Court Rules: Michael Dunkley vs Marc Bean Case

August 29, 2015

micheal dunkley - marc bean thumbThe Court of Appeal has ruled on the Michael Dunkley vs Marc Bean libel case, saying “there was no factual basis on which to found a defence of fair comment.”

In 2013, Michael Dunkley, who was then the Deputy Premier, launched legal action against Opposition Leader Marc Bean over comments made on the social network Facebook, with the comments being made after a motion was brought to drug test MPs.

Mr Bean’s comments, as cited in the Court ruling, were: “At 8:59 a.m. “Morning Ms. Furbert, this motion is solely the doings of Minister Dunkley [the irony]. Only Walton Brown spoke on our side, and three members from their side [reluctantly]. In other words, there is very little support for it but the OBA members are silent. Dunkley has motivations that only he can explain.

“If the motion is about standards, then it should be based on being honourable [being honest]. That said, we should have lie detector test as a start. Lord knows we would not have a sitting Parliament. In terms of how it will work, none of us has any idea.

“When I look across the isle, all I can do is shake my head, especially when we all know what the former head of Narcotics had to say about Minister Dunkley, and we all know two men have served time in prison for it.

“Imagine a PLP MP, as a leading importer of goods, also being the head of National security and border control? Irony and hypocrisy at its finest, delivered by a man whose sole purpose is power and control”.

The ruling said that the thrust of the appeal, filed by lawyer Eugene Johnston on behalf of Mr Bean, is that the Chief Justice Ian Kawaley was wrong to strike out paragraph 7 of the amended defence and the matter should have been left to the jury, however the Court of Appeal has upheld the Chief Justice’s ruling.

“The two relevant factors for the defence of fair comment to succeed in the present case are [1] there must be a basis of fact on which the comment is founded and [2] the comment must be germane to the subject matter criticised,” the ruling said, adding that, “Hard as I have tried I have been unable to detect any factual basis for the comment that the respondent is a dishonest hypocrite…”

“As to the three principal determinations of the Chief Justice, he was right to rule that the comment in the posting only makes sense if the appellant is calling the respondent a criminal; the respondent would have to prove the respondent is a criminal for the defence of fair comment to succeed…”

While the ruling notes that “defamation actions are rare in Bermuda, the last fully fledged one occurring over 30 years ago,” this defamation action is one of a few that have been filed since 2013, with the others involving people including, but not limited to, Craig Cannonier, Mark Pettingill, Shawn Crockwell, Bob Richards, David Burt and Jason Hayward.

The full ruling follows below [PDF here]:

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