the republic of trinidad and tobago in the high court...
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THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No. CV2013-04726
BETWEEN
FAAIQ MOHAMMED
Claimant
AND
JACK AUSTIN WARNER
Defendant
Before the Honourable Mr. Justice V. Kokaram
Date of Delivery: 5th
May 2014
Appearances:
Mr. Kelvin Ramkissoon led by Mr. Avory Sinanan S.C. for the Claimant
Mr. William Mc Cormick Q.C. leads Mr. Om Lalla instructed by Mr. Dereck Balliram for
the Defendant
JUDGMENT
1. This is a defamation claim which has come on for further case management at a pre trial
review and is scheduled for a trial a few weeks away. The Claimant Mr. Faaiq Mohammed
complains of two defamatory statements made by the Defendant, Mr. Jack Warner. The first
alleged defamatory statement was made at a press conference hosted by him on November 6,
2013 held at the Chaguanas Borough Corporation and the second at another press conference
hosted by Mr. Warner on November 7, 2013 at his Independent Liberal Party’s (ILP)
headquarters.
2. These statements were made in the context of a politically tense environment where the local
government elections resulted in deadlock in the Chaguanas Borough Corporation.
3. Essentially the statements amount to an allegation that Mr. Mohammed accepted a bribe from
the United National Congress (UNC) in exchange for his vote for the presiding officer of the
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Chaguanas Borough Corporation for a nominee of the UNC and not the ILP of which he was
a member and whose political leader was Mr. Jack Warner.
4. The parties are now at an advanced stage in the litigation where pleadings are closed,
disclosure is completed and witness statements have been exchanged. The trial is fixed for
May 26-29, 2014. For the Claimant, he intends to call three witnesses at the trial, himself,
Mr. Shiraz Mohammed and Mr. Ameer Bacchus. The Defendant intends to call three
witnesses as well, himself, Mr. Simeon Mahabir and Mr. Inshan Ishmael, host of the
television programme “Breaking Barriers”. Save for the witness statement of Mr. Bacchus
both parties have filed their respective notices of evidential objections to the evidence
contained in those witness statements, which now fall for the Court’s determination.
5. Before I do so, I make three observations. This matter first came on for hearing on December
4, 2013 on an application for an interlocutory injunction to restrain the Defendant from
reporting or publishing any further alleged defamatory remarks of the Claimant until trial.
The parties sensibly agreed to adopt the approach of focusing their energies and resources on
preparation for a trial in the shortest possible time rather than engage in a contest over any
interim relief. There was liberty to the Claimant to restore the hearing of the injunction if it
were necessary to do so. Good sense has prevailed as there has been a significant cooling of
the anxieties of both parties since December 2013 and no further action was necessary to
invoke the Court’s injunctive powers. I commend both parties for their co-operation in this
regard.
6. Second, the parties have in short time quickly progressed this matter to this stage of trial and
their efforts are to be commended for keeping within the Court’s deadlines and timetables.
7. Third, it is clear that matters such as these are usually prompted by the heat of the “political
gayelle” and when the political dust has settled, mature reflection by either party should be
brought to bear on the future and necessity of litigation and in this regard I encourage the
parties to consider the real option that the matter can be settled. This especially so in light of
the application made before me and the resulting ruling to which I shall come to in a
moment. Parties should choose their litigation battles well and where necessary save the cost
and expense by encouraging a settlement in defamation matters. In these types of matters
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where reputations are at stake and it is being counter balanced by the constitutional right of
the freedom of expression, at times parties should effect a mature balance of these competing
rights in soberly reassessing their original impulses.
8. Returning to the parties’ evidential objections, it is the duty of the Court in the management
of this claim to examine the evidence that is being adduced by either party and to exclude
such evidence that is either irrelevant to the issues which the Court requires evidence or
which are otherwise inadmissible. It is a robust exercise now routinely done in advance of a
trial for a number of purposes:
to determine the admissible evidence that will be subject to cross examination at the
trial;
to determine the necessity for any Part 35 application or supplemental witness
statements;
to make an assessment of whether from the admissible evidence there is any claim or
defence with a probability of success and either curtail the litigation by appropriate
pre-emptive orders such as summary judgment or striking out, making an eventual
trial unnecessary; and
to conduct a reality check on the admissible evidence of the respective parties’
positions encouraging parties to engage in negotiation or other means of dispute
resolution having regard to the probable outcomes.
9. In a court driven system of case management this is an effective way of determining what
cases are fit for trial and what resources are needed to properly dispose of the case. In this
way the Court seeks to give effect to the overriding objective in its management of cases.
10. For the purpose of this application it is necessary to reflect very briefly on the pleaded case.
By way of a brief overview, the two defamatory statements complained of are:
a. “I spoke to the guy (Faaiq Mohammed) this morning, I showed him all the facts I
heard and so on, he swore on the Qur’an that is not true.”
