Hore-Lacy v Cleary
[2006] VSC 341
•20 September 2006
| 1 | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 9049 of 2005
| DYSON HORE-LACY | Plaintiff |
| v | |
| PHIL CLEARY AND OTHERS | Defendants |
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JUDGE: | KELLAM J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 September 2006 | |
DATE OF JUDGMENT: | 20 September 2006 | |
CASE MAY BE CITED AS: | Hore-Lacy v Cleary and Ors | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 341 | |
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DEFAMATION – Libel – Practice and procedure – Fair comment “rolled up” plea – Whether plaintiff entitled to particulars of comment – Amendments to statement of claim.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Sher QC with Mr L. Maher | Lennon Settle & Mazzeo |
| For the Defendants | Mr W. Houghton QC with Mr D.P. Gilbertson | Gibson Legal |
TABLE OF CONTENTS
Parties................................................................................................................................................... 1
The Proceeding................................................................................................................................... 1
The Rolled up Plea............................................................................................................................. 2
Amendments to the Statement of Claim................................................................................... 12
The proposed amendments relating to the claim for aggravated/exemplary damages.. 14
Conclusions....................................................................................................................................... 16
Proposed Orders.............................................................................................................................. 17
HIS HONOUR:
By summons dated 28 July 2006 the plaintiff seeks an order that the rolled up plea set out in paragraph 11 of the defence filed on behalf of the defendants be struck out. Alternatively, the plaintiff seeks particulars of the substance of the comment referred to in the rolled up plea. Furthermore, the plaintiff seeks leave to amend his statement of claim.
Parties
At all material times the plaintiff, Dyson Hore-Lacy, has been a member of the Victorian Bar.
The first defendant, Phil Cleary (“Cleary”), is the author of a book “Getting Away with Murder – the True Story of Julie Ramages’ Death”. The second defendant, Allen and Unwin Pty Ltd (“the publisher”) is the publisher of the book.
The Proceeding
On 28 October 2005 the plaintiff instituted a proceeding against Cleary and the publisher seeking damages for defamation. The proceedings against a third defendant, the printer of the book, have now been resolved.
The plaintiff has pleaded that the book contains defamatory allegations of him. He has pleaded that in its ordinary and natural meaning the book means and is understood to mean that:
“(a)the plaintiff had manufactured a defence of provocation for James Ramage thereby perverting the course of justice;
(b)the plaintiff had, in combination with James Ramage and/or another agreed to manufacture a defence of provocation for James Ramage thereby perverting the course of justice.”
In their defence, the defendants deny that the book is defamatory of the plaintiff and deny further that the book means, or is capable of meaning, or is understood to mean any of the meanings which have been pleaded by the plaintiff.
The Rolled up Plea
In addition and in the alternative, in respect of the pleaded imputations, the defendants have relied upon a rolled up plea of fair comment which is pleaded as follows:
“11.They say further that, if the book was defamatory of the plaintiff which is denied), then insofar as it consisted of statements of fact, those statements are true in substance and in fact and, insofar as it consisted of expressions of opinion, those expressions are fair comment on a matter of public interest, namely whether James Ramage should have been entitled to rely on a defence of provocation to the charge of wilful murder brought against him.”
The plaintiff submits that the fair comment defence fails to meet the plaintiff’s case. The plaintiff submits that in circumstances where the rolled up plea variant of the fair comment defence is relied upon, the defendant is confined to relying on the facts contained in the offending publication. It is submitted by the plaintiff that it is implicit in paragraph 11 of the defence that the substance of the alleged fair comment is “James Ramage should not have been entitled to rely on a defence of provocation to the charge of wilful murder brought against him.” It is submitted by the plaintiff that it is not sufficient that there may be facts in the defendant’s book which are capable of supporting such a comment. The defence must answer the sting of the pleaded libel.
The nature of the rolled up plea, and its historical development, have been the subject of analysis on a number of occasions in recent years in Victoria. In Watt v Herald & Weekly Times Limited,[1] Hedigan J dismissed an application by the plaintiff for particulars of what was comment and what was fact in a rolled up plea. In doing so, he followed the decision of the Court of Appeal in Aga Khan v Times Publishing Co.[2] It would appear that Watt was a case in which the defendant was asked to particularise facts which supported the alleged comment rather than a case in which the plaintiff sought identification of the comment.
