REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2014-02122

BETWEEN

KISHORE RAMADHAR

First Claimant

RUDOLPH A. HANAMJI

Second Claimant

SATU-ANN RAMCHARAN

Third Claimant

AND

PRAKASH RAMADHAR

First Defendant

CAROLYN SEEPERSAD-BACHAN

Second Defendant

JAMIESON BAHADUR

Third Defendant

MULCHAN LEWIS

Fourth Defendant

IQUBAL HYDAL

Fifth Defendant

Before the Honourable Justice V Kokaram

Date of Delivery: 16th

December 2015

Appearances:

Mr. Fred Gilkes instructed by Mr. Raymond Roberts for the First and Third Claimants

Mr. Mervyn Campbell instructed by Mr. Raymond Roberts for the Second Claimant

Mr. Michael Rooplal instructed by Mr. Lalla for the First, Third, Fourth and Fifth

Defendants

Mr. Abdel Ashraph instructed by Ms. Shalini Dhanipersad for the Second Defendant

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JUDGMENT

SUMMARY

1. This is a claim for damages for slander and libel arising from five separate publications made

by the Defendants of allegations of misconduct on the part of the Claimants as members of

the Congress of the People (COP). The publications were made during and immediately after

a National Council Meeting of the COP convened at its operations centre at Charlieville on

Sunday 10th

November 2013.

2. The Congress of the People (COP) was one of the coalition partners of the People’s

Partnership, the government of Trinidad and Tobago in 2013. The context of this claim for

defamation is one of internal party politics and high intrigue between members of the COP

and its leadership. Criticisms were being levelled by the Claimants against the party’s

leadership as it prepared for and in the aftermath of the country’s Local Government

Elections (LGE) held in October 2013 some of which engaged the public’s attention. Adding

to the intrigue was the rivalry between Kishore Ramadhar, the first Claimant and his brother

Prakash Ramadhar, the first Defendant the political leader of the COP, who at the time was

then the member of Parliament for the constituency of St Augustine and the Minister of

Legal Affairs and Justice. Also simmering was a public spat between certain members of the

party including the Claimants as to the direction and the future of the COP in the coalition

government.

3. The Claimants occupied different positions in the COP. Kishore Ramadhar held the position

of Secretary of Education and Research, Rudolph Hanamji the second Claimant held the

position of Chairman of the COPs Diego Martin West Constituency Council and Regional

Representative for the North West Region. They were both members of the National

Executive of the COP. Satu Ann Ramcharan the third Claimant was a “COP observer

member”. The Defendants also held various positions in the party: the second Defendant

Carolyn Seepersad Bachan was the Chairman of the COP. The third Defendant Jamieson

Bahadur was the Chairman of the St Augustine constituency of the COP. Mr Mulchan Lewis

the fourth Defendant was a member of the National Executive a founding member and

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Secretary Election and Voter Registration of the COP. Finally the fifth Defendant Mr. Iqubal

Hydal, a founding member of the COP.

4. This trial highlights the range of permissive speech when it adversely affects a person’s

reputation through the defences of qualified privilege, fair comment and truth. Underlying

these defences is the principle that it is the communication of information and not

misinformation which is the subject of citizen’s right to take part in free discussion. Lord

Hobhouse in the seminal judgment of Reynolds v Times Newspapers1 reminds us that the

workings of a democratic society depend on the members of that society being informed and

not misinformed. Misleading people and the purveying as facts, statements which are not true

is destructive of a democracy and should form no part of such a society. There is no duty to

publish what is not true. There is no interest in being misinformed. These are general

propositions going far beyond the mere protections of reputations and are the cornerstones of

a civilised and orderly society.

5. However to always insist on the publication of truth regardless of the circumstances or on a

disproportionate obsession on the niceties and proprieties of language is unrealistic and in

itself may stifle free speech. The law therefore encourages the development of an

environment that promotes legitimate debate and the expression of honest and genuinely held

perspectives, views and comments within which there will be tolerable degrees of factual

inaccuracies. Underlying this all is simply an insistence on “responsibility”. Recognising

that the spoken word can be as damaging as the proverbial “stick” and “stone”, reckless

speech is not to be condoned and responsible speech is to be protected. Such inaccuracies as

to the truth in the context of responsible speech is recognised as a normal incident of a

functioning democratic society but always ensuring that the allowances for such “untruth”

are proportional to or compatible with the right not to be unjustly deprived of one’s

reputation.

6. Of course truth or justification is always an iron clad defence to a claim for defamation.2

However the Courts through the defences of fair comment and qualified privilege are

1 [2001] 2 AC 127

2 Gatley on Libel and Slander 12

th ed para 11.7 and see Polly Peck (Holdings) Plc v Trelford [1986] QB 1000

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continuously engaged in setting the boundaries of permissive speech even at the expense of

factual accuracy. These boundaries are being recalibrated continuously in the common law

when there is an intense focus on fundamental issues of freedom of speech and respect for

private life that the law has moved on from some of the earlier decisions in the 20th

century3.

So much so that the development of the common law in defamation has promoted the

modernisation of defamation laws in some jurisdictions notably the UK with the passage of

its Defamation Act 2013.