“He (Mohammed) was offered $2.5 million, I have the documents, I have... the
document and the deed and so on and he was told that if he goes and gives them
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the Mayorship and support the Presiding Officer he will be given this money. I
am advised he was advanced half the sum and the other half today’s meeting.”
“I told him this morning “boy, you are a young man, don’t spoil your career....
under Muslim this kind of thing is wrong, son. He swore to me on the Qur’an it’s
not true... they have just spoilt a young man, his career is finished, his political
career is finished.”
“If a Muslim young man sells his soul for money, how does it affect my
constituency? I am sorry for him, not for me and I am sorry for the UNC, they
have gone down one notch further than they could ever go in the society.”
“When he refused to vote for our Presiding Officer, it was confirmed and we
shall, deal with him in the fullness of time.”
“A deal has been struck with him, not with the ILP, the UNC have that kind of
money, the ILP don’t have it. It’s wrong to bribe them for votes, it’s wrong.”
“You must not hide behind who you voting for, because at the end of the day you
have to be exposed and the public has a right to know who the traitors are on
board.”
b. “Two Chaguanas constituents came to me as eye-witnesses who saw what took
place, who live next to him where the meeting was held who saw when he came
out with a bag and they said and they gave me this information.”
The Claimant contends that those words in their natural and ordinary meanings were
understood to mean:
“a) The Claimant’s motivation for entering into politics was not to serve the people but for
his own person monetary gain.
b) The Claimant had corruptly exploited the office that he was elected to hold and had
betrayed his party, the Burgesses of Chaguanas and the people of Trinidad and Tobago
by receiving a bribe from the United National Congress in exchange for his vote at the
Council.
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c) He has corruptly solicited and received monies from the United National Congress and
he has allowed his office as a Councillor to be purchased by a political party.
d) The Claimant is unfit to hold public office and/or public position of trust and has
compromised his integrity and the dignity of the office and/or the position to which he
was elected.
e) The Claimant’s choice in voting as he did or the Presiding Officer of the Council was
motivated by the receipt of huge sums of money.
f) The Claimant is a disgrace to the Muslim community.
g) The Claimant’s motivation for voting as he did was not to serve the people but or his
own personal monetary gain.
h) In accepting a bribe in order to vote the way he did, the Claimant has committed acts
that are corrupt and/or improper and/or illegal and has thereby engaged in criminality.
i) The Claimant is dishonest and/or unethical, and thereby unfit to hold the office of
Councillor and any other public office.
j) At all material times the Claimant was motivated by pecuniary gain or reward.
k) The Claimant has committed acts that are deserving of investigation and censure.
l) The Claimant is of questionable and/or dubious character and integrity.
m) That the Claimant corruptly and immorally received monies in exchange for the vote
which he cast at the Chaguanas Borough Corporation in the election of a Presiding
Officer.”
11. The Defendant’s defence is based on three limbs. First, fair comment or honest opinion:
It has pleaded its “Lucas Box” meanings of the published words “that the Claimant has
corruptly exploited the office which he was elected to hold and has betrayed his party by
accepting a bribe by the UNC”. Secondly “that the Claimant is unfit to hold public office
or the public’s trust has been compromised.” And contended that in that meaning or any
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other substantially similar meaning the words were fair (and/or honest) comment on a
matter of public interest, namely the fitness of the Claimant to hold public office and/or
public trust and/or his conduct in elected office.
The Facts Upon Which the Comment Was Based was pleading as follows:
“1) Paragraphs 8 to 11 of the Statement of Case are repeated.
2) On 31st October, 2013 a known UNC activist Sookhai Diesel visited the home of
the Claimant and handed over to the Claimant a large plastic pouch which
contained money.
3) On 6th
November, 2013 Mr. Simeon Mahabir, the ILP Councillor elected for the
Electoral District of Munroe Road/Caroni Savannah received a call from one
Krishna who represented the interests of the UNC offering the sum of five million
dollars to vote for the UNC’s choice of Presiding Officer and Mayor. The call was
recorded on Mr. Mahabir’s mobile phone. A true copy of the said recording is
hereto attached and marked “A”.
4) On 5th
November, 2013 Mr. Inshan Ishmael, television producer and host of the
programme “Breaking Barriers” interviewed Mr. Shyam Ramlogan on corrupt
practices and illegal conduct by members of the present government and during
that interview the said Shyam Ramlogan spoke specifically of monies paid to the
Claimant for his vote at a meeting of the 6th
November, 2013. A true copy of the
interview recording is hereto attached and marked “B”.”
12. Second the plea of justification:
“In the alternative, in the meanings set out at paragraph 6, (or any other meaning alleged
by the Claimant) the words were substantially true.
Particulars of Justification
1) The Defendant repeats the matters set out at paragraph 7 (1) to 7 (4)
above.”
13. Third a plea of qualified privilege:
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“Further or in the alternative, the words (whether as comment or fact) were spoken on a
privileged occasion.
Particulars
1) The Claimant’s conduct in and suitability for public office is a matter of
the greatest public importance.
