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

CV 2012 – 03304

Between

VIRO CHEM JANITORIAL SERVICES COMPANY LIMITED

KEINO O’NEIL

Claimants

And

ACKBAR KHAN

Defendant

Before the Honourable Mr Justice Ronnie Boodoosingh

Appearances:

Mrs Salliann Holdip-Francis for the Claimants

Mr John Heath instructed by Mr Lionel M. Luckhoo for the Defendant

Date: 27 July 2016

JUDGMENT

1. This claim is for defamation which arises out of a letter dated 17 July 2010 written by the

defendant to the then Minister of Works and Transport, Mr Jack Warner and copied to the then

Attorney General, Mr Anand Ramlogan.

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2. In that letter statements were made about the claimant company and the second claimant

who owns and manages the claimant company.

3. The defendant is a Justice of the Peace, well known in Trinidad and Tobago. He was also

the owner of a company called Century 21 which carried on the same business as the claimant

company. This included janitorial services.

Law

4. Whether a statement is defamatory is a question of fact in each case. The court’s

approach is to first decide what the words mean, in their ordinary and natural meaning, to the

ordinary reasonable man, and then to consider whether that meaning is defamatory.

5. A defamatory statement is one which tends to lower the claimant in the estimation of

right-thinking members of society generally, or is likely to affect the claimant adversely in the

estimation of reasonable people generally. A defamatory imputation has also been expressed to

be one to the claimant’s discredit or which causes him to be shunned or avoided, or exposes him

to hatred, contempt or ridicule: see Gatley on Libel and Slander 11th edition, para. 2.1; Sim v

Stretch [1936] 2 All ER 1237 at 1250.

6. In Lewis v Daily Telegraph Ltd [1964] AC 234 Lord Reid stated at page 258:

“There is no doubt that in actions for libel the question is what the words would

convey to the ordinary man: it is not one of construction in the legal sense. The

ordinary man does not live in an ivory tower and he is not inhibited by knowledge

of the rules of construction. So he can and does read between the lines in the light

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of his general knowledge and experience of worldly affairs...

What the ordinary man would infer without special knowledge has generally been

called the natural and ordinary meaning of the words. But the expression is rather

misleading in that it conceals the fact that there are two elements in it. Sometimes

it is not necessary to go beyond the words themselves as where the plaintiff has

been called a thief or murderer. But often the sting is not so much in the words

themselves as in what the ordinary man will infer from them, and that is also

regarded as part of their natural and ordinary meaning.”

7. On the issue of damages in TnT News Centre Ltd v John Rahael Civ. App. No 166 of

2006 (delivered 9 July 2009) the Court of Appeal affirmed the threefold nature or purpose of an

award of damages in a defamation action:

(i) to compensate the claimant for damage to his reputation,

(ii) to vindicate his good name, and

(iii) to take account of the distress, hurt and humiliation which the defamatory

publication has caused.

(See John v MGN Ltd [1996] 2 All ER 35; Gatley on Libel and Slander 10th edition

at para 9.2)

8. In John v MGN Ltd Sir Thomas Bingham MR stated at pages 46 and 47:

“The successful plaintiff in a defamation action is entitled to recover, as general

compensatory damages, such sum as will compensate him for the wrong he has

suffered. That sum must compensate him for the damage to his reputation;

vindicate his good name; and take account of the distress, hurt and humiliation

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which the defamatory publication has caused. In assessing the appropriate

damages for injury to reputation the most important factor is 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. The extent of publication is also very relevant: a

libel published to millions has a greater potential to cause damage than a libel

published to a handful of people. A successful plaintiff may properly look to an

award of damages to vindicate his reputation: but the significance of this is much

greater in a case where the defendant asserts the truth of the libel and refuses any

retraction or apology than in a case where the defendant acknowledges the falsity

of what was published and publicly expresses regret that the libelous publication

took place. It is well established that compensatory damages may and should

compensate for additional injury caused to the plaintiff's feelings by the

defendant's conduct of the action, as when he persists in an unfounded assertion

that the publication was true, or refuses to apologize, or cross-examines the

plaintiff in a wounding or insulting way.”

The Letter

9. The letter written by the defendant to the Minister of Works and Transport is central to

this case and I therefore set it out in full as follows.

July 17th 2010.

DELIVERED BY HAND

HON. JACK WARNER

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Minister of Work and Transport

Ministry of Works and Transport

Richmond & London Streets

PORT-OF-SPAIN.