7. Qualified privilege arises where on the grounds of public policy and convenience

communications are protected even if defamatory which are made within an existing

relationship or where there is a reciprocal duty and interest in publishing and receiving the

information. The “Reynolds privilege” has not removed the traditional duty and interest

inquiry in the determination of whether or not a communication will benefit from being

privileged. It simply developed as a special genus of a public interest defence when

publications are made to the public at large4. Reynolds privilege was in reality sui generis, a

different jurisprudential creature from the traditional form of privilege from which it sprang.

The inquiry is on the principles of responsible journalism where on consideration of all the

circumstances of the publication, a fair balance can be struck between the freedom of

expression on matters of public concern and the reputations of individuals (see Bonnick v

Morris [2002] UKPC 31 and Trinidad Express Newspaper and ors v Conrad Aleong CA

Civ. 122 of 2009 per Rajnauth Lee JA). As Lord Hoffman observed the court will develop its

own corpus of case law to set the boundaries mapping the course for responsible speech. The

question of whether a matter is in the public’s interest to know is an assessment made by the

Court not to be seduced by a society’s penchant for misinformation or glee at the sensational

untruth or thirst for gossip. Indeed as Lord Hoffman politely commented the public tends to

be interested in many things which are not of the slightest public interest5.

8. To what extent is the public interested in the internal affairs of the COP? Interestingly Mrs.

Ramcharan will exclaim in cross examination that “no one gives a damn about the COP”. Of 3 See the remarks of Lord Phillips in Flood

4 See Reynolds (supra), Flood v Times Newspaper [2012] UKSC 11, Jameel v Wall Street Journal Europe [2006]

UKHL 44, Loutchanisky and Seaga v Harper [2008] UKPC 9. 5 See Jameel

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course the assessment of whether the defamatory publications was in the public interest is a

matter of law and begs the question of what value to the public are the internal mechanics of

disciplining members of the COP, prior to a finding of guilt.

9. One of the serious complaints by these Claimants was the publication of a letter purportedly

written by the Claimant and addressed to the People’s National Movement6 (PNM) making

the damaging accusations that three members of the COP that ran for the LGE were not in

fact COP members and provided to the PNM the confidential membership list of the COP.

The Claimants vehemently deny they wrote these letters. The allegation that they sent this

letter was a serious one as it would call upon them to explain why they leaked confidential

information to the PNM about a matter which would have jeopardised the COP’s status in the

recently concluded LGE. The very narrow issue to be examined ultimately is whether the

publication of that letter should have been left for a more private inquisitorial setting rather

than the open discussion at a National Council meeting, or worse the subject of a televised

press conference to the national media. No one was sure about the letter itself as it had only

came to the attention of the Defendants that very morning, and the Claimants of course

belatedly becoming aware of it after it was read to the membership and later disclosed to the

public.

10. It was the type of “I found it in my post-box” letter which simply means that while its

contents were on its face alarming, sensational and scandalous; it was unverified information

from unknown sources. There is a great danger in the publication of this type of information

without regard for its consequences under the guise or misapprehension that it is in the public

interest to know unverifiable information. The domino effect of such allegations may

damage reputations and what scandal may be triggered in the public domain may be difficult

to control. Ultimately such reckless reportage converts misinformation, conjecture and gossip

into a distorted version of truth, legitimacy and fact.

11. This claim calls into question the public interest in such allegations of misconduct against the

Claimants as members of the COP, which have been unverified, made in the absence of the

Claimants and of dubious source. Did such publications if not true, overstep the boundaries

6 The then Opposition party

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of permissive speech which tolerates factual inaccuracies, keeping in the balance the right to

free speech and the right of the Claimants to the protection of their reputation?

12. Returning to the publications themselves. The context of these publications is to be garnered

from the agreed statement of facts, documentation and the testimony of the parties. The

National Council meeting was the highest functioning organ of the COP. The COP by its

constitution recognised a system of democratic political participation free from victimization

and promoting peace, order and caring government. The National Council is the governing

unit of the COP and is responsible for the implementation of the fundamental principles aims

and objectives and formulation of policies and programmes of the COP and for ensuring

adherence to the COP’s constitution and Code of Ethics. According to the COP’s standing

orders, all decisions of the National Council shall be a by a simple majority of the members

voting on the issues.

13. There were two important motions tabled for discussion at that meeting moved by Mr K.

Ramadhar and Mr. Hanamji namely a “motion to quit” and “a resurrection motion”. Those

motions led to a predictably charged meeting as they were motions of great significance. The

motion to quit effectively challenged the alliance of the COP with the UNC. Present at this

meeting were members of the Executive of the COP, delegates from each constituency in

Trinidad and Tobago, Local Government Councillors, members of the COP’s Youth

Congress and Women’s Group and members of the public. Members of the media were

invited but they waited outside the room in which the meeting was taking place.

14. But there was a back-story to this meeting. Prior to the National Council meeting there were

national council and national executive meetings where it is alleged that the Claimants made

abusive and disrespectful statements towards the members of the party and in particular the

political leader. They accused the political leader of being “bought out by the UNC” and that

he was a “puppet for the Prime Minister”. The Claimants themselves were quite open about

their public campaign against the direction in which the party was heading and their open

opposition to the leadership of the party.

