Cyprus Supreme Court allows libel claim against letter insinuating theft, awarding damages for reputation injury.

[*113] 1972 May 8

(SAVVIDES, AG. P.D.C., DEMETRIOU, D.J.).

IN THE DISTRICT COURT OP FAMAGUSTA

Nicos

G. Countas,

Plaintiff in Action 1068/68,

and

Panos K. Iassonides,

Plaintiff in Action 1069/68,

and

Homeros Th. Courtis,

Defendant in both actions.

(ActionsNos.1068/68) &1069/68).

(Consolidated by Order of the

Court dated 12.2.1970)

Conflict of Laws - Tort - Libel - Committed abroad (Portugal) - Actionability in Cyprus.

Libel - Defamation - Whether a publication is defamatory - Correct approach - Section 17(1) (c) (d) and (e) of the Civil Wrongs Law, Cap. 148- Letter published to Portuguese Company speaking of disappearance of certain items and insinuating theft on the part of one of the plaintiffs and his covering up by the other plaintiff - Held to be capable of defamatory meaning and defamatory of both plaintiffs Not covered by qualified privilege.

Libel - Qualified privilege - Law applicable.

Libel - Name of plaintiff not mentioned in letter complained of - Enough if plaintiff sufficiently indicated so that reasonable persons to whom statement is published would apply statement to plaintiff.

Libel - Damages - Assessment - Factors to be taken into consideration - Injury to reputation and to feelings the principal elements to be considered –Defendants’ apologetic attitude at the trial – Limited extent of publication.

Damages - Libel- Assessment - See under “Libel”.

G.Cacoyiannis, for the Plaintiffs.

L. Clerides, for the Defendants.

JUDGMENT

SAWIDES. AG. P.D. C.: The judgment of this Court will be read by my brother judge H. H. Demetriou.

DEMETRIOU. D.J.: By the present two actions, [*114] Which were consolidated by an order of the Court dated 12.2.1970, the two plaintiffs claim damages for libel, allegedly contained in a letter sent by the defendant to a Portuguese company, Companhia Uniao Fabril (hereinafter referred to with the initials C.U.F.). The hearing of these two actions was concluded and judgment was delivered on 9.10.1970, but on appeal, the Supreme Court directed by an order dated 3.6.1971 that the judgnent appealed from be set aside and a new trial be held by a new Bench. The order was given upon the joint statement of counsel for both sides that "the new trial will 1proceed on the basis of the record of the first trial (including the pleadings) with both sides being at liberty to call any further evidence or ask for the recalling of any witness, who is found to be available, at the time, in Cyprus". Pursuant to this order, a retrial was held by a new Bench on 24.1.1972. The pleadings and the record of the first trial, as well as all the exhibits, were by consent admitted to form part of the second trial and the three parties to the actions were recalled and gave additional evidence.

According to the pleadings and the evidence before us, the plaintiff in Action No. 1068/68 Nicos Countas, is the brother-in-law of Panos Iasonides, plaintiff in Action No. 1069/68, and has since 1954 been the General Manager of Amathus Navigation Co. Plaintiff in Action N0.IO69/68, who is defendant’s brother-in-law, was at the material time, a director and shareholder of H. T, Courtis Ltd., of which the defendant was the Governor and managing director, each holding a 50/ share. The business of this company largely [*115] consisted of representing in Cyprus the above Portuguese company C.U.F., which produces and exports, among other products, fertilisers. The company acted at the same time as agents in Cyprus for ships chartered to carry C.U.F. cargo to the island's ports.

The normal transactions of this profitable business and the brotherly relations of the parties, were doomed to give way to a new phase of controversy and grudge giving cause to these protracted proceedings and 'the dissolution of the company, when defendant sent a letter to C.U.F. on 24-11.1966. Although in his defence, the defendant denied authorship of the letter and a lot of questioning was proved necessary for this issue, because a photostatic copy and not the original was produced in the first trial, the picture was made clear at the present trial when the original was produced and the defendant eventually frankly admitted writing it.