Dear Minister Warner:

SUBJECT: RE: CARIBBEAN AIRLINES COMPANY LIMITED (CAL)

______________________________________________________________________

Sometime in the month of February 2009, I called Phillip Saunders, Chief Executive

Officer of Caribbean Airline informing him that Mr. Djarlon Sealey, Property Services

Manager, Caribbean Airlines told me that my contract (which was valued at

approximately $99,000 per month) with Caribbean Airlines was terminated as of January

2009, and that the company was going for a new tender. I also mentioned that Mr. Sealy

told me that he wanted me to submit my tender documents to him by January 19th 2009.

This I did.

Subsequently, a week after Mr. Sealy communicated to me via telephone, that my tender

was not successful and that a company called Viro-Chem Janitorial Services Company

Limited was awarded the contract (for $100,000. plus per month). During our

conversation, I enquired whether the tendering process went to the ‘Tenders Board’ for

their consideration (taking into consideration the size of the contract and the fact that the

procedure is that all tenders should go through the Tenders Committee). Mr. Sealy

responded in the negative, adding that Mr. Phillip Saunders, the Chief Executive Officer

of Caribbean Airlines gave him the authorization to handle the tender by not worrying

with the ‘Tenders Committee’. I mentioned to Mr. Sealy that this is a highly unusual

situation, since the procedure is that all tenders should go through the ‘Tenders

Committee’.

Thereafter, I called and went to see Mr. Philip Saunders to ascertain what was going on

and the reasons for my company’s termination. Mr. Saunders told me that he will give

the instructions to have my company reinstated. True to his word, the following day we

started to work again. However, within one (1) week, Mr. Sealy again terminated our

contract.

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At this point, I became concerned about this situation and wondered about this

company – Viro-Chem. As a Justice of the Peace in Trinidad and Tobago for the past

forty-seven (47) years, I decided to do some investigating into the background on Viro-

Chem Janitorial Services Company Limited.

My investigation revealed some interesting and disturbing facts, namely:

(1) Exhibit ‘A’ – Directors of Viro-Chem - Maria Sealey, Keino O’Neil and Peter

Taylor, Attorney at Law of #37 Abercromby Street, Port of Spain and former

minister of Legal Affairs.

(2) Exhibit ‘B’ and ‘C’ – Caribbean Airlines had requested Essential Services Limited

to do a background investigation on Maria Juliet Sealey and Keino David Sylvan

O’Neil in order for them to obtain clearance of good character which would enable

them to obtain restricted passes which are issued by the Airports Authority of

Trinidad and Tobago.

These investigations revealed that Maria Sealey was in fact in a common-law

relationship with Mr. O’Neil; and Mr. O’Neil is addicted to substance abuse and has a

criminal charges pending.

(3) Mr. Djarlon Sealy who was Project Manager of Caribbean Airlines was also on the

payroll of Viro-Chem (see Exhibit ... which highlights cheques (one of them a Nova

Scotia cheque for $4,000) and (see Exhibit ‘E’ interviewed Deborah Joan Neptune

who decided to take an oath on July 28th 2009) in the presence of a Notary Public

and which substantiate my investigation) and were paid to Mr. Djarlon Sealy’s

account.

(4) Exhibit ‘F’ – sometime later – bank statement dated May 31st, 2009 revealed that

Ms. Maria Sealey deposited a cheque in the amount of $400,000 on May 21st 2009

at Republic Bank in Tunapuna. On that same day she also cashed out a number of

cheques in other banks concerning that account. It is alleged the teller informed

her supervisor and it was confirmed by the said supervisor that it was a good

cheque. Ms. Maria Sealey then visited various banks the same day and cashed out

the cheques.

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On the bank statement it should be noted that on May 26th 2009 the bank posted a NSF

(not sufficient funds) against the cheque.

Sometime thereafter, my daughter Jennifer Khan and I visited the Republic Bank in

Port of Spain and informed them of the situation. They were shocked and dismayed

and had no knowledge that such goings on had taken place. Subsequently, they

launched an investigations which resulted in two (2) employees being fired from the

Tunapuna Branch.

The Fraud Squad was also apprised of the situation.

(6) Exhibit ‘G’ details other improprieties that surfaced during my investigation.

I also called Mr. Phillip Saunders and brought him up to speed with new developments.

He appeared to me to be in a state of panic. He suggested that we should meet outside of

the office. I suggested the Valpark Chinese Restaurant, in the Valpark Plaza.

