Ernest Hilaire v Allen Chastanet (Saint Lucia)

Article 917A of the Civil Code validly continues after independence. The expression “the law of England for the time being” includes current English common law and statutes relating to contracts, quasi-contracts and torts. Such law extends to Saint Lucia with necessary adaptations. Express provisions of the Civil Code or another Saint Lucia statute prevail in a conflict. The Defamation Act 2013 is therefore capable of importation. Its single publication rule operates alongside article 2123, so the limitation period runs from the claimant’s knowledge of the first publication. The serious-harm threshold and statutory defences do not conflict with the local defamation provisions, which are redundant to the extent that they preserve replaced common-law defences.

This was an appeal by Ernest Hilaire against Allen Chastanet concerning a defamation claim in Saint Lucia. The parties agreed that the question whether the Defamation Act 2013 formed part of Saint Lucia law should be tried as a preliminary issue because each party’s pleading depended on it.

Smith J held on 29 November 2018 that the 2013 Act was not applicable. The Court of Appeal held on 16 January 2020 that article 917A was constitutional, imported the 2013 Act, and reconciled the apparent conflict between section 8(3) and article 2123 by applying the requirement of mutatis mutandis. The central questions before the Board were whether article 917A was constitutionally valid, whether it imported English statutes as well as common law, and whether specific provisions of the 2013 Act conflicted with the Civil Code.

The Board dismissed the appeal and advised His Majesty accordingly.

1. Constitutional validity. Article 917A was validly enacted under the wide power to make laws for the peace, order and good government of Saint Lucia. Independence did not, without express words or necessary implication, extinguish existing laws. The reasoning in Ibralebbe v The Queen [1964] 2 WLR 76 was applicable. Article 917A does not create a parallel law-making authority because it remains part of Saint Lucia law and may be repealed by the local Parliament. Section 47 of the Constitution governs laws made by that Parliament, not foreign statutes incorporated by reference under local law. A similar submission had been rejected in R v Christian (No 2) [2006] UKPC 47.
2. Scope and operation. “The law of England” includes English common law and Acts of Parliament relating to the specified subjects. “For the time being” gives article 917A ambulatory effect. English law is imported with the adaptations required for its operation in Saint Lucia. Article 917A(3) gives priority to express provisions of the Civil Code or another Saint Lucia statute, but a conflict between an English statute and local common law does not itself activate that provision. The second limb of article 917A(1) does not apply to articles 989A–989S, which were separately introduced provisions.
3. Limitation. Section 8 of the Defamation Act 2013 is imported, subject to adaptation with article 2123. The one-year period therefore runs from the claimant’s knowledge of the first publication. The statutory inquiry into whether a later publication is materially different also applies. Article 917A(3) does not disapply the single publication rule.
4. Defamation provisions. Section 1 of the 2013 Act sets a serious-harm threshold, a different issue from article 989H. Section 2’s statutory defence of truth replaces common-law justification, making article 989K redundant. Section 3(8)’s defence of honest opinion replaces fair comment, making article 989L redundant. The Bank of England v Vagliano Bros [1891] AC 107 principle does not apply because articles 989F–989S were not a codification of defamation law. Arguments concerning section 4 and the former Reynolds defence did not establish any further conflict.

• Privy Council [2023] UKPC 22: appeal dismissed.
• Court of Appeal of the Eastern Caribbean Supreme Court (Saint Lucia): on 16 January 2020, held that article 917A was constitutional, that the Defamation Act 2013 was imported into Saint Lucia law, and that the conflict concerning section 8(3) and article 2123 was reconciled by mutatis mutandis.
• High Court of Justice of the Eastern Caribbean Supreme Court (Saint Lucia): on 29 November 2018, held that the 2013 Act was not applicable in Saint Lucia.