For practical purposes, we propose at this stage, to reproduce the whole letter, before embarking on the analysis of the law of libel: -

"STRICTLY CONFIDENTIAL 24th November 1966.

Messrs. Companhia Uniao Fabril,

Av. Infante Santo, 2,

LISBON. 3.

Dear Sirs,

Fertilisers ex-m.v. "ARGY" at Paphos and Limassol [*116]

Further to my cable of the 17th instant by which I informed you that the 50 bags super. 46/48% shortlanded at Paphos ex-the above ship have now been traced in Limassol, I beg to inform you that after a thorough investigation conducted by me personally, I have reached the following conclusions:-

1. Indeed 50 bags were shortlanded ex-hold No, 4 of the above ship at Paphos port.

2. The said 50 bags were definitely discharged as overlanded ex-hold No. 4 of the ship at Limassol port. To this effect I hold in hand conclusive documentary arid other evidence proving beyond any reasonable doubt the correctness of my findings.

3. From my investigations I am fully satisfied that the consignees, Messrs, Lanitis, never received the said 50 bags and that at Limassol they received only the correct number of bags which they had to receive as per manifest for Limassol, except for some very small discrepancies, for which details will be given herebelow.

4. There is no proof as yet as to the fate of the said 50 bags which were overlanded at Limassol.

The real facts which lead to the above conclusions are in detail the following:-“ [*117]

(a) I sent Mr. P. K. lassonides to Paphos and ’’Limassol to arrange for and supervise the discharge of the ship at those ports. When the discharge at Paphos was completed Mr. lassonides phoned me to Famagusta to say that from hold No. 4 of the ship there were found only U50 bags of Super.46/48% as against the manifested quantity of 500 bags, thus showing a shortage of 50 bags.

I immediately observed to Mr. lassonides that the next day at Limassol he should pay great attention to the discharge at that port with special care on hold No. h of the ship in an effort to trace the said shortage.

(b) After discharge at Limassol was completed Mr. lassonides came to Famagusta and told me that the number of bags discharged from the ship at Limassol was correct as per manifest for that port. That is, the 50 bags shortlanded at Paphos were not traced in Limassol.

I asked Mr. lassonides to hand me the Tally Books for my checking. I found that according to the Tally books there appeared a shortage of 2 bags Mixed 6-8-8 and 1 bag 7-11-0 at Limassol, also 2 bags of other types at Famagusta, all exhold No. 4 of the ship. That is, in all there appeared to be a shortage of 55 bags (including those of Paphos). [*118]

However, on Tally Sheet No. 07294 of the 7th instant, I noticed some deletions, changes of figures and corrections. Moreover, that even after those deletions and changes, the figures appearing on it do not give a total of 1122 bags. I drew the attention of Mr. lassonides to that important matter, and he said, that the. Tally Clerk of hold No. 4 on board the ship told him that by mistake he had entered twice 4 or 5 slingloads, which he had to cross out. Thus instead of 1177 bags the correct figure should have been 1122 (difference 55 bags).

I observed to Mr. lassonides that this was not a statement to be taken by him seriously, and that it was still less serious on his part to repeat such a statement to me.

(c) On the 14th instant, I went to Limassol and asked .for permission from Mr. Panos Lanitis, Chairman of Messrs. Lanitis, to investigate the matter as there might perhaps he a mistake. After a thorough investigation with the help of Mr. lanitis and his Store-keepers T was fully satisfied that they received the correct number of hags as per manifest for Limassol, plus 5 hags (6-8-8, 7-11-0 etc.), hut they never received the 50 hags of super.46/48 shortlanded at Paphos, which, however, have heen definitely discharged at Limassol.

(d) On the 16th instant I went again to Limassol and obtained from the Tally Clerk who worked on [*119] Hold No. 4 on the 7th instant, a written statement, witnessed by a police-man. By that statement the Tally clerk accuses openly the brother-in-law of Mr. lassonides, who is the Manager of a Shipping Agency in Limassol, controlled by-actually belonging to - Messrs. Lanitis. He also claims in his statement that he never told Mr. lassonides the story about wrongly entering, twice 4 or 5 slingloads, he never made any deletions or corrections on the Tally Sheet No. 07294 and that the correct number of bags discharged from hold No. 4 on the 7th instant was 1177 and not 1122.