15. On two occasions the Claimants were ready to debate the motion but agreed to defer it on the

understanding that the November meeting would be dedicated to debate these motions.

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16. On October 3rd

2013 a contention by the PNM was published in the media that 3 candidates

of the COP were actually not members of the COP. This, if true, may have had an impact on

the final election results and compelled the PNM to call on the EBC to declare victory for the

PNM in those electoral districts. Further ,in October 2013, Mr. Bahadur met with his

executive in St Augustine to address what in his view was the volatile behaviour of the

Claimants and his executive agreed that a motion should be prepared and presented at the

November meeting to debar the Claimants from attending any of the National Executive or

National Council meetings pending an investigation into their conduct.

17. The meeting then represented the perfect storm. It was a culmination of a show down

between the Claimants and the political leader and his supporters on the heels of controversy

at the LGE polls. Indeed had the motions themselves been successful it would have dictated a

different approach of the COP to governance and its involvement in the coalition. It is not

surprising, though disappointing, that the meeting degenerated into a level of chaos in

dealing with these issues.

18. However both motions were withdrawn by Mr. K. Ramadhar and Mr. Hanamji after voicing

concerns over the proceedings. Mr. K. Ramadhar left the meeting while Mr. Hanamji went

into the reception area. However ,at this time, Mr. Bahadur presented his motion calling on

the suspension of the Claimants for making vicious destructive attacks on the party and its

leadership. That motion was debated and surprisingly Mr. Hanamji himself spoke for the

motion. While that motion was being debated, the letter purportedly signed by the Claimants

addressed to the PNM was read by Mr. Lewis alleging that they had leaked confidential

information to the PNM of the membership of the party that the 3 COP candidates that had

won their seats at the LGE were not in fact members of the COP. This was the proverbial

bombshell.

19. Confusion erupted; the members became rowdy and unruly and Mr. Hanamji was involved in

a fracas with other members of the meeting. This caught the eye of the Chairman Mrs.

Bachan who enforced the standing orders and moved a motion for the ejectment of Mr.

Hanamji. Importantly the Chairman was empowered by the standing orders to take such

action.

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20. Mr. Hanamji was suspended and excluded from the meeting by a majority of the members

present. Mr. Bahadur’s motion was amended to make reference to the letter. The motion was

passed by a majority of the members present suspending the Claimants pending an

investigation into their conduct. Mr. Hanamji and Mr. K. Ramadhar were not present and Ms

Ramcharan had left to inform Mr. K Ramadhar at his home of the events. The meeting

concluded with remarks from Mr. P Ramadhar.

21. Soon after, a televised press conference was convened at which Mrs. Bachan, Mr. P.

Ramadhar and the Defendants attended. The Chairman reported to the public on the defeated

motions and the motions passed by the meeting giving details of the allegations made against

the Claimants. Mr Ramadhar also made a short speech in which he defended his leadership

and chastised the Claimants at the same time reporting that an investigation would be

launched into their conduct.

22. By the time that the Claimants returned the meeting had already concluded as well as the

press briefing. It was only later that evening the Claimants would see and hear the very

serious allegations of misconduct and treachery being repeated to the “world at large”.

23. The Claimants were subsequently formally charged and an Investigating Committee

appointed to conduct the investigation. The Chairman and the leader had recused themselves

from any aspect of the investigation and no evidence was led by the Defendants as to how

that investigation was conducted. However the Investigation Committee’s report dated 19th

July 2014 concluded that the allegations made against the Claimants could not have been

sustained. There was no evidence of any action taken by these Defendants or the COP as a

result of those findings to publicly absolve the Claimants of the charges.

24. The Claimants contend that the following publications were defamatory: The motion made

by Mr. Bahadur. The letter read to the members of the meeting by Mr Lewis. The slander

uttered by Mr. Hydal in the meeting referring to them as “traitors and thieves”. The words

uttered by the Political Leader and the Chairman. The Defendants have raised the defences of

fair comment, qualified privilege and justification.

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25. It is clear that the words complained of were all allegations of misconduct made against the

Claimants as members of the party. They were serious allegations of theft of the party’s

confidential records, conspiring with the opposing party the PNM to share this confidential

information, bringing the party into disrepute, causing disaffection in the ranks of the party

on the heels of a local government election. There is no doubt that the Claimants were all

hurt by what was said by the Defendants and that the words did convey the meaning that they

had attacked the integrity of the party.

The issues

26. The main issues of law that arise for consideration are:

(a) Whether the circumstances of the publications complained of by the Claimants

entitle the Defendants to invoke the defence of qualified privilege, the principles of

which were articulated in the English case of Reynolds v. Times Newspapers Ltd.

[2001] 2 AC 127;

(b) Whether the allegations of malice, if proved, preclude the Defendants from relying

on their respective pleas of qualified privilege;

(c) Whether the publications complained of amounted to fair comment on matters of

public interest.

(d) Whether the defamatory publication were true.

27. If the answers to the questions are in the negative what measure of damages is to be awarded

to the Claimants for each publication?

28. Additionally two other aspects of qualified privilege fall to be considered. On the part of Mr.

P. Ramadhar, the defence of reply to attack7 and on the part of Mrs. Seepersad Bachan the

defence of reportage.

7 Trial Bundle, Volume 1, page 95-6, paragraph 10 of the Amended Defence of the First, Third, Fourth and Fifth

Defendants.