2) The election campaign during which the Claimant was elected was itself a
matter of the highest public interest as was the election of the Presiding
Officer of the Council.
3) The words were (as more particularly set out below) based upon credible
information and reports received by the Defendant or were within the
Defendant’s own knowledge. Members of the public had a corresponding
and legitimate interest in knowing of the reputation, character and
propensity of a minister in the government in the context of the election.
4) As to the matters pleaded above within paragraph 9(2) the Defendant
received this information on the 2nd
November, 2013 (prior to the election
of the Presiding Officer at the Chaguanas Borough Corporation) from two
of his constituents namely Brian Lane and Clarence Archibald who live
next to the Claimant and had directly observed what they reported.
5) The information at 9(3) was received by the Defendant on the 6th
November, 2013 (prior to the election of the Presiding Officer at the
Chaguanas Borough Corporation) from Mr. Simeon Mahabir, who had
personal knowledge and corroborative material supporting what he said.
6) The information at 9(4) was received by the Defendant from Mr. Inshan
Ishmael, who had personal knowledge and corroborative material
supporting what he said.”
14. Commendably, the Defendant has agreed a number of matters which forms the factual
backdrop to the publications as set out in the Statement of Case.
15. The main contention by the Claimant was that the Defendant’s evidence is littered with
hearsay evidence, with unstated sources of information and belief, with exhibits which
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cannot stand on its own as direct assertions of fact and are oppressive or scandalous and
which adds no probative value to the case.
16. For the Defendant, his attack on the Claimant’s evidence was on the basis of irrelevance to
the pleaded case with some statements being made which failed to identify its sources of
information and containing irrelevant evidence of the Claimant’s opinion as to the
defamatory meaning of the alleged defamatory publications.
17. Queens Counsel for the Defendant conceded that his evidence in support of the facts alleged
in his defence is based on hearsay evidence. He also accepts that the Defendant was simply
acting on reports which he received which the Defendant believed to be true. In short, the
Defendant was repeating what was said to him. Queens Counsel for the Defendant contended
that the Defendant can rely on hearsay evidence to support his facts as once the hearsay
statement is accepted it is as if that person is making a statement of fact and such statement
will be subject to cross examination with the Court placing what weight it will on that
evidence. Hearsay was permissible, in defamation cases it was suggested so that the
Defendant be given the opportunity to say why he acted in the manner he did. No authority
was provided to the Court to allow it in a defamation case to permit the Defendant to rely on
hearsay evidence to prove a statement of fact or to offend the repetition rule or that it was not
necessary to prove the substratum of fact of the Defendant’s defence by direct evidence of
fact.
18. In reflecting on this Defendant’s approach that his defamatory statement was made based on
reports made to him, the observation of May LJ in Shah v Chartered Standard Bank
[1998] 4 All ER 155 is quite helpful. He said:
“In human terms, anyone is entitled to believe what third parties tell them. But such
belief does not establish that what is reported is objectively credible.”
19. The approach that I have taken in determining the admissibility of evidence in this
defamation proceeding is informed by the following general propositions of law.
a. CPR Part 29.5 empowers the court to order any inadmissible, scandalous,
irrelevant or otherwise oppressive matter to be struck out of a witness statement.
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b. In Chaitlal v Attorney General of Trinidad and Tobago HCA No. 2472 of
2003 Myers J stated that for evidence to be admissible:
- “Adequate foundation evidence must be adduced.
- The deponent must otherwise be an appropriate person to give the
evidence.
- It must not offend against the hearsay rule, subject to any relevant
exceptions to that rule, and perhaps any residual judicial discretion
to admit otherwise legally inadmissible evidence and,
- It must not constitute opinion evidence, subject to the exception to
the rule.”
c. In determining the admissibility of evidence it must first be relevant. The witness
statement must not include evidence that is irrelevant to an issue for
determination. Relevance is said to exist when “any two facts are so related to
each other that according to the common course of events one either taken by
itself or in connection with other facts proves or renders probable the past present
or future existence or non existence of the other.” (Stephen, Digest of the Law of
Evidence, 12th
ed, art. 1). Whether evidence is relevant is often a question of
degree and determined not by strict logic but by common sense and experience.
The sufficiency of relevance depends on the circumstances of each case. As Lord
Hoffman explains in his article Similar Facts After Boardman [1975] 91 L.Q.R
193, he said:
“The degree of relevance needed to qualify for admissibility is not a fixed
standard, like a point on some mathematical scale of persuasiveness. It is a
variable standard, the probative value of the evidence being balanced
against the disadvantages of receiving it such as taking up a lot of time or
causing confusion.”
d. Even though evidence may be relevant it may be excluded based on an
exclusionary rule such as contravening the rule against opinion or hearsay
evidence. See Gibson J in Savings and Investment Bank Ltd v Gasco
Investment (Netherlands) BV (No.1) [1984] 1 WLR 27.