[1][1998] 3 VR 740.
[2][1924] 1 KB 675.
The issue of the state of the pleadings and what is required of defendants arose in David Syme & Co and Anor v Hore-Lacy.[3] In that case the plaintiff sued a newspaper for defamation and alleged a number of imputations said to arise from an article published by the newspaper. The defendants denied the imputations and pleaded justification. It was held by the majority of the Court of Appeal that a defendant relying upon the defence of justification must plead the defence in a way that meets the plaintiff’s pleaded meanings. The Court therefore held that a defendant who pleads justification is restricted to justifying the meanings pleaded by the plaintiff, or some other meaning which is a variant on, or not substantially different from, a pleaded meaning and which is no more serious than the meaning alleged by the plaintiff.
[3](2000) 1 VR 667.
Whilst the reasoning of the Court of Appeal in Hore-Lacy was related to a defence of justification, the issue came to be considered in the context of the fair comment defence by Ashley J (as he then was) in Anderson v Nationwide News Pty Ltd.[4] In that case it was argued by the plaintiff that the defendant should be permitted to plead fair comment only with respect to the subject matter defined by the plaintiff’s pleaded imputations, or imputations sufficiently close thereto. Ashley J observed that if the jury were to find that the plaintiff had been defamed it would involve acceptance of the plaintiff’s case that the article bore the meanings pleaded by the plaintiff or permissible variants. Ashley J gave consideration to a number of the authorities, including Watt and the Aga Khan cases and said:[5]
“In my opinion, the authorities do not support the proposition that a plaintiff is entitled to particulars of the meanings in which it is alleged that a publication was fair comment; but they support a variant of that proposition. In my opinion, also, certain authorities provide quite strong support for the proposition that where a plaintiff sues on an entire article, alleging that it bears a particular defamatory meaning (not necessarily the only defamatory meaning of the article) a defence of fair comment is untenable unless it pertains specifically to the defamatory meaning pleaded – or a permissible variation thereof.”
[4](2001) 3 VR 619.
[5]At 627.
Ashley J stated further:[6]
“ … a party should be required to spell out the case which the opposing party has to meet. In the case of a defence of fair comment that should extend to the identification of the alleged comment. That does not mean identification of the particular words in a publication which is said to constitute comment but rather a statement of the substance of the comment.”
[6]At 632.
His Honour therefore ruled in that case that the substance of the alleged comment required to be pleaded by the defendant.
The decision of Ashley J was followed by Bongiorno J in Anderson v Nationwide News Pty Ltd (No. 2.).[7] Following Ashley J’s judgment the plaintiff had served the defendant with a supplementary request for particulars of the fair comment defence which requested the defendant to state the substance of the comment which it had alleged constituted fair comment in the circumstances. The defendant responded to the request. Bongiorno J held that the substance of the comment particularised by the defendant did not meet the libel pleaded by the plaintiff. He said:[8]
“The ‘sting’ of the libel alleged by the plaintiff is the allegation that he had an ulterior motive; the comment, even if fair, goes only to a lack of business judgement. It does not meet the libel. On the other hand if the article means no more than the defendant contends then the defendant will succeed in the action, not because of any fair comment defence, but because the plaintiff will not have established the libel of which he complains.”
[7](2001) 3 VR 639.
[8]At 642.
Mr Houghton QC, who appears for the defendants, in his submissions to me, is critical of both the decisions of Ashley J and Bongiorno J in Anderson’s case. He submits:
“Up until the decision in Anderson in September 2001 it had never been heard of that a defendant had been required in any common law jurisdiction operating under the rules that this jurisdiction operates in, that is the rules that applied in England pre 1949, … the defendant was required when requested to do so to state the substance of the comment when pleading a fair comment defence.”
He submits that I should not follow those decisions.
