the republic of trinidad and tobago in the high court of...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

In the High Court of Justice

Claim No. CV2013-05233

BETWEEN

ASHWIN CREED

Claimant AND

GUARDIAN MEDIA LIMITED ANIKA GUMBS-SANDIFORD

Defendants

Appearances:

Claimant: Philip Lamont instructed by Peter Taylor for the Claimant

Defendant: Frederick Gilkes instructed by Andre Rudder for the First named Defendant

Before The Honourable Mr. Justice Devindra Rampersad

Dated the 12th day of December 2016

JUDGMENT

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Contents

Introduction ................................................................................................................................... 3

Background .................................................................................................................................... 3

Were the words complained of defamatory? ............................................................................ 7

Defence ........................................................................................................................................... 8

Justification ................................................................................................................................ 8

Fair Comment ............................................................................................................................ 8

Were the facts stated in the article true? ............................................................................ 9

Qualified Privilege .................................................................................................................. 11

Analysis and Conclusion ........................................................................................................... 15

Damages ....................................................................................................................................... 16

The Order ..................................................................................................................................... 17

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Introduction

1. By this action the claimant sought compensation for damage to his reputation allegedly

caused by two articles published by the first defendant and written by the second

defendant.1

2. According to the claimant those articles were defamatory and falsely represented to

the public that certain allegations of misbehaviour in public office were made against

him and that he may have a case to answer as the Integrity Commission of Trinidad

and Tobago [“the Commission”] had referred those allegations to the Director of Public

Prosecutions [“the DPP”]. A statement issued by the Commission, however, confirmed

that no such allegations against the claimant had been referred to the DPP.

3. In defence of the claim, the first defendant attempted to rely on the defences of

justification, fair comment and qualified privilege. These defences required that the

first defendant prove, on a balance of probabilities and very simplistically at this stage,

that the impugned words were either:

3.1. True;

3.2. Fair commentary based on facts that were true; or

3.3. Statements of facts which the author reasonably believed to have been true after

reasonable inquiries were made.

4. The court considered the evidence in this matter together with the submissions of both

parties and found that the defences as raised could not be sustained. Rather, the court

found that the words published were not supported by the information then before the

second defendant; could not have been reasonably inferred based on the said

information; and was arrived at recklessly without any proper investigation.

5. The court was of the respectful opinion that when one considered the dearth of

information that was before the second defendant, and what was in front of her at the

time, more investigation was required to meet the standard of professional journalism.

6. The court came to a conclusion that the words complained of were in fact defamatory

and, there being no applicable defence for the defendants to rely upon, awarded the

claimant damages inclusive of exemplary damages.

Background

7. On 3 December 2011, one Ricardo Phillip wrote to his “fellow members” of the

1 who was at the relevant time a journalist with the first defendant

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Trinidad and Tobago Boxing Board of Control [“the TTBBC”]. In that letter, Mr. Phillip

drew an immediate distinction between his fellow members of the board and their

“special advisor” Boxu Potts, the then Minister of Sport, Anil Roberts and the claimant,

the then Permanent Secretary to the relevant government ministry, being the Ministry

of Sport. It is not disputed that at the material time, the claimant was not a member of

the TTBBC, and neither was Mr. Roberts nor Mr. Potts.

8. In that letter, Mr. Phillip made certain complaints and referred to the claimant as

follows:

“He [Mr. Potts] also promised that any Board Member who interferes with the Minister

approval to have the Permanent Secretary (Mr. Aswin Creed) three children as

employees of the Board and be paid a salary of $5000.00 per month will pay the ultimate

price. I believe this to be incestuous and that some Board Member (sic) are

compromised or too scared to treat with these matters.”2

“We have shown that we lack the fortitude and steely resolve to stand against the

negative pressure of the Min. Anil Roberts, Mr. Creed and Mr. Potts to stay focus

(sic) on what is pertinent, important and in the best interest of the sports. There is a

public cry and expectation for fair play, equity and justice in the execution of our duties

and so far we have allowed this “Trifecta of Brotherhood” to impede our ability to live

up to these expectations.