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Slander and proving the words published

29. Three of the publications complained of were slander and it is elementary that the onus is on

the Claimants to place the evidence before this Court to prove that the words or words of

similar effect were published by the Defendants. Insofar as the words uttered by Mrs.

Seepersad Bachan and Mr. Ramadhar at the press conference are concerned there is an

agreed transcript of what they both said. This is not the case with the words allegedly said by

Mr. Lewis. It is in dispute that Mr. Lewis said the words which are the subject of the

Claimants’ complaint. It is enough to prove the words are substantially the same as pleaded

and the Court would consider whether the words are defamatory in the version that he has

accepted8. The cause of action is grounded in the words used and while there is no obligation

to prove those exact words, the obligation is to prove words which were used which carry

substantially the same meaning of the pleaded words.

Meaning of words

30. In so far as the meaning of the words is concerned it is important in my opinion to view the

motion moved by Mr Bahadur separately from the defamatory allegations of the letter to the

PNM. Further while in my view Mrs. Bachan’s statement can be examined in isolation; Mr.

P. Ramadhar’s speech following closely on the heels of her statement ,does incorporate and

adopts her statements.

31. To paraphrase Lord Nicholls’ expression, the Court would give the words published the

natural and ordinary meaning it would have conveyed to the ordinary reasonable reader of

the Sunday Guardian/Newsday/Express reading the article once. The traits of such a person

are one who is not naïve; she can read between the lines but he is not unduly suspicious, nor

avid for scandal. He would not select one bad meaning where other, non-defamatory

meanings are available. The court must read the entire publication and eschew over-elaborate

analysis and, also too literal an approach. The natural and ordinary meaning refers not only to

8 See Tournier v. National Provincial and Union Bank of England [1924] 1 KB 46 and See Capital Counties Bank

Limited v. George Henty and Sons Limited[1882] 7 App Cas 741

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the literal meaning of the words but also to any implication or inference that the ordinary

reasonable reader would draw from the words9.

Justification

32. To succeed in this defence the Defendants would have to establish the essential or substantial

truth of the sting of the libel, the substantial truth of the imputation conveyed by the

statement complained of. Every material part of the imputation must be true otherwise the

defence fails. It is not sufficient to establish the truth of an allegation by republishing an

allegation, the defence of justification requires the Defendants to establish the truth of the

sting of the libel.10

Qualified Privilege: The Reynolds privilege

33. The Reynolds privilege defence was recently discussed in the useful Privy Council decision

of Pinard-Byrne v Linton [2015] UKPC 41. Essentially it is a form of qualified privilege

which is sui generis and can be described as a “public interest” defence, which is designed to

strike an appropriate balance between the right to freedom of expression and the right of an

individual to protect his reputation. Lord Brown in Flood (supra) outlined a host of different

considerations that are in play with Lord Nicholls ten matters to be taken into account in

order to determine whether a plea of qualified privilege is available or can be relied upon by

Defendants. These ten matters include: (i) the seriousness of the allegation;(ii)the nature of

the information and the extent to which the subject matter is a matter of public concern; (iii)

the source of the information; some informants have no direct knowledge of the events; some

have their own axes to grind; (iv)the steps taken to verify the information; (v) the status of

the information; the allegation may have already been the subject of an investigation which

commands respect; (vi)the urgency of the matter and (vii) whether comment was sought from

the claimant or some other person with knowledge of the facts. (viii) Whether the publication

9 The Court is required to determine the single meaning which the publication conveyed to the notional reasonable

reader and to base its decision and any award of damages on the assumption that this was the one sense in which all readers would have understood it.” See Charleston v News Group Newspapers Ltd. [1995] 2 AC 65 Lord Bridge).

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contained the gist of the claimant's side of the story. (ix) The tone of the publication. (x) The

circulation of the publication, including the timing.11

34. Essentially it is for the Defendants to satisfy the court, that they acted responsibly and had a

duty to publish and broadcast the allegations made against the claimant to the public to pass

the litmus test set out in Reynolds. Importantly the Privy Council in Pinard-Byrne was of

the view that it was demonstrably not in the public interest to have criminal allegations, even

if bona fide and responsibly made ventilated through the news media. That would only

encourage trial by media and associated developments that would be inimical to the criminal

justice processes. Society has mechanisms for investigation and determination of guilt or

innocence and it was not in the public interest that such mechanisms be bypassed or

subverted. One also must guard against the overall tone of the offending publications which

also reeked of rancour rather than even handed reporting. This indeed reflects much older

authority such as Purcell v Sowler 12

and De Buse v McCarthy13

where there is no reason

for charged to be made public before the person charged had been told of the charges and had

the opportunity of meeting them. Such communications should legitimately be confined to

those whose duty it is to investigate the charges or to those who have a limited interest in

receiving the information.

Qualified Privilege- Reply to attack

35. Where a person’s character is attacked that person is entitled to answer or reply to such an

attack and those defamatory statements made about the person who launched the attack will

be privileged. The reply must be made bona fide and be fairly relevant to the attack. A

defamatory publication ceases to be an answer to that publication and becomes retaliation

against the publisher when the responder “goes beyond defence and proceeds to offence”.

