ORIENTAL PRESS GROUP LTD. AND OTHERS v. NEXT MAGAZINE PUBLISHING LTD. AND OTHERS

CACV 726/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 726 OF 2001

(ON APPEAL FROM HCA NO. 12525 OF 1994)

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J U D G M E N T

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Hon Rogers VP:

1. In September 1994, the plaintiffs brought an action for libel against the defendants in respect of a magazine article which appeared in "Next Magazine". The trial of the action took place before Yam J sitting with a jury between 12 February and 16 March 2001. At the conclusion of the trial the jury entered single verdicts in respect of all three plaintiffs in favour of the defendants. No special verdicts or questions were asked of the jury.

2. The plaintiffs' appeal is based upon the ground that the summing up was wholly deficient in respect of the key issues in the case. Specifically, it was said there were no directions as to how the jury should approach the matter of the natural and ordinary meaning of the words complained of and the defences of justification and fair comment. A further ground of appeal was that there was an error in the directions in respect of the absence of any oral evidence called on behalf of the plaintiffs.

3. In brief, objection is taken on behalf of the defendants to many of the points raised because they were not raised in the notice of appeal. On the substantial merits of the case it is said that it is not open to the plaintiffs to complain about the failure to give adequate directions to the jury since the points were not taken up with the judge at the time of the summing-up, particularly when the opportunity arose. Furthermore it is said that, in any event, the failure to direct the jury in respect of the matters raised only inured to the benefit of the plaintiffs and that there was no miscarriage of justice: the verdicts of the jury would inevitably have been in the defendants' favour.

The history

4. In about September 1993, the plaintiffs wished to launch a new English language newspaper in Hong Kong. There is no dispute that the 3rd plaintiff is the person in effective control of the plaintiffs. Mr Stephen Vines was approached and agreed to be the Chief Editor of the newspaper which was to be called "Oriental Express", subsequently the name was changed to "Eastern Express". A management agreement was entered in October 1993 between OPG Human Resources Limited and Pan Britain Limited, which was Mr Vines' service company.

5. It is common ground that the plaintiffs wanted a high quality paper, it was intended that it should rival and surpass the other English language papers in Hong Kong. With that in mind, Mr Vines was told that cost would be no problem and no budget for the paper was provided.

6. It was Mr Vines' evidence that at the outset he obtained assurances on two matters. The first was the long-term commitment of the plaintiffs to the newspaper and the second was that he, as editor, should have editorial independence. He explained in his evidence that a particularly important aspect of editorial independence concerned control over the "hiring and firing of staff". This was because without that control the rest of the editorial autonomy was effectively meaningless.

7. The service contract signed by Pan Britain Limited contained, in clause 3, a provision that Mr Vines should obey and comply with all lawful orders and directions which might be given to him from time to time by the group. Clause 4 of the agreement provided that Mr Vines would be responsible for and have control of the production of the paper and there was a proviso that it was "confirmed, agreed, acknowledged and understood" by the parties to the agreement that the employer wished and required Mr Vines to pursue a "fully independent and autonomous editorial policy in all respects" in connection with the paper and that best endeavours would be used to ensure that such independence and autonomy was preserved and maintained.

8. The Eastern Express first appeared on 1 February 1994. Initially, things went well. Mr Vines was paid a special bonus in recognition of his work in setting up the paper. Up until April 1994 Mr Vines was on good terms with the 3rd plaintiff: he would see him two or three times a week and would be invited to dine with him. At that stage there was no difficulty in communication.

9. In May 1994, Mr Deng Ken, the younger brother of Deng Xiao Ping, visited Hong Kong. Journalists from the Oriental newspaper group were able to obtain an exclusive interview with Mr Deng Ken through the 3rd plaintiff's connections. The Eastern Express was able to take part in the interview. At the end of the article based on the interview, which appeared in the Eastern Express on 9 May 1994, reference was made to Mr Deng Ken having left politics in mysterious circumstances in 1982 and to the fact that he was relieved of his post as vice-governor of Hubei Province after only seven months in office. Reference was also made to a poster which had accused Mr Deng Ken of accepting bribes.

10. Following publication of this article the 3rd plaintiff was turned away at the door of a dinner reception in honour of Mr Deng Ken. As a result, apparently, Mr Ma was furious. Mr Vines was told that a series of spoof postcards purporting to be from Mr Deng Ken to Deng Xiao Ping should not be published. However, these postcards continued to be published until the end of Mr Deng Ken's stay in Hong Kong.