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e. The Court in exercising its discretion to exclude inadmissible evidence or
scandalous or irrelevant matter is engaged in an exercise of giving effect to the
overriding objective. In dealing with a case justly, the court must apply the
foundational principles the overriding objective (CPR Part 1) of equality,
economy and proportionality. A. Zuckerman in his text Civil Procedure-
Principles of Practice discussed the relevance of proportionality in the exercise
of the court’s discretion. In reference to the UK counterpart of Rule 32.1 which is
comparable to our Rules 29.1 and 29.5(2)1 he commented that the court must
decide admissibility with the overriding objective in mind. It must ensure that the
contribution of the proposed evidence to the issue is proportionate.
Proportionality in this context, means that the evidence makes a sufficient
probative contribution to justify its time and expense in its presentation.
Essentially the Court is engaged in a more thorough examination of the proposed
evidence by asking the question what contribution is the evidence making to the
issues that fall for determination. Hale LJ in Post Office Counters Ltd. V
Mahida [2003] EWCA Civ 1583 commented that: “the power to exclude
admissible evidence is principally a case management power designed to allow
the court to stop cases getting out of hand.”
f. Further if a party wishes to rely upon hearsay evidence it must comply with the
Evidence Act Chap 7:02 and Rules of Court. See Section 37 of the Evidence Act
and CPR rule 29.5(1)(f)2 and 29.5(2). There are no notices to admit any hearsay
129.1: “The court may control the evidence by giving directions as to –
a) The issues on which it requires evidence;
b) The nature of the evidence it requires; and
c) The way in which any matter is to be proved,
by giving appropriate directions at a case management conference or by other means.”
29.5: “(2) If –
a) A party has served a witness statement; and
b) He does not intend to call that witness at the trial, he must give notice to that effect to the other
parties not less than 21 days before the trial.” 2 29.5(1) A witness statement must – “(f) not include any matters of information or belief which are not admissible
and, where admissible, must state the source of such information or belief of any matters of information or
belief;”
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evidence filed in this proceeding and indeed the time has long passed for that. For
the Court to receive such hearsay evidence the party must issue the notices
required under the CPR. There is of course a discretion which the Court can
exercise in admitting evidence in the absence of such a hearsay notice and
curiously the Defendant did not seek to invoke that rule in support of the obvious
hearsay evidence in its witness statements. Further, even if I waive those
requirements the Claimant is deprived of the opportunity of filing its counter
notice compelling the Defendant to call those persons as witnesses. Indeed I
would be slow to adopt any such approach as in the management of this case I
have specifically and purposely restricted the evidence to witness statements and
not to have evidence in chief introduced in an oral form.
g. Further it is noted that CPR rule 29.5(1) (f) mandates that witness statements must
“(f) not include any matters of information or belief which are not admissible and,
where admissible, must state the source of such information or belief of any
matters of information or belief.” Without stating those sources, the evidence is
virtually worthless: See Alverstone CJ in J.L. Young Manufacturing Company
Ltd. v J.L. Young Manufacturing Company Ltd [1900] 2 Ch 753. He stated:
“So called evidence on ‘information and belief’ ought not to be looked at
all not only unless the Court can ascertain the source of information and
belief but also unless the deponent’s statement is corroborated by someone
who speaks from his own knowledge. If such affidavits are made in future,
it is as well that it should be understood that they are worthless and ought
not to be received as evidence in any shape whatever and as soon as
affidavits are drawn so as to avoid affidavits that are not evidence, the
better it will be for the administration of justice.”
Further in the same judgment Rigby LJ refers to excluding evidence in affidavit
form which applies equally to witness statements. His comment bears repeating
for improving the standard of care in preparing witness statements. He states:
“In the present day, in utter defiance of the order (Rules of the Supreme
Court, 1883, Order XXXVIII., r. 3) (1), solicitors have got into a practice
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of filing affidavits in which the deponent speaks not only of what he
knows but also of what he believes, without giving the slightest intimation
with regard to what his belief is founded on. Or he says, "I am informed,"
without giving the slightest intimation where he has got his information.
Now, every affidavit of that kind is utterly irregular, and, in my opinion,
the only way to bring about a change in that irregular practice is for the
judge, in every case of the kind, to give a direction that the costs of the
affidavit, so far as it relates to matters of mere information or belief, shall
be paid by the person responsible for the affidavit. At any rate, speaking
for myself, I should be ready to give such a direction in any such case. The
point is a very important one indeed. I frequently find affidavits stuffed
with irregular matter of this sort. I have protested against the practice
again and again, but no alteration takes place. The truth is that the drawer
of the affidavit thinks he can obtain some improper advantage by putting
in a statement on information and belief, and he rests his case upon that. I
never pay the slightest attention myself to affidavits of that kind, whether
they be used on interlocutory applications or on final ones, because the
rule is perfectly general - that, when a deponent makes a statement on his
information and belief, he must state the ground of that information and
belief.”
h. Sharma J as he then was in Coosals Quarry Ltd. v Team Work Trinidad Ltd.