I was asked as a member of the Technical Committee to attend a meeting on the 1

December 2011 to discuss some propose (sic) card only to realize that I was there to

approve a card from Unified/Boxu/Giovanni Potts Promotion for almost 2 million

dollars, when; (sic) just three weeks ago some board members including myself and the

Chairman were harassed, threatened and vilified by Mr. Potts and Mr. Creed for

approving a card of $986,000 for Tansley Thompson/Sure Fire Promotions of which

he only got $296,000.”3

“It is ethically and morally wrong to entertain such request. It is my view that Anil

Roberts, Ashwin Creed and Boxu Potts MUST be held to account for their actions

towards Board Members and others if we are to move forward with this Sport. As public

officials, I believe that we all have a higher court to answer to (the Government and

People of Trinidad & Tobago).”4

9. At some undefined point in time, Mr. Phillip wrote to the Registrar of the Commission

and apparently reproduced the text of his letter to his “fellow members” of the TTBBC

under his cover note to the Registrar. In his cover letter to the Registrar, he said:

“This letter represents my complaints to Members of the Board with regards to the

2 Page 2 of the letter at paragraph 2 3 Ibid. at paragraph 5 and 6 4 Page 3 of the letter at paragraph 3

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Minister (Anil Roberts), the Permanent Secretary (Mr. Ashwin Creed) and Special

Advisor Mr. Boxu Potts. It was sent to my fellow members two days after my refusal

to support a boxing card in the tune of 1.9 million for Mr. Potts and his Son (sic) who

alone have already received just under (3) (sic) Million dollars of government funding

from the Ministry of Sports in the past year, I was subsequently fired. My position is

keeping within the laws of Trinidad and Tobago and specifically (THE INTEGRITY IN

PUBLIC LIFE ACT CHA 22:01 PART IV - CODE OF CONDUCT) as it aptly

states…..”

10. Mr. Phillip then proceeded to quote, in part, section 24 of the said Integrity in Public

Life Act Chap. 22:01 [the Act]. That section provides:

“24. (1) A person to whom this Part applies shall ensure that he performs his functions

and administers the public resources for which he is responsible in an effective and

efficient manner and shall—

(a) be fair and impartial in exercising his public duty;

(b) afford no undue preferential treatment to any group or individual;

(c) arrange his private interests whether pecuniary or otherwise in such a

manner as to maintain public confidence and trust in his integrity.

(2) A person to whom this Part applies shall not—

(a) use his office for the improper advancement of his own or his family’s

personal or financial interests or the interest of any person;

(b) engage in any transaction, acquire any position or have any commercial or

other interest that is incompatible with his office, function and duty or the

discharge thereof;

(c) use public property or services for activities not related to his official work;

or

(d) directly or indirectly use his office for private gain.

(3) No person to whom this Part applies shall be a party to or shall undertake any

project or activity involving the use of public funds in disregard of the Financial Orders

or other Regulations applicable to such funds. ”

11. On 14 March 2013, the Registrar of the Commission wrote to Mr. Phillip and the full

text of the letter is now set out:

“Re: Investigations by the Integrity Commission into complaint against the

TTBBC

The Integrity Commission has completed its investigation into the caption (sic). In

keeping with the requirements of section 31 (1) of the Integrity in Public Act (sic),

Chapter 22:01, the Commission has referred this matter to the Director of Public

Prosecutions.”

12. Relying upon these two letters and information allegedly given to her by Mr. Phillip

on 19 March 2013, the second defendant penned an article in the first defendant’s

newspaper which was published on 20 March 2013. The claimant’s complaint is that

the defendants defamed him in that article when the second defendant wrote the

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following words which were published on the front page of the first defendant’s

newspaper:

“ ANIL FACES DPP PROBE

Sport Minister Anil Roberts, his Permanent Secretary Ashwin Creed and special

advisor to the T & T Boxing Board of Control (TT BBC) Boxu Potts, may have a case

to answer as allegations of misbehaviour in public office against the trio have been

referred to the Director of Public Prosecutions. The move by the Integrity Commission

comes a year after sacked board member Ricardo Phillip filed a complaint against the

three alleging misconduct and misbehaviour in public office.”