Sometime in early August 2009 we did meet at the aforementioned restaurant and I told

him everything. I also mentioned that I have some connections with Scotland Yard and

Interpol in Trinidad and Tobago and had found out some information about Maria

Sealey, namely; that she had swallowed sixteen (16) tablets filled with a narcotic

substance with the intention of trafficking. She was caught and sentenced to five years in

a London jail. She, however, served three (3) years and was subsequently, deported to

Trinidad. (see Exhibit ‘H’).

I also expressed to Mr. Saunders that as an Englishman he was a disgrace to his country

and that I had warned him before about the clandestine going on, but that he chose not to

take heed. I mentioned as well, that I would be reporting this entire matter to the higher

authority.

Within two (2) days, Mr. Philip Saunders tendered his resignation from Caribbean

Airlines Company Limited. I was surprised though to learn that Mr. Courtney Mc Nish,

Vice President of Human Resources (and a former employee of TCL) had also resigned

(he apparently was brought into the company by Dr. Sultan Khan and .... out of the

reach).

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I spoke with Mr. Kurt Gould, Manager, Security of CAL and apprised him of the situation

regarding Maria Sealey and the fact that she should not be allowed in the airport for

obvious security reasons. I also added that as head of security it is his responsibility to

do a background check on personnel working in the airport. In my opinion, Mr. Gould

failed to discharge his responsibilities.

Mr. Martin Joseph, the then Minister of National Security was also told of the situation,

he reacted in an abrupt manner to my communication.

Correspondence was sent to Mr. Arthur Lok Jack, Chairman, CAL duly informing him of

the entire situation (dated May 18th and September 3rd 2009). I was shocked that no

action was taken. See Exhibit ‘I’.

With regard to Mr. Taylor, sometime in early July 2009 I called him and he

subsequently visited me at home. During our conversation, Mr. Taylor indicated that

he had in fact resigned a long time ago as director of Viro-Chem. Subsequently, my

investigations revealed that he did resign on July 7th 2009 (see Exhibit ‘J’).

However, he was a director of a company while serving as a Minister in government. I

was truly surprised that none of the other ministers was aware of this situation. As well,

I did let Mr. Taylor know about Ms. Maria Sealey’s background and that I considered

her to be a ‘crook’. Mr. Taylor said that he was unaware that she had spent time in jail.

Let me say Mr. Warner, that first of all, I am impartial about politics, but when they

attacked you for serving two (2) masters, no mention was made of he – Mr. Taylor

serving two (2) masters during his tenure as a minister in the previous government. What

irony.

Mr. Warner, I have served this country selflessly and .... for forty-seven (47) years. I am

asking for your assistance to get my contract reinstated. I have invested heavily in

purchasing specific equipment for this contract and would be grateful for your kind

assistance in sorting out this situation.

Honourable Minister, I have written to you as line Minister in-charge of Caribbean

Airlines Company Limited so that you may know about the clandestine practices taking

place within this government company. Viro-Chem has a very high turnover of staff at

the airport and it is alleged that the company does not honour their statutory and other

requirements e.g. payment of NIS for employees, VAT, and Workman’s Compensation

Liability Insurance for employees etc. If an employee should be injured on the job,

Caribbean Airline exposure can be considerable. In my humble view the relevant

statutory authority should perform an audit of Viro-Chem immediately. A copy of this

letter was also sent to Mr. Anand Ramlogan, in his capacity as Attorney General of

Trinidad and Tobago.

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I have attached my contact information for your easy reference, and I look forward to

hearing from you soon.

Yours respectfully,

JUSTICE OF THE PEACE OF TRINIDAD & TOBAGO

Ackbar Khan.

ATTS: EXHIBITS A-J.

cc: Mr. Anand Ramlogan, Attorney General of Trinidad & Tobago.

10. The specific matters complained of have been highlighted in the letter. But the letter has

to be looked at as a whole inclusive of the annexures which were sent with it.

11. These annexures were not part of the filed claim. The claimants’ explanation is that only

the letter itself was brought to their attention and therefore this is why the letter alone was put

forward.

12. Submissions were made by the defendant on how this should be viewed by the court.

The court had the benefit of the attachments as disclosed by the defendant. No issue turned on

them. There was no issue of “clean hands” as raised by the defendant. I did not consider the

failure to advance the annexures, assuming the claimants were aware of them, in any way

impacted on the claim. Both the letter and the annexures were before me and I looked at them

both together.