(e) Mr. Lanitis to whom I explained the above 'asked.me why I did not mention the matter to. The Police. However, when I told him about the accusations against the above Manager of his Shipping Agency, Mr. lanitis warmly requested me not to take any further steps and forget the whole case, because, he said, any further noise in the case will prove detrimental to the whole business, and it was his expressed desire that 'the matter should be considered closed.

(f) The same evening I went back to Famagusta and had a long talk with Mr. Marangos in his 'home. The next morning Mr. Marangos came to my office and in the presence of Mr. lassonides, who had changed his statement and said that it was he who deleted the last 4-5 sling-loads etc :- [*120] Mr. Marangos repeated his firm's strong desire that the matter should be considered closed and that no further steps should be taken. I then filled in and signed a cheque in favour o.f Messrs. Lanitis for the value of the .50 hags short landed at Paphos, and. said that I am free to take any steps I consider necessary against those concerned. Mr. J, Marangos refused to accept the cheque which was then cancelled.

Nevertheless, I told Mr. Marangos openly and plainly that from the written and other evidenceI have in hand, there is no douht left in my mind that the brother-in-law of Mr. lassonides, Manager of their Shipping Agency at Limassol (who arrange for lighters, labourers, lorries etc.) is deeply involved in the disappearance of the 50 bags, and ###” [*121]

"Gentlemen, I am very deeply disappointed to have to report the above facts. However, on matters of integrity and honour I accept no compromise, nor can I hear it on my conscience that I have knowingly become a party in a guilty action, by simply leaving the responsibility of the shortage of 50 bags either on the ship-owners or on the Insurance Company concerned, I cannot say that the said 50.bags were shortlanded when I know and have conclusive written and other evidence in my hands proving beyond any doubt that these 50 bags were actually and definitely dis charged at Limassol, no matter where same may have gone.

I have established my firm as a small business concern. But it has always been and it will always be an honourable firm, no matter what this may cost to me or to my firm. I frankly admit that my firm bears full responsibility in this case, because although I disagree and strongly criticise the actions of Mr. lassonides, he is a Director in my firm.

Therefore, I shall be writing to you officially tomorrow on this matter in the same sense in which I wrote to Messrs. Lanitis, viz.that there was a shortage of 50 bags at Paphos, but that same have been discharged at Limassol, although I am satisfied that they have not been received by Messrs. Lanitis. I shall then be grateful [*122] if you write a letter to my company in reply and keep us responsible for that shortage. I shall then send you a credit note for their value and thus avoid any further discussions with Messrs. Lanitis.

I have also arranged to supervise myself all future discharge operations from ships at all Cyprus ports, as I used to do in the past, and you may rest assuredthat your interests will be always attended to and defended to the best of my ability and knowledge and with full sense of responsibility and above all, in a conscientious and honourable way.

Yours faithfully,

(Sgd.). H. Th. Courtis

P.S. I shall be very grateful if you will address

Any reply of yours to this report to me

Personally as follows, for obvious reasons

By registered mail.

Mr. .H.T. Courtis,

Secretary of Rotary Club,

P.O.B. 259,

FAMAGUSTA-CYPRUS".