It was argued by Mr Houghton that Gillard J did not follow the “novel proposition” that the defendant was obliged to state the substance of the comment in the case of Li v Herald & Weekly Times Limited.[9] In that case, which was an application by the plaintiff seeking further and better particulars of the defendant’s defence, his Honour gave consideration to a rolled up plea of fair comment. The plea of fair comment that had been used in that case was in the following terms:
“Further, insofar as the articles consist of statements of fact, the same are true in substance and in fact and, insofar as the same consist of expressions of opinion the same are fair comment on a matter of public interest.”
[9][2005] VSC 304.
In considering the request by the plaintiffs for further particulars of the rolled up plea, his Honour said that it was important to determine precisely what was requested. The request could be worded in these terms:
“What is the comment said to be conveyed by the article which is said to be fair in the circumstances?”
His Honour said:
“In my opinion the answer to that question must be considered in the context of each of the imputations of each article. If an imputation is proven to be defamatory of the plaintiff, it is that defamatory sting which the fair comment defence is pleaded to meet. The defamatory sting once proven identifies the subject matter of the comment. Of course if it is not comment but a statement of fact, the defence fails.”
He said further:
“In my opinion the course of the litigation will identify what the defence of fair comment is pleaded to meet, and the plaintiff would have no difficulty prior to trial appreciating what the defence is seeking to meet. The plaintiff at the date of issue of the writ identifies the words complained of which contain the defamatory imputation. In accordance with the modern practice, the plaintiff is bound to plead the defamatory imputation. By doing so the plaintiff establishes the parameters of the defamatory sting or stings which he or she relies on in the words complained of. In most cases the publisher does not admit that the words were defamatory or that the imputations pleaded were conveyed by the words complained of. The publisher does not give particulars of what he says the words mean.”
He said further:
“In the course of preparation for trial the plaintiff should have no difficulty determining what is the subject of the defence of fair comment. The subject matter is identified by the pleaded defamatory stings. Whether or not the defamatory stings in the context of the words complained of are comment or fact is a question which has to be considered by the trial judge.”
In respect of the application which was then before him, his Honour concluded:
“The plaintiff’s advisers in this case could be under no illusion as to what the defence of fair comment seeks to meet and that is the alleged defamatory stings pleaded by the plaintiffs. The defence seeks to meet the libel complained of. It is the established defamatory imputations which identify the subject matter of the fair comment defence. By way of example in the present case, in the first article it is contended that the sting of the libel is that Dr Li operated an illegal brothel, she was a prostitute who arranged sexual services for reward to a person whom the Herald‑Sun had arranged to visit her, that she provided false medical receipts to her patients so they could recover the cost from their health insurer, and finally that she held herself out as a legitimate medical practitioner when in fact she was a prostitute. If the first article imputes those matters or any of them, and assuming they or some of them are defamatory, it is those matters which the fair comment defence seeks to meet. It is the imputations found as defamatory which in fact identity the subject matter of the fair comment defence.”
His Honour observed that, in Anderson v Nationwide News Pty Ltd, Ashley J had followed what Nicholls LJ said in Control Risk Limited v New Library Limited[10] in holding that a plaintiff was entitled to particulars of the substance of the comment. Nicholls LJ had said that by parity of reasoning:[11]
“When fair comment is pleaded the defendant must spell out, with sufficient precision to enable the plaintiff to know what case he has to meet, what is the comment which the defendant will seek to say attracts the fair comment defence.”
[10][1990] 1 WLR 183.
[11]At 189.
Gillard J noted that Ashley J’s conclusion was based upon the ordinary pleading rules, namely, that a party should not be required to disclose the evidence but that
“……. a party should be required to spell out the case which the opposing party has to meet. In a case of defence of fair comment that should extend to the identification of the alleged comment.”
Gillard J did not accept that as a general rule a plaintiff is entitled to particulars of the substance of a comment. He considered that it would be in only circumstances where it was not possible on the face of the pleadings, and the words complained of to determine what the fair comment defence was seeking to meet that an entitlement to such particulars would arise. He said:
“If the respective cases are properly pleaded it would indeed be a rare case that would not identify the substance of the comment upon reading the pleadings and the words complained of. Each case must depend upon its own particular circumstances. In my opinion the amended statement of claim pleads the defamatory imputations and it is those defamatory imputations which identify the defamatory stings and it is those defamatory stings, if found, which the defence seeks to meet. In those circumstances, the subject matter of the fair comment has been identified by the pleadings.”