[1985] 37 WIR 417 commented that “affidavits asserting fears have absolutely no
probative value unless the sources and grounds are set out”. These sentiments of
the 20th
century are equally relevant today. Excluding evidence which has very
little probative value and offers little assistance to the Court in determining the
issues that fall for determination are quite rightly to be struck out and are
inadmissible in the Court’s exercise of its overriding objective in managing the
case.
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i. Another factor that has informed my approach is the substantive law on
defamation and the use of hearsay evidence in such trials. It is important to note
that in all the defences, there is an onus on the defendant to prove essential facts.
In the defence of justification he must prove the truth of the meaning of the words
he alleges. In the defence of honest opinion he must prove the underlying
substratum of fact on which his comment is based and under qualified privilege,
he must demonstrate through admissible evidence that a duty and interest existed.
See Carter-Ruck on Libel and Privacy paras 29.35, 29.36 and 29.37 and Gatley on
Libel and Slander para 35.12, 11.6 and 29.10.
j. In referring to the Musa King v Telegraph Group Ltd [2004] EWCA Civ. 613,
at para. 11.6, the authors of Gatley on Libel and Slander referred to the extract of
Eady J’s judgment where a defendant may adduce hearsay evidence to establish a
primary fact in reliance upon the Evidence Act. This in no way undermines the
rule that the statements, still less beliefs of any individual cannot themselves serve
as primary facts.
k. Even in a plea of qualified privilege, the question is one of the neutral reporting of
allegations without adopting those allegations as one’s own. In this case, it is
important to note that the plea of qualified privilege is based on credible
information and reports and on his own knowledge. That substratum of fact of
having accepted a “large plastic bag of money” is a fundamental premise of this
plea as well.
l. Turning to the cases themselves, they are quite clear on the repetition rule. One
cannot rely on an allegation to prove the truth. It is not sufficient to say that I was
told by someone that someone is corrupt. It must be supported by direct evidence.
In Chase v News Group Newspapers Ltd [2002] EWCA Civ. 1772, serious
defamatory statements were made against Ms. Chase amounting to an allegation
that she was responsible for murdering children under her care. The Defendants
relied on accusations and reports made by other parties and they never suggested
that anything said by them was true. They sought to rely on the fact that the
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allegations were made by largely unidentified parties in broad terms about the
Claimant and regarded that as being true. Brooke LJ pointed out quite correctly
that the burden of proving justification rests on the Defendant although the
standard of proof is the balance of probabilities, the more improbable an
allegation the stronger must be the evidence that it did occur before, on the
balance of probabilities, its occurrence can be established.
m. At paragraph 39 and 40 of the judgment Brooke LJ said:
“39. I have referred to ‘admissible evidence’. To some extent the Civil
Evidence Act 1995 (the 1995 Act) has altered the landscape. It remains the
law (subject to any HRA considerations) that if a defendant repeats a libel
he/she has heard from others, a plea of justification will only succeed if
he/she can prove by admissible evidence that what they said was
substantially true. The relevant law was authoritatively restated by this court
in Shah v Standard Chartered Bank Ltd. [1999] QB 241. In Lewis v Daily
Telegraph Ltd. [1964] AC 234 Lord Delvin observed at pp 283-4 that:
‘You cannot escape liability for defamation by putting the libel
behind a prefix such as ‘I have been told that...’ or ‘it is rumoured
that...’ and then asserting that it was true that you had been told or
that it was in fact being rumoured. You have....to prove that the
subject matter of the rumour was true.’
40. In Shah Hirst LJ observed at p 263F that one most salutary advantage
of holding fast to the repetition rule was that it avoided lengthy
investigation of the reliability of the makers of hearsay statements which
might otherwise be admissible.”
n. Useful guidance on the repetition rule can also be found in the judgment of
Nelson JA in Trinidad Publishing Company Ltd. and others v Earl Brewster
CA 154 of 1999. In that case the attempt to prove the truth of a libel by relying on
the allegations made in a writ of summons and statement of claim offended the
repetition rule. Even if hearsay statements being relied upon by the Defendant are
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admitted, these statements are of no probative value as they are statements made
by unidentified persons, from unidentified sources and information and which
asks this Court to speculate on its authenticity, truth and veracity.
o. I also found considerable guidance from the case of Shah (supra) on this issue of
the substantive law of the repetition rule and the prohibition of using hearsay
statements to prove statements of fact where the Defendant bears the burden of
proving these statements. Hirst LJ said:
“I have come to the conclusion that the repetition rule applies in the
manner described by Mr. Browne for the reasons he gave. Contrary to Mr.
Rampton’s argument, I am satisfied that it is a rule of law which governs
not only meaning, but also the pleading and proof of a defence of
justification. Stern v Piper is a very good illustration, since the ultimate
decision was that the defence of justification should be struck out.
Moreover, I consider that the repetition rule reflects a fundamental canon
of legal policy in the law of defamation dating back nearly 170 years, that
words must be interpreted, and the imputations they contain justified, by
reference to the underlying allegations of fact and not merely by reliance
upon some second-hand report or assertion of them.”
