Wale v Philip [2011] SBHC 32; HCSI-CC 42 of 2011 (16 May 2011)

IN THE HIGH COURT
OF SOLOMON ISLANDS
(Civil Jurisdiction)

Civil Case no. 42 of 2011

Mathew Cooper Wale
The Claimant
v.

Danny Philip
The First Defendant

And

Alfred Sasako
The Second Defendant

And

The Attorney-General
(representing the Solomon Islands Government)
The Third Defendant

Hearing: 13 May 2011
Ruling: 16 May 2011

A. Radclyffe for the Claimant
J. Muria (Jnr) for the First and Third Defendants
A.N. Tongarutu (Ms) for the Second Defendant

Palmer CJ:

1. This is an application for joinder of the Editor of Solomon Star ("the Editor") as the Fourth Defendant and the publisher, Solomon Star Limited ("the Publisher") as the Fifth Defendant, by the first and third defendants, supported by the second defendant, under Rule 3.5 of the Solomon Islands Courts (Civil Procedure) Rules 2007 ("the Rules"). They say that the Editor and Publisher are both joint tortfeasors for approving, authorizing and facilitating the publication of the Intel Report – 28th January, 2011" ("the Report"), provided to them by the second defendant. That report contained the allegations of defamatory remarks against the Claimant.
   
2. Mr. Radclyffe for the Claimant opposes the application for joinder saying that the decision not to include the Editor and Publisher and other newspapers, which carried the Report was deliberate; his client had purposely decided to sue the defendants as the persons that were responsible for distributing that report to the Publisher. He pointed out that if the defendants were serious about other tortfeasors, they should have included many others who were also involved in the distribution of the Report and queried why the Editor and Publisher were singled out.
   
3. I am satisfied the application for joinder should be dismissed. I am satisfied the Claimant was entitled to sue the current defendants and not the others on their basis as separate tortfeasors. This is referred to in the Report of the Committee on the Law of Defamation[1] as follows:
   

"Where the defamatory matter is contained in a book, periodical or newspaper, there are normally a series of publications each of which constitutes a separate tort. First, there is a publication by the author to the publisher for which the author is solely liable. Secondly, there is the publication by the author and publisher jointly to the printer, for which the author and publisher are jointly liable. Thirdly, there is the publication of the printed work to the trade and the public, for which the author, printer and publisher are jointly liable. It is normally in respect of this last publication that proceedings for libel are brought, although it is open to a plaintiff to sue in respect of the separate publication set out above."

4. While the Editor and the Publisher were potentially liable for being part of the process of publication, the Claimant has decided to confine his claim to those he considered as the main culprits in this matter. That claim can stand and fall on its own without having to join the Editor and the Publisher. I am not satisfied it is necessary for them to be joined as a party to enable the court to make a decision fairly and effectively in the proceeding.
   

Orders of the Court:

1. Dismiss application for joinder with costs.
   

The Court.

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^[1] Cmd. 7536 (1948) p.29, para. 116