11. After this incident, Mr Vines' relationship with the 3rd plaintiff deteriorated rapidly. The 3rd plaintiff would no longer speak to Mr Vines and Mr Vines was not even able to secure an appointment to see the 3rd plaintiff. Eventually, when Mr Vines wrote to the 3rd plaintiff he was told that it was inappropriate for him to do so.

12. According to Mr Vines' evidence, between April and September 1994, matters changed considerably. Mr Vines referred to a number of events which affected his editorial autonomy and in particular his management of paper as well as harassment which made it more difficult for him to carry out his work.

13. Matters started on a smaller scale in May 1994 when he was sent a Commentary Report to fill in. In effect Mr Vines was being requested to write out each day what had and had not been in the paper. One specific example which was referred to in evidence was a discrepancy between a figure for 190,000 civil servants in the Eastern Express and 180,000 in the other two English language newspapers. Mr Vines was requested to give a written explanation. His attitude to this was that the queries raised were not merely petty but were wasteful of his time which could be better spent on producing the paper. It would seem that Mr Vines was successful in his complaints about having to complete the forms.

14. There were a number of matters which were raised with Mr Vines about editorial content. These ranged from requests to heed the views of advertisers, such as Mercedes Benz and Kowloon Wharf, to rearranging advertisements in areas of the paper which had previously been reserved for editorial comment. Mr Vines gave evidence about pressure being brought to insert a complimentary article about a time-share ownership scheme in Bali which was to go next to an advertisement for the scheme.

15. Whereas it was common ground that Mr Vines had initially been given a free hand in relation to the management of the paper, it was common ground at the trial that that changed after April 1994. Specific instances were given in relation to this. For example, the supplements department was closed without Mr Vines being consulted. This was a matter of specific complaint in the letter of 1 August 1994 written by Mr Vines to the 3rd plaintiff. That letter was never replied to by the 3rd plaintiff. Instead, a meeting was held at 10:20 pm on 3 August, at which it was made clear that Mr Vines should not have written to the 3rd plaintiff. Mr Vines was told that any letters should have been addressed to the "Administration Office". Mr Vines also pointed out in his evidence that the reference to the "editorial board", recorded in the minutes of that meeting, was the first occasion upon which he was aware that there was any such board.

16. Mr Vines gave evidence relating to other matters which were part and parcel of the management of the plaintiffs' group, changing the practices which were thought to bring the Eastern Express more in line with the control exerted over the other newspapers in the group and which undermined his autonomy in the management of the Eastern Express. One of the matters, the cessation of the magazine section, did not take effect until after Mr Vines had left the newspaper. In relation to appointment of staff, Mr Vines gave evidence that he could not secure appropriate increases in salary for staff whom he had promoted in circumstances which on the evidence were perfectly proper and normal.

17. One significant incident concerning Mr Vines' control over the appointment of staff related to a notice signed by Irene Chua, the personnel manager, dated 30 August 1994 announcing, in her own name, the appointment of the deputy managing editor of the Eastern Express. Mr Vines pointed out that not only was it seen that Miss Chua was taking control of appointment of staff but a clear signal was being sent to members of staff that he had lost control over the appointment of staff.

18. Another symptom of the change that took place after April 1994 was the harassment to which Mr Vines was subjected: it increased up until the time that he left the Eastern Express. This included members of the management of the plaintiffs' group coming to Mr Vines' office late at night, a time when he would be busy with his editorial duties, and requiring meetings to be held often dealing with petty matters. There were memos which he was required to answer over such matters as staff who jumped over a security gate. Mr Vines pointed out that this was not a matter which should have required the attention of a chief editor of a newspaper. During this period, company transport which had been available to him before was no longer available. When he requested use of it he was merely told that there was none available, although he had every reason to believe that transport could have been provided.

19. There was an exchange of correspondence between Irene Chua, as manager of the Legal and Personnel Department, and Mr Vines of 31 August. Miss Chua queried why Mr Vines had signed letters on OPG Human Resources Limited's letterhead and requested an explanation within two days purportedly to be given to the board. It could hardly be said that her memo was written in friendly terms. The reply was simple. The letters had been prepared in the chairman's office for Mr Vines to sign.