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13. The claimants denied these matters highlighted in its claim form. The claimants alleged

that as a result of these false statements the first claimant’s contract with Caribbean Airlines

Limited (CAL) was terminated and that injury to reputation and character has been sustained.

14. The defence accepted the letter was written by the defendant. It disputed the meaning

attributed to the words but also raised justification, fair comment and qualified privilege.

15. In particular, the defence set out:

(i) The contract of the first claimant ended by effluxion of time on 9 February 2011.

(ii) There was no crusade to defame the claimants.

(iii) Peter Taylor was a director of the first claimant company at one time.

(iv) The statement about Djarlon Sealey was fair comment because of a payment of $4,000.00

made to him.

(v) The statements about non payment of NIS was fair comment because Ryan Pierre’s

statement showed NIS was not paid for a period from September 2008 to May 2009.

16. The statements were covered by qualified privilege because:

(i) The first claimant was doing work for CAL.

(ii) The defendant as a citizen had an interest in the operation of CAL.

(iii)The line Minister for CAL had a right to be informed of irregularities.

(iv) The investigation was prompted when the defendant was informed his tender to CAL was

unsuccessful.

(v) The defendant got this information in an unusual way and the termination of his

company, its reinstatement and termination again gave grounds for suspicion.

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17. The defence also asserted that:

(i) The defendant exercised reasonable care in obtaining and verifying the information.

(ii) These were matters of public interest.

(iii)The defendant had a moral and social responsibility to communicate this information to

the Minister.

(iv) The reason for the termination of the first claimant’s contract in December 2011 was

because of the complaints about the performance of the first claimant.

(v) The defendant had an honest belief in these matters.

(vi) The defendant “may have only misconstrued the reference to addiction to substance

abuse and habits” by the second claimant. But the attachment to the letter at “C” noted

the second claimant was “Not known to be addicted to any substance or habits legal or

otherwise”.

(vii) The criminal records office showed charges were outstanding for the second

claimant.

(viii) The defendant denied he was actuated by malice or a desire to further his

commercial interests.

(ix) The facts were communicated to defend the legitimate interest of the State.

18. The second claimant gave evidence on his own behalf. The defendant had filed a witness

statement. However, he did not give evidence. He was reported to be ill at one stage. The court

adjourned the matter for him to give evidence. On the adjourned date his counsel declined to call

him. Ryan Pierre, an employee of Century 21, was however called.

19. The second claimant gave evidence on behalf of himself and the company. He is the

manager and owner of the first claimant. The company is registered. Before going into business

he was a member of the Coast Guard.

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20. A professional relationship with CAL developed following a successful bid on an open

tender. This began about September 2008. Following this, in February 2009, the first claimant

was to provide janitorial services for CAL at a monthly sum of $100,986.00. Century 21 was a

business competitor. He learnt that Century 21 had provided janitorial services to CAL for about

8 years before. After 6 to 8 weeks of the contract he was summoned to a meeting by CAL with

its property manager Djarlon Sealey in relation to claims that the first claimant was in

contravention of statutory requirements relating to NIS, VAT, and workmen’s compensation

liability for its employees. He was required to present evidence that it had fulfilled its statutory

responsibilities which he did on behalf of the first claimant. After two weeks again, another

manager, Courtney Mc Nish, made a similar request for proof which he provided again.

21. For about 8 times over 2 years he was called by managers to refute claims and on each

occasion he had to do so.

22. Without warning on 14 December 2011 he was informed by the Vice President of

Maintenance and Engineering at CAL, Mr Colville Carrington, that the company’s contract was

terminated with immediate effect.

23. He did not know of the reasons but he became suspicious it was because of allegations

made by the defendant. He also noticed that the very afternoon his contract was terminated

persons with the Century 21 emblem entered the compound with equipment and apparatus. He

later received proof of the letter.

24. With respect to the allegations made, he said Peter Taylor, who was Minister of Legal

Affairs from late 2007, was a director of the first claimant but he had been removed as a director

in May 2007, as shown by the Change of Directors Form filed at the Companies Registry, which

he referred to.

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25. Maria Sealey was also removed from the company following investigations about her

alleged fraudulent conduct and was not part of the contractual arrangements with CAL.

26. He said he was never addicted to any substance.

27. At the time of the defendant’s communication the claimant had no charges pending. He

said he had been charged before relating to offences where former employees had made

allegations against him, but that these charges were dismissed as of 17 November 2009. He

provided the relevant court extract to show this. He provided evidence of his VAT registration

from 26 March 2007. He provided the company’s certificate of incorporation of 9 January 2007.