In the case before me, the imputations which are pleaded are as follows:
“7.In its ordinary and natural meaning, the book meant and was understood to mean that:
(a)the plaintiff had manufactured a defence of provocation for James Ramage thereby perverting the course of justice;
(b)the plaintiff had, in combination with James Ramage and/or Stephen Pica, agreed to manufacture a defence of provocation for James Ramage thereby perverting the course of justice.
8.Further and alternatively, by way of innuendo arising from readers of the book with knowledge of the facts set out below, the book conveyed the defamatory meanings set out in paragraph 7 above.
Particulars of the extrinsic fact
The law of the State of Victoria relating to
(a)provocation as a defence to a charge of wilful murder; and
(b)the crime of perverting the course of justice.”
Thus, the plaintiff has established the parameters of the defamatory sting or stings which he relies on in the words complained of as published in the book. They are that the plaintiff manufactured a defence of provocation for Ramage thereby perverting the course of justice, and that in combination with Ramage and/or the solicitor Pica, the plaintiff had agreed to manufacture a defence of provocation for Ramage, thereby perverting the course of justice.
The defendants deny that the book meant or was capable of meaning either of those meanings. It is only if the jury determines that the words do bear the defamatory imputations pleaded that the defence of fair comment is to be considered. As stated above the defendants in their rolled up plea state as follows:
“ … If the book is defamatory of the plaintiff (which is denied) that insofar as it consists of statements of fact, those statements are true in substance and in fact and, insofar as it consisted of expressions of opinion, those expressions are fair comment on a matter of public interest, namely whether James Ramage should have been entitled to rely on a defence of provocation to the charge of wilful murder brought against him.”
On 15 December 2005, and after the delivery of the defence dated 6 December 2005, the solicitors for the plaintiff wrote to the solicitors for the defendant requesting particulars of the substance of the comment said to be embodied in the book. The letter states:
“As the defence stands, it is impossible – in the absence of a clear and precise specification of the substance on [sic] the comment for our client to know how your client’s rolled up pleading contained in paragraph 11 is to be made out.”
The defendants’ solicitors declined to accede to that request.
In the course of argument before me, Mr Sher QC, who appears for the plaintiff, contended that in the context of the pleadings, the comment upon which the defendants seek to rely and which is said to be fair, is the comment that James Ramage should not have been entitled to rely on the defence of provocation for the charge of wilful murder. In the course of the argument before me the following exchange took place between Mr Houghton and me.[12]
[12]See T 79.
“HIS HONOUR:
What do you say as to Mr Sher’s submission then that your paragraph 11 implicitly states …
MR HOUGHTON:
I’m coming to that.
….
HIS HONOUR:
Just to make sure we are talking about the same question. What I was going to ask you was what do you say about his submission, that the substance of the fair comment is that Ramage was disentitled to rely upon the defence of provocation?
MR HOUGHTON:
No, that’s not the substance of the comment, and it’s not pleaded to be the substance of the comment and if our learned friend’s misapprehended it, well, that’s not our fault, we have pleaded that fair comment defence in its traditional form and part of the plea requires the defendant to specify what is the public interest about which the comment was concerned. And we have specified that subject of public interest as being that the particular person charged shouldn’t have been entitled to rely on a defence of provocation. Now that’s the matter of public interest which we are required, obliged, to specify in order to make out the plea.”
In Herald & Weekly Times Limited v Popovic,[13] Gillard AJA gave careful consideration to the nature of a defence of fair comment. He said:[14]
[13](2003) 9 VR 1.
[14]At 54.
“The first question to consider is what are the elements of the defence of fair comment?
