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Basdeo Panday App. and Kenneth Gordon Resp . Civil Appeal - Hamel-Smith, J.A [2003] TTCA 25 (31 October 2003)

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL Cv. App. No. 175 of 2000.

BETWEEN

BASDEO PANDAY APPELLANT

AND

KENNETH GORDON RESPONDENT

Panel: S. Sharma, C.J.

R. Hamel-Smith, J.A. M. Warner, J.A.

Appearances:

F. Ramsahoye, S.C. & A. Ramlogan, Esq. for the appellant

D. Mendez, Esq. for the respondent

Date: October 31, 2003.

JUDGMENT

R. Hamel-Smith, J.A.

1 The events giving rise to this appeal took place on May 30, 1997 at a public function to celebrate Indian Arrival Day in Trinidad. The appellant had delivered a speech to a large audience. The speech was carried live on television and in the press the following day. The cause for concern was that in a speech that focused on ‘ national unity’ it was alleged that the appellant had identified the respondent as a ‘pseudo racist’

2 In an action for defamation the trial judge found that the words complained of were defamatory of the respondent and awarded him the sum of $600,000 in damages, general and aggravated. The appellant has challenged both the finding and the award. He contends that the words complained of were neither defamatory of the respondent nor actionable at all in defamation and, in any event, the award was excessive.

The facts

3 Briefly, at the material time the appellant held the office of Prime Minister. The respondent was a well-known businessman. He was chairman of a large media house which operated several newspapers and a television station. From time to time, as would be expected, the media, including the media house to which the respondent belonged, were critical of the government and its policies. In spite of such criticism the relationship between the two men did not appear to be strained in any way. When the appellant had assumed office, he appointed the respondent as chairman of certain state agencies.

4 The trouble began in 1997, when the government published a Green Paper on media law reform and the public was invited to submit comments on it. The respondent accepted an invitation from a group of businessmen to express his views. At the function he condemned the Green Paper in the strongest terms possible and called for its withdrawal. This raised a furor in government circles and it was made abundantly clear that it had no intention of withdrawing the Green Paper. The then Attorney General was particularly harsh in his comments about the respondent but the appellant and his then Minster of Information apologized for the incident and actually commended the respondent for his public spiritedness. It seemed that all was back to normal. This was not to be.

5 Before turning to the speech itself this is a convenient stage to mention an aide- memoire to which the respondent referred when he expressed his views on the Green Paper. At that function the respondent recalled a meeting held a year earlier, on February 9, 1996 between a group of Caribbean publishers (including himself) and the appellant, his Attorney General and Minister of Information. The agenda was to discuss certain critical issues affecting the media, in particular the appellant’s call for the dismissal of a named editor of another newspaper (no connection with the respondent). The respondent relied on the aide-memoire from which he quoted. He recalled that the meeting discussed quite openly the rights and privileges of the press and its perceived abuses. One of the extracts from the aide-memoire made reference to an accusation by the appellant to the effect that the ‘Express’ Newspaper (of which the respondent was Chairman) was promoting racism. The respondent’s response was that the appellant ‘was probably more responsible for promoting racism …than anyone else by his constant references to race where it did not exist”. The appellant’s immediate retort was that if the (appellant’s) government introduced a committee on racial discrimination in this country, you (the respondent) dead” . Nothing further was said about this.

6 I now return to the speech itself. Three weeks after the respondent’s condemnation of the proposed reform in the Green Paper, the appellant delivered his speech. It began by recalling the division in society and the reasons for it. He lamented the fact that there were many people who did not want national unity because they had benefited by racial division and thrived in maintaining it. He ended with a clarion call for national unity among all races. It was a profound and passionate speech, as was customary of the appellant and, obviously, well intentioned. Unfortunately, in the course of it the appellant identified those who were the cause of the division and described them as pseudo racists . He quite openly refused to classify them as ‘ racists ’ because, as he put it, true racists looked after their own. He then coined the phrase ‘ pseudo racists’ to describe those who caused the division and explained why they had created the division. Up that point the expression appeared a harmless one because he identified the politicians

as the pseudo racists. But moments later he delivered the piece de resistance. This is how he put it across to his attentive audience:

“…. pseudo racists who have divided the society to maintain political power and even now are doing so in the hope of political survival. The Ken Gordons who want to maintain his (sic) monopolistic advantage over his competitors in the media. My brothers and sisters they come in many shapes and sizes, they do not want change, they continue to resist national unity.”

The claim

7 The following day, while walking around the Savannah, a public place, a friend of the respondent greeted him with these words “ Boy, Panday call you a big racist ”. The media carried the speech that day and it was a hot topic of discussion for some time. The respondent instituted an action in defamation against the appellant to recover damages for the injury to his reputation. His action was based on slander and libel as he considered that the appellant had ‘ authorised ’ the republication of the defamatory words in the media. The contention was that the appellant had invited the media to cover his speech and therefore reasonably anticipated that it would be covered on television and in the press.