He provided the NIS registration done in February 2007. He provided VAT and income tax

clearance certificates from 2011. He provided the payment for the insurance for workmen’s

compensation for the period 26 March 2010 to 25 March 2011 which period covered the date of

the letter sent by the defendant.

28. Ryan Pierre was called for the defendant. He worked with Century 21 when he left

school. He knew a person named Djarlon Sealey from 2008 as a manager at CAL. He got a job

in 2008 with the first claimant. He was a driver/custodian. He noticed certain things at Viro-

Chem. He performed banking duties. He saw a man named Courtney Mc Nish on the second

claimant’s verandah on more than one occasion drinking. He also saw him at an office party for

the first claimant. He also saw Djarlon Sealey visiting the second claimant. They would be

drinking and “conversations were usually about the contract they had gotten at the airport and

dogs”. He also got cheques to cash, but the significance of this evidence eludes me. On 28 July

2009 he made a statutory declaration before a notary public, Mr Winston Thompson. He left

Viro-Chem because of discrepancies with his NIS account and unsatisfactory answers to non-

payment of NIS. He was hired again by Century 21. He left after a year to go back with the first

claimant in late 2011. His salary was cut at one point due to financial difficulties the company

had. He once again went to work for Century 21.

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29. I considered Ryan Pierre’s evidence in chief and cross examination and was not

impressed. He moved from company to company. His statements were vague. They were

unsubstantiated. He was easily moved in cross-examination. What he considered were

suspicions did not amount to much. He had a clear interest to serve in being an employee of the

defendant’s company Century 21. His recollections were convenient. I considered him to be a

witness of convenience brought by the defendant to seek to make a case. I rejected his evidence

in large part. I accepted that there were discrepancies with his NIS. But this, in my view, was

not significant. I accepted he may have done banking transactions as part of his duties, but

nothing he said about these transactions substantiated the allegations made against the claimants.

30. The defendant did not give evidence. In consequence his witness statement and all the

documents referred to in them fell by the wayside.

31. In this claim where fair comment and the truth of allegations were advanced it was

necessary for the defendant to call evidence in support of the contentions unless the witness

statement or cross-examination of the claimants’ witness rendered it unnecessary to do so.

32. I will therefore turn to the cross-examination of the second claimant. The defendant

makes various submissions on how I should construe his evidence.

Re: Peter Taylor

33. It was central to the defendant’s contention in this letter that the contract was awarded

due to Mr Taylor being a director or influential in the process. There is reference to Mr Taylor

“serving two masters”. The implication must have been that Mr Taylor, being a government

minister, would have been using his influence on behalf of the claimant company. This

suggested the company was engaged in a corrupt practice. The context of the letter was that the

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defendant’s company was unceremoniously removed as the contractor and replaced for no good

reason by the claimant company.

34. It is clear that Peter Taylor was a director of the claimant company. It is equally clear

from the evidence that he was removed as a director well before he became a government

Minister and well before any contract was awarded to the claimant company.

35. Further, the first claimant’s notice of change of directors form showed that Mr Taylor had

been removed as a director since May 2007, before he became a government Minister. The

defendant’s letter said he was a director up to July 2009 and referred to him serving two masters.

This can be interpreted to mean that the claimant company benefitted from his status and that it

allowed him to remain a director while he was serving as a government Minister. For this

allegation there was no evidence by the defendant. There was therefore no justification for the

statement in relation to Peter Taylor which was false. Nothing in the cross-examination

disturbed this finding.

Pending Charges

36. The second claimant admitted to having charges against him. What is equally clear is

that while the Essential Securities Services Limited identified charges, this report was done on 1

March 2009, more than a year before the letter was written. Further, from the evidence of the

second claimant and the extract of the court casebook, the charges against him were dismissed

since November 2009. Thus there were no pending charges at the time of the letter written by

the defendant. Even if the police data base showed this, there is no evidence before this court

about its accuracy or reliability. The defendant would have been reckless to rely on this. On the

relevant date, which is the date of the publication, the statement would have been false.

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Substance Abuse

37. The defendant’s letter included:

“My investigation revealed some interesting and disturbing facts, namely;

...

These investigations revealed that Maria Sealey was... (indecipherable) in a common-law

relationship with Mr. O’Neil; and Mr. O’Neil is addicted to substance abuse and has a

criminal charges pending.”