Even though the law “does not concern itself with niceties in such matters” that is “If you are

attacked by a prize fighter you are not bound to adhere to the Queensberry rules in your

defence”. The reply must be “commensurate with the occasion”14

.

11

See also the treatment of the test of responsible journalism discussed by our Court of Appeal in Conrad Aleong 12

[1877] 2 C.P.D. 215 13

[1942] KB 156 14

H.C.4379/2007. See NH International (Caribbean) Limited and Emile Elias v Singh, Ganga [H.C.932/2006]

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Qualified Privilege reportage

36. Reportage is a convenient word to describe the neutral reporting of attributed allegations

rather than their adoption by the publisher. If the publisher does not believe the information

to be true he would be well advised to make this clear. The tone in which the information is

conveyed will be relevant to whether or not the publisher has behaved responsibly in passing

it on.15

Fair comment

37. First the Defendants must demonstrate that they made comments rather than stated facts and

such comments were based on facts that are true and on matters of the public interest.16

The

defence is available to one who has done no more than express his honest opinion on

publications put before the public. It is sufficient that the comment in general terms identifies

what it is that led the commentator to make the comment so that the reader can understand

what the comment is about. This is the fair balance struck between the freedom of expression

and requiring the person to identify to others why he or she is making the comment or

criticism. The writer had to be expressing his honest opinion on a matter of public interest. It

is however not a licence to disseminate irresponsible publications that can be construed as

malicious.

38. With these observations of the guiding principles I turn now to the individual claims.

The Claim against Mr. Bahadur

39. The motion moved by Mr. Bahadur was described as the fourth motion on the approved

minutes of the COP ,moved on behalf of the St. Augustine constituency , a motion to suspend

the Claimants based on conduct. The Claimants complain of the following words which

formed part of the overall motion:

“[…] Prior to, during and after the 2013 LGE, members of the COP, namely Ms. Satu

Ramcharan, Mr. Kishore Ramadhar and Mr. Rudolph Hanamji, continuously attacked

our party, in the public domain, namely Social Media and Mainstream media […]

15

Al Fagib v Saudi Research and Marketing [2000] WL 1675 and Williams v Baynes CV2010-04231 16

Spiller and another v Joseph and others [2010] UKSC 53.

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these attacks were vicious, destructive and intended to impact on the results of the 2013

LGE, […] these attacks caused a lot of hurt to our membership.”

40. In my view those words in their natural and ordinary meaning meant that they acted in a

manner adverse to the interests of the party and made constant efforts in the public to affect

its chances at the LGE that they were intent on destroying the COP and acted adverse to the

interest of the party.

41. However this claim for libel against Mr Bahadur fails for the following reasons. The motion

that was moved by him was in his capacity as a representative of the St Augustine

constituency. The motion in effect meant that the Claimants had engaged in behaviour that

was inimical to the best interests of the party. Those allegations were based upon his own

observation of the conduct of the Claimants prior to the meeting and he had a duty to publish

this motion so mandated by his Executive of the St Augustine constituency. It was legitimate

business of the National Council. The very fact that Mr. Hanamji sought to speak for the

motion demonstrates, even in his cavalier manner, the legitimacy of the debate. The fact that

there were other legitimate avenues such as a conflict resolution committee does not take

away from the authority of the National Council to deal with such allegations and to give

such directions and mandates as the members saw fit in the governance of the party and the

regulation of the conduct of the members. Arguably the fact that members of the public were

present at this meeting had the potential of making such a motion being debated to a wider

than necessary audience. But without further evidence on this, logically and by necessary

inference, those members of the public while not strictly members of the COP could only be

those persons who have an interest in the business of the National Council or the COP and

not mere observers or idle by-standers.

42. It is therefore in my view that this motion was given no more publicity than was necessary

for a proper consideration by the membership, convened as they were by its standing orders

to consider late motions.

43. It was the reading of the subsequent letter which gave rise to an amended motion for which

there is no complaint against Mr. Bahadur. Mr. Bahadur did not adopt nor did he make any

reference to the letter written to the PNM. In the circumstances there was a duty to publish

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his original motion and a duty for the membership to consider it. Further, I make no findings

of malice on the part of Mr. Bahadur when he made these statements. His subsequent act of

failing to appear at the investigative committee based on the legal advice he received is in my

view no ground for imputing malice as it was made in good faith in compliance with his duty

as Chairman of his committee.17

This claim of the Claimants against Mr. Bahadur will be dismissed with costs.

The claim against Mr. Iqubal Hydal

44. Mr. Iqubal read the following letter (in its entirety) purportedly signed by the Claimants.

“Mr. Ashton Ford

General Secretary

People’s National Movement

Ballisier House

1 Tranquillity Street

Port-of-Spain

01-10-2013

Subject: Breach of election rules by the Congress of The People (COP).

Sir,

We are members of the COP. We wish to point out to you, that the following

persons, who are candidates in this Local Government Elections, contesting under

the COP, are not members of the COP, as required by law.

Please find enclosed a CD, which contains the evidence as described below.

Name of Candidates Electoral District Constituency

1) J. Lynn Roopnarine Dabadie/Carapo Dabadie/ Omera. * see file

KR/Dabadie/Omera

17

See Horrocks v Lowe [1975] AC 135.