8 He claimed specifically that the words in their ordinary meaning meant that:

(i) the plaintiff was a racist and/or practised racism (pseudo racism);

(ii) that the plaintiff practiced racism and/or fomented and/or encouraged racial discord and/or division in the society for his own commercial and/or political advantage or profit; and

(iii) that the plaintiff was representative of persons who practiced racism and/or fomented and/or encouraged racial discord and/or division in the society and who did so cynically to maintain positions of privilege and/or commercial and/or political advantage and who were prepared to do so to the detriment of the national good by resisting national unity”

The defence

9 The appellant opposed the action and, apart from denying (i) that the words were directed at the respondent or (ii) were defamatory of him or made in relation to his calling or profession or (iii) that he had authorized the publication in the media, he pleaded fair comment on a matter in the public interest. In paragraph 4 of the defence he pleaded the rationale for his action. He averred that the parties occupied the opposite ends of the political spectrum and the media agencies from time to time had been attempting to undermine the appellant’s government by adverse criticism as they were entitled to do by reason of their right to freedom of speech. Likewise, the defendant in turn had exercised his right to criticise the political stand taken against his government by the respondent and/or the media bodies with which he is concerned and to publish political matter including political opinions in support of his own political position . The term pseudo racists, the defence explained, was reserved for politicians who sought to maintain political power by creating division in society on the basis of race. The defence concluded with a specific reliance on the right of freedom of speech guaranteed under section 4 of the Constitution (“the constitutional qualified privilege issue”).

The issues

10 As is clearly obvious, the defence lacked clarity and. apart from the challenge to the matters listed numerically above, did not tell its readers precisely how the appellant was going to advance his case at the trial. As it turned out, counsel rested his case on common law qualified privilege – reply to an attack. Not surprisingly, there was a marked absence in the defence of particulars to support this plea. It left the respondent in a position of not knowing the nature of the attack upon which the appellant relied to generate such a response. At the trial, counsel for the appellant (not the same counsel who appeared before this Court) informed the trial judge that the response was as a result of the respondent’s criticism of the government’s Green Paper.

11 It is important to note how the defence was conducted. This is in no way a reflection on counsel who appeared in the Court below as he obviously had his instructions. However, from the outset, the appellant appeared to be reluctant to disclose his hand. When the plaintiff’s case was closed the appellant declined to give evidence (as was his right). It then became apparent, at the beginning of counsel’s closing address, that qualified privilege - reply to an attack – would be the main ground of defence. Thus, it was at the very end of his address, as the trial judge observed in his judgment, that counsel conceded that it was defamatory to refer to someone as a pseudo racist . He had abandoned the defence of fair comment and, in light of the submissions made in the course of his address, the defence under section 4 of the Constitution was similarly dropped. The trial judge was therefore not required to deal with these latter issues in his judgment and he did not.

12 In spite of the concession referred to before, the trial judge dealt with all the surviving issues. He rejected the qualified privilege defence on two grounds, to which I

shall come. Additionally, he found that the words complained of were defamatory of the respondent in the way of his calling and that the appellant had authorized the publication in the press. He was satisfied that on the pleadings the claim for damages was founded in libel and slander and he accordingly awarded him the sum of $600,000 with interest and ordered the appellant to pay the costs of the action.

The concession

13 I have had to set out the approach of counsel at the trial in some detail because at the hearing of the appeal counsel for the appellant contended that the trial judge failed to deal with the constitutional qualified privilege issue. He submitted that it was an issue of law and had to be addressed. He also contended that trial counsel was not in a position to make the concession because it was an issue of law . There was also the suggestion that the concession was not made at all because the ‘record of appeal’ did not disclose any such concession.

14 I have some difficulty accepting counsel’s submission because in the course of a civil trial it is open to a party to make whatever concessions he may wish. It is sometimes prudent to do so, particularly where an issue, left unresolved, may tend to weaken the real issue for decision. It is sometimes possible to argue in the alternative but that does not seem to have been the approach in the instant appeal. Nevertheless, whatever counsel’s intention was at the trial, qualified privilege arises only where the words complained of are defamatory and the concession would be in keeping with that principle.

15 I would reject the suggestion that the ‘ record ’ did not disclose any concession. In his skeleton argument filed in this Court the concession was acknowledged but it was contended that it was unavailable to trial counsel because the issue was one of law . Further, in the very grounds of appeal, no doubt settled by trial counsel at the time, no challenge was made to the finding that the words were defamatory. Ground 2(a) in the Notice of Appeal was couched in very general language, leaving a measure of doubt as to whether a challenge was being made to that finding. This in itself suggests that the concession was indeed made.

16 At the hearing of the appeal, counsel for the appellant sought leave of the Court to pursue the constitutional qualified privilege issue. Counsel for the respondent objected on the ground that the issue had been abandoned in the Court below. It was decided to hear his submissions de bene esse

Were the words defamatory ?