38. The Essential Services Report attached about Mr O’Neil stated: “He is not known to be

addicted to any substance or habits legal or otherwise.” This was the opposite of what was

written in the letter.

39. The defendant advanced no evidence to support his contention in the letter. The claimant

has denied he is addicted to any illegal substance.

40. Counsel for the defendant puts this down to a mistake and adds that the Essential

Services Report was attached so that the second claimant is really being fussy when he makes a

complaint about it. This submission ignores certain material facts. First, the statement was

preceded by the defendant bringing to the attention of the Minister “some interesting and

disturbing facts”. Second, the defendant put this letter in the context of a complaint about the

contract being awarded to the claimant company and being taken away from the defendant’s

company. Third, there were material differences between the Essential Services Report and what

the defendant stated. He left out the most important “not known”. He added the word “abuse”.

And he left out “or habits legal or otherwise”. These omissions and additions made the

exculpatory statement in the Report damning. Fourth, these so called mistakes were significant

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and demonstrated a marked lack of care by the defendant in reporting what the report stated in

respect of an extremely serious and damaging statement against the second defendant. Fifth,

while the Essential Services Report differed, the defendant presumes that the annexure would

have been read by the receiver carefully and double-checked against his bold assertion which

opened with “These investigations revealed”. Sixth, in the context of where the contract was

located, at an international airport, this lack of care in stating the second claimant was “addicted

to substance abuse” ought to have had a significant impact on the line Minister and certainly on

the Attorney General to whom the letter was copied. Seventh, Mr Khan is an experienced Justice

of the Peace, who has a high profile in the media commenting on criminal justice matters. He

must have known the effect these kinds of allegations would have had on the reader of these

statements.

41. In the absence of an explanation by the defendant, I cannot come to the conclusion that

this was a genuine mistake made by him. He also cannot be excused for this statement.

Djarlon Sealey and Courtney Mc Nish

42. I have already indicated my scepticism about the evidence of the defendant’s witness.

This related to his suspicions about the relationship between the second claimant and the

defendant.

43. The statement was made that Sealey was on the payroll of the claimant company. No

evidence was led to substantiate this. The second claimant did not accept this in cross-

examination. It is to be noted that Ryan Pierre did not state this in his witness statement and the

statutory declaration attached to the defendant’s witness statement did not go into evidence

because of his failure to give evidence. Even if it is accepted that a cheque of $4,000.00 was in

fact written to Sealey or he had been paid this, this assertion cannot be stretched to make it fair to

say he was on the payroll of the claimant company. Being on the payroll suggests he is a paid

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employee of the claimant company which is different from receiving a single relatively small

payment in the context of the contract price which was worth over $100,000.00 per month.

44. At its highest what the cross-examination showed was that Courtney Mc Nish visited the

second claimant at his home/place of business.

45. Accordingly again there was no justification for statements relative to these two persons.

Statutory Obligations

46. The next matter raised concerned the allegation that the first claimant does not honour its

statutory obligations regarding payment of NIS, VAT and Workmen’s Compensation. The letter

noted that if an employee of Viro-Chem was injured on the job the exposure of CAL can be

considerable.

47. The sum total of the evidence put forward on this was that Ryan Pierre’s NIS

contributions were not paid for a specific period of time. The second claimant explained this as

an administrative error which was rectified.

48. The allegation went further. It stated the company “does not honour its statutory

obligations”. The statement suggested a deliberate course of behaviour. One instance showing a

failure or discrepancy in respect of the payment of NIS for a specific period does not make a case

for not honouring statutory obligations. Further, no evidence was advanced by the defendant that

VAT and workmen’s compensation were not paid. The claimants have put forward VAT

registration, NIS registration and workmen’s compensation documents. The second claimant

also gave evidence of being called in more than once to account for these matters and he said on

each occasion he satisfied CAL. The defendant’s letter reveals that he had previously been in

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contact with Phillip Saunders, CEO of CAL, “to bring him up to speed” on these developments

concerning his own contract and that of Viro-Chem. Thus the letter was the culmination of a

campaign being pursued by the defendant.

49. Another point arising is the defendant’s submission that what was stated was expressed to

be “it is alleged”. It has become fashionable in this country for persons to make the most

outrageous allegations about other persons thinking that by prefacing these with the words “it is

alleged” that this somehow protects the maker of the statement. It does not. By advancing false

statements or statements for which one does not have proper justification and saying “it is

alleged” does not protect the maker of those statements from being held to account for

defamation.

