‘No Justice’ deals second major blow to author

Businessman and author Dwight Clacken has been ordered to discontinue the publication of the offending material contained in the book No Justice in Jamaica after the High Court found it contained defamatory statements about his former business partner, Michael Causwell Sr, and his son, Michael Causwell Jr.

Clacken, who now has to pay more than $60 million in damages to the father-son duo, who are also his cousins, was also instructed by the Supreme Court to remove the offending material from all advertising and retail platforms, including both physical bookstores and electronic outlets.

The court granted general damages of $50 million to Michael Causwell Sr and $12 million to Michael Causwell Jr, with three per cent interest from May 26, 2016 to April 17, 2026.

The court also awarded aggravated damages of $2 million and $1 million, respectively, with three per cent interest from May 26, 2016 to April 17, 2026, citing the malicious nature of the publication and Clacken’s refusal to retract the statements.

Along with general and aggravated damages, Justice Trecia Williams also ordered the claimant to pay exemplary damages of $2.5 million and $1.5 million, respectively, to prevent the defendant from profiting from the wrongful conduct, to deter similar behaviour, and to mark the court’s “disapproval of conduct calculated to advance private gain at the expense of the claimants’ reputations”.

“The publication was not accidental or fleeting, but a deliberate and calculated act undertaken in the course of a malice-driven, profit-making venture. In these circumstances, compensatory and aggravated damages alone would be insufficient, as they would risk allowing the defendant to retain the benefit of his wrongdoing,” the judge said.

The judge said the awards were intended both to compensate the claimants and to send a strong deterrent message regarding defamatory publications.

In a judgment delivered last month by Justice Hutchinson Shelly, the court found that the book contained multiple false and damaging allegations that seriously harmed the Causwells’ reputations.

The judge described Clacken’s conduct as “malicious”, noting that despite receiving written warnings from the claimants’ attorneys before the book’s launch in 2015 regarding its defamatory content, he proceeded with publication and distribution both locally and internationally.

The Causwells, operators of Equipment Management Limited (EML), said the book falsely accused them of criminal conduct, dishonesty in dealing with creditors, falsification of financial records, and other improprieties connected to the family-owned rust-proofing enterprise.

The dispute stemmed from the parties’ business relationship in EML, in which the senior businessman, along with his brother, held a two-thirds stake, while Clacken owned the remaining one-third.

Prior to this case, Clacken and the brothers had a long legal battle over the winding up of the company in 2001. Following that contentious dispute, Clacken published the book, in which he was also critical of the justice system and retired judge Justice Roy Anderson, who subsequently sued him for defamation and won an $80-million award.

In the book, Clacken recounted his version of the company’s operations and the breakdown of relations between the parties, while also making allegations concerning the handling of the company’s affairs. He further contended that the justice system was rife with fraud, corruption, kickbacks, and bribery, and that persons within the system manipulated it in favour of the claimants, among other allegations of dishonesty.

Among the passages challenged in court were claims suggesting that the senior businessman failed to honour obligations to creditors and falsified invoices to evade customs duties, while the son was accused of manipulating company financial statements.

The Causwells argued that the allegations were entirely fabricated and had exposed them to embarrassment, reputational damage and distress, both locally and overseas.

However, Clacken defended the publication on the grounds that it was truthful and protected by the defences of fair comment and qualified privilege. He argued that he had a moral and social duty to inform the public about alleged wrongdoing in business and the justice system. He also maintained that the book dealt with matters of public interest concerning Jamaican companies and the economy.

However, Justice Hutchinson Shelly rejected those defences, ruling that Clacken “failed to prove the truth of the allegations” and that the publication was “driven by hostility and a desire to injure the Causwells’ reputation”.

The judge further found that he made no adequate attempt to verify the allegations, and continued distributing the book despite evidence contradicting his claims.

Following an extensive review of witness testimony and documentary evidence, including evidence from officials of the Jamaica Customs Agency, the court concluded that the allegations lacked credible evidentiary support.

In addressing the defence of truth, the judgment stated:

“The defendant failed to discharge the burden of proving that the allegations were substantially true. For example, the claim that invoices were falsified to evade customs was disproved by detailed testimony from the Jamaica Customs Agency.”

On the issue of fair comment, Justice Hutchinson Shelly held that:

“The critical opinions were not based on accurate, verifiable facts, and the defendant offered no independent or meaningful verification before publishing.”

The judge also highlighted that Clacken refused to retract or apologise, even after receiving warnings from the claimants’ attorneys prior to publication. The court found that he continued disseminating the book in permanent form, locally and internationally, through bookstores, electronic platforms, and Amazon.

Hutchinson Shelly stated that the publication “was not a mere grievance aired in good faith, but was a deliberate act driven by hostility, aimed at injuring the claimants’ reputation”.

King’s Counsel Maurice Manning and attorney Allyandra Thompson, instructed by Nunes, Scholefield and DeLeon, appeared for the Causwells, while Clacken represented himself. 

tanesha.mundle@gleanerjm.com