17 Both on the issue of whether the words complained of were defamatory and whether they were published of and concerning the respondent, I am satisfied that the trial judge adopted the correct approach. In respect of the former, he warned himself about approaching the interpretation of the words complained of in a pedantic or legalistic way. As he said, one should avoid interpreting the words “ like a lawyer straining the language of the words”. He considered the article as a whole in order to determine the ordinary and natural meaning of the words complained of, but avoided a full analysis of the article.

18 The trial judge considered what the words would convey to the ordinary man. It was not one of construction in the legal sense. He noted what Lord Reid had stated in Lewis v Daily Telegraph Ltd [1964] AC 235 (at 258):

“ The ordinary man does not live in an ivory tower and he is not inhibited by any knowledge of the rules of construction ”.

He also took guidance from what Lord Reid had said in Morgan v Odhams Press Ltd

[1971] 1WLR 1239 at 1245-

“… we must accept a certain amount of loose thinking. The ordinary reader does not formulate reasons in his own mind; he gets a general impression and one can expect him to look again before coming to a conclusion and acting on it. But formulated reasons are usually an afterthought .”

19 The trial judge acknowledged that the ordinary reader would have recognized the theme of the speech as being national unity and that the lack of it was the single most debilitating factor in the country. The ordinary man would have understood the speech to say that Trinidad and Tobago was a most divided society but would have understood the appellant as accusing certain groups as being the cause of the division. As the appellant told the audience, they would meet many persons who did not want national unity. These were the ones who in the past had benefited and thrived on maintaining the division in the society. The ordinary reader then would have understood the appellant to be identifying those persons who did not want national unity as pseudo racists . The appellant had coined the phrase and proceeded to define what he meant by the term. He discouraged the thought that the dividers were real racists because, as he put it, real racists looked after their own. The appellant was obviously putting racists in a more palatable light, at least a step above pseudo racists . Pseudo racists as far as he was concerned were the ones who were responsible for the division in society and were using racism for their own commercial or political advantage. It was in this setting that he identified by name and classified the respondent as one of the pseudo racists

20 The test, in the trial judge’s view, was not whether the appellant intended to refer to politicians only as pseudo racists but whether the ordinary reasonable intelligent listener would have understood the appellant as referring to the respondent as one. His approach, in my view, was justified and correct and I find it difficult to fault his reasoning in coming to the conclusion that the words were defamatory of the respondent. Given the propinquity of the respondent’s name not only to those who were the dividers in society and the real purpose of being a divider but to the utterance that ‘ they come in many shapes and sizes, they do not want change, they continue to resist national unity” the ordinary man would have linked immediately the respondent as being one of the pseudo racists in society. He would have understood and identified the respondent as one of those persons who used that form of racism to divide the society for his own commercial advantage.

21 Counsel for the appellant submitted that to be labeled a racist or pseudo racist for that matter in this country could not be defamatory of a person. He suggested that this was a multi racial society that, at election time, was divided along racial lines. It was a country where it was common for a person of one ethnic background to throw racial slurs at another person of a different ethnic background without any or much consequence. In other words, he was contending that the ordinary man would take little or no offence if he were labeled a racist. It happens every day, he submitted, and while such a slur would have a serious reaction in other countries, that was not generally so in this society.

22 I cannot agree with counsel’s submission and find it most extraordinary for two reasons. Firstly, if one begins with the premise that racism is anathema to the development of a harmonious and well-ordered society, then a racist will be viewed by society as one bent of the destruction of such a society and will in the eyes of the public be condemned for his practice of racism. Indeed, the words of our national anthem

“ where every creed and race find an equal place ” and the words to be found in the preamble to our Constitution “ the dignity of the human person ” and in section 4

“… without discrimination by reason of race, origin, colour, religion or sex…. ”

demonstrate that the premise is not ill-founded.

23 Secondly, it seems to take advantage of the fact that this Country prides itself on being a multi racial society and its people exhibit a certain degree of latitude when it comes to matters of race. It may be that the country is divided along racial lines at election time but that is a far cry from suggesting that those who exercise the franchise in that way are racists or have racist tendencies. It is simply a way of life where one race feels comfortable with its own and, generally, will support its policies. Some politicians, aware of this phenomenon, play what is termed the race card whenever elections are called, whether general or otherwise, and while they may reap success on occasion, it is, unwittingly, at the expense of the Country as a whole. Nonetheless, to suggest to any person who adopts that voting pattern that he or she is a racist that is to say, he hates or has contempt for an opposing race, will certainly provoke a measure of anger and incredulity.

24 In any event, that pattern does not permit one to contend that it takes away nothing from a man’s reputation to label him a racist or, for that matter, a pseudo racist . A person is entitled to his or her good name. It may be all that he possesses. To single him out as a racist is to invite ridicule and contempt for his reputation. This is not to deny that there are persons who will exchange racial slurs, maybe on a daily basis, with no or no apparent consequence. That is so simply because at the level of discussion with which they communicate neither party may have much concern for reputation, whether it be his own or that of another.

