The Judicial Committee of the Privy Council Decisions

 


Bekoe v. Broomes (Trinidad and Tobago) [2005] UKPC 39 (31 October 2005)

ADVANCE COPY

Privy Council Appeal No. 32 of 2004

Kwasi Bekoe Appellant

v.

Horace Broomes Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

---------------

REASONS FOR DECISION OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, OF THE

28th July 2005, Delivered the 31st October 2005

------------------

Present at the hearing:-

Lord Nicholls of Birkenhead
Lord Steyn
Lord Hoffmann
Lord Walker of Gestingthorpe
Lord Carswell


[Delivered by Lord Carswell]

------------------

1. In this appeal, brought as of right from the Court of Appeal of Trinidad and Tobago, the appellant seeks to reverse a decision of the Court of Appeal (Sharma CJ, Jones JA and Warner JA) given on 20 October 2003, dismissing the appellant's appeal against a judgment of Ventour J in the High Court dated 3 October 2001, whereby he found in favour of the respondent in a claim brought by him against the appellant for damages for slander and made an award in the sum of T&T$10,000 and costs. At the conclusion of the hearing the Board announced that the appeal would be dismissed with costs, with reasons to be given at a later date. This judgment contains the reasons for their decision.
2. The respondent is an attorney-at-law in private practice in Trinidad and Tobago. The appellant is a Senior Magistrate who at the relevant time was stationed in Tobago and presided at the First Magistrate's Court in Scarborough. The action the subject of the appeal arises out of words alleged to have been spoken by the appellant on 4 February 1995 to the respondent's brother Cyril Broomes, a sergeant in the Police Service of Trinidad and Tobago. The respondent had been retained by one Ann Powis to act for her in proceedings in which she had been prosecuted for a drugs offence. She was granted bail in November 1994, but subject to a condition that she surrender her passport. Subsequent applications to the Magistrates' Courts and High Court to have the condition removed were unsuccessful. Ms Powis then decided in December 1994 to change her legal representation, terminated the respondent's retainer and engaged another attorney for a further attempt to get her passport back.
3. This application was due to be heard before the appellant on 2 February 1995, but he decided to transfer it to another magistrate's court, on the ground that the prosecutor in his court was Sergeant Broome, who was regularly concerned with the issue of agreeing or objecting to the grant of bail. The appellant thought that Sergeant Broome's brother the respondent was appearing for the applicant, and felt it best that the prosecutor in the other court should deal with the case. In the events that happened Sergeant Broomes went himself to the other court and handled Ms Powis' application. He did not raise any objection to it and the magistrate removed the condition concerning surrender of her passport.
4. It was common case that the appellant regarded the fact that Sergeant Broomes had taken this course as reprehensible and that he telephoned him two days later on 4 February 1995 to remonstrate with him. The case for the respondent was that in the course of that conversation the appellant said to Sergeant Broomes:

"Why you let Powis get back her passport? Your brother took $6000 from the woman and never appeared for her. You must not get involved in these things."

5. The appellant for his part denied that he had made that part of the statement which accused the respondent of taking money from Ms Powis and failing to appear for her, though he accepted that he remonstrated with Sergeant Broomes and might have said that he should not get involved with those things. He made the case that Sergeant Broomes maliciously invented the disputed words about the respondent and his retainer, because the appellant had previously upbraided him on several occasions about his conduct and had written a letter to the Director of Public Prosecutions dated 24 March 1994, in which he had strongly criticised the conduct and competence of prosecutors in his court, giving many instances, a number of which were referable to Sergeant Broome, although the letter did not mention him by name.
6. It could not be seriously disputed that the words attributed to the appellant were capable of bearing a defamatory meaning and that they would be actionable without proof of special damage, since they purported to relate to the respondent in the way of his trade or profession. No plea of justification was advanced and no issue arose of fair comment or qualified privilege. The case accordingly turned on a pure question of fact, whether or not the appellant spoke the words attributed to him.
7. The trial judge, who was the tribunal of fact, as the matter was tried without a jury, found in the respondent's favour on this factual issue. In his written judgment he expressed his conclusion that Sergeant Broome's testimony had not been discredited by cross-examination. He referred to the fact that a number of matters had been relied on by the appellant as proof of malice on the sergeant's part, but the judge was not satisfied that the evidence adduced established malice or falsified his testimony. He examined a number of pieces of evidence and the bearing that they had on the factual issue before him and concluded (Record, pp 79-80):

"I have carefully considered the evidence before me and I have accepted the testimony of Sergeant Broomes and I hold that the Defendant did speak and publish of and concerning the Plaintiff the words quoted in Paragraph 7 of the Statement of Claim."