[Emphasis added]

13. This article was followed up by one on 21 March 2013, again written by the second

defendant and published in the first defendant’s newspaper in which the following

words complained of by the claimant were written:

“ ANIL MUST STEP ASIDE

The Integrity Commission last week referred Roberts, his Permanent Secretary

Ashwin Creed and special advisor to the T & T Boxing Board of Control (TTBBC)

Boxu Potts to DPP Roger Gaspard, in relation to a complaint of alleged

misappropriation of funds at the TT BBC relating to several events; in particular a $1.9

million boxing card put on by Potts’ son Giovanni.”

[Emphasis added]

14. On 22 March 2013 the Commission issued a statement which was published by the first

defendant and which read:

“The Office of the Integrity Commission wishes to categorically state that no

allegations of misbehaviour in Public Office against Hon. Anil Roberts, Minister of

Sport, Permanent Secretary, Mr. Ashwin Creed or special advisor to the T&T Boxing

Board of Control, Mr. Boxu Pottshave been referred to the DPP by the Office of the

Integrity Commission. Further the said persons were not referred to the DPP by the

Office of the Integrity Commission.”

15. Also on 22 March 2013 there was published an article by the first defendant entitled

“Crichlow on Phillip’s complaints: Matter sent to DPP after issues came up.” That article

included the following quote from Mr. Crichlow, Public Relations and

Communications Officer of the Commission:

“…the T&T Guardian should not have assumed that the investigation was centered on

Roberts, his Permanent Secretary Ashwin Creed or TTBBC Special advisor Boxu

Potts.”

16. Notwithstanding the information coming from the Commission, the first defendant

did not retract the 20 and 21 March 2013 articles nor was there any apology to the

claimant despite formal requests having been made for same.

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Were the words complained of defamatory?

17. This case was founded on the tort of defamation which seeks to protect a person’s

reputation where a statement is made which would tend to lower the plaintiff in the

estimation of right thinking members of society generally.5 The court was thus required

to consider the statement from the perspective of how the ordinary reasonable reader

would interpret the statement.6 Both parties aptly referenced the case of Lewis v. Daily

Telegraph Limited7 in which Lord Reid stated:

“…rule out on the one hand persons who are so lax or so cynical that they would think

none the worse of a man whatever was imputed to him, and on the other hand those

who are so censorious as to regard even trivial accusations (if they were true) as

lowering another’s reputation, or who are so hasty as to infer the worst meaning from

any ambiguous statement…The ordinary citizen…is neither unusually suspicious nor

unusually naïve, and he does not always interpret the meaning of words as would a

lawyer, for he is not inhibited by a knowledge of the rules of construction”8.

[Emphasis added]

18. Were the words used capable of having a defamatory meaning i.e. whether the

ordinary, intelligent and unbiased person reading the words would understand them

as terms of disparagement, and an allegation of dishonest and dishonourable conduct?9

A claimant must first prove that the statement made was defamatory10 but a defendant

may not be held liable if a successful defence can be raised.

19. Having considered the articles, it seemed a reasonable proposition that the ordinary

citizen would have been able to see the forest for the trees. It was quite possible to see

how an ordinary citizen would have reached to the conclusion that the claimant wished

this court to reach - that the words published meant that there was sufficient evidence

of a criminal nature against the claimant in the opinion of the Commission to warrant

him being referred to the Director of Public Prosecutions. More specifically, after

having considered the second publication on 21 March 2013, the ordinary reader would

have, at the very least, formed a grave suspicion of guilt in respect to the claimant’s

implication in the misappropriation of funds and his behaviour at the TTBBC.

20. The ordinary citizen would have seen reference to the letter from the Commission

5 See Sim v Stretch [1936] 2 All ER 1237 p 1240 per Atkin LJ 6 See Skuse v Grenada Television Limited [1996] EMLR 278; Kayam Mohammed & Ors v Trinidad Publishing

Company Ltd & Ors Civ App No 118 of 2008; Jones v Skelton [1963] 1 WLR 1362; Seebalack Singh v Trinidad

Express Newspaper Ltd & Ors CV2013-04366; Pinard-Byrne v Lennox Linton [2015] UKPC 41 7 [1964] AC 234.