25 It is my view, however that the fact that such persons do exist in society does not in any way lessen the test that must be applied. The trial judge must first determine whether the words are capable of a defamatory meaning and if they are then he must resolve whether an ordinary, intelligent and unbiased person reading the words would understand them as terms of disparagement, and an allegation of dishonest and dishonourable conduct (see Bollers J. in Ramsahoye v Peter Taylor & Co Ltd [1964] LRBG 329 @ 331.

26 Where the words are reasonably capable of having either a defamatory or a non- defamatory meaning, the court must then decide what the ordinary reader or listener of average intelligence would understand by the words. I would discount any suggestion that the application of the test is to be measured by persons who have scant regard for reputation in the sense in which I have described above. There is a much wider cross- section of society where restraint, reputation and civilized behaviour take precedence and from which one can draw in the application of the test. If counsel’s submission were to find favour it would reflect an abandonment of civility and disregard for reputation. Taken to its extreme, it would become fashionable to describe someone in high office, whose duty it is to appoint persons to public office, as a racist or pseudo racist simply on the basis of the ethnicity of his appointments and contend that the imputation in no way affects his reputation.

27 Counsel for the appellant also submitted that the trial judge had misconstrued the meaning of the words complained of. Taken in its context, counsel submitted, the reference to pseudo racists was directed at the politicians and not the respondent, implying (quite rightly) that he was not a politician. He further contended that there could be nothing defamatory in the appellant demonstrating in his speech that the respondent was simply a businessman taking advantage of a political situation (i.e. the racial division) for his own commercial advantage.

28 Both submissions are of little moment. If the appellant were indeed referring to politicians alone as the dividers (the pseudo racists) then there would have been absolutely no need to associate the respondent with that class of person. He was a businessman not a politician. By inserting the respondent’s name immediately after identifying the pseudo racists , it carried the distinct imputation that the respondent too fell with the category of pseudo racists . As regards the second submission, I do not share counsel’s view. The words were not capable of the suggested meaning. That could hardly have been the imputation. The appellant was classifying the respondent as one of the pseudo racists who had divided the society and had done so for his own commercial advantage. The respondent, in effect, became exactly what the appellant intended to describe him as - the pseudo racist. That, in my view, was the effect of the defamatory words and was consistent with the concession made at the trial. The phrase carried with it a subtle form of racism, a degree or two worse than the ordinary racist (as was implicit in the speech) and one that had the potential of exposing the individual, as the respondent himself so described, as being akin to an enemy of the country that left me embarrassed, deeply distressed and publicly humiliated . That it was capable of having that effect is without doubt.

Words spoken of and in relation to the respondent’s calling

29 The trial judge also found that the words complained of were spoken of and in relation to the respondent’s calling or profession. Counsel for the appellant contended that the words were spoken in the context of politics and that that was the only calling or profession in issue. Apart from having a constitutional right to express political views, counsel further contended that the words carried no imputation of impropriety or dishonourable conduct on the part of the respondent in the way of his calling. Even if they did, counsel submitted, they carried no imputation that the respondent was unfit for a position in the media.

30 I have already dealt with the imputation of the words used and it clear that the appellant had imputed that the respondent was practicing a form of racism for commercial advantage i.e. in his media business. In other words, the imputation was connected with the way in which he operated his media business viz.; in order to gain an advantage over his competitors he was practicing an insidious form of racism. As the trial judge found, the words conveyed an imputation of misconduct and impropriety on the plaintiff in his calling in the media business . He referred to the dicta in News Media Ownership v Finlay (1970) NZLR 1089 at 1095 C.A. –

“…..it is plain enough that it is harmful to the trading reputation of a newspaper company to allege that it conducts its business without regard for the public interest, its principal concern being merely with the making

of profits ”.

31 The libel in Finlay is certainly a degree below that in this instant appeal so it is difficult to fault the findings of the trial judge on this issue. It is a reasonable conclusion in the circumstances and I therefore reject the submissions of counsel.

Was republication authorized ?

32 The appellant challenged the finding that the appellant had authorized the republication of the slander. Again, it is difficult to fault the reasoning of the trial judge. The appellant had expressly invited the national television station (TTT) to attend the function so the more likely inference would be that he reasonably expected his speech to be carried live. In any event, he must have seen the television (TTT) microphones in front of him at the time when he delivered his speech, making it quite obvious that his speech was being carried live. Further, as the trial judge found, the very office held by the appellant would attract the attention of the press, more so on an important occasion as Indian Arrival Day. The holder of such office expects when he issues an invitation to the media to attend such an occasion that it is more likely than not that whatever he says will be carried in the press.