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COP membership.

2) Dianne Bishop Five Rivers Lopinot Lopinot/Bon Air. * see file

KP/Lopinot/Bon Air.

COP membership

3) Prakash Bharat Caura/Tacarigua/Paradise Tunapuna. *see file

KR/Tunapuna.

COP membership.

As you would see from the actual membership listing enclosed, these candidates are

not members of the COP and therefore the party cannot, by law, authorize them to

contest the elections on its behalf.

Additionally, Charmaine Francis, a UNC candidate in these elections, for the

electoral district of Brighton/Vessigny is a member of the COP and not a member of

the UNC. See file: KR/La Brea COP membership.

We hope that you will bring this to the attention of Dr. Keith Rowley and Mr.

Franklin Khan immediately. We know that your party will assist us in this battle.”

45. By this letter it is clearly an imputation that the Claimants had stolen confidential information

and betrayed their party, that they were unethical, corrupt, acted in bad faith and adverse to

the interests of the party; violating the trust reposed in them by abusing their access to the

COP database; and had engaged in the highest act of treachery against the party by stealing

information from the party and handing it over to the Opposition party.

46. These allegations were not true and no attempt was made to justify the substantive

allegations by the Defendants. However it appeared to be written by the Claimants and they

themselves have admitted that it appears that their signatures were on the letter. This does not

however place any onus on them to prove its lack of authenticity at this trial. The real

question is whether Mr. Hydal held any honest belief in these charges. Unlike Mr. Bahadur

Mr. Hydal falls on the other side of Horrocks v Lowe as he acted recklessly in acting on this

information. He could not vouch for its authenticity. He had no knowledge of the source of

the document. The debate on the suspension on specific grounds was already in play and

there was no urgency to add this allegation to the debate. The only reasonable inference to be

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drawn is that the letter was added with invective to tarnish the Claimants or in local parlance

to “do for them”. The defence of qualified privilege fails. Further this not a comment but a

statement of fact. The defence of fair comment fails.

47. There will be judgment for the Claimants against Mr. Hydal.

The claim again Mulchan Lewis

48. This was an allegation that he slandered the Claimant. Again the meeting from all accounts

deteriorated into turmoil. It is alleged that Mr. Mulchan Lewis in this melee said the

following words as pleaded in the statement of case:

“Satu-ann Ramcharan has a long-standing vendetta against the Political Leader. We

entrusted information to certain people and they have used the information against the

party. They are thieves and traitors. They are against the leader and should be dealt

with once and for all.”

49. I am not satisfied that the Claimants have proven on a balance of probabilities that Mr. Lewis

did say the words complained of or words of similar effect. But it is elementary that the

witnesses must give evidence as to the words they heard Mr. Lewis say. What they cannot

say is they heard Mr. Lewis say words “to the effect that”. That simply is not their function to

interpret the meaning of words but that of this Court.

50. The manner in which this evidence was given clearly demonstrates that the witness could not

remember exactly what Mr. Lewis said. When pressed in cross examination Ms. Ramcharan

could not recollect exactly what he had said and did not volunteer any other words that he

may have said. Mr. Hanamji who was present also was not helpful in providing proof of the

words uttered by Mr. Lewis. Mr. Lewis in his evidence denies he said those words. On the

other hand none of the Defendants was seriously tested on this aspect of the case. On a

balance of probabilities the Claimants have failed to prove that Mr. Lewis said these words or

words which had substantially a similar effect.

51. The claim against Mr. Lewis is dismissed with costs.

The claim against Carolyn Seepersad Bachan

52. Mrs. Seepersad Bachan said the following words at the press conference:

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“However, this morning a motion was also tabled based on information coming to the

COP by Members of the party, this information involved the very same people, Mr.

Rudolph Andrew Hanamji, Mr. Kishore Ramadhar and Ms. Satu-Ann Ramcharan

that in the first instance, we heard this morning which we had been hearing before,

that these persons had been discouraging our candidates and were asking them to

withdraw.

Secondly that they had run ground campaigns against many of our candidates and in

fact we had heard one such complaint from one of our candidates this morning,

thirdly, we were presented this morning at National Council a letter written to the

General Secretary of the PNM, Mr. Ashton Ford signed by, [Interruption]

purportedly signed by Mr. Rudolph Andrew Hanamji, Mr. Kishore Ramadhar and

Ms. Satu-Ann Ramcharan and in it they state as members of the COP they wish to

point out that the following persons who are candidates in this Local Government

Elections, contesting under the COP, are not members of the COP as required by

law. And they named these candidates as Ms. J. Lynn Roopnarine for the Electoral

District of Dabadie/ Carapo; Dianne Bishop for the Electoral District of Five

Rivers/Lopinot and Mr. Prakash Bharat for the Caura/Tacarigua/ Paradise Electoral

District.

It is important to note that this letter is dated 1st of October 2013 and on the 2

nd of

October 2013, Mr. Keith Rowley and members of the PNM did write to the EBC

challenging the membership of these very same members. They also indicated that

they had attached in this letter a CD of all the membership of the COP and therefore

as their evidence we consider this to be inimical to the party’s interests. That

members of our party, who are members of this National Executive and who are

members of the National Council would take this information , the COP database to

the PNM we consider inimical to the party’s interest and we condemn that type of

behaviour of our members.