8 At p. 258, per Lord Reid. 9 Per Bollers J in Ramsahoye v Peter Taylor & Co Ltd (1964) LR BG 329 at 331 referred to by Hamel Smith JA

in Civ App No. 175 of 2000 Panday v Gordon. 10 See Kenneth Julien v Camini Marajh and Trinidad Express CV2007-00348

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which, despite referring to the TTBBC and not the claimant, would have been coloured

by the caption and opening paragraphs of the articles. To the court’s mind, any right

thinking reader, not looking for controversy and not being unusually naïve, would

have seen that the writer referred to the TTBBC and also to the line ministry, the

Ministry of Sport and to the claimant as the Ministry’s Permanent Secretary. Bearing

in mind that he/she would not have had the letter from Mr. Phillip, he/she would have

come to a conclusion that there was some impropriety involving the TTBBC and the

officials in the line Ministry sufficient so as to have that impropriety referred to the

DPP. Necessarily, that impropriety – misbehaviour in public office – would include the

claimant who, because of the referral, would have then been considered a person of

questionable integrity.

Defence

21. The defendants relied on the defences of justification, fair comment and qualified

privilege.

Justification

22. No claim for defamation can succeed if the statement complained of is true. The first

defendant suggested that it was the imputation contained in the words which has to

be justified and not the literal truth of the words. Citing the authority of Gatley on Libel

and Slander 11th Edn, 2008 at paragraph 11.8-11.9 the first defendant asserted that there

was no need to justify statements or comments which do not add to the sting of the

charge or introduce any matter by itself. This defence and that of fair comment were

considered together as they both rest on whether or not the facts stated in the articles

were true.

Fair Comment

23. As relates the defence of fair comment, the first defendant’s attorney correctly

summarized the principles in his submissions in that if defamatory statements

amounts to fair comment on matters of public interest and are based on facts that are

true, a claim for damage for defamation may not succeed. The first defendant placed

reliance on the dicta of DaCosta C.J. in the Bahamian case of Osadebay v Solomon

Supreme Court of Bahamas No. 803 of 1979 (unreported) wherein it was stated:

“Again, the comment must be an expression of an opinion and not an assertion of

fact and the critic should always be at pains to keep his facts and his comments upon

them severable from one another. For if it is not reasonably clear that the matter

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purported to be fair comment is such, he cannot plead fair comment as a defence. The

facts themselves must be truly stated as Fletcher Moulton, L.J. observed in Hunt v.

Star Newsp. Co. ([1908–10] All E.R. Rep. at 517);

‘In the next place, in order to give room for the plea of fair comment, the

facts must be truly stated. If the facts upon which the comment purports to be

made do not exist the foundation of the plea fails. This has been so frequently

laid down authoritatively that I do not need to dwell further upon it: see, for

instance, the direction given by Kennedy J., to the jury in Joynt v. Cycle Trade

Publishing Co. ...which has been frequently approved of by the courts. Finally,

comment must not convey imputations of an evil sort except so far as the facts

truly stated warrant the imputation.’ [emphasis added]

24. DaCosta CJ described that case as a simple but important one as it concerned what he

described as one of the fundamental freedoms, freedom of expression, and the right to

discuss and criticise the utterances and conduct of men in public life. DaCosta CJ noted

the importance of honest criticism but acknowledged that freedom of expression is not

an unfettered right and must be exercised according to the law which he summarised

and concluded by stating the following in relation to the defence of fair comment:

“The comment itself must be fair and, obviously, comment cannot be fair if it is not

based upon true facts in existence when the comment was made. Any person is entitled

to say by way of comment on a matter of public interest what he honestly thinks, however

exaggerated, obstinate or prejudiced that may be; such comment is fair comment and

sustainable as a defence to a libel action unless it is so strong that no fair minded person

could have made it honestly. [emphasis added]

25. The claimant accepted that the matter was undoubtedly one of public interest11 and so

the court considered whether the facts as stated in the articles were true.

Were the facts stated in the article true?