33 The test to determine the issue is well settled. It is adequately set out in the case of

McManus v Beckham [2002] EWCA Civ 939; (2002) 4 AER 497), a decision of the English Court of Appeal. In determining whether a defendant who has slandered a claimant should be held responsible for damage that has been occasioned by a further publication by a third party, the root question is whether it is just that the defendant should be held responsible for that damage. If the defendant is actually aware that what he says or does is likely to be reported, and that, if he slanders someone, that slander is likely to be repeated in whole or in part, there is no injustice that he be held responsible for the damage that the slander causes through that publication. Further, if the conclusion is arrived at that a reasonable person in the position of the defendant should appreciate that there is a significant risk that what he says would be repeated in whole or in part in the press, and that that would increase the damage caused by the slander, it is not unjust that the defendant should be held liable for it.

34 There can be no doubt that the appellant, by virtue of the high office he held, must have appreciated that it was more than likely that the speech would be carried in the media and that such re-publication would increase the damage caused by the slander. His invitation to the television station (TTT) was sufficient to infer that he intended that it be so carried.

35 The further submission that the press was free to publish or not publish is of no moment. This is not to suggest that the press, if sued, could avoid liability as a result of the authorization; it is equally liable if it publishes the defamatory words. It is simply that liability in slander and in libel attaches to the appellant for having authorized the republication. The appellant has not been able to show any good reason why the trial judge’s finding should be interfered with. The appellant has not challenged the other findings of the trial judge on the issue of republication. I would reject this ground of appeal.

Qualified Privilege – reply to an attack

36 The trial judge rejected this defence because the appellant had failed to plead the defence with any particularity. Apart from the general pleading that both sides were free to criticize each other, there was nothing in the pleading to suggest the words complained of were in response to any attack, or for that matter, the respondent’s critique of the Green Paper. The purpose of pleadings is to enable the other side to know exactly what is being alleged against him. It is not permissible to hide behind a pleading that lacks specificity. Accordingly, in the instant appeal, particulars of the attack and justification that it was in the interest of the appellant to respond to the allegations in the manner adopted had to be pleaded. They were not. The paragraphs relied on by counsel fell woefully short of satisfying these requirements and, in my view, the trial judge was right to reject the plea of qualified privilege.

37 In any event, apart from the lack of pleading, the appellant had declined to give evidence at the trial, leaving nothing of substance to suggest that what the respondent said in relation to his critique on the Green Paper had in any way attacked the character

or conduct of the appellant personally that would have justified the defamatory response.

38 Odgers on Libel & Slander (6 ^th Ed) at 240, sums up the position quite succinctly. The author states –

“…there is a class of cases which may be grouped under the head of legitimate self-defence. Where an attack has been made on the defendant,

he is entitled to answer it and to communicate his answer to all who heard the attack…. A man who has been attacked may, in rebutting the charges,

at the same time retort upon his adversary where such a retort is a necessary part of his defence or fairly arises out of the charges made against him. A man, who himself commences a newspaper war, cannot subsequently complain because he has the worst of the fray. But even in rebutting an accusation, the defendant must not intrude unnecessarily into

the private life of his assailant, or make counter charges against his character , unconnected with his original charge against the defendant . The privilege extends only to such retorts as are fairly an answer to the plaintiff’s attacks.” (emphasis supplied).

39 Accordingly, the submission that the response of the appellant came about because of the respondent’s criticism of the Green Paper bears little or no merit. It is, in reality, an admission that the words complained of were defamatory, as counsel had conceded at the trial. Nevertheless, apart from the failure to plead such a case, the respondent’s criticism of the Green Paper was in no way directed at the appellant personally, far less at his character or conduct. In any event, the words complained of (the purported response) were totally unconnected with the criticism of the Green Paper. The appellant had introduced wholly irrelevant and improper matters concerning the conduct and character of the respondent, the effect of which was to deprive him of the claim to privilege.

40 In this Court, counsel suggested that the respondent had made some oblique reference (when expressing his views on the Green Paper) to the fact that the respondent and the appellant had an exchange on race in the society when they met with journalists in 1996, the year before the publication of the defamatory words. He was referring to the aide-memoire . Apart from the marked absence of this issue in the pleadings which, if pleaded, would have allowed the respondent an opportunity to deal with the issue, the exchange could in no way be considered an attack on the appellant’s character or conduct. It was the appellant who had accused the newspaper of promoting racism and the respondent simply responded by saying that to the contrary, it was the appellant who promoted it by seeing racism where it did not exist. The appellant managed to have the last say when he immediately quipped that the respondent would not survive any enquiry into racial discrimination.

41 Counsel’s submission was of little moment principally because there was no pleading to that effect that would have given the respondent the opportunity to answer the charge. He was deprived of that opportunity. The exchange may well have been simply light banter among the group present. It is unlikely that a Prime Minister would seriously suggest the demise of a fellow citizen on an issue as important as race. But whatever the prevailing atmosphere, the privilege extends only so far as to enable a defendant to repel the attack brought against him, not to bring fresh charges against the plaintiff. As the trial judge noted, it is a shield of defense, not a weapon of attack. Accordingly, in my view, the defense, in whichever way counsel sought to structure it, was unsustainable.