20. There was also a matter of a complete freeze on payments, not only expenses but in respect of bills which had been incurred. These included freelance journalists and suppliers, including suppliers of photographs for use in the paper. This put a considerable strain on the efficient running of the newspaper. The explanation which had been given to Mr Vines that there was an audit in progress appeared to be spurious in the light of the fact that Mr Vines himself had never been approached by anybody purporting to conduct such an audit, whether it was an internal audit or one conducted by external auditors.

21. On 9 September 1994, Mr Vines was interrupted in the course of writing an editorial to be given a letter of dismissal. It is unnecessary to rehearse the facts of his dismissal. Mr Vines gave evidence that the two specific reasons for his dismissal which were given in the letter were wholly unjustifiable. No evidence was given by the plaintiffs to try to justify those reasons and, indeed, as will be noted below, Mr Vines' service company was able, eventually, to secure a substantial payment when action was brought for wrongful termination of the agreement.

The article complained of

22. Shortly after determination of his contract, Mr Vines gave an interview to Mr Lai Tin Yiu of Next Magazine in which he talked of his experience as editor of the Eastern Express and of his dismissal. He made clear in the course of that interview that he did not feel that he was under pressure as to the editorial line which the paper took, for example as to whether the paper was critical of the Government or as to the political line which the paper was taking. What he was concerned about was editorial autonomy being curtailed by the taking away of his control over staff who were to be engaged or not engaged and the day to day running of the paper. He made it clear that in the absence of such control it became academic as to whether there was editorial freedom as to the political line to be taken.

23. In October 1994, Mr Vines' service company brought proceedings against the relevant companies in the plaintiffs' group and some two years later succeeded in obtaining payment of HK$2 million in respect of the termination of the contract.

24. In the issue of Next Magazine published on 16 September 1994, there was an article based upon Mr Lai's interview with Mr Vines. It was headed "Ma Ching Kwan fired Kwai Lo Chief Editor in Anger". The article dealt with the events and circumstances surrounding Mr Vines' dismissal as editor.

25. In December 1994, the plaintiffs commenced the present proceedings complaining that the article was defamatory. Although the pleadings do not identify the precise passages in the article of which complaint is made, it is said that the natural and ordinary meaning of the words were as follows:

"(1) the 1st and/or 2nd Plaintiffs seriously curtailed editorial freedom and autonomy in their newspaper Eastern Express;

(2) the 1st and/or 2nd Plaintiffs' management unduly interfered in the decision-making relating to matters of Eastern Express, which were properly within the exclusive province of its then chief editor Stephen Vines to decide;

(3) the 1st and/or 2nd Plaintiffs' management wanted to take away the power and authority of the then chief editor of Eastern Express in editing the newspaper;

(4) the 1st and/or 2nd Plaintiffs' top management and the 3rd Plaintiff removed the chief editor of its Eastern Express because under the latter's editorship the newspaper reports upset them for extrinsic reasons and/or because they wanted to interfere with the editorial freedom and autonomy of the newspaper;

(5) the 1st and/or 2nd Plaintiffs' management was concerned with controlling Eastern Express instead of improving its quality;

(6) the Plaintiffs acted in breach of contract in dismissing the former chief editor of their newspaper and unjustly refused or failed to pay the latter his outstanding remuneration;

(7) the 3rd Plaintiff as chairman of the 1st Plaintiff and representative of the management of the 1st and/or 2nd Plaintiffs caused or allowed the above matters to take place."

26. The defendants, for their part, disputed the meanings pleaded by the plaintiffs and put forward in their pleadings, as they are now entitled to, meanings which they say should be given to the article.

27. The trial of the action was not heard until more than 6 years after the writ had been issued. At the trial, the plaintiffs called no oral evidence. They relied upon a witness statement of a Mr Graham Jenkins, which had been made in the action by Pan Britain Limited. Mr Jenkins' statement was given as an expert witness. Mr Vines was called as a witness for the defendants. He gave evidence-in-chief for two days and was cross-examined for seven. In addition, Mr Karl Wilson, who had been the foreign editor of the Eastern Express, was also called as a witness. His evidence was much shorter. There were two further written statements which were admitted under the hearsay rules: that of Michael Hanson, the Hong Kong Government's information coordinator at the relevant time when Mr Vines was the editor of the Eastern Express, and Mr Jonathan Fenby, whose statement as an expert witness in the wrongful termination action was also admitted.

