui Taoi was not called to give evidence for the plaintiff. Besides, the alleged loss of rental income and the period of loss was not pleaded and particularized in the statement of claim. In a claim for special damages the defendant is entitled to the fullest particulars. The alleged loss of rental income which is capable of substantially exact calculation is not pleaded and particularized to give the defendant access to the facts which make such calculations possible, showing the defendant the case it has to meet. I must confess that I cannot extract from paragraph 22 of the statement of claim any sufficiently clear statement as to the quantum of the alleged loss and the period of the alleged loss. The defendant ought to have this particulars, because the said particulars would give the defendant adequate opportunity to investigate it. The defendant is entitled to get the said particulars in order to enable him to know what the plaintiff’s real claim for special damages is.
The plaintiff has not pleaded and particularized the quantum of alleged loss which is capable of precise quantification in monetary terms and the period of alleged loss. In my judgment, this is embarrassing. The plaintiff has put the defendant in a difficulty. It is impossible for the defendant to come to a conclusion as to what would be reasonable sum to pay to satisfy the plaintiff’s claim if it minded to take that course before the hearing. The quantum of alleged loss and the period of loss are capable of substantially exact calculation at the time of institution of the action. Therefore, in the pleadings, the plaintiff must disclose them and give the defendant access to the said facts which make such calculation possible, thus showing the defendant the claim it has to meet.
The plaintiff’s loss of rental income is liquidated, capable of precise quantification in monetary terms, verifiable and probable sums. The plaintiff would suffer no harm or injustice by pleading as to the quantum of alleged loss which is capable of precise quantification in monetary terms and the period of alleged loss. Why should the plaintiff prevent the defendant from knowing before the trial the quantum of alleged loss of rental income and the period of alleged loss? Why should the defendant be kept in the dark? The plaintiff ought to plead and particularize in its pleadings the quantum of alleged loss of rental income and the period of alleged loss in order that there may be no surprise at the trial.
The obligation to particularise arises not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible and put the defendant on its guard and tell him what it has to meet when the damages comes in for hearing.
The matter is clearly stated in Mayne and MacGregor on Damages (12th Edn, 1961) in para 970, where the learned editor writes:
“Special damage consists in all items of loss which must be specified by [the plaintiff] before they may be proved and recovery granted. The basic test of whether damage is general or special is whether particularity is necessary or useful to warn the defendant of the type of claim and evidence, or of the specific amount of claim, which he will be confronted with at the trial.”
Due to the reasons which I have endeavoured to explain above I decline to make an award for special damages.
Exemplary Damages
(26) The plaintiff claims exemplary damages.
The plaintiff’s pleadings do not show the circumstances and the basis upon which he, the plaintiff, seeks ‘exemplary damages’. The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them.
Leave aside the defective pleadings for a moment. In what circumstances exemplary damages are awarded?
Lord Devlin has dealt with it quite extensively in the House of Lords in Rookes v Barnard and Others [1964] UKHL 1; 1964 AC 1129 at 1221-1231.
His Lordship said at p.1131;
“that exemplary damages could be awarded in cases (i) of oppressive, arbitrary or unconstitutional acts by government servants;
(ii) where the defendant’s conduct had been calculated by him to make a profit for himself which might well exceed the compensation
payable to the plaintiff: (iii) where expressly authorized by statute (post, pp.1226-1227); that in a case in which exemplary damages
were appropriate a jury should be directed that only if the sum which they had in mind to award as compensation (which might of course
be aggravated by the defendant’s behavior to the plaintiff) was inadequate to punish and deter him, could it award some larger
sum (post, p.1228); that the facts disclosed in the summing up showed no case for exceptional damages and possibly none for aggravated
damages (post, pp. 1232, 1233); however, the plaintiff could, without any departure from the compensatory principle, invite the
jury to look at all the surrounding circumstances and award a round sum based on the pecuniary loss proved (post, pp. 1221, 1233).”
Further down at p.1221
“Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter....”
