Burnham v The Editor of the “Liberator”
| Jurisdiction | Guyana |
| Judge | Mitchell, J. |
| Judgment Date | 11 July 1972 |
| Neutral Citation | GY 1972 HC 29 |
| Docket Number | 1078 of 1972 |
| Court | High Court (Guyana) |
| Date | 11 July 1972 |
High Court
Mitchell, J.
1078 of 1972
J.T. Clarke, S.C. for the applicant.
Dr. F.M.H. Ramsahoye, S.C. for respondent.
Tort - Libel and slander
Mitchell, J. (IN CHAMBERS): This is an application in chambers by the plaintiff for an order that the plaintiff for an order that the plaintiff be at liberty to deliver to the defendants interrogatories in writing and that the defendants do within fourteen (14) days answer the interrogatories by affidavit, to be fiiled within fourteen days after service of the order to be made hereunder and of the said interrogatories.
The interrogatories related to the following questions:-
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(1) Who is or was the Editor or Editors of the newspaper named and styled the “Liberator” owned and published by the Liberator Press Limited, the second-named defendants herein, a limited liability company registered in Guyana and printed by the third-named defendants, Post Papers Limited during the month of March issue 1972?
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(2) What are the names and address of the said Editor or Editors?
In the affidavit in support of the application for the order for the interrogatories, the Solicitor for the plaintiff stated at paragraph two (2) of that affidavit that Counsel for the plaintiff had advised and he verily believed that in order to effect proper service on the first-named defendant and to save time at the hearing of the action the plaintiff was entitled to obtain an answer to the interrogatory from the defendants for the purpose of ascertaining the information therein requested, and that it was, and still necessary to join the Editor of the “Liberator” as a tortfeasor to this action.
The action by the plaintiff is an action for libel in which the plaintiff claims from the defendants jointly and severally, damages in the sum of $50,000.00 (fifty thousand dollars) and costs for libel contained in the monthly issue of the “Liberator” of March, 1972, No. 3, on page 4 under the caption “As Others see us”.
At the time when this application for interrogatories was made to the Court and up to the present time, the pleadings reflect that a Statement of Claim was filed by the plaintiff but no statement of defence has been filed by either or any of the defendants. It is in this state of the pleadings that this application for interrogatories is made.
When this application came up for actual consideration before the Court, Counsel for the plaintiff asked leave of the Court to add a third paragraph to the interrogatories requested to the effect and I quote:-
“If there is no Editor of the “Liberator”, who had control of the material to be published for the March, 1972, issue?”
Counsel for the defendants indicated that he was taken by surprise but preferred to proceed with the hearing of this application and did not require and adjournment.
In so far as Counsel for the defendants, in the light of the request to add to the interrogatories desired to proceed, the matter was proceeded with and leave was granted to the plaintiff to add the interrogatories in terms of the addition to the interrogatories abovementioned.
In so far as the added third paragraph of the interrogatories is based on the premise that there is no “editor”, it obliquely projects the possibility that there may really be no editor and seeks an interrogatory in the alternative.
Counsel for the plaintiff in support of the application reiterated what was stated in paragraph two (2) of the affidavit in support. He stated, also, that the Statement of Claim had been filed and there were three (3) joint tort-feasors named but up to that stage service of the writ had not been effected on the Editor of the “Liberator” because the plaintiff had not been able to ascertain the name and address of the editor in order to effect service. No statement of defence had been filed by the second and third named defendants to the writ and Statement of claim, even though the time within which they were required to do so by the Guyana Rules of the Supreme Court, 1955 had elapsed. They should not use their non-compliance with the rules as an excuse for not answering the interrogatories.
Counsel for the plaintiff referred to the case of Hillman's Airways Limited v. Société Anonyme d' Editions d'Aeronautiques Internationales and others [1934] 2 K.B. 356; 103 L.J.K.B. 670; 151 L.T. 451; 50 T.L.R. 569) in support of this proposition.