By paragraph 3(b) of his Defence, the defendant contended that the letter was sent by and on behalf of T. Courtis Ltd., and not by himself personally. It was [*123] argued that he should not he held responsible in his personal capacity. From the evidence before us, we are satisfied that the defendant wrote this letter, exhibit 1, in his personal capacity. He signed the letter himself and except for the heading of the paper, which is the company’s heading, there is nothing to suggest that the letter was sent on behalf of the company. No rubber stamp of the company was used and no serial number was entered. But even if we found that the defendant wrote this letter on behalf of the company, which is not the case, he would still be liable as joint tort feasor. It is settled law that where damage is caused as the result of torts committed by two or more tort feasors, they are, as joint tort feasors, jointly and severally liable and any one of them may be sued alone and be liable for the whole damage though he did but a small part of it. It is also settled law that the servant of a company who commits a tort, even in the course of his employment is jointly and severally liable.with, the company as a joint tort feasor. ”It is apprehended that torts of all kinds may be joined and that in this respect libe and slander form no exception.n (See Clerk & Lindsell on Torts 13th edition, paragraphs 177, 178,179). It is no defence that he was acting merely as the agent or servant of another for it is a fundamental principle of English Law also applied in Cyprus that no tort feasor can excuse himself from the consequences of his acts by setting up that, he was acting only as the agent of another. (Gatley on Libel and Slander, paragraph 880)”. [*124]

The pertinent question which we have to consider at this stage.before .examining, whether exhibit 1 is defamatory, is whether a. tort committed abroad is actionable in Cyprus in view of section 3 of Cap. 148 which provides as follows:-

"The matters in this Law hereinafter enumerated shall be civil wrongs and subject to the provisions of this law any person who shall suffer any injury and/or damage by reason of any civil wrong committed in the Colony and/or within three miles of the coast thereof measured from the low water mark, shall be entitled to recover from the person committing and/or liable for such civil wrong, the remedies which the Court has powers to grant".

Reference may be made on this point to paragraphs221,

222 and 223 of Gatley on Libel and Slander, 6th edition, where the principles of publication are set out. Further in the case of Georghiades v. Kaminaras,

23 C.L.R., page 276, it was held that civil wrongs are not exhaustively defined in Cap.148, and that the Common Law torts for which no provision is made in. the. Cyprus Law are actionable in Cyprus. According to the principles of the Private International Law which were cited with approval in Georghiades' case,

"For an action in Cyprus on tort committed in a foreign country to succeed, two conditions should be satisfied:-

(a) the act complained of must constitute a tort under Cyprus Law; and, [*125]

(b) It should not be justified according to the law of the country where it was done".

There is a host of English authorities supporting the modern trend of giving force to the above principles concerning actions instituted in England for torts committed in a foreign country. (See Boyse v. Chaplin. (1969)2 All E.R. p. 1085; Trace.y v. D.P.P. (1971) 1 All E.R. p. 110; R. v.Baxter.

(1971) 2 W.L.R., p. 1138.

In the present case there is no doubt that the alleged act complained of, constitutes a tort under the Cyprus Law (see section 17 of Cap. 148). As regards the second ingredient that it should not be justified according to the law of the country where it was done, we take the view relying on the decision of Georghiades' case, that foreign law should be proved as a fact by expert evidence and that in the absence of evidence, the Courts will apply the Cyprus law. Do such evidence was adduced and we are entitled to presume that the Portuguese Law on the point is the same as the Cyprus law. We, therefore, resolve that the civil wrong of libel is actionable in Cyprus in the present circumstances and we proceed to examine whether exhibit 1 is defamatory of either or both of the plaintiffs.

The gist of the tort of libel is the publication of matter conveying a defamatory imputation. The definition of defamation is set out in section 17 of Cap. 148, and is substantially the same as the English definition. (See Gatley on Libel and Slander, 6th edition, page 44 et seq.). [*126] Under the heading "’Province of Judge and Jury", at page 68, the dual approach of the problem is set out where the trial is held by the Judge and Jury. In Jones v. Sketlon, (1963)1 W.L.R/p. 1370, the following was pronounced:-

"It is well-settled that the question whether words which are complained of are capable of conveying a defamatory meaning is a question of law and is, therefore, one calling for the decision of the Court. If the words are so capable, then it is a question for the jury whether the words do in fact convey a defamatory meaning".

In Cyprus, where the absence of jury casts the additional burden on the judge to make decisions, both on questions of law and fact, the correct approach is for us to determine whether in law, it is defamatory and proceed to determine whether in fact, the letter is defamatory of the plaintiffs in the circumstances, always bearing in mind that the burden of proof is on the plaintiffs to show that the words convey a defamatory imputation.

