Proper service is important to jurisdiction and a fair trial

Oct 14, 2023 Features / Columnists, Peeping Tom

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Kaieteur News – The Caribbean’s defamation laws need reform. More than a decade ago, there was much debate over the criminal defamation laws in Caribbean countries, and four jurisdictions had pledged to overhaul these laws.

Reform of criminal defamation laws however is not likely to substantively alter the right to pursue remedies under the common law. Defamation can be both a criminal and a civil offence. The main problem with defamation – be it slander or libel – concerns the possible clash between freedom of expression and the duty to protect the reputation of others from defamation.

In recent times, in the Caribbean there has been an increasing proclivity of political figures filing or threatening to file claims of defamation. On occasions, some politicians have been accused of being too thin-skinned and too prone to claim injury to their reputations.

On the very day that Guyana held its last general and regional elections, the Privy Council had cause to comment on this issue. It noted in its decision in Ramadhar (Appellant) v Ramadhar et al, the Board argued that: “Politicians cannot expect to be free from banter and ridicule, good-humoured or otherwise, or from scrutiny of their motives. If politicians were entitled to be protected by the law of defamation against mere criticism, that, as was made clear in Barron v Vines, might have a chilling effect on democratic debate.”

Another area of concern is the huge judgments which are being granted by courts. It is hoped that eventually, one of the many defamation decisions issued by local courts would end up in front of the Caribbean Court of Justice who will then provide guidance on determining how to assess the damage to a person’s reputation and character and the value of judgments were defamation has been established.

Quoting Sir Thomas Bingham in John v MGN Ltd (1997), the Eastern Caribbean Supreme Court observed in its judgment in O’ Neal vs Julian Willock et al that: “… in each case involving the assessment of compensation following a libel, the essential question is how much loss and damage did the publication cause to its victim, and how is that to be reflected in monetary terms.”

In addition to the aforementioned, it also seems as if our local courts would need to provide guidance as to serve of defamation writs. One person has reportedly complained about difficulties in locating an accused person so as to serve a lawsuit of defamation on that person.

The accused in turn has made a trifling remark that the writ could have been served on his lawyer if he could not be located. This is a serious error on the part of the accused because to initiate a libel action, a claimant must serve the defendant with a writ or claim form. Service generally means providing the defendant with formal legal notice of the claim.

It is important to ensure that a writ is served on the correct defendant, including other parties that may be held responsible for the alleged libel; this could include publications involved in disseminating the alleged defamation.

In English common law, service of legal documents, including writs in libel cases, is generally required to be made directly to the named defendant. While there may be circumstances in which a third party, such as a person’s secretary or lawyer, can accept service on behalf of the defendant, it is typically not the preferred or primary method of service. Ideally, service should be made directly to the named defendant, especially when serving the initial writ. This ensures that the defendant is made aware of the legal action and has an opportunity to respond.

Proper service of legal documents, including the initial writ in a defamation claim, is of importance in ensuring that a court has jurisdiction to hear the case. Jurisdiction is a foundational principle of the legal system, and it dictates the court’s authority to adjudicate a matter.

The need for proper service is particularly critical also as it safeguards the due process rights of the parties involved. It ensures that the defendant is informed of the legal action against them, allowing them to prepare a defence and participate fully in the proceedings. Failure to effect proper service can result in an unfair legal process, violating the principles of natural justice and potentially leading to judgments without the defendant’s knowledge or opportunity to be heard.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions and beliefs of this newspaper and its affiliates.)

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• Caribbean, Criminal, defamation, jurisdiction, Peeping Tom

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