As a consequence of that a motion was moved to have them suspended from the

National Council and the National Executive pending an investigation by an

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investigating committee within the next 7 days and that National Executive committee

will report to the National Council, and as we do so further decisions would be taken

by the National Council. For at this point in time, these members are suspended not

from the membership of the party they are suspended from the National Council and

the National Executive until the matter can be fully investigated by this committee

[…]”

53. These words carried the meanings as outlined in paragraph 41 above. However this was not

the product of neutral reporting to the public as to the events that took place at the National

Council meeting. I am satisfied that it has not met the conditions set out in Reynolds

privilege. It is not a fair comment and the allegations made against the Claimants were not

proven to be true. As the Chairman of the party she added force to the allegations and gave

“legs” to the story. The context of this publication is important as it was made to a large

audience who would not have an interest in receiving this information. The letter was

unauthenticated and from dubious sources. No attempts at prior verification was made nor

any attempt to balance the report with the Claimants’ side of the story nor of course attempts

to get their comments as the motions were passed in their absence. There was absolutely no

cause to delve in the details of these allegations and for her to give the allegation such force

that it morphed into truth. At the most the only matter which qualified as being in the interest

of the public is knowing that these motions to derail the COP were defeated and not a

collateral internal squabble with its members over serious charges of misconduct which were

not the subject of an investigation nor were the product of conclusive findings of guilt after

such an investigation. The details were simply not relevant to the main story of the success of

the COP in defeating the First and Second Claimants’ two motions which would have

impacted on its relationship in the coalition. In my view it was not the product of responsible

speech. It is not fair comment as there was no statement of fact which can be substantiated.

54. There will be judgment for the Claimants against this Defendant with costs.

The claim against Prakash Ramadhar

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55. What was bad in the reporting of the Chairman was made worse by the Political leader when

he made his speech. He was overly critical of the conduct of the Claimants condemning them

of the very allegations which he sought to characterise as mere allegations.

“Contrary to the many efforts by a few to destroy the party, the party stood in its resolve

(…). Those who moved motions of no confidence against the leader of this party knew full

well, that they grounded their ambitions in an effort to destroy this party by attacking the

leader. They made it clear in other statements that their intent was to destroy this party

and that their efforts had nothing to do with the lack of confidence in the leader, that

everything to do with their wanting to destroy the leader and therefore the party. The

party today resoundingly rejected them and they know full well they could not have

succeeded did not pursue their trouble making efforts in the face of the National Council.

They would do so in the media, in solitary effort where they had open space to spread

their poison but here where it mattered, where their voices would have been heard so the

party would say whether we agree or reject you, they ran away like cowards.

And then to have found that the very personalities who have been making all the mischief

on the outside, that this letter has come to us and I make no pronouncements as to its

authenticity, it may be all the media they have garnered for the last several weeks or

months, maybe they should go to the media and explain whether they did in fact put their

signature to such a letter, betraying the party by disclosing its membership list,

something we hold very dear. And let me explain why it is important, when people join a

political organization they are much afraid by that they may be discriminated against by

the mere fact that they hold membership in a party. Many may not feel that way, but

many do feel that way, why we held it in terms of a high level of confidentiality.

If it is true that they did do these things then that is the highest level of treachery, that we

condemn in politics generally and in the COP unreservedly. And that is why the

suspension, without a finding of guilt, and that is why we ask that a proper and full

investigation into the matter and if it proved true, the next step is expulsion from the

party (…)”.

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56. The words carried the same meanings as outlined in paragraph 41 above. The speech went

well beyond the boundaries of responsible speech and was commentary based on facts which

were simply not true. Far from a legitimate reply to an attack on his leadership it was a

collateral and unrelated attack on the Claimants with the intention of bolstering his position

as leader of the party and the direction of the party at the expense of the Claimants’

reputation. The latitude granted by the law to defend one’s character to an attack is limited to

a proper and proportional response to the charge and not to “segue” into separate charges our

counterattacks which are unnecessary unrelated to the substance of the initial attack on his

character.

57. His further embellishment of the report of the Chairman gave the allegations even more

credibility and currency. His attempt to couch his speech in the terms of not accepting the

truth of the letters was diluted by the force that he gave to the actual substance of the charges.

Obviously upset about the Claimants’ challenge it was an opportunity to silence the

detractors and even if there was an ultimate finding of innocence the damage would have

already been done.

58. There is little doubt that a reasonable viewer would have placed more weight upon the

political leader’s invective and criticism of the conduct of the Claimant. Taking the speech in

its entirety and in its proper context, the Claimants were simply hung out to dry and tried in

public even before they knew of the charges levelled against them.

59. This cannot qualify as responsible speech or a measured and responsible response to an

attack by the Claimants. I have given deference to a person under such an attack as not being

guided by any fine principles of propriety, but even so this attack can be characterised as

designed to destroy his opponent with a disproportionate response. Using a nuclear weapon

of the press conference, so to speak, to nuke a fly.

60. The defence of both qualified privilege and fair comment fails. There will be judgment for

the Claimants against Mr P Ramadhar with costs.