We have carefully gone through the letter and we have examined it both as separate allegations and generally taking the meaning from the four corners. We have come to the conclusion that exhibit 1 is capable of bearing a defamatory meaning regarding each plaintiff. There is a long line of authorities illustrating instances of words which were held defamatory. (See Gatley on Libel and Slander paragraph 50). [*127] Thus it was held to be defamatory to impute “Any dishonourable conduct to another, though not involving a breach of positive law". (Gregory v. The Queen

(1845) 15 Q.B.957). It has also been held defamatory to impute a criminal offence. (See Berr.v v. B.T.C. (1961; 1 Q.B. p.149). In the present case, the letter (exhibit l), speaks of the disappearance of certain items - to which we shall refer presently - implying acts amounting, to theft. We, therefore find that exhibit 1 is capable of bearing a defamatory meaning and we now proceed to determine whether the letter was in actual fact defamatory of the plaintiffs or either of them.

Section 17(1) (c) provides that a publication is defamatory of a person if it "naturally tends to injure or prejudice the reputation of any other person in the way of his profession, trade, business, calling, or office". Section 17(1) (a) provides that publication is defamatory if it imputes to any other person a crime. And by section 17(1) (d) if it is likely to expose any other person to general hatred, contempt or ridicule and by section 17(1) (e) if it is likely to cause any other person to be shunned or avoided by other persons. By reading carefully the contents of exhibit 1, we take serious view of the allegations of the defendant concerning the two plaintiffs.

In paragraph (f) of exhibit 1, the defendant speaks that there is no doubt left is his mind that the brotherin-law of Mr. lassonides (i.e. Mr. Kountas, the Manager of Amathus Shipping Agency at Limassol) is deeply [*128] the disappearance of the 50 bags of fertilisers. Plaintiff Mr. lassonides is at the same time accused of covering up his brother-in-law and C.U.F. is urged to invite the plaintiff, Mr. lassonides, to resign from his post as director of the Company. This is taken to mean that the plaintiff, Mr. lassonides, on account of his guilty conduct, was not a person fit to hold the post of the director in the firm H. T. Courtis Ltd. Mr. lassonides is in effect accused of helping Mr. Kountas to evade the consequences of his "guilty action”. All these accusations come as a contrast to the emphasis laid by the defendant on his own integrity and honour, to which he accepts no compromise. In the absence of any evidence to the contrary, the words used in exhibit 1 must be given their ordinary meaning according to which the plaintiff, Mr. Countas, is accused of being responsible for some guilty action involving the disappearance of the 50 bags of fertilisers and that plaintiff, Mr. lassonides, used various means to cover up Mr. C.ountas, his brother-in-law, thus making him as well guilty of the same offence as an accessory after the fact. Further, the inference we draw from the allegations of the defendant, is that the guilty action for which the two plaintiffs are made to appear responsible is the theft of the 50 bags of fertilisers. In fact, the defendant makes reference to his reasons why he had not given the matter to the police. We have no difficulty to find, as a matter of fact, that exhibit 1 is defamatory of both plaintiffs, Mr. Countas and Mr, lassonides.

It was argued on behalf of the defendant, that the letter was written on an occasion of conditional privilege. [*129]

By paragraph 3(c) of the Defence, the defendant alleges that the letter was published in good faith and the relation between H. T. Courtis and C.U.F. was such that the person publishing the matter, i.e. H. T. Courtis ltd. was under a legal and/or moral duty to publish it to the person to whom the publication was made, i.e. to C.U.F. and that the latter had a corresponding duty to receive it, Mr.Clerides referred the Court to section 21 of Cap. 148, and the classic case of S.ynomospondia Ergaton Kyprou v. The Cyprus Asbestos Mines _Ltd. (1965) Vol. 1 C.L.R., p. 222. He further addressed the Court at length on the law regarding this defence.

