Mirchandani et Al v Caribbeanbroadcasting Corporation
| Jurisdiction | Barbados |
| Judge | Chandler, J. |
| Judgment Date | 26 July 2013 |
| Neutral Citation | BB 2013 HC 46 |
| Docket Number | 861 of 1990 |
| Court | High Court (Barbados) |
| Date | 26 July 2013 |
High Court
Chandler, J.
861 of 1990
Sir Richard Cheltenham Q.C, Mr. Clement Lashley Q.C. with Mr. David J. H. Thompson Q.C. and Ms. Onika Stewart for the plaintiffs.
Sir Henry DeB. Forde Q.C., Mr. John Connell Q.C., Mr. Hal Mc. L Gollop Q.C. and Ms. Lesley Barrow for the defendant
Civil practice and procedure - Application for striking out — Want of prosecution — Whether delay was inordinate and inexcusable.
The parties to this action are well known to the Barbadian public. The first and second plaintiffs are husband and wife. The first plaintiff is managing director of the third plaintiff and the second plaintiff is the only other director thereof.
The third plaintiff is a limited liability company registered under the Companies Act of Barbados, Cap. 308 of the Laws of Barbados and previously carried on the business of slaughtering and processing chickens for wholesale and retail distribution.
The defendant, Caribbean Broadcasting Corporation (“CBC”) is a corporation established under the laws of Barbados, duly licensed under the Wireless Telegraphy Act, Cap. 285 of the Laws of Barbados and its business includes the transmission, for general reception, of radio and television programmes.
By Writ of Summons dated and filed 26 June 1990 the plaintiffs initiated an action for damages for libel in respect of the broadcast and publication of “The Madd Chicken Song” on the defendant's radio stations and for the broadcast and publication of the same song during a television segment on the defendant's television station on 1 July 1989 and 28 July 1989 respectively.
The defendant pleaded that the words complained of were true in substance and in fact and that they constituted fair comment on a matter of public interest.
There was considerable action on the file from the period 1992 to 1999. Thereafter there was some inaction. It is the alleged period of post-writ delay that spawned this application.
There are two summonses before the Court:
The plaintiffs' Summons filed 7 May 2004 sought an order for the hearing and determination of:
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(a) the plaintiffs' Summons for Directions filed on the 23 June 1992;
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(b) the defendant's Notice for Directions under the Summons filed on the 27 January 1993; and
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(c) the defendant's Notice for Further Directions filed on the 30 June 1999.
The defendant's Summons, filed 7 December 2004, sought an order to dismiss the plaintiffs' action for want of prosecution on the ground that the plaintiffs had been guilty of prolonged or inordinate and inexcusable delay in proceeding with this action to the prejudice of the defendant.
The parties agreed that the defendant's Summons should be heard first.
The major issue for the Court's determination is whether the defendant's summons for dismissal of the substantive action should be granted. In this regard, there are two subsidiary issues, namely:
- Has the defendant established that the post-writ delay was inordinate and inexcusable; and 2. If so, has the defendant established any sufficient prejudice to itself to warrant a striking out of the action for want of prosecution?
I shall address these issues in turn.
There is no dispute as to the applicable law. The dispute is whether it ought to be applied in favour of the defendant.
The power of the High Court of Barbados to strike out a case for inordinate or inexcusable delay arises under its inherent jurisdiction. In Birkett v. James [1978] A.C. 297 (“Birkett”) the jurisdiction was described at page 318, paragraphs E to G as follows:
“…In the three leading cases which were Heard together and which, for brevity, I shall refer to as Allen v. McAlpine [1968] 2 Q.B. 229, the Court of Appeal laid down the principles on which the jurisdiction has been exercised ever since. Those principles are set out, in my view accurately, in the note to R.S.C., Ord. 25, r. 1 in the current Supreme Court Practice (1976). The power should be exercised only where the court is satisfied either (1) that, the default has been intentional and contumelious, e.g., disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.”
The affidavits sworn to by Mr. John A Connell Q.C., Attorney-at-Law, are referred to as “the Connell Affidavits”. The affidavit of Ms. Karen Mahy is referred to as “the Mahy Affidavit”. The affidavits of Sir Henry DeB. Forde Q.C. K.A. are referred to as “the Sir Henry Affidavits”.