50. I find there was no justification by way of fair comment. I also find that has not been

shown that the allegations were substantially true for the defendant to make the statements he

did.

Maria Sealey

51. It is unnecessary to deal with statements relating to her. She is not a party. No issue has

been taken with statements in relation to her. Thus there is no need to examine the facts relating

to her.

52. I have considered the meaning which the ordinary reader would attach to these

statements. In relation to the first claimant the statements meant that it was unsuitable to provide

janitorial services for CAL. Further that the contract was obtained through some corrupt

dealings and relationship with Mr Djarlon Sealey and Mr Courtney Mc Nish. Also it had failed

to satisfy its statutory obligations for NIS, VAT and workmen’s compensation. This suggests

that the organisation was either incompetent or disreputable or was engaged in illegal acts in

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failing to satisfy its statutory obligations. Next that there had been an improper association by

having a Minister of Government on its board of directors and that this must have had some

influence in the award of the contract to it.

53. In relation to the second claimant, the words meant he was addicted to abusing

substances; that he was, commonly, a drug addict. They also meant he or his company

participated in dishonest and corrupt practices. Further they mean that he was an unsuitable

person for the business he was operating by having pending criminal charges, long after these

were dismissed. While having pending charges did not mean the second claimant was a criminal

since the presumption of innocence applied, they suggested he was unsuitable and his company

was unsuitable to be providing janitorial services for an airline in a sensitive location such as an

international airport.

Qualified Privilege

54. The next issue raised by the defendant was qualified privilege. The defendant’s counsel

has submitted that the defendant was duty bound as a citizen to raise the matters which he did

having regard to the information he had in his possession. Thus he is protected by qualified

privilege.

55. A defamatory statement is generally treated as having been made on an occasion of

qualified privilege where the maker of the statement has a duty to make the statement and the

respondent has a corresponding duty to receive it - see Bereaux J., as he then was, in Cyracius

Liverpool v Matthew Alleyne HCA No. 4170/91 at pages 9 and 10 where he quoted Parke B. in

Toogood v Spyring (1834) 1 C.M & R :

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In general, an action lies for the malicious publication of statements which are

false in fact, and injurious to the character of another (within the well-known

limits as to verbal slander), and the law considers such publication as malicious,

unless it is fairly made by a person in the discharge of some public or private

duty, whether legal or moral, or in the conduct of his own affairs, in matters

where his interest is concerned. In such cases, the occasion prevents the inference

of malice, which the law draws from unauthorized communications, and affords a

qualified defence depending on the absence of actual malice. If fairly warranted

by any reasonable occasion or exigency, and honestly made, such

communications are protected for the common convenience and welfare of

society.…

56. Where qualified privilege is raised, the court has to consider whether in all the

circumstances, the occasion is to be regarded as privileged. The burden is on the defendant to

specify such circumstances that would establish the occasion as privileged.

57. Having established privilege, the defendant will be protected if the statement was fairly

warranted by some reasonable exigency or occasion and so long as it is not proved that the

defendant was actuated by malice. The privilege can be defeated if the claimant establishes that

the defendant was actuated by malice - that is, he used the occasion for an improper purpose or

had no honest belief in the truth of the facts he stated (see generally Common Law Series: The

Law of Tort, Chaps 26.89, 26.90 and the cases cited).

58. It is correct that the defendant can be seen to be a citizen who comments on national

issues. However, in this case, more than that, his business was not just a competitor in the same

industry as the claimants, but was a direct competitor with the same client, CAL. The entire

context and tone of the letter revealed that underlying the allegations was the defendant’s plug

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for his company to be re-considered for the same contract. The letter revealed prior conduct by

the defendant engaging the CEO of CAL about allegations against the claimants.

59. Further, as the second claimant gave in evidence, shortly after he received the contract,

some 6 to 8 weeks after, he was being called in to CAL to explain business practices. It was only

when he got sight of the letter written in July 2010 that he realised that there had been a

campaign against his company by the defendant.

60. Given the defendant’s peculiar pecuniary interest in this matter and the lack of any proper

basis for these allegations it is clear that the defendant was actuated by malice in these

circumstances. Qualified privilege therefore does not protect him.

61. Further, the defendant must have known, and it is clear this is why he wrote the letter,

that both recipients would have been under a duty to investigate and take action against the

claimant company after receiving his communication. The letter raised corruption, unfitness,

collusion, breach of important statutory duties, and drug abuse.

62. Based on the above therefore I find that the claimants have proved their claim of

defamation against the defendant. I turn therefore to the issue of damages.

