Simon and others v Lyder and another (Trinidad and Tobago)

In defamation, the cause of action is generally complete when defamatory words are published. That does not impose an absolute bar on considering later statements by the same defendant. Separate publications may be aggregated where the reasonable reader would perceive a sufficient nexus, connection or association between them, so that the claimant becomes identified as the subject of the defamatory accusation, usually when the later statement is read. The recognised ways of establishing that nexus are examples, not legal categories, and the issue is one of fact or evaluation. An appellate court should not interfere with a correctly directed judge’s assessment merely because it prefers another view; intervention requires plain error or a conclusion outside reasonable divergence. A later statement must be read as a whole and may remove the defamatory sting.

Nine police officers sued Express Newspapers and its general editor over articles concerning the Wallerfield shooting. Earlier articles were defamatory but did not identify particular officers. Later articles, published during and after the inquest, named the officers and reported that they had been cleared.

At trial, Seepersad J dismissed the claim, holding that the later articles could not identify the officers as the subjects of the earlier articles and excluding unpleaded evidence of contemporaneous identification. The Court of Appeal unanimously allowed the officers’ appeal and admitted the evidence. The Privy Council considered whether later publications could be aggregated, whether the Court of Appeal was entitled to reverse the trial judge’s evaluation, and whether the evidence had been rightly excluded.

The Board allowed the appeal. It held that the trial judge had made no error of law in excluding evidence that the officers had been identified by telephone shortly after publication, because the relevant matters had not been pleaded and admission would have been unfair. The Court of Appeal should not have decided that issue in the absence of a ground of appeal directed to it.

1. Defamation and aggregation. The common-law cause of action arises, if at all, when the defamatory statement is published. However, the absolute exclusionary principle in Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822, that a subsequent statement by the same defendant could never be aggregated with an earlier statement, went too far. The reasoning and result in Hayward v Thompson [1982] QB 47 demonstrated that later material may be used where the publications have a sufficient nexus.
2. Sufficient nexus. The question is whether, in the mind of the reasonable reader, the two statements are sufficiently connected that the claimant becomes identified as the subject of the defamatory accusation, generally when the later statement is read. An invitation to await further information, a common saga or series, or a reference back to the earlier statement are examples only and do not create legal categories. The question is one of fact or evaluation.
3. Appellate review. Where the first-instance judge has directed himself correctly in law, an appellate court may intervene only if the conclusion was plainly wrong or outside the boundaries of reasonable divergence. Mere disagreement, or reasons expressed in summary form, is insufficient. The trial judge had relied principally on the lapse of more than six months and the different focus of the later articles. The Court of Appeal relied on the notoriety of the incident and the size of Trinidad and Tobago’s population. Both evaluations were reasonably open, so the Court of Appeal was wrong to describe the trial judge’s conclusion as plainly wrong.
4. Later publication read as a whole. The Board added, expressly as an observation rather than a basis of decision, that a later statement must be read as a whole. If it is exculpatory and removes the defamatory sting of the earlier statement, aggregation may not produce a defamatory meaning.

The appeal was therefore allowed on the factual and evaluative issue concerning the sufficiency of the nexus.

• Privy Council: Allowed the appeal from the Court of Appeal. [2019] UKPC 38
• Court of Appeal of the Republic of Trinidad and Tobago: Unanimously allowed the claimants’ appeal from the trial judgment and dismissed the defendants’ cross-appeal.
• High Court of Trinidad and Tobago: Seepersad J dismissed the defamation claim in a reserved judgment dated 24 May 2013.