Later referring to his judgment in Hinduja v Asia TV Ltd (unreported) [1996]
Hirst LJ explained that at a minimum the defendant’s justification has to address
the inherent credibility of the underlying facts alleged to link the plaintiffs with
the scandal. What others say about the facts do not advance its credibility nor do
bald assertions of credibility.
p. Finally under the substantive law, evidence as to the natural and ordinary meaning
of words is inadmissible. See Gatley para 34.25 Carter-Ruck 29.26 and the Court
of Appeal decision of Kayam Mohammed and ors v Trinidad Publishing
Company Ltd and ors CA Civ. 118 of 2008.
q. It stands to reason therefore that any exhibits attached to the witness statements
must on its own stand scrutiny on the rules of admissibility and they do not
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automatically become part of the witness statements. The documents must have
its own independent existence in terms of admissibility and cannot cure the
inadmissible character of evidence in the body of the witness statements.
r. I have considered in the context of libel cases the effect of striking out evidence
and the Defendant’s right to freedom of expression. Fair balance is struck
between these competing rights only where credible evidence is elicited to
address the issues of justification, honest opinion and fair comment. Hirst LJ
made reference to this in Shah:
“...a proper balance between freedom of speech and protection of
reputation is achieved by rejecting Mr. Rampton’s submission. Those who
publish without malice defamatory statements to the effect that there are
reasonable grounds to suspect a plaintiff of discreditable conduct are
protected if the occasion is privileged. If the occasion is not privileged,
they may justify the publication by proving objectively that there are such
reasonable grounds. Allegedly credible hearsay may not contribute to such
proof Defendants will have to call their informants or provide or other
direct evidence. If this in individual cases is difficult, that only emphasises
that reputation should not be put at risk by publication on occasions which
are not privileged of unsubstantiated hearsay. In the end, the argument
turns, not so much on the repetition rule, as on the admissibility, probative
value and relevance of hearsay evidence.”
20. In my view rejecting hearsay evidence which seeks to impugn reputations is perfectly
consistent with the constitutional right to freedom of expression. Such rights cannot overstep
the bounds of the rights of others. A court must be astute therefore to examine the evidence
of the Defendant critically against that backdrop. To strike out such evidence is not to be
construed as muzzling free speech or political views or a free press but setting the boundaries
of proportionality for the development of a democratic and progressive society. Sedley LJ’s
comments in Berezosky v Forbes Inc [2001] EWCA 1251 deserve repeating:
“To require a defendant ... to be able to justify not a diminished version of a damaging
assault on a claimant’s reputation but the essence or substance or sting of that assault is
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not in our judgment a disproportionate invasion of the right of free expression. It meets
the legitimate purpose, recognised by Article 10(2), of protecting people from the
publication of damaging and unjustified falsehoods. The important question for
Convention purposes is whether it does so by disproportionately restricting the ability of
the press, even at the cost of exaggeration or inadvertent error, to bring to light matters of
serious concern...
...it seems to us that it is not disproportionate, nor therefore unacceptable in a democratic
society, to limit justification to the essential damage done by the publication (if necessary
by disaggregation under section 5 [of the Defamation Act 1952] and to test exaggeration
and error separately by allowing defences of fair comment and qualified privilege
provided these give adequate weight and liberty to press freedom. It is here that [counsel]
is entitled to point to the increased solicitude for responsible journalism shown by the
decision on qualified privilege in Reynolds, but also to Lord Hobhouse’s reminder in that
case that a democratic society has no interest in the dissemination of untruths.”
21. With those principles in mind I turn to the applications to strike out portions of the witness
statements on both sides.
22. The relevant portions of the respective witness statements which are struck out will be tabled
and appended to this judgment.
Vasheist Kokaram
Judge
Page 18 of 25
Appendix I
Decision Reason
Para
No. Witness Statement of Faaiq Mohammed
14 The objection to the second sentence is overruled. It contains relevant evidence in relation to
the factual background to the vote cast by
the Claimant.
15 Struck out the words: “I was surprised that I never went
through a screening process and that I was selected in this
manner.”
This is irrelevant to the issues to be
determined in the case.
16 Struck out the words: “I was promised monetary
assistance by the Defendant to devote to the campaign. He
even asked me what I wanted for myself and I told him I
wanted absolutely nothing except to receive funds for
expenses relating to the campaign and to make a
difference. Despite however the many promises made by
him, I was given no money by the ILP for campaigning by
spent my own monies. To date I have received no monies
from the party despite the fact that the Defendant told me
that the ILP had many big financiers. I do not know who
these persons are. The $21,800 which I spent came from
my family savings and from the small profits which I
generated from my small business.”
This is irrelevant to the issues to be
determined in the case. It contains
unnecessary narrative.
25 Struck out in its entirety. This is irrelevant to the issues to be
determined in the case and contains
unnecessary narrative.
