Stephen Young v Melena Simon O'Neil

JurisdictionTrinidad & Tobago
JudgeMadam Justice Eleanor Joye Donaldson-Honeywell
Judgment Date28 June 2022
Neutral CitationTT 2022 HC 148
Docket NumberClaim No. CV 2019-04498
CourtHigh Court (Trinidad and Tobago)
BETWEEN
Stephen Young
Claimant
and
Melena Simon O'Neil
Defendant
Before

the Honourable

Madam Justice Eleanor Joye Donaldson-Honeywell

Claim No. CV 2019-04498

THE REPUBLIC OF TRINIDAD AND TOBAGO

Appearances:

Mr. Vivek Lakhan-Joseph and Mr. Craig Beepath, Attorneys-at-Law for the Claimant

Mr. Martin George, Ms. Sarah Lawrence and Ms. Keshavi Khoorban, Attorneys-at-Law for the Defendant

A. Introduction
1

Stephen Young [“the Claimant”] is a contractor seeking damages for comments posted on Facebook by Melena Simon-O'Neil [“the Defendant”], a businessperson who had contracted his services to refurbish her hat store. The Facebook post [“FB post”], published on 5 November 2015 and its comment stream, included the following statements which the Claimant contends are defamatory:

  • a. “MEET STEPHEN YOUNG…

    A CROOK MASQUERADING AS A CONTRACTOR”

  • b. “Mr. Young failed to complete the job and whatever he did he ensured he produced the poorest quality of work ever!”

  • c. “…some examples of his crooked ways!”

  • d. “All attempts to reach Mr. Young has failed. Prior to today he kept promising ‘tomorrow’ but never turned up”

  • e. “He is a stranger to the truth and lies like I never experienced before. His dishonesty is astonishing to say the least.”

  • f. “He has made threats towards my husband and my family which now takes this to another level. But I am a child of God, walking with my sword and bible in hand.”

  • g. “…help me deal with this crook.”

  • h. “…Are you sure this man not on drugs??…”.

2

The Claimant seeks special damages for alleged loss of business opportunities, general, aggravated and exemplary damages.

3

The Defence to the Claim is one of justification. The Defendant has pleaded in her Defence that the contents of her FB post are true and correct. Accordingly, they are justified and do not constitute defamation.

B. Issues
4

The main issues to be determined are:

  • a) Whether any of the statements in the Defendant's FB post published on 5 November 2015 are defensible on the ground of justification; and

  • b) If any of the statements in the Defendant's FB post are not defensible on the ground of justification, what quantum of damages should the Court award to the Claimant.

C. Legal Principles
5

The Libel and Defamation Act Chap 11:16 sets the parameters within which this Claim is to be determined by referring at Section 2 to the laws of England. It states:

No action for defamation shall be maintainable in any Court of justice in Trinidad and Tobago in respect of words spoken, except in those cases in which an action would be maintainable in respect of the same words in England.”

6

Halsbury's Laws of England Volume 32(2012) defines an actionable libel as follows:

511- A libel for which a claim will lie is a defamatory statement made or conveyed by written or printed words or in some other permanent form, published of and concerning the claimant, to a person other than the claimant.”

7

In the case of DRA & SA & Child A & Child B -v- Jenelle Burke CV 2016 – 02974, Seepersad J considered whether a particular post on FB constituted a defamatory statement and stated the following at paragraph 29:

“Essentially a defamatory statement is one which tends to lower a person in the estimation of right thinking members of society and so cause him to be shunned or avoided or to be exposed to hatred, contempt or ridicule or which may disparage him in his office, trade, calling, profession or business. A publication will be defamatory if it substantially affects in an adverse manner the attitude which people adopt towards a Claimant or if it has a tendency to so do.”

8

Of specific relevance to the FB post in the instant case, it is notable that comments published to others bringing into question a person's honesty are considered prima facie as defamatory. The Claimant cites Gatley on Libel and Slander, 13 th Edn, at paragraph 2.28, as follows:

“It has been held defamatory to publish of a person that he is a rogue and a rascal, a swindler or a sharper, a greedy sinecurist, a crook, a shyster, dishonest, a coward, a liar, someone who “rats” on promises, a paedophile, a hypocrite, a fanatic, a villain, a racist,…”.

9

A statement alleging dishonesty and criminal activity is a defamatory statement that is presumed to be untrue 1. However, a Defendant may avoid liability by proving that the statement is true. It is this defence of truth or ‘justification’ that the Defendant relies on in this case.