Mr. Cacoyiannis in his address, referred us to Gatley on Libel and Slander and submitted that there was no duty on defendant’s part to inform C.U.F. as to the way either plaintiff was allegedly implicated in the disappearance of the 50 bags.

In the above decision of S.E.K. v. The Cyprus Asbestos Mines Ltd. reference is made to section 21, reproducing substantially, the CommonLaw defence of the qualified privilege. Gatley gives an extensive analysis of this defence, (See paragraph 441 et seq.), and suggests that the test in such, cases would seem to be the following: -

"Is the interest of the person receiving the communication of such a character as by its very nature to create a moral or social duty in the defendant in the circumstances to make the communication? If so, the occasion is privileged [*130] …….. provided, of course, that the communication was made with the honest purpose of protecting the interest of the recipient and in the full belief that the communication is true".

We have given the matter careful consideration and we have come to the conclusion that the defendant had neither a moral nor a social duty to go to such an extent in informing C.U.F. of the disappearance of the 50 bags as to insinuate theft on the part of the plaintiffs. In the same way, we find that C.U.F. had no corresponding legal interest to receive such information. The fact that the information was volunteered by the defendant, does not affect our finding and the test to be applied is the same in both cases. There is no evidence that the defendant had such strong social connections with the recipient as to give the Court reason to go further in order to ascertain whether there was in fact any moral or social duty on the defendant other than passing the necessary information to C.U.F. "The fact that an occasion is privileged", said Lord Loreburn in Adam v. Ward,

(1917) A. C. p. 320, "does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or exercise of the right or the safeguarding of the interest which creates the privilege will not be protected....." What was necessary, under the circumstances, is a report that the 50 bags were missing. But even if we were to find that there was such a duty, [*131] which is not the, case, we would he in a position, on the evidence before us, to find that the defendant was actuated by malice in making such accusations. The result, therefore, is that on the totality of the evidence, the case is not covered by the defence of conditional privilege.

The last question which we find necessary to deal with, before proceeding to the difficult task of assessing damages, is the defendant’s allegation that there was no sufficient evidence as to the identity of the plaintiff Mr. Countas. Admittedly, the name of Mr. Countas is not mentioned in the letter. It is enough, however, "if the plaintiff is sufficiently indicated so that reasonable persons to whom the statement is published, would apply the statement to the plaintiff and for this purpose recourse may be had to the innuendo pointing to the plaintiff as the person to whom the statement applies, provided the words complained of could mean .......... the plaintiff and there is evidence justifying such an inference”. (See Halsbury’s Laws of England, 3rd Edition, Vol. 24, paragraph 38. See also the case of Morgan v. Odhams Press Ltd. and Another. (1971) 2 All E.R. p. 1156, where it was decided that an article could not be held incapable of referring to the plaintiff by reason of the fact that it contained nothing which pointed to him, because there was no rule that before an article could be said to be defamatory of a person, it must contain within itself some key or pointer indicating that it referred to him; although it was right to say that [*132] in order to be' defamatory of the plaintiff, an article must contain something which to the mind of the reader with knowledge of the relevant circumstances contained defamatory imputations and pointed to the plaintiff as the person defamed.

Having made the necessary research of the evidence with particular reference to the letter, we find no substance in the defendant’s submission. In paragraph (f) of p. 3 of exhibit 1, the defendant speaks of the plaintiff (Mr. Countas) as the brother-in-law of Mr. lassonides, being the manager of their (meaning Lanitis') shipping agency at Limassol. It should be noted in this connection that C.U.F. and the firm of Lgnitis had substantial business dealings and the firm of Lanitis is a major shareholder of Amathus Navigation Co. of which Mr. Countas is the manager. We take the view, therefore, that there is sufficient evidence to justify an inference that the letter complained of refers to the plaintiff Mr. Countas. In the result, we find the letter (exhibit l) libellous of both plaintiffs who are thus entitled to damages.

