Melendez v Mckelly

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Bertrand, J.
• Judgment Date: 31 October 1985
• Neutral Citation: VG 1985 HC 8
• Docket Number: Civil Suit no. 113 of 1983
• Date: 31 October 1985

High Court of Justice

Bertrand, J

Civil Suit no. 113 of 1983

Melendez

and

Mckelly

Appearances:-

Mr. Hewlett for plaintiff.

Mr. Archibald, Q.C. for defendant.

Libel and Slander - Slander — Damages.

Facts: The defendant admitted liability on the plaintiff's statement of claim for slander. Words were spoken to effect that plaintiff had worked obeah and killed the plaintiff's niece. On July 20, 1983 plaintiff demanded an apology. On eve of trial, that is, October 23, 1985, the defendant sent apology to plaintiff's solicitor.

Held: The words were grave especially in small community. The apology was sufficient but tardy. If an apology was to be used to mitigate damages it had to be made promptly. Damages assessed at $10,000.

Bertrand, J.

1 The defendant admitted liability on the plaintiff s Statement of Claim for Slander spoken and published on or about Wednesday the 6th July, 1983.

2 According to the Statement of Claim the words (….. Watch me. I know that you work obeah and kill your niece” were spoken in the presence of the Manager of the Crafts Centre, situate at Road Town, Tortola, British Virgin Islands. Also present, were other persons mentioned in the Statement of Claim.

3 A Writ endorsed with the Statement of Claim was issued on December 2nd, 1983 and served on the defendant on 5th December, 1983. An appearance was entered on the 12th December, 1983, and a defence denying the charge was filed on December 26, 1983.

4 On a Summons for directions heard on 23rd January, 1984, directions were given as to trial of the action. A request for hearing was filed on the 21st March, 1984.

5 Approximately one year and six months elapsed before the matter came to trial, and on the eve before trial, the defendant paid into court a sum of $1,000.00 in satisfaction of the cause of action arid notification sent to plaintiff(s solicitor of such payment on the same day. On that day also the defendant sent a letter of apology to the plaintiff through her solicitor. The apology was put in by consent as exhibit (C.31.(

6 When the matter came up for hearing on 24th October, 1985, the court was told that the procedure taken by defendant's solicitor in filing the payment of $1,000 into court and notification to plaintiff's solicitor was wrong. Defendant(s counsel conceded this point, but both counsels nevertheless, consented that the court should go on to hear addresses on the question of damages, the defendant having now admitted liability for her actions.

7 Before I proceed, it is fitting that the court should make a pronouncement on the effect of bringing to the notice of the judge, the payment of a sum of money into court in satisfaction of this action before the hearing Paragraph 1066 at page 442 in Gatley on Libel and Slander reads:-

“By Order 22, r 7 (of the Annual Practice) (it is provided that the fact that money has been paid into court … shall not be pleaded and no communication of that fact shall be made to the court at the trial or hearing of the action or of any question or issue as to … damages until all questions of liability and of the amount of damages have been decided.”

8 Footnote 34 on the same page reads as follows:-

“If by inadvertence or otherwise the rule is broken, it is for the trial judge to determine what shall be done, whether to allow the action to proceed or to direct it to be tried by another tribunal.”

9 Millenstead v. Grosvenor House [1937] 1 K.B. 1 (C.A.) and other cases cited.

10 The fact that money has been paid into court in satisfaction of the action was inadvertently brought to my notice. Nevertheless, I have determined that the court should go on to hear arguments on the question of damages.

11 The money paid under order 22, r 1 and 2 of the Rules of the Supreme Court 1970, only means that if a sum is awarded less than the amount paid into court, the defendant will be entitled to be paid out the unawarded balance of the sum paid into court and will usually receive the whole of his costs since the time when, the payment into court was made. Paragraph 811 Gatley on Libel and Slander 7th edition. In this case the payment into court was made the day before the action came to trail. It is not contended that the payment into court or the apology is not accepted.

12 Exhibit “C.1” was sent to the defendant by plaintiff's solicitor demanding that the defendant –

• (a) desist forthwith from making or publishing any such defamatory remarks;

• (b) within ten (10) days hereof tender a written apology addressed to this office; and

• (c) come into these Chambers to discuss payments of reasonable compensation for defaming my clients good name.”

13 failing which, legal proceedings would be instituted against the defendant.

14 Counsel for the plaintiff argued that it was not right for the defendant to present an apology at this stage of the proceedings since exhibit C.1 was sent to the defendant on 20th July, 1983, and no steps taken to make an apology until October 23, 1985 although action commenced on December 2, 1983.

15 He stressed the point that the apology tendered on October 23, 1985, is no defence and the court ought not to take it into consideration with respect to mitigation in damages. He pointed out that the present case was severe since the defendant is alleging that the plaintiff practised witchcraft and committed murder two offences known to the law in the British Virgin Islands anal which are punishable by imprisonment. counsel asked the court to consider the seriousness of the slander in assessing the damage.

16 I...