Between: Morne Botes Plaintiff v Linda Clark Defendant
| Jurisdiction | Cayman Islands |
| Judge | Mr Justice Alistair Walters |
| Judgment Date | 04 May 2022 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO: G 93 of 2021 |
Mr Justice Alistair Walters (Actg.)
CAUSE NO: G 93 of 2021
IN THE GRAND COURT OF THE CAYMAN ISLANDS
Claim for damages for libel. Determination of meaning of words pursuant to GCR O. 82 r.3A. Consideration of whether Plaintiff identified and context within which words posted on Facebook.
Mr Colm Flanagan of Nelsons for the Plaintiff
Mr Rupert Wheeler of KSG for the Defendant
This is an action commenced by the Plaintiff by way of writ dated 7 June 2021 in which he seeks damages from the Defendant for libel in connection with posts made and published on 8 May 2021 on the website Facebook.com in a group created by the Defendant called “Cayman Development Watch”.
The statement of claim is dated 2 July 2021 (the “Statement of Claim”), the defence is dated 1 September 2021 (the “Defence”) and the reply is dated 15 September 2021 (the “Reply”). I elaborate below on the details of the alleged libel and the defence to that.
The present application is by way of a summons dated 13 October 2021 in which the Plaintiff seeks an order pursuant to GCR O.82, r.3A determining whether or not the words complained of in the posts are capable of bearing a particular meaning or meanings attributed to them in the Statement of Claim. The relevant part of the rule reads as follows:
“Ruling on meaning (O.82, r.3A)
3A. (1) At any time after the service of the statement of claim either party may apply to a judge in chambers for an order determining whether or not the words complained of are capable of bearing a particular meaning or meanings attributed to them in the pleadings.
(2) If it appears to the judge on the hearing of an application under paragraph (1) that none of the words complained of are capable of bearing the meaning or meanings attributed to them in the pleadings, he may dismiss the claim or make such other order or give such judgment in the proceedings as may be just.”
Counsel indicated at the hearing that they had not identified any decisions of the Grand Court dealing with this particular rule. There are, however, a number of relevant English authorities dealing with the equivalent English rule which set out clearly the approach the court should take when determining the meaning of the words in question and there was no disagreement between counsel as to those principles.
The Plaintiff is described in the Statement of Claim as “ an entrepreneur and property developer, resident in the Cayman Islands” whose latest development venture is a development by the name of BARKERS Beach Resort (the “Development”). The Statement of Claim describes the Defendant as a resident of the Cayman Islands who is a well-known activist for environmental causes. In the Defence the Defendant states that she is Caymanian, born in Grand Cayman and that she has “ an interest in enforcement of the laws of the country across a broad variety of issues expressing her views on such issues.” It appears to be the case that the Defendant participates from time to time as a volunteer with Plastic Free Cayman, a non-profit organisation and was also involved in the Cruise Port Referendum.
As mentioned above, it is alleged that on 6 May 2021, the Defendant created a group on Facebook.com called Cayman Development Watch (the “Group”). This is admitted by the Defendant.
The Defendant states in the Defence that she created the Group “ … to facilitate the expression of views about development in the Cayman Islands amongst a limited number of like-minded individuals and concerned citizens of the Cayman Islands”. It appears that, at all material times, the Defendant was one of the administrators of the Group with the ability to control, edit, supervise and monitor the Group's content. The Defendant denies that she “ …ought reasonably to have read, pre-screened and monitored all items that were from time to time posted by other members of the Group'”. She claims in the Defence that the “ .… Group is a private group for a limited number of citizens of the Cayman Islands. It is not intended for an international audience nor for those without affiliation to the Cayman Islands”.
It appears that the Plaintiff was a member of the Group from on or about 6 May 2021 but was excluded from the Group on or about 12 May 2021. It appears to be agreed that when the allegedly libelous words were published, the Group content was accessible to anyone. The Defendant claims that the Group's settings were changed to private on 22 July 2021.