We now proceed to assess the damages which should be awarded under the circumstances, to each of the.plaintiffs. Both counsel in their able addresses, argued the point and cited several authorities in support of their respective submissions.They made particular reference to the cases of Synomospondia Ergaton Kyprou v. Asbestos Mines Ltd. (supra) (though the question of damages was not sufficiently argued), McCarey v. Associated Newspapers Ltd. & Others. (1965) 2 W.L.R. , p. 45 and the House of Lords case of Broome v. Cassell & Co. Ltd [*133] 1972 W.L.R. p. 645 citing with approval the case of Rookes v. Barnard,

(1964) 2 W.I.R. p. 269. Within the general category of torts in which the conduct, character and circumstances of the parties may lead to the aggravation or mitigation of the damage and hence of the damages, the tort of defamation is the one which is the most important and is the most covered Toy authority in this respect. Therefore, the injury to reputation and to feelings are the principal elements to be considered by the Court in assessing damages. The defendant’s conduct is relevant in this way to show whether he has acted with or without malice. The practical effect is that the damages will fluctuate up or down with the degree of culpability of the defendant’s behaviour. (Mayne & McGregor on Demages, 12th edition, paragraph 889).

Paragraph 1380 of Gatley on Libel and Slander, 6th edition, reads as follows:-

"In an action of libel, the assessment of damages does not depend on any legal rule; the amount of damages is particularly the province of the Jury, who, in assessing them, will naturally be governed by all the circumstances of the particular case. They are entitled to take into their consideration the conduct of the plaintiff, his position and standing, the nature of the libel, the mode and extent of publication, the absence or refusal of any retraction or apology and the whole conduct of the defendant, from the time when [*134] the libel was published, down to the very moment of their verdict. They may take into consideration the conduct of the defendant before action, after action, and in Court at the trial of the action ....... They should allow for the sad truth that no apology, retraction or withdrawal can ever be guaranteed completely to undo the harm it has done, or the hurt it has caused. They should also take into account the evidence led in aggravation or mitigation of the damages".

It follows from the above, that the Court must generally take into account the pecuniary loss if any, resulting from the damage suffered by the plaintiffs as a result of the publication as well as the injury to their feelings. In order to assess the damages, the Court has, as in the case of all civil wrongs, to take into consideration the circumstances of the case, we do not propose to repeat the facts which have already been stated in this judgment. We merely wish to add, having carefully gone through the record of the previous trial and having heard the parties giving additional evidence in the new trial, the following points of fact which are, inter alia, relevant to the issue of damages.

It was defendant’s allegation all along the first trial of these actions that the 50 bags short-landed at Paphos were overlanded at Limassol where they disappeared and that Mr. Countas was involved in their disappearance [*135] with Mr. lassonides trying to cover him up. The defendant, however, was not specific as to his assertions concerning the fate of the 50 bags. At one stage he suggested that they may have fallen into the sea, while at another he insinuates theft on the part of Mr. Countas. His attitude was, therefore, that he published the matter without taking reasonable care to ascertain whether it was true or false a case covered by section 2l(2)(b) of Cap. 148. In the present trial, however, he frankly admits that plaintiffs had nothing to do with the disappearance of the 50 bags. This admission which came late in the day, is accompanied with an indication of a wish to apologise to both plaintiffs for the letter. In fact the following evidence in chief appears on record;

"In this trial I say that as a human being, I may have been mistaken in my belief which I formed then in 1966, and if on account of what I wrote to C.U.F. in good faith the plaintiffs or anybody else think that they may have been injured, I really feel very sorry for it. I apologise and I request that what I wrote to C.U.F. may have been considered as retracted from that letter (exhibit 1)".