The Constitutional qualified privilege issue.

42 When the hearing of the appeal began, it became obvious that counsel intended to shift the main focus of the appeal to the constitutional qualified privilege issue. As noted earlier, the issue had not been pursued in the court below, thereby depriving this Court of the benefit of the judge’s ruling on the point. It is not that the appellant did not have the opportunity to deal with the issue; it was simply that it had not been pursued, and counsel could proffer no good reason why it had not. His omission deprived the respondent of the opportunity to respond, either evidentially or jurisprudentially. It may well be, for example, that the appellant lacked the requisite evidence to prove the issue and a detailed enquiry may have revealed that there was no merit in the matter. Counsel for the appellant argues that the issue is a question of law alone and therefore he should be permitted to raise it in this Court.

43 Counsel, no doubt, must be well acquainted with the general rule that an appellate court does not readily permit a point to be argued that was not pursued in the court below.

As was stated in Wilson v Liverpool City Council [1971] 1 All ER 628, (per Widgery LJ

at 632):

“If a point is not taken in the court of trial, it cannot be taken in the appeal court unless that court is in possession of all the material necessary to enable it to dispose of the matter finally without injustice to the other side and without recourse to a further hearing below”.

44 It seems therefore that the appellant should not be permitted at this late stage to raise the issue. Out of deference to counsel, however, it may be prudent to examine the argument to see whether the issue was simply one of law, as counsel suggested, and not one that required an evidential structure.

45 On a closer examination of the pleadings, the defence reveals that the constitutional right upon which the appellant sought to resist the claim was that of freedom of speech. Counsel now seeks to rely instead on the constitutional right to express political views. Whether there is in substance a difference between the two rights is worth examining. Under the present Constitution, in addition to the right to freedom of speech, one of the fundamental rights and freedoms is the right to join a political party of one’s choice and to express political views. The latter freedom seems to be an extension of the freedom of expression or free speech as it is sometimes called. Freedom of expression permits an individual, without fear of retribution, to express his honestly held views on any matter that is in the public interest. Matters in the public interest cover a wide spectrum and, generally, encompass political issues.

46 As Lord Nicholls observed in Reynolds v Times Newspapers Ltd [1999] 4 All

ER 609 (at 626) –

“the court should have particular regard to the importance of freedom of expression ….(and) should be slow to conclude that a publication was not

in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion . Any lingering doubts should be resolved in favour of publication. (emphasis supplied)

47 It seems to me therefore that if the right to express political views had been omitted as one of the fundamental rights such a right nevertheless would have been implicit in the right of free speech. It is quite possible, however, that there was good reason to provide for the extended right in the Constitution. One view may be that the framers of the Constitution intended to make it abundantly clear that the right to join a political party of choice was not simply a passive right, so to speak, but carried with it the pro-active right to express political views as well. The former would be of little use without the concomitant right to express the political views of the party. The two seem to go hand in hand.

48 In the instant appeal, however, the issue arises in the context of the common law of defamation and its application when the private right to reputation collides with a constitutional right such as the right to free speech or to express political views. The gist of counsel’s submission is that the right to reputation has to give way to the right to express political views. He contends for an absolute right, subject possibly to proof of malice only. As counsel put it - if there are casualties to defamation in the course of the expression of political views then so be it. He urged this Court to adopt and follow the decision of the Australian High Court in Lange v Australian Broadcasting Corp

[1997] 4 LRC 192, a case in which common law qualified privilege was extended to include the expression of political discussion.

49 Before turning to that decision, it is useful to consider the development of the common law in relation to the right to free speech. As a general rule, anything said or published that adversely affects a man’s reputation is actionable except where what is said is true. Truth , as Lord Nicholls stated in Reynolds, (post) is always a complete defense . Such a stringent rule however could have a chilling effect on the right to free speech or the expression of political views. Accordingly, the law has tempered it by creating exceptions.

50 A notable exception to the general rule is the defense of fair comment on a matter of public interest. The exception accommodates the constitutional right, provided the publisher honestly holds the opinion (or comment) on a matter of public interest and the opinion is based on established facts. In the absence of facts on which the comment must be based or if the opinion is actuated by malice in the Horrocks v Lowe sense (per Lord Diplock [1975] AC 135 at 149) the defense is unsustainable.

51 The defence however is limited to opinions and comments on a matter of public interest. It has no application to imputations of fact that are defamatory of a person. When there are such imputations there may be occasions when what is said is protected by privilege. Subject to the fulfillment of certain conditions therefore, the law deems the occasion on which the words are published as privileged. The privilege is either absolute e.g. a fair and accurate report of judicial proceedings, or it is qualified. It is the latter with which we are concerned. Lord Atkinson’s definition in Adams v Ward [1917] AC 309 at 334 is a useful one to describe this occasion:

“…a privileged occasion is…an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person

to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential…”.