Page 19 of 25
Decision Reason
29 The objection to the entire paragraph is overruled. As there is no objection by the Defendant
to the narrative of the facts in relation to
the presentation of a petition against Ms.
Isahak this evidence in paragraph 29 bears
a close nexus to that matter.
37 Struck out in its entirety. The Claimant’s evidence of what the
words meant is irrelevant – it is for the
Court to decide what they meant. See
paragraph 17 (p) of this judgment.
39 Struck out the words: “Based on what they have said to
me,”
Hearsay. No probative value.
41-
43
The objection to these paragraphs are overruled This evidence is relevant to the reason
why the Claimant cast his vote and forms
the backdrop to his complaint.
44 Struck out the words: “suggest that I had committed a
crime punishable with imprisonment.”
The Claimant’s evidence of what he
believed the words meant, is irrelevant – it
is for the Court to decide what they meant.
See paragraph 17 (p) of this judgment.
45 Objection to the final 13 words is overruled. It is relevant to the Claimant’s state of
mind to and to the question of damages.
46-
7
The objection is overruled. This is relevant to the issue of damages.
48 The objection is overruled. The Claimant’s belief on each of these
matters is relevant to indicate his state of
mind it does not affect what the Court will
determine on this issue.
49 Struck out in its entirety. This is not a pleaded allegation.
Page 20 of 25
Decision Reason
61 The objection is overruled. This will be a matter for submissions on
the issue of damages.
62 Struck out in its entirety. This was not pleaded and is irrelevant.
Para
No. Witness statement of Shiraz Mohammed
5, 6
and
7
These objections are overruled. As there is no objection to the narrative in
relation to the “run up” to the Claimant
casting his vote I will allow this evidence
as necessary background.
9 Struck out the words: “who detailed to me their personal
complaints regarding Ms. Ishahak’s performance as the
Councillor of these areas.”
Hearsay.
10
and
12
Overruled The court will ascribe the necessary
weight to this evidence as part of the
background narrative.
Para
No. Witness Statement of Simeon Mahabir
5 Struck out the words: “who told me that I should accept
the offer of payment being presented to me to vote in
favour of the UNC’s choice of candidate and Mayor and
requested my telephone number and informed me that the
UNC have an offer for me.”
Inadmissible hearsay; no probative value,
no source of information disclosed.
6 Struck out in its entirety. Inadmissible hearsay; no probative value,
no weight can be given to this evidence at
all.
7 Struck out in its entirety. Inadmissible hearsay no probative value.
Amounts to uncorroborated rumours.
8 Struck out the words: “He spoke to my father and asked Inadmissible hearsay; irrelevant and no
Page 21 of 25
Decision Reason
him to ask me to call him as he did not have my number”,
“He gave my father the number 714-1054 and told him
that I should call him on that number” and the words,
“Krishna made me a momentary offer to support the
Government.”
scandalous probative value.
9 Struck out the words: “and told him of the offer that
Krishna had made to me and that I recorded it. I also
informed the Defendant about the offers which were made
to me.” and the words, ”I declined the offers that were
made to me. A true copy of the recording is hereto
attached and marked “SM1.”
Both statement and exhibit constitute
inadmissible hearsay; no probative value;
exhibit has no independent existence
evidentially and has no bearing on the
case at all.
11 Objection overruled. Harmless statement, does not prejudice
Claimant as it does not impact on the
issues to be determined and fresh evidence
is a matter for the exercise of the Court’s
discretion in any event.
Para
No. Witness Statement of Inshan Ishmael
4, 5 Paragraph 4 struck out the words, “and informed me inter
alia that he has strong ties with senior members of the
United National Congress (UNC) which is part of and the
dominant party in the People’s Partnership Government
(PP) coalition government. In that interview Mr.
Ramlogan further informed me that he has been involved
in several financial transactions involving members of the
current cabinet and government of Trinidad and Tobago.
He provided me details of accounts, banks, sums of
moneys, transfer of monies and instructions received on
behalf of several persons from the UNC.”
Inadmissible hearsay; irrelevant; no
probative value; scandalous. I am
surprised that this found its way in a
witness statement at all.
Page 22 of 25
Decision Reason
Paragraph 5 struck out in its entirety
6 Struck out the words: “that touched upon financial
transactions that appeared to me to be corrupt practices
and illegal conduct by persons in public life who are also
senior members of the UNC. I recorded a part of the
interview with his consent. He was very particular and did
not want to call any names during the recording for fear
that if it was released in the public domain he would be
the subject of physical harm by members of the
government. A true copy of the recording is hereto
attached and marked I.I.1.”
Hearsay, information cannot be relied on,
no sources of information disclosed, no
probative value. Exhibit of no relevance
makes no reference to the Claimant.
7 Struck out in its entirety inclusive of exhibit. Inadmissible hearsay; irrelevant; no
probative value; scandalous. Exhibit of no
value, offends the repetition rule.
Incapable of proving the substratum of
fact of the Defendant’s case.