Damages

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61. The purpose of awarding general damages in defamation claims is to compensate the person

who was affected by the defamatory statement for the damage to his reputation.18

The factors

that a Court may legitimately take into account in arriving at the right award are not subject

to a precise “mechanical, arithmetical or objective formula”.19

The Court must pay regard to

all the circumstances of the case. The approach is yet a conservative one weighted on balance

and proportionality. It is not a road to untaxed riches. The purpose of such damages is

compensatory and not punitive.

62. That sum must compensate for the damage to his reputation; vindicate his good name; and

take account of the distress, hurt and humiliation which the defamatory publication has

caused. I have considered the objective, subjective elements, factors that aggravate and

mitigate the circumstances as explained in Faaiq Mohammed v Warner. The gravity of the

libel; the more closely it touches the plaintiff's personal integrity, professional reputation,

honour, courage, loyalty and the core attributes of his personality, the more serious it is likely

to be. I have taken into account the extent of publication. A libel published to millions has a

greater potential to cause damage than a libel published to a handful of people.20

To this

extent the publication by Mr. Hydal to the National Council meeting is in stark contrast to the

publications by the Chairman and the Political Leader to the world at large.

63. Awards in defamation, depending on its gravity, have fallen in the range of $50,000.00 to

$800,000.00. This case is to be distinguished from those at highest end of the spectrum such

as Conrad Aleong v Trinidad Express Newspaper CA Civ. 122 of 2009. Notably a recent

award in 2014 is Reuben Cato v Caribbean New Media Group Limited HC 1810 of 2011,

where the award given was in the sum of $150,000 inclusive of an uplift for aggravated

damages. However in contrast to the Claimants in this case is that Mr. Cato was the then

Transport Commissioner.21

In Robin Montano v Harry Harinarine cv2008-03039, he was

called a racist and a hypocrite and these claims attracted an award of $250,000.00 but there

18

Gatley (supra) page 265 – 266, para 9.2. Summarises it even further by stating that the sum awarded must serve three functions: to act as a consolation to the Claimant for the distress he suffers from the publication of the statement, to repair the harm to his reputation, and as a vindication of his reputation. 19

See Campbell v Modi [2012] EWCA 1382 and Gatley on Libel para 9.5. 20

Sir Thomas Bingham MR in John v MGN Ltd [1997] QB 586 at 607. 21

Although the court was of the view that the listening audience to the publication was not extensive.

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was evidence of a direct impact on his business and trade. No less than Lester Bird in Lester

Bird v Winston Baldwin Spencer HC185/2009, in a politically charged dispute, with

several accusations of corruption and voter padding in the local government elections at a

public rally carried live on national radio was $75,000.00 EC or $190,000.00 TT. Moreover

in Gita Sakal v Michael Carballo, the Claimant was awarded the sum of $50,000.00. The

Court was of the view that the Claimant was not of the prominence of other public figures to

attract a higher award. I also have considered Faaiq Mohammed v Warner.

64. There is no evidence before this Court of any serious damage to the Claimant’s reputations

and standing save for their own evidence and that the law recognizes that there will naturally

be damage to their reputation. The evidence adduced here is in contrast to the type of

evidence led in the cases cited above. Indeed they are, or at least the First and Second

Claimants, high-standing members of the COP as members of its Executive. The Third

Claimant is also an observer member. Whereas they may hold significant positions or may

have been held in high esteem in the party this does not necessarily translate to damage to

their reputations as member of the wider society.

65. In the claim against Iqubal Hydal for the publication of the letter at the meeting I have

weighed in my consideration the limited publication of this letter to members of the COP and

no wider circulation by him was made. The Claimant would be awarded damages in the

following sums: Mr. K. Ramadhar the sum of $25,000.00 Mr. H. Hanamji the sum of

$25,000.00 and Ms Satu Ann Ramcharan the sum of $20,000.00.

66. With regard to Carolyn Seepersad-Bachan, she will pay damages in the following amounts:

Mr. K. Ramadhar the sum of $75,000.00 Mr. R. Hanamji the sum of $75,000.00 and Ms.

Ramcharan the sum of $50,000.00

67. With regard to Prakash Ramadhar I have taken into account the embellishment and the status

of his remarks giving currency to the allegations and he will pay the following awards of

damages: K. Ramadhar $90,000.00; R. Hanamji $90,000.00 and S. Ramcharan $75,000.00.

Costs

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68. In this case there was a costs budget and in my view costs would have to be apportioned

amongst the winning Defendants and the successful claimants. I will receive counsels’

submissions on the apportionment of costs by the parties filing and serving their respective

submissions.

Conclusion

69. For the considerations as stated above the publications made by Mr. Hydal, Mrs. Carolyn

Seepersad-Bachan and Mr. Prakash Ramadhar were defamatory and were the product of

irresponsible speech. The substance of the allegations was not true. Their publications

crossed the boundaries set by the law that gives due allowances for untruth if the matter was

genuinely of public interest or if the persons did not abuse the occasion on which the

publications were made. To answer my earlier question on the narrow issue, it was

unnecessary for the publication by the Defendants of details of the charges of misconduct by

the Claimants. Mr. Hydal acted recklessly and, with regard to the press conference, even

though some members of the public might have a lurid fascination in such a scandal, it was

not in the public interest.

Vasheist Kokaram

Judge

REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT...

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