In that case, the plaintiffs, Hillman's Airways Limited, bought an action against the first defendants, Société Anonyme d' Editions d'Aeronautiques Internationales, for damages for libel alleged to be contained in the issue of a newspaper entitled Inter Avia dated 28 December, 1933. by their statement of claim the plaintiffs alleged that the first defendants were the proprietors and jointly with the second defendants, R.F. Little and Co., the publishers of the newspaper and they further alleged that the second defendants were the printers. By their defence the first defendants admitted publication of the works complained of, but they did not admit that they were the proprietors of the newspaper of that the second defendants were the printers. The second defendants in their defence denied that they were the printers, publishers or co-publishers of the newspaper. Significantly, in that case, a defence was filed by the first defendants.
The plaintiffs then sought to administer the first defendants the following interrogatory: “Were not the words complained of printed or lithographed by some person, firm or company in the issue of Inter Avia for 28 December, 1933? If yes, specify the name and address of such person firm or company.”
Master Ball refused to order the first defendants to answer the interrogatory, and the plaintiffs appealed to Du Percq, J., the judge in Chambers.
In the course of his learned judgment Du Percq J. said that the plaintiffs had based their claim to maintain that interrogatory on section 19 of the statute 6 and 7 Will 4, c. 76, which provided a means by which a person suing for defamation in a newspaper could discover the name of the printer, publisher or proprietor of that newspaper in order that he might the more effectually carry on his action.
He went on to state:
“ No one can bring an action against an unknown person, and the Legislature provided a means by which anyone who possessed information of matters relative to the printing or publishing of the newspaper could be compelled to disclose.”
The English legislation with which the Hillman's Airways case was concerned related to the name of the printer, publisher or proprietor and not to the editor. It is significant to note in relation to the judgment of Du Percq J. above-mentioned, that there is no comparable legislation in the Laws of Guyana which would compel disclosure of the name of any person concerned as printer, publisher or proprietor or of any matters relative to the printing or publishing of the newspaper.
The Newspaper Ordinance Chapter 130 of the Laws of Guyana provides at Section 5(1):-
“No person shall print or publish or cause to be printed or published any newspaper before there has been delivered at the office of Chief Secretary (now the appropriate Minister assigned with such responsibility) a declaration in writing setting forth
(a) ……………………………………………………………………
(b) ……………………………………………………………………
(c) the true name, addition, and place of abode, of every person who is intended to be printer or to conduct the actual printing, and to be the publisher of the newspaper, and of every person who is proprietor thereof.
(2) The declaration shall be made and signed by every person named therein as printer or publisher or proprietor of the newspaper to which it relates.”
It, could, therefore, be appreciated that the Newspaper Ordinance, Chapter 150 of the Laws of Guyana makes it necessary for the names of the printer of the publisher and of the proprietor of any newspaper to be disclosed before the newspaper begins publication and by Section 6 (2) of that Ordinance it makes it is Criminal offence not to do so.
There is however, no reference whatever to any editor or anyone who may be said to be exercising control of the material to be published apart from the publisher, and no necessity to disclose the name of any such person. It may, thus, be said that under the Laws of Guyana, the Legislature, which is the supreme law-making body, in its wisdom did not think it necessary to require that the name of the editor of a newspaper should be disclosed but only the printer, publisher and proprietor, and as guardians of the public rights it may be reasonably inferred that that was considered by the Legislature as satisfactory and sufficient for the protection of the rights of the individual, as between individual and individual within the State.
This reasoning was also reflected in the provisions of six (6) and seven (7) Will. 4 C. 76 S.19 which came to be interpreted in the Hillman Airways case, (Supra) as the discovery of the names of the printer, publisher and proprietor only were permitted to be disclosed under that English Statute.
In so far as the English Statute conferred the right to the disclosure of the names of the printer, publisher and proprietor only and not that of the editor and there is no comparable Legislation in Guyana, if one is disposed to invoke such a right with regard to such persons, one could not do so by analogy with the English Statute and the reasoning in the Hillman Airways case. One must, therefore, apply the normal principles of the Common Law and or the rules of procedure as laid down by the Guyana Rules of the Supreme Court, 1955 as to discovery, or by interrogatories.
The Hillman Airways case, thus, would not assist the plaintiff in this application.
A very significant...
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