The defendant filed the following seven affidavits in support of their summons to dismiss the action for want of prosecution:
- The first Connell affidavit filed on 7 December 2004; 2. The second Connell affidavit filed on 31 December 2004; 3. The Mahy affidavit filed 31 December2004; 4. The third Connell affidavit filed on 3 January 2005; 5. The first Sir Henry affidavit filed 4 January 2005; 6. The second Sir Henry affidavit filed 29 March 2005; and 7. The fourth Connell affidavit filed 31 March 2005.
This affidavit deposed to the unavailability of named witnesses and to the potential diminished recall of other witnesses.
Mr. Connell deposed that only one signed witness statement had been secured. This was from Mr. Darwin Trotman who was the defendant's most vital witness. Mr. Trotman's evidence, the deponent said, appeared to be of such a nature as to provide cogent support for the pleaded defences. He also said that, despite the efforts of the defendants, they had been unable to establish contact with Mr. Trotman throughout the year 2004 and were, therefore, unable to review his statement or summon him to give evidence.
He further deposed that the potential witness, Mr. Charlie Brown, had informed Sir Henry that he once had copies of various documents relating to the court proceedings but had destroyed them some years ago and his memory of the facts were very vague.
Two potential witnesses, Mr. John Cumming and Mr. Litchfield Morgan, were now deceased.
Mr. Connell further deposed that “There are other persons who could give evidence of ancillary matters. Efforts are being made to find them, but those efforts have not yet been completed.”
This affidavit alleged that Mr. Trotman, a senior supervisor employed by the third plaintiff, had seen and had given details of the unsatisfactory conditions at the third plaintiff's plant which prompted him to contact the Ministry of Health and the press.
It further stated that Mr. Trotman went into detail about the processing and sale of sick chickens, the mess that was left outside the chicken pens, the slaughtering and processing of unhealthy birds when no health inspector was present and the processing and delivery of sick chickens to the fast food restaurant Kentucky Fried Chicken (“KFC”).
The defendant was unable to ascertain the whereabouts of Mr. Trotman up to the time of filing of the affidavit.
This affidavit was made in response to the second Lashley affidavit. Mr. Connell submitted that the whole or greater part of that affidavit should be struck out under the inherent jurisdiction of the Court or under Order41, rule 6 of the Rules of the Supreme Court, 1982 (“the RSC”) as scandalous and/or irrelevant and/or oppressive and/or an abuse of the process of the Court and/or prejudicial. In relation to paragraph 2 of the second Lashley affidavit, he deposed, inter alia, that it was a question for the Court, and not Mr. Lashley, to determine whether the defendant's publications were defamatory.
He deposed to the death of Mr. C.A. Philips Q.C. and his consequent inability to respond to any statements attributed to him. Any discussions between Mr. Lashley and the late Mr. Philips were without prejudice and privileged.
He further deposed that paragraphs 4 to 12 of the second Lashley affidavit purported to give a history of the plaintiffs' efforts to obtain discovery of a videotape alleged to be possessed by the defendant (but which the first plaintiff admitted she had in her possession). He alleged that the plaintiffs were responsible for the drawn out proceedings, culminating in the Court of Appeal's decision of 6 January 2000.
He also deposed that a quotation of comments from King, J.'s decision of 17 November 1997 (“the King, J. decision”) was improper and prejudicial since that decision had been reversed. He deemed paragraphs 13 to 15 of the second Lashley affidavit irrelevant to the defendant's application since the defendant was not a party to the suits mentioned therein.
In relation to paragraph 16 he alleged that Mr. Lashley had assumed the functions of the trial judge by implying that the only issues in the present case were the questions of damages and the proportionate part payable by the defendant. With reference to paragraph 17, he submitted that the conclusion at 17(1) was not justified against a background of the plaintiffs' witch hunt for a non-existent video.
In addition, he placed the delay at the feet of the plaintiffs. He deposed that he never gave Mr. Lashley any indication that the defendant was condoning...
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