26. The impugned articles made two very telling factual statements in relation to the

claimant:

26.1. That the claimant had been referred to the DPP in relation to a complaint of

alleged misappropriation of funds at the TTBBC relating to several events; in

particular a $1.9 million boxing card put on by Potts’ son Giovanni.

26.1.1. The Commission publicly and categorically denied this assertion.

The first defendant however attempted to suggest that the

Commission may have nonetheless forwarded matters involving

the claimant to the DPP as that was the impression given by, inter

alia, the Commission’s failure to stipulate exactly what matters

were referred to the DPP and the comments of Mr. Crichlow which

11 See para 54 of the claimant’s submissions filed on 12 October 2016

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hinted to the claimant being a subject of the investigation which

was forwarded to the DPP, though not being the center of it.

26.1.2. The court was not minded to accept this proposition in light of: (i)

the clear statement from the Commission that the claimant had not

been referred to the DPP; (ii) the fact that by letter dated 14 March

2013, on which the first defendant relied, the Commission indicated

that complaints against the TTBBC were referred to the DPP and

no mention was made of the claimant; (iii) the claimant was not a

member of the TTBBC; and (iv) there was no evidence to support

the proposition, whether from the Registrar or the Commission or

the DPP, and the onus to prove same was on the defendants.

26.2. That Ricardo Phillip filed a complaint against the claimant alleging misconduct

and misbehaviour in public office.

26.2.1. It should be noted that Mr. Phillip never used the words

misconduct or misbehaviour in public office. In considering what

the general gist of what was said, as suggested by the first

defendant, the court was mindful that:

26.2.1.1. Mr. Phillip complained that the claimant’s children had

gained employment at TTBBC, an entity for which the

claimant had responsibility for approving funding. The

first defendant argued that this was in contravention of

section 24(2) of the Act but it should also be noted that

Mr. Phillip indicated that it was the Minister who

approved the supposed employment of the claimant’s

children and no direct allegation of impropriety was

made;

26.2.1.2. There was an indirect suggestion of impropriety

concerning the approval of a 1.9 million boxing card but

there was no direct reference to the claimant; and

26.2.1.3. Mr. Phillip complained that members of the board were

harassed, threatened and vilified by the claimant for

approving a particular card.

The first defendant suggested that these acts amounted to misbehaviour in

public office whereas the claimant argued that Mr. Phillip did not make such a

statement. To the court’s mind, what Mr. Phillip did was to voice his concerns

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about certain facts as known to him and the articles appear to have added to

the sting of the charge.

27. An examination of the words complained of appeared to reveal only one comment and

that was that the claimant may have a case to answer as allegations of misbehaviour in

public office against him were referred to the DPP. The first defendant attempted to

argue that it was reasonable comment on what the Commission’s letter seemed to be

saying.

28. The court disagrees. What the second defendant did was to give a factual interpretation

to the letter, which was misconceived and later proven to be untrue. As stated in the

case of Osadebay v Solomon, once the facts prove to be untrue, the plea must fail. Even

if the court was to accept that allegations of misbehaviour in public office was made,

there was no evidence to suggest that the claimant was referred to the DPP in relation

to those allegations.

Qualified Privilege – “Reynold’s Privilege”

29. Unlike the two preceding defences, this defence protects the maker of a statement

where the facts upon which they were made are later proven to be untrue. A claim for

defamation may be defeated if the statement is published on an occasion of qualified

privilege that being where it was in the public interest to publish and the publisher

acted responsibly in attempting to verify the accuracy of the statement. In such an

instance, liability arises only if the writer knew the statement was not true or if he made

the statement recklessly, not caring whether it was true or false.

30. When determining whether a publication is privileged, it has been accepted that the

principles to be applied are those articulated in the case of Reynolds v Times

Newspapers & Ors 1999 UKHL 45. In that case Nicholls LJ expressed that the defence

required a balance between two fundamental rights, freedom of expression and

protection of reputation.12 He opined that it came down to a duty-interest test, the

question of whether the public was entitled to know the particular information after

every circumstance associated with the origin of the publication had been considered.

