Linton vs Pinard-Byrne saga continues

The battle between chartered accountant Kieron Pinard-Byrne and the Leader of the Opposition Lennox Linton continued out of court, in the political arena, this week.

On Monday the Judicial Committee of the British Privy Council announced that Linton is to pay Pinard-Byrne costs of £20,000 (i.e. about EC$77,768) within 21 days from 29 January 2016.

That's a lot of money in any currency (which illustrates the fact that the Privy Council was really financially out of the reach of ordinary Dominicans).

Linton has also to pay costs to Pinard-Byrne for the Eastern Caribbean Supreme Court appeal; the amount has to be assessed.

This morning Linton announced that supporters of the United Workers Party (UWP) have planned a tour of the site of the ill-fated Layou River Hotel on Thursday afternoon and afterwards they will hold a public meeting at Layou village, a hamlet just north-west of the site of the controversial hotel project.

Priming supporters for the site visit on Q95FM this morning, Linton recounted the confusing history of the citizenship by investment programme that started during the Dominica Freedom Party government of Dame Mary Eugenia Charles in the 1990's and spanned five administrations.

That project consumed tens of millions of dollars from the sale of passports and yet all Dominicans can see now on the site are ruins, overgrown bush and wildlife. It was a complete failure.

While discussing the project on Kairi FM in 2003, Linton got into hot water when he implied that Pinard-Byrne was involved in fraud at the Layou River Hotel project. Pinard –Byrne sued and he was successful at the High Court and at the Privy Council. Linton won an appeal at the Eastern Caribbean Supreme Court.

Recently, in January 2016, Pinard-Byrne sent a seven-day demand letter to Linton requesting the payment of about EC$80,000, the amount that High Court Brain Cottle had ruled that Linton must pay Pinard-Byrne for damages, cost of legal services and interest in the libel case.

Two weeks ago Linton and party supporters assembled outside the law office of De Freitas De Freitas and Johnson on Cork Street, Roseau where UWP supporters took turns to deliver cash to the law firm on Linton's behalf.

Over two days on Q95 FM radio last week callers in a radio pledge contributed over EC$120,000 to pay these High Court charges.

Linton said party supporters began the process of paying Pinard-Byrne about 11 am, broke for lunch, came back at 2 pm and completed the process by 3.45 pm. They brought coins, lots of them, and other currency as well.

"I am happy to report that thanks to the wonderful support of the people of Dominica this matter of the judgment debt incurred in the course of seeking justice for the people of Dominica in respect of that massive scandal where millions and millions of dollars of the people's money the people's passport money disappeared in the Layou River scandal," Linton said then.

Last year the law lords of the British Council concluded that the Eastern Caribbean Court of Appeal was wrong to allow Linton's appeal and reinstated the decision of High Court Judge Brian Cottle.

Three years ago Justice Cottle had ordered Linton to pay EC$50,000 in damages, as well as prescribed costs of $14,000. Pinard-Byrne said Linton has to pay an additional 5% interest from the date of the judgement to January 2015, i.e. a total of just below EC$80,000.

As background, in 2013, Judges of the Eastern Caribbean Supreme Court (ECSC) overruled a lower court decision which had slapped heavy fines on Linton and others for alleged defamatory statements made regarding Pinard-Byrne, the accountant and former owners' representative of the ill-fated Layou River Hotel that Pinard-Byrne himself has described as a construction disaster.

At the High Court phase of the court battle Judge Brian Cottle ruled that the words complained of were defamatory of Pinard-Byrne and that the statements "did not constitute fair comments on a matter of public interest."

However, judges of the ECSC, Dame Janice Pereira, Davidson Baptiste and Mario Michel over-turned that decision and ruled that "The speaking, writing and publishing of the words complained of were done in circumstances which attracted qualified privilege."

As a result, they allowed Linton's appeal and also dismissed Pinard-Byrne's counter appeal.

The ECSC judges ruled that Linton "did in fact undertake an extensive investigation of the issues which he spoke about during the radio broadcast and in the internet article" adding that it was not "open to the learned trial judge (Cottle) to make the finding that (Linton) did not make any enquiries and that this factor weighed heavily against him being able to rely on the defence of qualified privilege".

The judges concluded: "the speaking, writing and publishing of the words complained of were done in circumstances which attracted qualified privilege."

Not satisfied with that decision, Pinard-Byrne took the case to the Privy Council and the matter was heard in April 2015.

According to the Privy Council: "The question for decision by the judge (in the High Court) was whether, in publishing the words complained of, that is the defamatory words, LL was acting responsibly and had a duty to the public to publish them.

"As Lord Nicholls put it in the first of his ten points, the more serious the charge, the more the public is misinformed and the individual (here KPB) harmed, if the allegations are not true.

"The focus is upon the allegations which are not true. Thus, where in his second point Lord Nicholls focuses upon the nature of the information and the extent to which the subject matter is a matter of public concern, he is again referring to the allegations which prove not to be true.

"As the Board sees it, it is not sufficient for the court to focus on the underlying circumstances. Thus is not sufficient to say, as the Court of Appeal did, that the underlying project was a matter of public interest or a matter of public importance.

"The judge correctly accepted that it was, as indeed did the Court of Appeal. The Board recognizes that evidence that KPB was guilty of wrongdoing would be a matter of public importance.

"However, in the opinion of the Board, before making allegations to that effect it was the duty of LL to carry out a reasonable investigation to ascertain whether they were true. The problem is that LL did not carry out an investigation to that end. The Board accepts that, as the Court of Appeal concludes, he made some investigations into the Project. There is however no evidence that he investigated whether KPB was guilty of the kind of wrongdoing alleged in the words complained of."