In his evidence he went further to suggest that in the previous trial he considered it as an apology when he had told the plaintiffs to forget the matter. We are compelled from the evidence before us to observe that the defendant's attitude was up to the present trial the opposite and far from apologetic. His ulterior motive which may be inferred [*136] from the circumstantial evidence, is apparent when having received exhibits 6 and 12, which should have been sufficient explanation to the defendant, the latter proceeded instead to write to C.U.F. asking for the sole agency in Cyprus and repeated in exhibit 18 the insinuations against Mr. lassonides. Another incident which is indicative of the ulterior motive of the defendant was that inspite of the above two letters, exhibits 6 and 12, nearly three years after the alleged incident, he, according to the evidence of Inspector Karayias, reported the incident to the Police complaining about the behaviour of the plaintiffs. It follows from the steps and behaviour of the defendant that the defendant resorted to accusations of this nature at a time when he should have had a clear indication to the opposite. We interpret this to mean that the defendant's intention was to disparage the reputation of the plaintiffs and that his ulterior motive was to secure for himself the sole agency of C.U.F. in Cyprus. In actual fact the agency of C.U.F, was withdrawn from H. T. Courtis Ltd. and was for a while given to the defendant personally. Emphasis was laid by the defendant on his meeting with the plaintiffs at Curium at Christmas 1966 where, according to his version, their ill-feelings were set aside and a reconciliation gave an end to their hostilities. We consider this submission unacceptable in the light of the evidence before us. Their meeting at the Curium was merely a restoration of a social relationship between them. There is no evidence that they discussed the actual contents of the letter (exhibit 1) and we are not prepared to infer [*137] that the plaintiffs were in any way acquainted with the contents of exhibit 1.

This is, therefore, the defendant’s conduct from the publication of the libel to the end of the second trial. The retraction and apology which we heard from the defendant at this stage, does not put a halo round his head. The injustice which was done to both plaintiffs by the publication of such scandalous accusations (repeated and raffiinied on subsequent occasions) to a Company with which, both plaintiffs were directly or indirectly associated cannot be wiped out by defendant’s apology in Court, falling short of meeting the extent of the publicity given for the aforementioned libel. But from the totality of the evidence this is not a case of awarding exemplary damages.

Though there is no evidence of any detriment caused directly by the defamation, we cannot lose sight of the nature of the defamation and the circumstances under which it was published. What is certain, though its connection has not been established, is the fact that the agency of C.U.F. in Cyprus from which Mr. lassonides was profiting, was terminated in March, 1967. The injurious effect of the publication on the plaintiffs is also evident from the contents of exhibit 6, one of its paragraphs reading as follows:-

"We have duly noted your comments which we appreciate and if on one hand we must regret the less correct behaviour of some people, on the other hand, we must once more congratulate you [*137] and ourselves for the faultless and reliable attitude always adopted by you".

Of course we have taken into consideration in assessing damages, the apologetic attitude of the defendant at this trial as we have already explained. But we have also borne in mind the conduct of the plaintiffs and their position and standing in the community.

Both plaintiffs are respectable persons of high social standing, Mr. Countas being a member of several committees in his home-town of Limassol and the General Manager of a Navigation Company and Mr. lassonides a businessman in Famagusta.

Mr. Clerides in his address lay stress on the fact that the publication was limited and invited the Court to give due weight to this fact when coming to assess the damages. We are in full agreement with Mr. Clerides on this submission. The limited extent of the publication was a factor which was taken into account and the damages were accordingly limited by reason of these considerations. At the same time, however, we bear in mind the connection of C.U.F. with Mr. lassonides and the firm of Lanitis (a major share-holder of Amathus Navigation Company as hereinabove explained).

Having taken all the facts and circumstances into consideration, we find that in consequence of the publication off this libel, both plaintiffs have suffered loss or detriment to their reputations, which comes within the ambit of the definition of the expression 'damage’ in section 2(2) of our Civil Wrongs Law. [*138]

In the result, we assess equally an amount of £750.000 mils to each plaintiff.

With regard to costs, paragraph (d) of the order of the Supreme Court provides that the costs of the proceedings in the first trial and the costs of the appeal are to be costs in cause at the new trial. Bearing this in mind, we make an order in favour of plaintiffs and against the defendant for the costs of the first trial, the appeal and the new trial on the scale of claims between £500-£2,000.000 mils.

We, therefore, enter judgment and order as to costs accordingly.

Judgment and order for

costs as aforesaid.