The defence of fair comment has in the past been somewhat complex because of the differing views as to what constitutes the essential elements of the defence. However, in my opinion, over the last 25 years, the elements of the defence have been settled. In Duncan and Neill on Defamation[15] the elements are stated as follows:
(a)the comment must be on a matter of public interest;
(b)the comment must be based on fact;
(c)the comment, though it can consist of or include inferences of fact, must be recognisable as comment;
(d)the comment must satisfy the objective test; could any fair minded man honestly express that opinion on the proved facts.”
[15]2nd ed., (1983), at para 1202.
His Honour observed with approval the remarks of Lord Nicholls in Cheng v Tse Wai Chun Paul[16] in the Court of Final Appeal of Hong Kong when his Lordship summarised the elements of the defence as follows:[17]
“First, the comment must be on a matter of public interest. Public interest is not to be confined within narrow limits today.
Second, the comment must be recognisable as comment, as distinct from an imputation of fact …
Third, the comment must be based on facts which are true or protected by privilege … If the facts on which the comment purports to be founded are not proved to be true or published on a privileged occasion, the defence of fair comment is not available. Next, the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded. Finally, the comment must be one which could have been made by an honest person however prejudiced he might be, and how ever exaggerated or obstinate his views.”
[16][2000] 3 HKLRD 418.
[17]At 4.
It should be noted that in his submissions before me Mr Sher acknowledged that the question as to whether the imputations pleaded are capable of constituting comment is a matter for the trial judge and not for me on a strike out application. He said:[18]
“If the trial is by judge and jury, it is necessary for the Court to rule whether a particular conclusion would be open to the jury, hence the Court will determine whether or not that possible defamatory stings are to be regarded as facts, statements of fact or capable of being regarded as comments. … We also make the point here that what is being pleaded here by way of the defence of fair comment, is arguably the statement of fact but that is not a strike out situation. If it’s arguable, it goes to trial.”
[18]Transcript p.26.
Mr Sher’s argument is based on the specification by the defendant of the matter of public interest which, Mr Sher claims, is the subject of the fair comment relied on, that is, that the trial judge permitted Ramage to rely on provocation as a defence in his trial for murder. Mr Sher in his argument equates the identified public interest with the comment. If he is correct then clearly the comment does not meet the imputations pleaded by the plaintiff or any variant of them. However, in response, Mr Houghton disavowed expressly the suggestion that the comment relied upon was that Ramage should not have been entitled to rely on the defence of provocation. He emphasised that, while it was the matter of public interest to which the comment pertained, it did not, itself, constitute the comment relied on in the defence.
Mr Houghton did not, however, state or identify the comment which is the subject of the defence pleaded in paragraph 11. Axiomatically, the comment must be relevant to, and made upon, the subject of public interest pleaded by the defendant. The comment must meet the defamatory sting pleaded by the plaintiff, or a variant thereof. However, it is here that the problem arises. It is not clear, by any means, just what comment might be relied upon and which relates both to the public interest specified by the defendants and, meets the imputations of the plaintiff, or a variant of them.
Ordinarily, as Gillard J observed in Li, the comment relied on in a fair comment defence would be self‑evident.
As his Honour observed, in the course of preparation for trial the plaintiff should have no difficulty in determining what is the subject of the defence of fair comment. However, as I have explained above, that is not the case here. On the face of the pleadings, the plaintiff would, I consider, be unable to determine what case he faces at trial. This case has been fixed for trial in this Court on 31 October next. Sooner or later, the defendant will have to identify the comment upon which it relies in paragraph 11 of its defence. In my view, it is appropriate to follow the course adopted by Ashley J in Anderson and to require that the defendant now do so. I therefore propose to order that the defendant, by appropriate particulars, specify the comment relied on in paragraph 11 of its defence.
Amendments to the Statement of Claim
I turn now to amendments sought to be made by the plaintiff to the statement of claim.
The plaintiff seeks to amend paragraphs 7 and 8 of the statement of claim by adding to paragraph 7 the following imputations:
“(c)The plaintiff had committed a serious breach of barrister’s ethics;
(d)the plaintiff had committed an act of professional misconduct”.