52 These occasions of qualified privilege are derived from legislation or from the common law but it is the duty/interest principle that is an essential ingredient of the defence. The New Zealand Court of Appeal in Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385 summarised the concept as being

“…born of a recognition that it is not always right to presume malice from the publication of false and defamatory words. In some circumstances malice could not reasonably be presumed; these circumstances became known as occasions of qualified privilege.

53 It is, to use the words of Lord Nicholls in Reynolds , the law’s recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. The protection afforded to the maker of the statement is the means by which the law seeks to achieve this end.

54 It is the function of the courts to assess whether, in the public interest, the publication should be protected in the absence of malice. To do this it is necessary to have regard to all the circumstances associated with the origin and publication of the defamatory matter. The circumstances must be viewed with today’s eyes and depend on current social conditions (per Lord. Nicholls).

55 Accordingly, when an occasion is deemed privileged the burden shifts to the plaintiff to show that the words were actuated by malice. Over the years, a body of case law has developed that facilitates the recognition of circumstances in which the duty/interest principle is applicable. An example is where a former employer communicates with an intended employer about the conduct and qualities of a former employee. Reputation (of the employee) has to give way to such a communication. But the occasion is limited in the sense that privilege extends to the maker of the statement and the person or persons who has or have an interest to receive the information. It does not include matter published to a much wider audience. Generally, the privilege does not extend to such a wide audience but exceptions have now been made where what is published is done pursuant to the right to freedom of expression.

56 The world has moved ahead and the law now recognises as an integral part of any society fundamental human rights that include the right to free speech and the right to political discussion. It is the recognition of these rights that in recent years that has enabled the Courts to balance them with the competing private right to reputation.

57 This right to reputation is recognised as an important factor in any contemporary society. Lord Nicholls in Reynolds expressed the right in this way (at p.622):

“ Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote and whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there

is no opportunity to vindicate ones reputation. When this happens, society as well as the individual suffers. ……. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely.

…….Consistently with these considerations, human rights conventions recognise that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are

prescribed by law and are necessary in a democratic society for the

protection of the reputation of others.

58 Immediately it is plain that the right to reputation cannot be sidelined simply because it comes face to face with a constitutional right such as freedom of expression. There must be some accommodation and it is in this context that the courts have had to formulate the restrictions that are fairly and reasonably necessary in order to strike the correct balance to ensure that one right is not placed at the mercy of another competing right. Any effort in this direction, however, must guard against the unreasonable suppression of the constitutional right in any way.

59 Common law qualified privilege accordingly has been extended to include publications to a wide audience where the publication is alleged to be made pursuant to a constitutional right. It is in formulating the restrictions or the manner of control governing the extension of qualified privilege that the courts in various common law jurisdictions have differed. The Courts in England (in Reynolds ), Australia ( Lange ) and New Zealand ( Atkinson ) have all recognised this need for the extension of common law qualified privilege where the publication is to a general audience.

60 The High Court of Australia was first to recognise a new occasion of qualified privilege for communications made in the course of political discussion . The occasion related essentially to the conduct of politicians, both in Australia and elsewhere. Then came the decision in Atkinson. The New Zealand Court of Appeal tightly defined the subject-matter which would attract qualified privilege. It limited it to the conduct and qualities of those currently or formerly elected to Parliament and those with immediate aspirations to such office, so far as those actions and qualities directly affect their capacity to meet their public obligations. It was extended to include all manner of publications. The decision in Reynolds followed where the subject-matter was widely defined, with the focus directed particularly to the position of a national newspaper.

61 While the method of control governing the extension of qualified privilege has been different in the three jurisdictions, essentially all the Courts recognise that without an extension of common law qualified privilege the defamation laws would impose an undue burden on the required freedom of communication, whether that right is by way of implication or entrenched in a written constitution. As the High Court in Australia recognized in Theophanous v Herald and Weekly Times Ltd [1994] 3 LRC 369 at 433

(the Australian forerunner to Lange ) viz.,

“…..the constitutionally prescribed system of government does not require - to the contrary, it would adversely be affected by - an unqualified freedom to publish defamatory matter damaging the reputations of individuals involved in government or politics. The question then is whether the common law of defamation and the statue law regulating the publication of defamatory matter are reasonably appropriate and adapted to the protection of reputation having regard to the requirement of freedom of communications

(to express political views) about government and political matters required by the Constitution”.

62 In Reynolds , the House of Lords, with some minor modification, approved the circumstances test laid down by the Court of Appeal as the way forward. It rejected any generic qualified privilege extending to publication of political information to the public at large. In other words, the fact that a fundamental right was involved did not automatically attract qualified privilege. The House acknowledged that publication of political information to the world at large could attract privilege but, in order to do so, it was first necessary to examine the circumstances of publication before determining whether the public interest was served by treating the occasion as one of qualified privilege.