His Lordship also expressed that the standard to be applied was similar to that

required of responsible journalism taking in consideration the following factors in

addition to any other factor that may prove relevant:

“Depending on the circumstances, the matters to be taken into account include the

following. The comments are illustrative only. 1. The seriousness of the allegation. The

more serious the charge, the more the public is misinformed and the individual

harmed, if the allegation is not true. 2. The nature of the information, and the extent to

12 See also Bonnick v Morris (Jamaica) 2002 UKPC 31

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which the subject matter is a matter of public concern. 3. The source of the

information. Some informants have no direct knowledge of the events. Some have their

own axes to grind, or are being paid for their stories. 4. The steps taken to verify the

information. 5. The status of the information. The allegation may have already been

the subject of an investigation which commands respect. 6. The urgency of the matter.

News is often a perishable commodity. 7. Whether comment was sought from the

plaintiff. He may have information others do not possess or have not disclosed. An

approach to the plaintiff will not always be necessary. 8. Whether the article contained

the gist of the plaintiff's side of the story. 9. The tone of the article. A newspaper can

raise queries or call for an investigation. It need not adopt allegations as statements

of fact. 10. The circumstances of the publication, including the timing.

[Emphasis added]

31. Examples of extreme cases where the urgency of communicating a warning is so great

that publication of suspicion or speculation is justified were given by the Court of

Appeal in Reynolds13 as cases where there is danger to the public from a suspected

terrorist or the distribution of contaminated food or drugs.

32. The Reynold’s Privilege was further applied by the House of Lords in the case of Jameel

& Ors v Wall Street Journal Europe 2006 UKHL 44 wherein Bingham LJ expressed that

that there is no duty to publish and the public have no interest to read material which

the publisher has not taken reasonable steps to verify. It was further expressed that the

publisher is protected if he has taken such steps as a responsible journalist would take

to try and ensure that what is published is accurate and fit for publication. Similar

sentiments were expressed by Mendonca JA in the case of Kayam Mohammed & Ors

v Trinidad Publishing Company Ltd & Ors Civ App No 118 of 2008 in which he

expressed that there should be belief in the truth of the allegation reasonably held as a

result of a reasonable investigation. There is thus a requirement for reasonable

investigation but it has been held however that a failure to obtain a comment from the

plaintiff would not always be fatal.14

33. The court considered the relevant principles and its immediate thought was that the

second defendant did not properly investigate Mr. Phillip’s allegations or the supposed

referral of the same to the DPP before representing that the claimant may have had a

case of misbehaviour in public life to answer.

34. Mr. Phillip’s letter to the TTBBC suggested some sort of impropriety involving Mr.

Creed in relation to the employment of his 3 children and, indirectly, the alleged $2

million fight card. The second defendant did not check to see if in fact the claimant had

3 children working in the TTBBC. As a matter of fact, she did not state in her witness

statement that she raised that issue with Mr. Phillip as to its truth. Further, she made

13 See [1998] 3 All ER 961, [1998] 3 WLR 862, [2000] 2 LRC 690, [1998] All ER (D) 326 14 See Jameel & Ors v Wall Street Journal Europe 2006 UKHL 44

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no inquiry in relation to the allegation of the $2 million card. Instead, she seems to have

solely relied on the letter from the Commission to have substantiated and corroborated

her story, without more, and came to the conclusion that Mr. Phillip’s concerns

amounted to misconduct/misbehaviour in public office.

35. It was important to look at the letter from the Commission to see if the second

defendant acted reasonably and responsibly in relation to that letter.

36. The issue related to the reputation of a Permanent Secretary who, in light of the

evidence before the court, had an untarnished reputation up to that point, and so it was

important to critically analyse the letter since it carried the thrust and foundation of the

second defendant’s article.

37. The letter was addressed to Mr. Ricardo Philip. It was captioned:

“Re: Investigations by the Integrity Commission into complaint against the TTBBC”

38. Straight off, when one examined the letter written to the Commission by Mr. Phillip, it

is obvious that his complaint centered around 3 persons who were allegedly bringing

the TTBBC down – Boxu Potts, the then Minister Anil Roberts, and, to a lesser extent,

the claimant.