Justification Defence

10

The Judgment of Mohammed J in Heidi Joseph v Ama Charles CV2016-02996, cited by the Defendant, provides guidance on what the Court should consider when assessing evidence to determine whether a defence of justification is proven, as follows:

“39. Section 3 of the Libel and Defamation Act provides for the defence of justification as follows: “In any action for defamation or libel, the defendant may plead the truth of the matters charged by way of justification in the same manner as he might do in a like action in a Court in England and the plea shall be a sufficient answer in law to any such action; and if, on the issue joined on such plea, a verdict is given for the defendant, the defendant shall have final judgment and recover his costs of the suit.”

40. The requirements for making out a defence of justification are set out in Gatley on Libel and Slander at paragraph 11.9 as follows:

“…for the purposes of justification, if the defendant proves that “the main charge, or gist, of the libel” is true, he [need] not justify statement or comments

which do not add to the sting of the charge or introduce any matter by itself actionable.

It is sufficient if the substance of the libelous statement be justified, it is unnecessary to repeat every word which might have been the subject of the original comment. As much must be justified as meets the sting of the charge , and if anything be contained in a charge which does not add to the sting of it, that need not be justified.”[Emphasis added]

11

To succeed with a justification defence, a Defendant must prove the meaning of the “sting” in the statements alleged to be defamatory and that the proven meaning is justified. In Ramadhar v Ramadhar and others [2020] UKPC 7, cited by the Claimant, the Privy Council explained that as Moosai JA pointed out in the Court of Appeal 2:

50. … where the defendant seeks to justify his having said that the claimant's conduct is in some way unlawful or wrongful, the court must determine the meaning of his statement. There are three recognised levels of meaning, known as the Chase levels following the decision of the Court of Appeal in England and Wales in Chase v News Group Newspapers [2002] EWCA Civ 1772; [2003] EMLR 11.

51. Chase level 1 is the most serious level of meaning and it applies where the defendant's statement meant that the claimant has actually committed the wrong. So, if he said that the claimant has committed fraud, he will have to show that the claimant has indeed committed a fraud. Chase level 2 meaning applies where the defendant alleged only that he has reasonable grounds for suspecting that the claimant has committed a fraud. Then, to establish the truth of his statement, he will have to show that reasonable grounds did in fact exist. If, however, the meaning of what he said is merely that there are grounds for investigation, the meaning is Chase level 3 and he will simply have to

show that there are such grounds, as where an official investigation has been instituted.” [Emphasis added]
D. The Pleadings

The Claimant's case

12

There is no dispute between the parties that, as pleaded by the Claimant, the genesis of this matter was on 2 October 2015. On that day, the Claimant, as a Director of Super Woofer Construction, provided a quotation to the Defendant for the refurbishment and renovation works of the Defendant's store located at the ground floor of Auzonville Mall for the total sum of $28,900.00. The quotation was for the following:

  • a. The replacement of the old ceiling with a new ceiling and mudding;

  • b. The replacement of the old lighting system with the new lighting to new location of lights;

  • c. The replacement of the old countertops inclusive of changing of the boards, the draws, the cupboard doors, placing of glass and re-upholstering;

  • d. The placement of glass in the walls;

  • e. The replacement of boards on the walls with new boarding and the tiling of the store's interior;

  • f. The placing of moulding on the ceiling and at the bottom of all cupboards.

13

The Claimant revised the quotation to the sum of $25,000.00 after the Defendant verbally indicated her inability to meet the sum as initially quoted. He alleges that he did so in an effort to build a working relationship with her. The Claimant and Defendant thereby entered into an oral contract to commence and complete the renovations in accordance with the agreed scope of works.

14

Shortly thereafter, the Claimant commenced the aforementioned scope of works on 2 October 2015 in accordance with the initial oral contract. The Claimant's pleading is that he received a down payment of $7,500.00 on 5 October 2015. According to the Claimant, as the project began to take form, the Defendant proceeded to give fresh daily directives to perform additional works, which were not contemplated in the initial contract. There is no specific pleading by the Claimant as to when such daily directives were given concerning additional works.

15

The Claimant contends that the Defendant did not provide any further pictures, drawings or illustrations depicting the desired conceptualized designs nor were any sample materials and/or colour schemes provided at the time. In an effort to ensure the project was completed in accordance with the requisite timeline, the Claimant had no alternative but to undertake the additional works based on the oral...

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