8 Struck out the words: “He also stated to me that if the
source of the information which he has passed to me was
disclosed he would have to leave the country as his life
would be in jeopardy.”
Inadmissible hearsay; irrelevant; no
probative value; scandalous.
9,
10
Struck out in its entirety. Inadmissible hearsay; irrelevant; no
probative value; scandalous and
oppressive; exhibit is useless.
11 Struck out the words: “who have told me that it was
public knowledge that the Claimant was offered money to
cross the floor to the UNC at the meeting of the
Brazen inadmissible hearsay, irrelevant,
scandalous and oppressive. No probative
value and valueless, offending the
Page 23 of 25
Decision Reason
Chaguanas Borough Corporation on 6th
November, 2013
and that members of the UNC boast of their ability to buy
any member they wish to control. This view was formed
by persons who I have interviewed is as a result of the
course of conduct by members of the UNC. I cannot
reveal the names of those persons I have interviewed as I
do not have their permission to reveal their names as they
fear for their job security.”
repetition rule is discussed in the
judgment above. See Chase v News
Group Newspapers Ltd. Valueless
evidence in this defamation defence of
justification, qualified privilege or fair
comment.
13 Objection overruled. Does not prejudice the Claimant’s case.
Para
No. Witness Statement of Jack Warner
9 Struck out the words: “I was informed and I verily
believed same to be true that several members inclusive of
candidates of the ILP were approached by members of the
UNC and/or their servants and/or agents inducing the ILP
members to join the UNC in return for jobs and in some
cases financial reward.”
Inadmissible hearsay, irrelevant; no source
of information and belief, no probative
value, scandalous and oppressive
10 Struck out the words: “informed me and I verily believe
the same to be true that they were offered job security and
financial reward by senior government ministers to stay
with the UNC. They did not accede to the requests and
they contested the local government elections.”
Inadmissible hearsay, irrelevant; of no
probative value; scandalous and
oppressive, offends repetition rule,
valueless evidence in support of the
Defence. See Shah.
11 Struck out the words: “reported to me and I verily believe
same to be true that on 31st October, 2013 he saw a known
UNC activist whom they know as Sookhai Diesel but
whose proper name is Richie Sookhai (the manager of
Sookhai Diesel Services Limited) visit the home of the
Inadmissible hearsay, irrelevant; of no
probative value; scandalous and
oppressive, offends repetition rule,
valueless evidence in support of the
Defendant. See Shah.
Page 24 of 25
Decision Reason
Claimant and hand over to the Claimant a large plastic
bag which they believed contained money.”
12 Overruled. Admissible evidence of background
events and the Claimant’s state of mind.
13 Struck out the words: “who told me and I verily believe
same to be true that he received a call from an individual
who is known to him as Krishna offering the sum of five
million dollars to vote in favour of the UNC’s choice for
presiding officer and Mayor. Mr. Mahabir informed me
that he had recorded the conversation which he has since
forwarded to me. A true copy of the recording is produced
and hereto attached and marked J.W.1.”
Inadmissible hearsay, irrelevant,
no probative value;
scandalous and the exhibit has no
independent evidential basis.
14 Overruled Admissible evidence of the Defendant’s
alleged connection with the Claimant.
15 Struck out the words: “further reinforced my belief in the
reports made to me that the Claimant received substantial
sums of money for his vote which I believe to be true
having heard the recording submitted to me by Mr.
Mahabir and report made to me by Mr. Lane and Mr.
Archibald.”
Inadmissible hearsay, irrelevant; of no
probative value and scandalous, offends
the repetition rule and irrelevant to the
issues pleaded in the defence.
16 Struck out the words: “informed me and I verily believe
same to be true that the Claimant had received the alleged
payments with several senior members of the UNC
boasting that they could do the same with any member of
Inadmissible hearsay, irrelevant; no
probative value; scandalous and
oppressive.
Page 25 of 25
Decision Reason
the ILP as the UNC as part of the People’s Partnership
Government (“PP”) controlled the state’s purse.”
17 Struck out in its entirety inclusive of exhibit. Irrelevant; opinion evidence.
18 Struck out in its entirety inclusive of exhibit. Inadmissible hearsay; irrelevant; no
probative value; no source of information.
The exhibit has no independent existence
evidentially.
19 Struck out in its entirety. Irrelevant. No link at all between the
conversation and Claimant.
20 Struck out the words, “information passed to me.” Partly inadmissible hearsay; partly
opinion evidence
21 Struck out the words: “that they were bribes to provide
ILP’s strategies and even to withdraw their candidacy in
the Local Government Elections which was held on 21st
October, 2013.”
Partly inadmissible hearsay; partly
opinion evidence
22 Objection overruled. Admissible opinion of the Defendant.
23 Struck out in its entirety. Irrelevancy; of no probative value;
scandalous.
Exhibit has no independent evidential
existence evidentially.
25 Objection overruled. No prejudice to the Claimant in any event.
It is matter for the Court’s discretion as to
what further evidence will be allowed.