The only evidence before the court at the hearing was an affidavit dated 21 February 2022 sworn by a Ms Marilyn Moxam exhibiting copies of various printed pages from the Group chat from 8 May 2021. The first page of the exhibit is about the Group. It confirms that the Group was created on 6 May 2021 and that it is “[a] group for concerned citizens of the Cayman Islands to raise awareness and concerns of development projects across all 3 islands”. It goes on to say that the Group is public and that anyone can see who is in the group and what they post. “ Linda” (presumably the Defendant) is named as “ an admin”.
Page 3 of the exhibit is the first printed page of the relevant chat. The names of those posting do appear in the chat but save where they are those of the parties, I have simply used their initials to preserve their privacy. In my view, their identity is irrelevant for the purposes of this application. The first relevant post was by “JW” a member of the Group at 07.54 and comprises a photograph of what is stated to be the Development, together with the comment “is this a serious development? Do they know they'll be cleaning the beach hourly to keep them looking like this picture? Horrified.”
I was advised by counsel that the following comments were comments on that post and were sequential, one following the other, all on the same day. The first 3 are not particularly relevant. The fourth comment is by “CB” and states:
“Yup … was sold out to real estate agents and foreign investors before the developers even finalized the plans. Real estate agents have gone from ex waiters to millionaires here. New business is 10% down, no stamp duty and flipping properties before com …” (the remainder of that comment was not reproduced).
The fifth comment is by the Defendant, identified by her name and described as “Admin”. She states:
“This is the type of development that is prone to money laundering. This same self-proclaimed developer has many such projects popping up and disappearing across Grand Cayman, with no planning permission but ‘sales’. Money launderers invest, in this type of speculative investment as it is worth their time, losing a portion of the funds to clean the money is part of the cost of doing dirty business.” (the “First Post”).
The First Post also contained a hyperlink to an article published on 26 March 2019 in the Cayman News Service entitled “ Developers vulnerable to money laundering”.
That article is dated 26 March 2019 and discusses generally the then recently published Caribbean Financial Action Task Force (“CFATF”) mutual evaluation report for the Cayman Islands and, in particular, the risks of money laundering associated with property development. No specific developments or developers are mentioned.
The next comment is by “AM” who says “ Linda Clark hey Linda just so you know, the developer guy messaged me about this comment” beneath that was a screen shot of two messages from the Plaintiff sent to AM using Messenger. The Plaintiff is identified because his name appears as the sender of the messages. The first in the sequence but second in time reads:
“ Morne Botes 11m ago
Morning When you read these statements by Linda Clark a founding member of CPR and respected activist, did you believe them to be true?”
The second, but first in time reads:
“ Morne Botes 12m ago
https://www.facebook.com/groups/308928207337785/permalink/309927273904545/”
It appears, therefore, that either the Plaintiff saw the First Post or it was seen by another member of the Group who sent him a link to it. It seems that the Plaintiff then sent the above messages to AM.
The Defendant commented on AM's comment saying “Hi [A] I am not a founding member of CPR. I…” the rest of the comment has not been reproduced.
The Defendant then adds a further comment which says:
“Time for the PACT [Government] to ACT. This property is owned by former MP Captn Eugene Ebanks who very likely promised the “developers” CPA approval despite any neighbouring objections or objections by any other govt body (including the National Conservation Council)” (the “Second Post”).
Attached was a hyperlink to another article from Cayman News Service dated 11 January 2019 which covers a then recent audit report from the auditor general urging the government to introduce anti-corruption legislation with specific reference to fraud and corruption in the planning sector.
All of these comments followed the original post by JW.
The Statement of Claim raises a number of issues. The question of the identification of the Plaintiff in the context of the First Post is addressed. The Plaintiff alleges that it was clear to readers that the First Post was referring to him because of the comment from AM immediately following it. The Plaintiff also raises the issue that the Defendant did not take the opportunity to refute the fact that the First Post was referring to the Plaintiff. The Plaintiff's position is that the words in the First and Second Posts and/or by inference or innuendo, meant and were understood to mean that he:
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21.1 was engaged in, or assisting with money laundering or other associated criminal offences;
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