28. In essence, as submitted by the plaintiffs, the article referred to the question of the editorial freedom and indicated that the plaintiffs had unduly interfered with the editorial freedom and the autonomy of the chief editor. It was said, specifically, that the plaintiffs were more concerned about controlling the newspaper rather than about its contents and that they had wrongfully dismissed Mr Vines. It is noteworthy that although the plaintiffs' reply was a lengthy document with a number of schedules directed in the main to establishing the proposition that Mr Vines, in the guise of Pan Britain Limited, had been at fault in various respects, the plaintiffs did not seek to support any of their allegations by oral evidence at the trial.

The summing up

29. As part of the summing up the judge gave the jury a synopsis of his directions. No exception is taken to the general matters in the summing up, for example the directions as to the relative functions of judge and jury and the burden of proof. Nor is there any difficulty with regard to the directions relating to the persons who could be liable for defamation. Although nothing turns on it in the result, reference was made in the course of argument to the first statement by the judge in relation to damages. It can be said, however, that it is desirable that the judge directing a jury should give directions as to law and should not use phraseology such as the "the submissions of Mr Cheng on the law concerning the question of damages are correct."

30. By the end of the afternoon on which the summing up had commenced, it had become clear that the judge had neither assisted the jury in relation to analysing the evidence relevant to the allegations made by the plaintiffs as to defamatory matter and as to the relevance or irrelevance of various aspects of the evidence nor had he dealt with the case of justification. This latter aspect was an important matter since the primary defence was that what was contained in the article was true. After the jury had retired at the end of that day, counsel requested an opportunity of addressing the judge. Mr Cheng SC, who appeared below but not in this court, raised a point as to the directions as to the 1st plaintiff's right of action. He requested the judge to supplement the directions given to the jury in that respect, referring in the course of that to part of his skeleton argument. He concluded his request by saying that that was all he wished to bring to the judge's attention.

31. In contrast, Mr Yu SC, then requested the judge to summarise the defendants' case as to justification. He pointed out that that was the main defence. He requested the judge to consider the matter overnight as a matter of balance. After the judge had said he would consider the matter Mr Cheng then said:

"MR CHENG: My Lord, may we respectfully say that if your Lordship is so minded, I think since your Lordship has almost finished the end of one question now of damages, perhaps I think your Lordship will summarise the case for the defence of justification. It may well be that your Lordship ought to balance it with also some references, at least, what the plaintiffs contend to be the case. Thank you very much.

COURT: That will take about another nine days. Anyway I'll consider it, thank you."

On the following morning, prior to the jury returning to court, the judge informed counsel that he did not propose to sum up again on the defendants' case on justification. He said that the matter was fresh in the jury's mind. If he were to do so he would have to sum up the plaintiffs' case all over again. He had noticed that some of the jurors had been taking notes during counsel's address; that the matters had been clearly stated in the pleadings. He stated that the defence of justification had been pleaded extensively, referring, rather incongruously, to the many pages in the reply. He concluded "I am sure the jury knows what are the various cases of the two parties ..." He then said that he would address the jury about the 1st plaintiff as requested by counsel for the plaintiffs.

32. As referred to above, the jury returned single verdicts in respect of each of the plaintiffs, holding that the plaintiffs' cases failed.

33. As has been stated on many occasions, it is the duty of a judge instructing a jury to state clearly the issues to be tried, the principles of law by which the evidence should be applied to those issues and to assist the jury so as to prevent them from taking into account matters which are irrelevant to those issues and confusing collateral issues. See, for example, the general statements of Madden CJ in Holford v The Melbourne Tramway and Omnibus Co. Ltd [1909] V.L.R. 497 at 510. It is particularly undesirable to leave the jury, as was done in this case, to work out the issues for themselves, by delving through the box files of pleadings and documents in the case.

34. Mr Yu, on behalf of the defendants, did not seek to support the summing up as having fulfilled those functions. Indeed it was he, at the very time, who pointed out to the judge some of the defects in his summing up. Three main points were made by the defendants. First, it was said that it was not now open to the plaintiffs to make their present complaints in respect of the summing up. Secondly, it was said that the deficiencies in the summing up could only have benefited the plaintiffs. Thirdly, it was said that a properly directed jury, not acting perversely, would inevitably have returned the same verdicts.