Furthermore, the plaintiff seeks to amend the particulars of extrinsic facts in paragraph 8 by adding the following:
“(c)The general duties of counsel;
(d)the Rules of Conduct of the Victorian Bar, more specifically Rules 4, 16, 19, 20, 29, 46 and 149;
(e)s.137 of the Legal Practice Act 1996”.
The defendants submit that the proposed amendments to paragraph 7 of the statement of claim should not be permitted. It is submitted by Mr Houghton that the proposed new imputations are “bad in form” in that there is no specificity as to the nature of the serious breach of barrister’s ethics imputed by the proposed pleading.
Mr Houghton submits that there is no specification of the nature of the professional misconduct alleged to be imputed by the book. Mr Houghton submits that if the imputation is said to be that the breach of ethics and/or the professional misconduct is that the plaintiff is said to be fabricating a defence to a murder charge, that should be specifically pleaded.
Furthermore, Mr Houghton argues that what constitutes a serious breach of barrister’s ethics or an act of professional misconduct are not matters within the knowledge of the ordinary reader. He submits that those imputations should not be alleged as false innuendos, as if anything they are true innuendos in that they do not arise in the ordinary and natural reading of the material complained of. For the imputation to have any meaning the reader requires to have the knowledge of the intrinsic facts pleaded under paragraph 8. He submits that if the amendments proposed are permitted they should only be permitted to be pleaded as true innuendos under paragraph 8 of the statement of claim.
In response Mr Sher submits there is no imprecision in the proposed pleading. He submits that it would be “obvious to the reader of the proposal in the light of the existing pleadings that the basic fact upon which the plaintiff seeks to rely to establish that the meaning is conveyed is that there has been a serious breach of ethics or misconduct is the manufacturing of the defence for Ramage”.
Further, Mr Sher submits that it is an arguable proposition that the ordinary reasonable reader would know that barristers act pursuant to prescribed ethical considerations. He argues that it is a triable issue and should be permitted to be pleaded. If the trial judge forms the view, having heard the evidence, that the proposed amendments to paragraph 7 should not be permitted to go before the jury as false innuendo, then that can be ruled upon at that stage.
I accept the submission of Mr Sher that it is arguable that an ordinary reasonable person would know that professional persons, such as barristers are subject to prescribed ethical considerations. I assume that the proposed additional imputations in paragraph 7 concern a breach of ethics and misconduct arising from the imputations pleaded in paragraphs 7(a) and (b). I will allow the amendments proposed provided that they make it sufficiently clear that that is so.
In the alternative, Mr Sher submits that the issue of the duties of counsel is a true innuendo and for that reason it is sought by him to amend paragraph 8 and to add the extrinsic facts referred to in paragraph 39 above.
Mr Sher concedes that the proposed amended pleading to paragraph 8 of the statement of claim should identify the class of persons who would have the knowledge referred to in the proposed additional sub-paragraphs (c), (d) and (e) of paragraph 8. He sought leave to further amend paragraph 8 by identifying that class of persons as comprising “practising lawyers, judges, members of the Victoria Police Force, legal academics, members of law reform bodies, members and officers of professional legal associations, and persons engaged in law enforcement and the application of the criminal law”. Subject to that addition, I shall allow the proposed amendment to paragraph 8 of the statement of claim.
The proposed amendments relating to the claim for aggravated/exemplary damages
On 12 August 2006 the plaintiff gave notice by letter that he intended to apply for an order amending paragraph 10 of his statement of claim by adding the following sub‑paragraph:
“(ha)The book contained the following statements of fact which were false and which the first defendant either knew to be false or did not know were true:
At page 50
‘His version is that Ramage said he needed professional help and that when he asked whether it might wait until the morning Ramage gave an emphatic ‘no’.
‘Can you come round?’ said Hore-Lacy.
‘I’d rather meet somewhere’, replied Ramage. It was agreed they’d meet at the Harp Hotel, which was just up the road from where the barrister was having dinner with his female companion.
‘See you shortly, in the gaming room’, said Ramage.”
At page 52
‘The next three hours were spent ensuring that his interview would not be incriminating.”
At page 53
‘While the killer built then rehearsed his case at the pub … “
At page 56
‘While Ramage rehearsed his defence a few blocks away at the Harp.”