39. Apart from that, and certain references directly to Mr. Potts and Mr. Roberts, there was

no allegation at all against the TTBBC. Clearly, the claimant was not a member of the

TTBBC nor was Mr. Roberts. Therefore, it was difficult to see how the caption could

reasonably have been construed by the second defendant to relate to the claimant. The

ordinary person, not looking for conflict, and construing the document in its normal

and everyday language, would have, to the court’s mind, come to the view that the

letter was being written about a complaint being made against the TTBBC itself,

whether in whole or in part. The claimant, who was the Permanent Secretary in the

particular Ministry at the time, could not reasonably have formed a part of the

complaint referred to in the caption. The second defendant must have known that.

40. A look at the letter from the Commission revealed, quite blatantly, that there is no

mention whatsoever of the letter written by Mr. Phillip above. Therefore, having taken

into account the caption, as analysed above, and the first sentence of the letter which

referred to the Commission having completed its investigation into “the caption”, there

seems to be absolutely no bridge between Mr. Phillip’s letter as outlined above and the

response from the Commission. Of course, Mr. Phillip was not a witness in these

proceedings and therefore the court has no full understanding as to why the

Commission responded to him about a complaint against the TTBBC but, be that as it

may, it is obvious that the second defendant strained a connection based only on the

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fact of Mr. Phillip having written a letter to the Commission and a response from the

Commission dated 14 March 2013, without verifying the link.

41. The court thus disagreed with the second defendant when she said that the caption

sufficiently linked the claimant to the complaint. No reasonable and responsible

reading of that caption suggested that. It may have been more prudent for her to have

sought clarification from the Commission in relation to the complaint but, instead, she

sought to sensationalize a story rather than to do what she described herself as doing,

namely, investigative journalism. Her evidence of not making inquiries with the

Commission because she had not been able to get a response in the past did not absolve

her from attempting to do so on this occasion especially when the caption was not clear.

She must have asked herself, what complaint against the TTBBC was being referred to

when the allegation made by Mr. Phillip was respect to persons outside of the TTBBC?

42. It was important to note that the second defendant, as an investigative journalist, did

not refer to the Act in her witness statement to suggest that she was even familiar with

the subject of the alleged complaint. Further, she did not show any familiarity with the

facts other than to reflect exactly what was stated in Mr. Phillip’s letter without coming

to a view as to their applicability or the meaning of the words Mr. Phillip used. It may

be suggested that that was not her job but that could not be since she accepted her role

as an investigative journalist. Mr. Gilkes suggested that the term “misbehaviour in public

office” was a legal term and the second defendant was not called upon to be familiar

with it. This court begged to differ. It was not as though she was expected to have come

to any conclusion on the point but, at the very least, having raised it frontally in her

article that the claimant may have a case to answer in relation to misbehaviour in public

office, she did not even satisfy herself as to the basic tenements of the alleged offence

and whether or not it applied. This is not a case of mere reportage. This is a case where

she applied certain facts as told to her by Mr. Phillip; used a differently captioned letter

from the Commission to give Mr. Phillip’s story credibility; came to a conclusion that

there was the suggestion of misbehaviour in public office against the claimant, even

though she did not demonstrate that she knew what the term meant; and ran with it in

the interest of the public without seeing how the pieces fit together. To my mind, it was

most irresponsible of her.

43. The second defendant did no research. Had she done so she would have taken a pause

when Mr. Potts commented that he had not been informed that the matter had been

sent to the DPP in contravention of section 38 of the Act. The second defendant also

did nothing to verify the statements made against the claimant other than, allegedly,

to attempt, unsuccessfully, to contact him on the very day that she got her story from

Mr. Phillip. Even that allegation was without any foundation or corroboration

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whatsoever. She produced no telephone records or documentary evidence whatsoever

to confirm the attempts she made. The world has moved on considerably faster with

the advent of technology and therefore to merely make an allegation when there are

obvious methods of supporting that allegation is not sufficient. She should have

produced the telephone records if she seriously wanted this court to believe that she

attempted to contact the claimant. Anything less would, to my mind, be a self-serving

statement with little or no value.