Are the plaintiffs now debarred from taking objection to the summing up?

35. The first proposition relied upon by the defendants is best encapsulated in a quotation from the speech of Lord Halsbury LC in Lord William Nevill v The Fine Art and General Insurance Company Limited [1897] AC 68 at 76. In what was apparently an ex tempore judgment delivered in an appeal which the House clearly found unmeritous for a number of reasons, he said:

"... but what puts him out of court in that respect is this, that where you are complaining of non-direction of the judge, or that he did not leave a question to the jury, if you had an opportunity of asking him to do it and you abstained from asking for it, no court would ever have granted you a new trial; for the obvious reason that if you thought you had got enough you were not allowed to stand aside and let all the expense be incurred and a new trial ordered simply because of your own neglect."

That passage has been cited in other cases and is similar to passages in many other judgments both in the United Kingdom and Australia. Lord Halsbury's statement was said in the context of dealing with an argument that a question had not been put to the jury as to whether the communication in question was privileged. Nevertheless, it would seem that the passage has been taken as applying in relation to non-directions to a jury, whether or not there was an issue as to whether the jury should have been asked to give answers to any further specific questions.

36. The application of this principle was challenged in two respects. First, it was said that the interchange between counsel and the bench during the course of the summing up, which I have referred to above, should be taken as a request having been made to the judge and it did not matter which counsel made the request; in any event it should be taken that Mr Cheng had joined in the request.

37. It was also said, in reliance upon the decision in Kiam v Neil (No. 2) [1996] EMLR 493, that the rule is not an absolute rule of law but is a rule of practice. In his judgment in that case, Beldam LJ, with whom Evans LJ concurred, referred to the rule that failure to complain of a non-direction by the judge when counsel did not avail himself of the opportunity of asking the trial judge to correct the omissions was not now decisive as it had been in the past. He approached the matter more as one of assessment of the strength of the point on the basis that it was:

"... difficult to accept that misdirections singly or cumulatively can be so significant that a substantial wrong or miscarriage of justice has occurred if counsel experienced in this branch of the law failed to draw the judge's attention to the mistakes or omissions."

See page 501. His reference to substantial wrong or miscarriage of justice was a reference to Order 59 rule 11(2).

38. Counsel was unable to assist this court as to when or how what was apparently a firm rule, according to Lord Halsbury and others, became modified. For the purposes of this case, it is unnecessary to decide whether there is now an absolute rule of exclusion. I consider that in relation to questions asked of the jury the absolute rule may still apply, particularly in cases where counsel, as here, were apparently consulted as to the questions to be put to the jury. In many libel actions it would be appropriate to put specific questions to a jury and, if counsel is consulted as to the questions to be put and does not ask for particular questions, I doubt that any court, on appeal, would look favourably upon any argument founded upon the fact that specific questions were not put. In the present case, for example, had any difficulty been thrown up by virtue of the fact that different meanings to be derived from the article were pleaded by the plaintiffs and the defendants, then it would be too late to take the point that the jury were not asked specific questions in that regard on appeal. The parties had themselves been part of the process of defining the questions to be put to the jury and if an issue did not exist at the trial which required a specific question, the parties should not be allowed to raise it later.

39. As regards directions to the jury for the purposes of this case, it seems to me that the plaintiffs' counsel at trial did not request the judge to deal with the question of justification, even when the opportunity more than presented itself. Rather, when counsel was put in a position where he had to make his stance clear, he requested the judge simply to balance anything which he said by putting the plaintiffs' contentions to the jury. It is, in my view, unnecessary to decide whether there is an absolute bar to such a point being taken if the judge had not been asked to add to his summing-up at trial. The proper inference to be drawn in this case, in my view, is similar to that in Kiam v Neil. The plaintiffs' counsel would not have taken the stance he had done had he considered it was in his clients' interest for the judge to have given proper directions in relation to the issues and the facts.

The merits

40. In my view the defendants' second and third points can be taken together. Under the terms of Order 59 rule 11(2) even if there has been a misdirection, the court is not bound to order a retrial unless some substantial wrong or miscarriage has been thereby occasioned.