Sir Thomas Bingham M R in John v MGN Ltd (T.L.R. 14.12.1995 675 at 677 C.A.) said;
“The authorities gave judges no help in directing juries on the quantum of exemplary damages. Some such damages, were analogous to a criminal penalty, and although paid to the plaintiff played no part in compensating him, principle required that award should never exceed the minimum sum necessary to meet the underlying public purpose: that of punishing the defendant, showing that tort did not pay and deterring others.”
The Fiji Court of Appeal said as follows in James Arthur Rennie Borron & Mago Islands Estate Limited v Fiji Broadcasting Commission & Newspapers of Fiji Limited (Civ. Appeal No. 40/81 FCA at p5):
“Exemplary damages are damages which are awarded to punish a defendant and vindicate the strength of the law. In considering whether exemplary damages should be awarded the Court should ask itself whether the sum it proposes to award as compensatory damages, which may include an element of aggravated damages is adequate in all the circumstances for compensating a plaintiff and also for punishing or deterring a defendant. Only if it is inadequate for the latter purpose should the Court consider awarding exemplary damages.”
Further the Appeal Court stated that ‘exemplary damages or punitive damages are exceptional and only in rare cases are they awarded’. The Court then referred to the following passages in Manson v Associated Newspapers Ltd. [1965] 1 W.L.R. 1038 where Widgery J said:
“Of course, a newspaper is always published for profit. It is the purpose of a newspaper to make money and build up circulation. You must not go away with the idea that because of that any libel in a newspaper is a libel for which exemplary or punitive damages must be awarded. If a newspaper, in the ordinary way of business, publishes news in regard to a particular item and happens to make a mistake, the mere fact that it is publishing for profit does not open the door to an ward of exemplary or punitive damages. The only cases (and they must be very exceptional, you may think) in which exemplary or punitive damages are permissible are those cases where the jury, is satisfied that the publication was done with a deliberate, calculated view to making a profit out of that publication and ignoring the fact that damages might be payable because they would be so small, at any rate so small in relation to the potential profit.”
Whether or not to award exemplary/punitive damages?
The guidelines of Lord Reid in Broome v Cassell & Co. [1972] UKHL 3; [1972] 2 W.L.R. 645:
“The only practical way to proceed is first to look at the case from the point of view of compensating the plaintiff. He must not only be compensated for proved actual loss but also for injury to his feelings and for having had to suffer insults, indignities and the like. And where the defendant has behaved outrageously very full compensation may be proper for that. For the tribunal will fix in their minds what sum would be proper as compensatory damages. Then if it has been determined that the case is a proper one for punitive the tribunal must turn its attention to the defendant and ask itself whether the sum which it has already fixed as compensatory damages is or is not, adequate to serve the second purpose of punishment or deterrence. If they think that sum is adequate for the second purpose as well as for the first they must not add anything to it. It is sufficient both as compensatory and as punitive damages. But if they think that sum is insufficient as a punishment they must add to it enough to bring it up to a sum sufficient as punishment. The one thing which they must not do is to fix sums as compensatory and as punitive damages and add them together. They must realize that the compensatory damages are always part of the total punishment”.
The sum I awarded as general damages on compensatory basis includes an element of exemplary/punitive damages and it is adequate to (1) punish the defendant for this outrageous conduct (2) to mark the court’s disapproval of such conduct (3) to deter him from repeating it.
Therefore, I decline to award exemplary/punitive damages. I consider that my award in general damages on compensatory basis reflect the serious nature of the libel and compensate the plaintiff for the mental torment and distress he must have suffered.
Indemnity Costs
(27) The plaintiff seeks indemnity costs.
I turn to the applicable law and the judicial thinking in relation to the principles governing “indemnity costs”.
Order 62, rule 37 of the High Court Rules, 1988 empower courts to award indemnity costs at its discretion.
For the sake of completeness, Order 62, rule 37 is reproduced below.
Amount of Indemnity costs (0.62, r.37)
37.- (1) The amount of costs to be allowed shall (subject to rule 18 and to any order of the Court) be in the discretion of the taxing
officer.