At page 57
‘If Julie had belittled Ramage at lunch then surely he’d have told his son during the dinner at Columbo’s. It might even have been the time to say he’d killed Julie. Was it because it was a fabrication that Ramage didn’t tell his son Julie had ridiculed him and the renovations? At the time of the dinner Ramage could hardly have known that such a story might form the basis of a provocation defence. Surely he only learnt about the mysterious laws of provocation when he met Hore‑Lacy and Pica?”
At page 60
‘Ramage’s one-hour confession followed the script.”
At page 67
‘He couldn’t countenance the idea that the killer would be granted a provocation defence.”
At page 74
‘The truth is somewhat less clear, for Ramage carefully avoided identifying Dyson Hore-Lacy as the ‘friend by the name of Dyson’ he was ‘going to see’. At no point in his police interview does he say exactly who ‘Dyson’ was or that he was a barrister.”
At page 171
‘Slowly and carefully Julian Leckie painted a picture of a callous man who after brutally killing his wife spent three hours with his solicitor preparing a case.”
At page 217
‘The more he read, the worse Justice Osborn’s judgment sounded. Ramage, he said, had ‘contacted a friend and handed himself in to police’. No mention that the friend was a top QC or that his name was Dyson Hore-Lacy. Three weeks of evidence and not a single mention of Hore‑Lacy’s name in any transcript. No mention by the judge that Ramage had spent the evening in the Harp Hotel with a lawyer. After Mazin Yassa killed his wife he was found in a park smoking his last cigarette. A poor, part-time cleaner, Yass had no lawyer to help him manufacture a provocation defence.”
At page 248
‘The court’s decision to offer Ramage a defence of provocation, I believe was wrong.”
The defendants assert that the proposed amendment is objectionable because contrary to R.13.10(3)(b) of the Rules, it does not contain particulars of the alleged knowledge of the first defendant. Alternatively, Mr Houghton contends that some of the excerpts are not statements of facts but are expressions of opinion and should not be allowed. In my view, the plaintiff should be permitted to plead the proposed particulars. The manner in which the plaintiff alleges the first defendant had knowledge of the truth or otherwise is implied from the nature of the particulars pleaded and it appears to me that the excerpts can be seen to be assertions of fact, at least for pleading purposes.
In addition, Mr Houghton opposes the proposed amendments to paragraph 10, but he contends that paragraphs 10(3)(i), (ii) and (iii) and (f) and (h) of the statement of claim do not support a claim for aggravated or exemplary damages, are irrelevant and should be struck out. In my view, read together, they may arguably support such a claim. In the end whether that issue is left to the jury will be a matter for the trial judge after having heard the evidence.
Conclusions
I summarise the conclusions which I have reached in this ruling as follows:
1.I allow the plaintiff to amend paragraph 7 of his statement of claim by adding the proposed sub-paragraphs (c) and (d), provided that the amendments make it clear that the breach of ethics and act of professional misconduct referred to are those arising from the imputations pleaded in paragraph 7(a) and (b).
2.I allow the plaintiff to amend paragraph 8 of his statement of claim by adding the proposed sub-paragraphs (c), (d) and (e) provided that the amended pleadings contain appropriate particulars of the class of persons who, it is alleged, would have the knowledge referred to in the proposed additional sub-paragraphs (c), (d) and (e).
3.I allow the plaintiff to amend paragraph 10 of his statement of claim as proposed in the plaintiff’s solicitor’s letter dated 12 August 2006.
4.I require the defendants to provide particulars specifying the substance of the comment which is the subject of the plea of fair comment contained in paragraph 11 of his defence.
Proposed Orders
In accordance with those conclusions, I propose the following orders:
1.The plaintiff have leave, within seven days of the date hereof, to file and serve an amended statement of claim in conformity with the conclusions stated in these reasons.
2.Within seven days of service of the amended statement of claim the defendants file and serve an amended defence thereto, such amended defence to contain particulars specifying the fair comment pleaded in paragraph 11 of its defence.
3.Costs reserved.
4.Liberty to apply to Kellam J.
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