SM&B successfully acted for the Appellant in an appeal to the Privy Council in Pinard-Byrne v Lennox Linton; an appeal on the correct application of Reynolds privilege (as set out by Lord Nicholls in Reynolds v. Times Newspapers Limited and Others) in Dominica.
The decision provides important clarification on the proper approach when applying Lord Nicholls’ ten matters to be taken into account in order to determine whether a plea of qualified privilege is available or can be relied upon by defendants.
The Respondent, in a live radio broadcast and online articles, had made untrue, yet, seriously damaging remarks about the Appellant and his involvement in a development project in Dominica . The judge at first instance found the remarks to be defamatory, extremely damaging and that the Defendant had provided no evidence that they were true. The Court of Appeal overturned the decision of the Judge at first instance on the basis that qualified privilege was available as a defence on the basis that the project was of public interest and importance and the Defendant had undertaken some investigation into the project. The Board, allowing the appeal, found that:
1) the Respondent had failed to carry out a reasonable investigation to ascertain whether the defamatory remarks against the Appellant were true;
2) he did not put before the court evidence to establish the source of the allegations of wrongdoing or to take steps to verify the allegations;
3) the allegations were not already the subject of an investigation;
4) it was not urgent to make the allegations complained of; and
5) no attempts were made to get comments from the Appellant as to the truth, or, to obtain his side of the story;
The Board found that the Court of Appeal in Dominica focused on the public interest in the development scheme and not on the particular allegations made against the Appellant.
The Appellant was represented by David Phillips of SM&B and by Counsel Adam Speker of 5RB in the Privy Council and by Anthony Astaphan SC at first instance and in the Court of Appeal of the Eastern Caribbean Supreme Court (Commonwealth of Dominica).”