Attorneys representing chartered accountant Kieron Pinard-Byrne in a defamation court case involving broadcaster, Lennox Linton, say they may take the matter to the London-based Privy Council.
On Monday the Eastern Caribbean Supreme Court of Appeal over turned a High Court decision which ruled that journalist Linton had libeled Pinard-Byrne. The court said, in its ruling, the decision was based on qualified privilege.
In very broad terms, qualified privilege is an immunity from lawsuit for acts committed in the performance of a legal or moral duty and acts properly exercised and free from malice. Examples of qualified privilege include immunity from defamation for statements made in the course of an employer’s duties and in case of the press, immunity from defamation charges for statements made in good faith, unless it can be proven it was done with malice.
Speaking on Kairi’s Heng Programme Senior Counsel, Tony Astaphan who was on the team of lawyers that represented Pinard-Byrne, said the ruling has narrowed the issue of qualified privilege ‘much too much.’ “The Court of Appeal accepted the fact that Mr. Linton believed that what he was saying to be true and he was not actuated by malice,” he argued. “But I can tell you as a matter of general principle I had a quick discussion with some of the lawyers, including Queen’s Counsel in St. Lucia …including some very senior lawyers whose immediate reaction was this finding of qualified privilege was extraordinarily wide.”
He went on to say that based on this, he might have to discuss with Pinard-Byrne the possibilities of taking the case to the Privy Council, “on the question of whether this defense of qualified privilege should stand because it sounds extraordinarily wide to me.”
Astaphan pointed out that Linton’s legal team had relied on official documents but Pinard-Byrne’s team had argued, during the appeal, that some of the documents were misrepresented. “So in the final analysis the court held that the allegations of misconduct and unethical behavior against Mr. Pinard-Byrne was not true, that there were no justification for broadcasting them, that there were no basis in fact for the allegation or the defense of fair comments but that the judge narrowed the issue of qualified privilege much too much and as a result misdirected himself and on that basis Mr. Linton succeeded,” he said.
Speaking on privately-owned Q95 on Tuesday, Linton said, based on the ruling of the Court of Appeal, a thorough analysis of the evidence was not done by the trial judge. “The learned trial judge paid short thrift to it in his judgement and made what may be described as a summary determination without giving reasons for so doing that,” he said.
Linton, who read sections of the ruling, pointed out that it shows his investigations into the matter that led to the court case was thorough. “The unconverted evidence of Lennox Linton was that, one, between 1995 and 2002, I conducted thorough investigations into the Layou River Economic Citizenship Programme,” he said. “Two, in making my comments, both on radio and on the mentioned internet article, I relied primarily on official documents evidencing transactions referred to in the words complained of, and at all times spoke in direct response to what I considered to be incomplete and or misleading information about the programme, coupled with distasteful and highly disrespectful utterances against the native population placed on the public record by the claimant, Mr. Pinard-Byrne, and I exercised due care in obtaining and verifying the actual information contained in the words complained of and relied entirely on the documentation researched prior to speaking the words complained of…”
Linton also pointed out that through the entire court case, which began back in 2002, sight is being lost “that the promoters of the Layou River Economic Citizenship Program collected over $80-million of Dominican passport money, promised a hotel, did not deliver it, promised foreign exchange earnings to the economy, did not deliver it, promised jobs to the economy, did not deliver it, promised economic uplift and international exposure to the Dominica brand, did not deliver it..”
“Who is looking out for Dominica?” he asked.
Linton had taken the matter to the Court of Appeal after High Court judge, Brian Cottle concluded that he (Linton) failed to provide evidence to support allegations he said were based on facts.
Two others including local radio station, Kairi FM and a website owned by Raglan Riviere, were also ordered to pay damages in the matter.
Linton then vowed to go to the Court of Appeal if necessary, since, according to him, the ruling sounded like a “Tony-Astaphan-ish” judgment.