41. But Mr Yu goes further. He says that a consideration of the evidence called at the trial establishes beyond doubt that any jury properly directed and not acting perversely could only have reached the verdicts which it did. In my view, he is correct. Mr Yu circumvented any unnecessary analysis of the differences in meanings, pleaded by the parties, as to the words of the article by going through the allegations in the article. Without troubling as to whether they would either singly or collectively, if untrue, have been legally defamatory, he showed that each and every statement contained in the article was verified by the evidence.

42. In the main, the evidence was that of Mr Vines. He was cross-examined at considerable length, even to the extent of cross-examination being allowed by both of the plaintiffs' counsel. In some respects his evidence was not challenged. In the result his evidence was not undermined.

43. Two matters must be borne in mind in relation to the defendants' evidence. In the first place, the issues in this trial were not the same as those in Mr Vines' wrongful dismissal action. In any event, following the settlement of those proceeding by a payment of $2 million, it would be a difficult proposition to establish that Mr Vines had been justifiably dismissed. What was relevant in the present proceedings was whether the statements in the article were true. In the second place, the plaintiffs called no oral evidence. Hence there was no evidence from them to undermine, contradict or explain the evidence called by the defendants. Questions put in cross-examination whether they indicate lines of argument or factual issues, cannot constitute evidence.

44. So, for example, the moratorium on payments, referred to in paragraph 20 above, would have the likely result, as Mr Vines said in evidence, of having a serious effect on the reputation of the paper and its ability to function properly. The effect of Mr Vines evidence was that although there was a memo indicating there was an internal audit and later he was told that there was an external audit, no audit ever took place, or at least if there had been an audit it could not have been of any substance since he had not been seen by the auditors or otherwise become aware of it. In the absence of any evidence from the plaintiffs a summing-up could only have been on that basis. The only conclusion that could have been drawn by a properly instructed jury is that the power and authority of the editor was being undermined at the expense of jeopardising the quality of the contents of the paper.

45. In the absence of any evidence from the plaintiffs as to the reasons for the sudden change of attitude to Mr Vines, the only conclusion that could have been drawn was that the 3rd plaintiff's fury at being turned away at the door of the reception for Mr Deng Ken was the reason for the increasing harassment and led to the ultimate dismissal of Mr Vines.

46. The failure to pay increases in staff salaries after staff had been promoted to carry out more responsible duties is another area where the absence of evidence from the plaintiffs would have a similar result. In the absence of any explanation the only inference that could have been drawn arose from Mr Vines' evidence that the failure was attributable to a desire to wrest control of the paper from Mr Vines.

47. The holding of meetings at the editor's busiest time of day when he would be concerned to "put the paper to bed" can hardly be attributed to a desire to improve the quality of the paper. When there is no evidence no contradict the fact that the meetings were in respect of unimportant trivialities, it is clear that undermining the editor's control had a higher priority than the quality of the next edition to be published. No other conclusion could reasonably be arrived at.

48. Publishing favourable articles in respect of advertisers of time-share ventures is not the mark of a quality paper. Certainly that would only happen if that were the genuine view of the editors of the paper. Yet the evidence was that management directions were given such that the editor's editorial control would be restricted to enable that to happen. Again that leaves only one conclusion to be drawn.

49. In argument, Mr Griffiths SC on behalf of the plaintiffs, suggested that there was material on the basis of which the jury might not have accepted Mr Vines' evidence. In particular he drew attention to the notes taken by Mr Lai when he interviewed Mr Vines. Despite being taken through the transcript of that interview in Mr Griffiths' reply speech, there was nothing that undermined Mr Vines' evidence. That is scarcely surprising: it might be assumed that in the course of a lengthy cross-examination, experienced counsel would certainly have put anything of significance to Mr Vines. In the end Mr Griffiths could not point to anything that contradicted or undermined the evidence called on behalf of the defendants.

50. In my view, the lengthy analysis of the evidence in the case which Mr Yu made and a paragraph by paragraph analysis of the article only leads to the conclusion that the jury would inevitably have come to the same verdicts had they been properly instructed.

51. In the circumstances, I have no hesitation in saying that this appeal must be dismissed.

Hon Le Pichon JA:

52. I agree.

Hon Suffiad J:

53. I agree.

Hon Rogers VP:

54. The appeal will therefore be dismissed. There will be an order nisi for costs in favour of the defendants.