In a unanimous judgment issued last week, three judges of the Eastern Caribbean Supreme Court (ECSC) quashed a decision of High Court Judge Brian Cottle in which he awarded damages to chartered accountant Kieron Pinard-Byrne after Cottle ruled that statements made by journalist Lennox Linton, broadcast by Kairi FM and printed by Raglan Riviere on an internet web site were defamatory. The ECSC ruled that Cottle was wrong in denying a defense of qualified privilege. But Pinard-Byrne is taking the matter one step further, to the British Privy Council. In this court battle, Linton has equalized; the score is now one all.

In a 28 page-judgment, Chief Justice Janice Pereira, appeal judges Davidson Baptiste and Mario Michel said the decision that High Court Judge Cottle arrived at pertaining to the defense of qualified privilege was wrong.

"The conclusion arrived at by the learned trial judge that the words spoken and written by the first appellant and published by the second and third appellants… were not subject to qualified privilege is not therefore a finding justified by the evidence given in the case and the law applicable to this case and therefore cannot be supported and sustained," the appeal judges wrote.

Though the ECSC judges declared that the words that Linton wrote and uttered in 2002 were indeed defamatory, the libelous statements, however the appeal judges agreed, could pass the test to be considered for a defense of qualified privilege. Qualified privilege permits the media to carry out its function of disseminating information to the public on matters of public interest without running the risk of being liable to damages. But before judges can give consideration to the defense of qualified privilege, according to the ECSC judges, the media must show that it conformed to standards of responsible journalism.

According to the judges qualified privilege was applicable to the case because, it is clearly apparent from a review of the evidence that Linton undertook extensive investigation of the issues and the Layou Hotel project established by means of government's Economic Citizenship Programme. And he, apparently, spoke without malice.

"It is also apparent from the evidence of the first appellant that the respondent had not been specially selected by him for criticism in relation to the programme and the project," the judgment stated, adding that Linton was "not concerned with Pinard-Byrne personally but rather with the non-performance of the citizenship programme".

Critical of Judge Cottle's 2011 judgment, the appeal judges said Cottle did not give proper and full attention to the interaction between two fundamental rights: freedom of expression and protection of reputation.

"This clearly was not done by the learned trial judge," the ECSC stated. "The learned trial judge paid short shift to it in his judgment and made what may be described as a summary determination".

Nevertheless, the ECSC judges agreed that Judge Cottle was correct to determine that the defence of fair comment was inapplicable because Linton himself, under cross-examination agreed that his statements were factual and not comment. And, according to the judges, for a defence of fair comment to succeed, the comment must be the recognizable as comment, as distinct from an imputation of fact. In addition, the judges concluded, the facts were not proven to be correct.

"The appellants never led any evidence which even came close to proving the allegations made against the respondents in the words complained about," the appeal judges wrote. "It was also clear that no attempt was made by the appellants to establish the truth of the statements".

And in what Pinard –Byrne may consider to be, in the words of William Shakespeare, "the most unkindest cut of all", the appeal judges declared that he has to pay cost to Linton and the others in both the appeal and high court trials. Earlier, Pinard-Byre had counter appealed that Cottle's awards, of more than EC$140,000, were inadequate. Because of the ECSC's judgment, Pinard-Byrne's appeals were automatically dismissed.

The lawyers in the appeal case were: Stephen Fraser and Duncan Stowe (represented Linton and Kairi FM); Dr. William Riviere for Raglan Riviere; and Anthony Astaphan and Hazel Johnson for Pinard Byrne.