The following passage is illuminating;
G.E. Dal Font, on “Law of Costs”, Third Edition, writes at Page 533 and 534;
‘Indemnity’ Basis
“Other than in the High Court, Tasmania and Western Australia, statute or court rules make specific provision for taxation on an indemnity basis. Other than in the Family Law and Queensland rules - which define the 'indemnity basis’ in terms akin to the traditional ‘solicitor and client basis’ - the ‘indemnity basis’ is defined in largely common terms to cover all costs incurred by the person in whose favour costs are ordered except to the extent that they are of general law concept of ‘indemnity costs. The power to make such an order in the High Court and Tasmania stems from the general costs discretion vested in superior courts, and in Western Australia can arguably moreover be sourced from a specific statutory provision.
Although all costs ordered as between party and party are, pursuant to the ‘costs indemnity rule ’, indemnity costs in one sense, an order for ‘indemnity costs' or that costs be taxed on an ‘indemnity basis’, is intended to go further. Yet the object in ordering indemnity costs remains compensatory and not penal. References in judgments to a ‘punitive’ costs order in this context must be seen against the backdrop of the reprehensible conduct that often justifies an award of indemnity costs rather than impinging upon the compensatory aim. Accordingly, such an order does not enable a claimant to recover more costs than he or she has incurred. ”
I will pause here to consider the principles underlying the exercise of the courts discretion when considering whether or not to award indemnity costs.
The principles by which courts are guided when considering whether or not to award indemnity costs are discussed by Hon. Madam Justice Scutt in “Prasad v Divisional Engineer Northern (No. 02)”, (2008) FJHC 234.
As to the “General Principles”, Hon. Madam Justice Scutt said this;
established law’ and the court needs ‘to consider how it should exercise its unfettered discretion ’: Fountain Selected Meats, at 401, per Woodward, J.
Indeed, as was set out in Carvill v HM Inspector of Taxes (Unreported, United Kingdom Special Commissioners of Income Tax, 23 March 2005, Stephen Oliver QC and Edward Sadler) (Bailii: [2005]UKSPCSPC00468, http://www.bailii.org/cgibin/markup.cgi?doc=/uk/cases/UKSC/2005/SPC00468.HTML), “reprehensible conduct” requires two separate considerations (at paragraph 11):
“The party’s conduct must be unreasonable, but with the further characteristic that it is unreasonable to an extent or in a manner that it earns some implicit expression of disapproval or some stigma.”
As I indicated in paragraph (16) the words complained of, proved to be actuated by ‘malice’. And from the circumstances in which the words were uttered an inference of deliberate and calculated view to prejudice or to impute blame to the plaintiff can easily be drawn. Therefore, the conduct of the defendant had been high-handed, insolent, vindictive or malicious. He had exhibited a ‘contumelious’ disregard of the plaintiff’s rights.
In the light of the above, I have no hesitation in holding that an award of indemnity costs is warranted.
(G) ORDERS
(i) Judgment entered in favour of the plaintiff.
(ii) The defendant to pay $70,000.00 as general damages (on compensatory basis) to the plaintiff within fourteen (14) days from the date of this judgment.
(iii) The plaintiff is entitled to 6% simple interest per annum on $70,000.00 from the date of filing of the Writ (i.e. 04th July, 2012) to the date of the judgment of this Court. (Pre-judgment interest)
(iv) The plaintiff is entitled to 4% simple interest per annum on $70,000.00 from the date of the judgment of the Court until payment is made in full. (Post-judgment interest).
(v) The claim for special damages is dismissed.
(vi) The claim for exemplary/punitive damages is dismissed because the sum awarded as general damages on a compensatory basis includes an element of exemplary damages and is adequate in all the circumstances for compensating the plaintiff and also for punishing and deterring the defendant.
(vii) The claim for indemnity costs is allowed.
(viii) The plaintiff is directed to file and serve his detailed costs for the assessment of indemnity costs before the Master within fourteen (14) days from the date of this judgment.
Jude Nanayakkara
[Judge]
At Lautoka,
Tuesday, 07th May, 2019.
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