He went on to hold that the words were untrue and defamatory and actionable without proof of special damage. He declined to award aggravated or exemplary damages and made an award of $10,000.

8. The appellant appealed to the Court of Appeal against the judge's decision. His notice of appeal alleged that the verdict was against the weight of the evidence and set out a number of matters to which he claimed that the judge had failed to give sufficient weight and a number in which it was said that the judge had misdirected himself. It was also claimed that the judge had erred in his construction of the words and in his conclusion that they discredited or disparaged the respondent in his profession. These latter issues were touched on briefly in the appellant's skeleton argument before the Court of Appeal, but were not referred to in the court's judgment and were not the subject of argument before the Board.
9. The judgment of Jones JA, with which the other members of the court agreed, dealt exclusively with the factual issue, whether the appellant spoke the words attributed to him about the respondent and his retainer. He stated (Record, p 122) that the issue to be determined was a pure question of fact, in which circumstances the findings of the trial judge ought not to be disregarded except for very cogent reasons. He referred to a number of authorities, including the well known decisions of the House of Lords in Benmax v Austin Motor Co Ltd [1955] AC 370 and Watt (or Thomas) v Thomas [1947] AC 484, and expressed agreement, with which their Lordships concur, with the statement of the Court of Appeal in Guyana in Jagan v Ganpat and Others (1999) 60 WIR 270, that an appellate court ought to act very cautiously before deciding to overturn findings of fact by a trial judge, even where it inclines to the view that the trial judge's treatment of the evidence in a written judgment had not been as thorough as it might have been. Following his consideration of the evidence and the findings of the trial judge, Jones JA stated his conclusion that he saw no reason to disagree with those findings and, with the concurrence with the other members of the court, dismissed the appeal.
10. On appeal to the Privy Council Mr Marcus SC for the appellant sought to place before the Board a large number of considerations on which he relied as tending to show that the trial judge and the Court of Appeal did not adequately analyse or give sufficient weight to the evidence and failed to adjudicate on the trial material and the appeal. The last few words of this sentence contain a very faint echo of the principles on which the Board acts in cases of concurrent judgments on issues of fact. Since these principles found no place in the written submissions of the parties to the present appeal, their Lordships consider that it is necessary to issue a reminder of their existence and re-emphasise their importance in cases of this nature which come before them.
11. These principles constitute the practice adopted by the Board for application in cases of concurrent judgments of two courts on a pure question of fact, that is to say, where an appellate court has reviewed the decisions on factual matters of a trial judge and reached the same conclusions. As Lord Dunedin stated in Robins v National Trust Co Ltd [1927] AC 515, 517, it is not a rule based on any statutory provision. It is rather a rule of conduct, gradually developed, which the Board has laid down for itself. In such cases the Board will decline to review the evidence for a third time, unless there are some special circumstances which would justify a departure from the practice.
12. In Devi v Roy [1946] AC 508 the Board reviewed a number of previous decisions in order to set out authoritatively the practice and the nature of such special circumstances. Lord Thankerton, giving the decision of the Board, summarised these in a series of propositions at pages 521-2:

"(1) That the practice applies in the case of all the various judicatures whose final tribunal is the Board.

(2) That it applies to the concurrent findings of fact of two courts, and not to concurrent findings of the judges who compose such courts. Therefore a dissent by a member of the appellate court does not obviate the practice.

(3) That a difference in the reasons which bring the judges to the same finding of fact will not obviate the practice.