44. It was obvious that the second defendant thought she had landed a scoop of some sort

and was anxious to get it out there into the world but, as she seemed to theoretically

understand, responsible journalism goes beyond just repeating or extrapolating

sensational allegations.

45. At the end of the day, in suggesting that someone who is a public servant has possibly

misbehaved in public office, one would expect that the person making such a

suggestion has solid ground for doing so. In this case, regrettably, this witness did not.

46. On both occasions, in the articles complained of, the second defendant was wrong. The

Commission did not refer the claimant to the DPP. The Commission’s letter mentioned

nothing of the sort. The caption related to investigations conducted by the Commission

against the TTBBC. Having regard to the very serious remit of the Commission and its

almost unique investigative powers and jurisdiction, one would not expect the

Commission to be confused with respect to the party it was investigating. Nowhere in

that letter did the Commission mention anything about investigating the claimant. The

letter identified the body it was investigating and that was clearly set out when one

reads the caption which concludes in the following words “… complaint against the

TTBBC”.

Analysis and Conclusion

47. Consequently, the court was of the view that the second defendant got it horribly

wrong through her failure to investigate the allegation at all save for telephone calls to

Mr. Roberts and Mr. Potts, whose responses were quoted. It was suggested to the

claimant that even if he had been contacted, he would not have been able to have any

helpful input in respect of the allegation, which he agreed. Nevertheless, a response

from the claimant is not the sole factor one considers in investigations of this nature.

48. A breakdown of the considerations recommended by Nicholls LJ for responsible

journalism evidenced that:

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48.1. The matter was a very serious one involving a very serious charge;

48.2. The subject matter was one of public concern;

48.3. The source of the information came from someone who quite possibly could

have had an axe to grind as, according to his letter, he may have been fired

shortly after making the complaints;

48.4. The steps taken to verify the information was lacking especially given the

disparity between the caption of the letter from the Commission and Mr.

Phillip’s complaints;

48.5. The allegations were made well over a year before the publication and the

article was published less than 24 hours after receiving the information;

48.6. The story could not be described as one requiring the level of urgency adduced

to it and the defendants did not adduce any evidence to suggest same;

48.7. The court doubted the second defendant’s claim of attempting to seek comment

from the claimant but, ultimately, none was received;

48.8. The tone of the article was to adopt allegations as statements of fact.

49. These factors weighed decisively in favour of a finding that it was not in the public’s

interest to be given the words complained of.

50. As a result, there will be judgment for the claimant as the court finds that the statements

complained of were in fact defamatory of the claimant and no sustainable defence was

offered by the defendants.

Damages

51. With respect to the issue of damages, the court relies upon its discussion of the

principles and the authorities relating to damages arising in relation to defamation

cases in its decision in CV2007 – 00348 Kenneth Julien v Camini Marajh & Or. The

court also noted the authorities and submissions made by the parties along with the

fact that the first defendant printed the Commission’s position on the issue by 22 March

2013 clarifying that the claimant was not in fact referred to the DPP. Despite printing

the Commission’s position however the first defendant refused to issue a retraction or

apology.

52. Consequently, the court awards the claimant the sum of $250,000.00 as compensatory

damages for the damage to his reputation.

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53. Further, this court was of the view that the defendants had no proper basis for making

the allegations that they did in the articles which were published. They seemed reckless

as to whether or not what was being presented to the public had any validity or truth

whatsoever. Accordingly, this is a case which, to the court’s mind, ought to have

attracted an award for exemplary damages and the claimant was awarded a further

sum of $100,000 for exemplary damages as a measure of this court’s deprecation of the

stances adopted by the defendants.

The Order

54. Judgment for the claimant against the defendants. The defendants shall pay to the

claimant general damages awarded in the sum of $250,000.00 together with interest

thereon at the rate of 5% per annum from 30 December 2013. The defendants shall also

pay to the claimant exemplary damages in the sum of $100,000.00.

55. The defendants shall pay to the claimant the prescribed costs of the action quantified

by the court in the sum of $56,500.00.

…………………………………….

Devindra Rampersad

Judge

Assisted by

Charlene Williams

Judicial Research Counsel

Attorney at Law

the republic of trinidad and tobago in the high court of...

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