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Shane Ellis sues CTL

Top jockey said injured by contents of press releases after falling from horse

BY HG HELPS Editor-at-Large helpsh@jamaicaobserver.com

Sunday, June 01, 2014    

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VETERAN jockey Shane Ellis has sued Caymanas Track Ltd (CTL) for libel.

The suit, filed in the Supreme Court recently, named CTL's Managing Director Cedric Stewart as second defendant, and David Hobson, the company's executive marketing manager as third defendant.

Ellis, a former champion jockey, took action in the form of the suit, filed on April 7, arising from an incident last October in which he fell from his horse during a race meet at Caymanas Park. Two subsequent press releases issued by CTL drew the ire of Ellis's legal team, which claimed that their client was maligned, as the news releases hinted that Ellis may have 'thrown' or 'fixed' the race.

Ellis, who is being represented by veteran lawyer and racing man Gordon Robinson, and Winsome Marsh, is seeking damages for libel, aggravated and/or exemplary damages, "and further or other relief that may be just".

In court papers filed, Robinson said that the initial press release issued by CTL defamed his client.

The offending release, Robinson stated, read:

"Allegations have been made regarding an incident which occurred on Monday, October 21 (Heroes Day) in the seventh race involving the horse 'MOREBULLETSTOFIRE' ridden by Shane Ellis. Due to the nature of the allegations being made, the management of the company has referred the incident to the Jamaica Racing Commission (the regulating body) for an immediate and thorough investigation.

"In the interim the board and management is undertaking its own investigation and where evidence of race fixing is found, the strongest possible action will be taken against anyone involved. We, however, await the outcome of the investigation from the Jamaica Racing Commisison,"

it stated.

CTL in a later press release sought to clarify its position on the matter.

The racing company said that its decision to request an investigation by the Jamaica Racing Commission into the incident was triggered by a "response to mounting calls from various stakeholders, enquiries from journalists and statements by news commentators as the story permeated the media.

"When CTL asked the regulators to investigate, this was done solely to protect the integrity of its product and maintain the trust and confidence of all stakeholders across this crucial industry, which provides employment for thousands of Jamaicans.

"CTL, however, regrets the view that the request for this investigation was aimed at implicating Mr Shane Ellis for any improper conduct. If this view was deduced from the call for an investigation, CTL sincerely apologises as this was never our intention.

"The management of CTL would like to make it clear, that while we fully recognise that the regulation of horse racing is the sole responsibility of the JRC, CTL will not shy away from initiating any action, investigations or otherwise, that might be necessary for the betterment of horse racing in Jamaica and for the protection of the betting public," the CTL press release stated over the signature of chairman Christopher Brown.

Robinson and Marsh are contending that the CTL chairman in his press release was admitting guilt on the part of the racing company for the contents put out in previous press releases on the matter.

"The claimant avers that this third release contains words that continue to assert and imply that impropriety was involved in the running of the said race and again the claimant is the sole licensed participant named.

"Accordingly, CTL's releases and 'clarifications' clearly meant and were understood to mean that the claimant was the chief perpetrator of whatever impropriety took place. The claimant further avers that the apology included in this release was not issued by Stewart or Hobson, nor was it issued to the claimant but to unspecified persons who might have understood the previous releases to mean an allegation of impropriety on the claimant's part. The said words in the first and second releases were calculated to disparage the claimant in his profession as a race horse jockey and were intended to cause and did cause the claimant damage as such," the affidavit said.

Law firm Livingston, Alexander & Levy, which is representing CTL, had stated in a November 2, 2013 letter to Robinson that CTL had done no wrong. The firm's response was to a previous letter sent by Robinson to CTL about the concerns he had regarding the Ellis fall.

"The events of the seventh race of the 21 October 2013 Heroes Day race day in which Mr Shane Ellis was dismounted from his ride have been widely reported and has been the subject of significant public discussions and commentary," attorney-at-law Tana'Ania Small Davis of the law firm wrote.

"We have carefully reviewed the press release dated 23 October 2013 and the contents of your letter and have been wholly unable to discern any element of the tort of libel being made out.

"The words complained of:

(a) did not bear any meaning defamatory of Mr Ellis:

(b) made no allegation against Mr Ellis.

"In any event," Small Davis continued, "the words complained of were published on an occasion of qualified privilege and were fair comment on a matter of public interest. CTL had a duty to make some comment on the incident, particularly in view of the considerable public discussions and airing of views characterising Race 7 of the 21 October race day.

"The CTL has a duty to assure the public that it maintains certain standards and in responding to allegations of race fixing is entitled to report that investigations are being conducted so that the sport of horse racing in Jamaica is not itself carried into disrepute.

"Our client was not actuated by any malice toward Mr Ellis. You may or may not be aware that our client issued a public apology in the terms of the press release. Perhaps this will change your view of the situation," the letter stated.

But Robinson hit back in a letter to his colleague attorney dated November 22, 2013, dispatching her utterances of qualified privilege and fair comment in the trash heap.

"Regretfully, I take the view there is no defence to my client's claim. Based on CTL's release and referral, my client was summoned to an investigation 'into CTL's report of allegations relating to the racing incident on Monday, 21st October involving MOREBULLETSTOFIRE.' This can only mean that the duly established regulatory authority for horse racing did read and understand your client's referral to be making allegations of misconduct against Mr Ellis or there would have been no investigation and Mr Ellis would not have had to appear and answer for his conduct.

"With regard to the alleged defences of fair comment and qualified privilege, neither can assist your client.

(Regarding) fair comment, the offending press release contained no comment. It informed the public of certain facts, including that (a) allegations have been made regarding the incident.

"(In respect of qualified privilege) in horse racing language this is a non-starter. CTL has no duty to investigate corrupt practices nor to field 'allegations' of same. Parliament, by way of the Jamaica Racing Commission Act, has set up the JRC to regulate the sport.

"CTL's sole duty is to promote racing and, as a limited liability company, albeit government-owned, cannot act against its own interests. Its duty upon hearing allegations of misconduct, if indeed there were any, is the same as any other citizen, namely to advise the complainants to lodge their complaint at the JRC. Press releases accusing jockeys of corruption, threatening investigations CTL has no power to undertake and sanctions it cannot apply, do not fall within any corporate duty of the promoter. Furthermore, press releases suggesting the sport is corrupt is detrimental

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