(4) That, in order to obviate the practice, there must be some miscarriage of justice or violation of some principle of law or procedure. That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the courts could arrive at their finding is such a question of law.

(5) That the question of admissibility of evidence is a proposition of law, but it must be such as to affect materially the finding. The question of the value of evidence is not a sufficient reason for departure from the practice.

(6) That the practice is not a cast-iron one, and the foregoing statement as to reasons which will justify departure is illustrative only, and there may occur cases of such an unusual nature as will constrain the Board to depart from the practice.

(7) That the Board will always be reluctant to depart from the practice in cases which involve questions of manners, customs or sentiments peculiar to the country or locality from which the case comes, whose significance is specially within the knowledge of the courts of that country.

(8) That the practice relates to the findings of the courts below, which are generally stated in the order of the court, but may be stated as findings on the issues before the court in the judgments, provided that they are directly related to the final decision of the court."

These principles have been consistently followed in subsequent decisions of the Board: see, eg Chua Chee Chor v Chua Kim Yong [1962] 1 WLR 1464, in which Lord Pearce reiterated the caveat that they were not inflexible and the Board may in special circumstances vary their application to some degree.

13. In his written and oral submissions to the Board Mr Marcus relied on multifarious points concerning the trial judge's findings and their treatment by the Court of Appeal. Their Lordships do not find it necessary or profitable to deal in this judgment with the detail of his submissions, but they have given them all full consideration. They may be grouped under four heads of complaint about the judge's findings:

(a) he did not rely to any extent on the demeanour of the two central witnesses, and accordingly he must have resolved the conflict of testimony mainly by resort to other matters and inferences from the evidence given;

(b) he failed to state that he had given consideration to a number of factors which were material to his decision;

(c) he misapprehended a number of matters of fact and/or misdirected himself on some such matters;

(d) he drew incorrect inferences or failed to draw proper inferences from the facts proved.

14. The Court of Appeal had all these submissions before it, as may be seen from the appellant's carefully compiled skeleton argument. Notwithstanding the vigorous arguments put forward on behalf of the appellant, it decided, while accepting that the judge might well have set out in greater detail his analysis of the evidence, that he nevertheless was justified in reaching his factual conclusions on the central issue of whether the version of the critical conversation propounded by the appellant or that alleged by Sergeant Broomes was correct. Jones JA said (page 128 of the Record):

"The trial judge in my view carefully assessed the oral evidence before him and I am not convinced that he wasted his advantage in seeing and hearing the witnesses, or had overlooked or misunderstood some important item of evidence. It was a case where the conduct of the appellant in giving his evidence weighed heavily against him in the eyes of the trial judge. He was faced with two conflicting versions of the facts, and he had to decide where the truth lay. While he had not stated in his reasons that he had given consideration to the matters raised in this appeal by attorney for the appellant, it cannot be said that they were so compelling that his failure to detail his view on them was fatal to the conclusion to which he came."

Their Lordships regard this expression of opinion as quite supportable and would add in parenthesis that a judge sitting without a jury does not necessarily have to review every fact and argument presented to him. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury: cf R v Thompson [1977] NI 74, 83, per Lowry LCJ.

15. Their Lordships consider that none of the imperfections to which the appellant's counsel has pointed in the judgments of the trial judge or the Court of Appeal is of fundamental importance. Both tribunals clearly appreciated that the essential matter for decision was the factual issue, which version of the telephone conversation between the appellant and Sergeant Broomes was correct and whether or not the appellant said the words attributed to him. All other questions were ancillary to decision of this main issue. Their Lordships have examined with care the evidence given at the trial, the judgments of both courts and the submissions advanced on behalf of the appellant, and are satisfied that no fundamentally erroneous error of law has been established. Nor in their judgment can it possibly be said that there has been a miscarriage of justice in the sense defined by Lord Thankerton in Devi v Roy. There are no factors of an unusual nature which might give the Board grounds to make an exception from its customary practice. That being the position, their Lordships do not find it necessary to set out in further detail the individual submissions contained in the appellant's printed case and oral argument.
16. For the reasons given in this judgment their Lordships dismissed the appeal.