Damages

63. Where a company has been defamed the company must show that there was injury to its

reputation and financial prospects.

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64. The contract was not terminated immediately. In fact it ran for a year and a half almost

after the letter was written. The termination is therefore some distance away from the

publication of the defamation so that no connection has been shown. Second, the first claimant

has itself asserted that it has lucrative contracts with a number of companies, and there is no

evidence that any of these have been terminated. These continued to run. There does not appear

to me to be any loss of pecuniary prospects or significant injury to the company’s goodwill.

65. The second claimant is a businessman. The defamatory statements concerned how he ran

his company and drug abuse. The publication was restricted to two persons. But again, it would

have been reasonably foreseeable to the defendant, that given their public positions, the

recipients would have been under a duty to at least investigate the allegations in which case they

would have had to bring the allegations to the attention of other persons such as senior

management of CAL, law enforcement authorities and perhaps even Cabinet colleagues. There

is no evidence of the extent of any republication, but some limited republication to the categories

of persons mentioned above is reasonable to presume.

66. Certain authorities were advanced concerning individuals. I was referred to in particular

Rajnie Ramlakhan v Trinidad and Tobago News Centre No. S-6364 of 1999; Robin

Montano v Harry Harinarine and Others CV 2008-03039; Dr Keith Rowley v Michael

Annisette CV 2010-04909; TnT News Centre Limited v John Rahael Civ App No. 166 of

2006.

67. In Gatley on Libel and Slander, 9.17, p. 353 under the rubric “Corporate claimants and

damages” it was stated:

“While substantial damages may be awarded to a corporate entity notwithstanding a

failure to prove any specific damage, in practice, in the absence of at least a general loss

of business, a limited liability company is unlikely to be entitled to a really substantial

award of damages. As was made clear by Lord Reid in Lewis v Daily Telegraph

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Limited, “A company cannot be injured in its feelings; it can only be injured in its pocket.

Its reputation can be injured by a libel but that injury must sound in money.” Whilst Lord

Reid went on to say, “The injury need not necessarily be confined to loss of income; its

goodwill may be injured, a company which is unable at trial to point to the slightest

hiccup in its trading figures may be hard pressed to persuade a court that even an

unpleasant libel has seriously injured its reputation. Unlike a personal claimant, it cannot

tug the jury’s heart-strings by describing its distress and humiliation on reading the

defamatory words. This presents a problem for a limited company which has been

defamed, since it is often difficult to prove that the publication caused either a specific or

general loss of business. That there is an entitlement to general damages which are more

than nominal damages is certain, but the amount likely to be awarded to a corporation

may be small in commercial terms, unless the defendant’s refusal to retract or apologise

makes it possible to argue that the only way in which the reputation of the company can

be vindicated in the eyes of the world is by way of a really substantial award of damages

(Applause Store Productions v Raphael [2008] EWHC 1721).”

68. In these local cases cited there was wide publication in newspapers of general circulation.

The publication here was to two persons but to persons who would have been under a duty to

bring the correspondence to the attention of others. I have considered that although there was

not wide publication such as in a newspaper or on the internet, there was publication to key

persons who had authority to substantially act and affect the business operations of the claimants

and who could have caused criminal investigations against the claimants to be begun as part of

their public duty to act. I note also that the claimant did not have such a public profile as some

of the persons in the above mentioned cases.

69. The next issue concerns whether the award should include a sum for exemplary damages.

As noted, the defendant’s company had a financial interest. He was a competitor for the same

job. This was a lucrative contract. As the letter itself showed, the defendant had contact with the

CEO of CAL and pursued this for some time. The letter written in July 2010 was the

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culmination of a series of acts. The letter was designed not only to inform the Minister but

raised issues about the appropriateness of continuing the contract with the claimant company.

Further, it went to advocacy of the suitability of the defendant’s company. There were false

statements contained in the letter as of the date of the letter which the defendant was at least

reckless in not verifying. In all the circumstances the awards must include an element of

exemplary damages.

70. There is therefore judgment for the claimants against the defendant. The defendant must

pay damages to the first claimant in the sum of $180,000.00 of which the exemplary damages

aspect is assessed at $80,000.00. The defendant must also pay damages to the second claimant

in the sum of $200,000.00 of which the exemplary damages aspect is assessed at $80,000.00.

71. The defendant must pay to the claimants prescribed costs based on the total figure of

$380,000.00.

Ronnie Boodoosingh

Judge

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

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