63 The circumstances test encompasses an evaluation of the particular information in the circumstances of its publication in order to determine whether the public interest so requires. In other words, the court has to assess whether the information is of sufficient value to the public that, in the public interest, it should be protected by privilege in the absence of malice. Whether there is a duty to publish to the intended recipients depends upon the circumstances, including the nature of the matter published and its source, status and the circumstances of publication. The test, the House acknowledged, could not be carried out in isolation from these factors and without regard to them.

64 In Atkinson , the Court of Appeal declined to follow the test laid down in Reynolds . It viewed that test as creating a degree of uncertainty and considered that it failed to keep separate the need to first determine whether privilege attached and then to enquire whether the occasions had been misused. In effect, the Court decided that given the nature of its democracy the wider public could have a proper interest in generally- published statements made about the conduct and qualities of those elected to Parliament or with aspirations of being so elected, so far as those qualities and conduct affected their capacity to meet their public responsibilities. To this end, the factors that would be taken into account would depend on a consideration of what is properly a matter of public concern rather than of private concern and in determining whether the occasion was privileged would include an enquiry into the circumstances of the publication, such as the identity of the publisher, the context in which the publication was made and the likely audience as well as the actual content of the information.

65 Unlike the position in England, there is statutory provision in New Zealand (s.19 of the Defamation Act 1992) that defeats a defence of qualified privilege if the plaintiff proves that the defendant took improper advantage of the occasion or misused the occasion for an improper purpose. It is an important factor when determining the appropriate balance between freedom of expression and the protection of reputation. It allows the Court to take a more expansive approach to defining an occasion of qualified privilege as the section has the ability to take a correspondingly more expansive approach to what constituted misuse of the occasion. (see Atkinson p399).

66 In Lange, the authority upon which counsel for the appellant specifically relied, a slightly different approach was adopted. It is to be noted that while counsel urged this Court to follow the decision in Lange , he did not elaborate as to the extent to which it should be adopted. From his submissions, however, it appears that he was advocating an absolute right to publish political views subject only to malice, both in the sense described in Horrocks (above) and of improper use as prescribed in Atkinson . In other words, he invited the court to define a new category of qualified privilege i.e. of political information or discussion subject only to the plaintiff proving malice. In effect he was suggesting that the provisions of section 19 be adopted in this jurisdiction. In spite of his reliance on Lange , counsel did not subscribe to the reasonableness test adopted by the Court in that case.

67 In Lange , the subject-matter related essentially to the conduct of politicians, both in Australia and outside but the right to free speech was not considered an absolute right as such. It was subject to the publisher proving reasonableness. That test was considered appropriate having regard to the greater damage done by mass dissemination compared with the limited publication normally involved on occasions of common law qualified privilege (per Lord Nicholls in Reynolds) . The test requires the publisher to show that his conduct in publishing the defamatory matter was reasonable. Accordingly, he has to show that he had reasonable grounds for believing the imputation to be true, took proper steps, so far as were reasonable, to verify the accuracy of the material and did not believe the imputation to be untrue. Additionally, he has to show that he had made some effort to obtain a response from the person defamed and to publish that response unless it was not practicable or unnecessary to do so.

68 It is obvious from the review I have carried out of the approach adopted in these three jurisdictions that the right to free speech is not an absolute one. The Courts recognise the competing rights but differ in the manner of determining whether the occasion attracts qualified privilege. It seems, however, that whichever approach is adopted by this Court, whether that of Reynolds, Lange or Atkinson, the proposed ground of appeal is unsustainable. The appellant declined to testify at the trial, leaving the issue with absolutely no material on which to satisfy either the circumstances test as prescribed in Reynolds or the reasonableness test in Lange

69 The appellant had abandoned the defence of fair comment thereby removing any suggestion that he honestly held the opinion or comment (if the words could be considered comment or opinion). He did not rely on a plea of justification thereby leaving no doubt that he did not consider that the imputation of fact, (which the words complained of in fact were), was true. Without any evidence to show the circumstances in which he had published the words complained of or to show that he had acted reasonably in accordance with the test required in the very case counsel had subscribed to, the constitutional defence was unsustainable. This is, of course, quite apart from the fact that he was unable to show that the respondent fell within the subject-matter that attracts extended qualified privilege in Lange, viz., that he was a politician.

70 Counsel refrained from relying on the Atkinson test and for good reason because the specific subject-matter there is reserved for politicians. Counsel for the appellant had conceded that the respondent was not one when he submitted that the words complained of were directed at politicians and not at the respondent.

71 While the issue of racial harmony may be a matter of national importance and the public at large would have an interest in knowing of it, the occasion cannot be used as a cover to inject defamatory material concerning a private citizen, as was done in the instant appeal. Bereft of any evidence to show in what circumstances such defamatory matter was in the public interest to qualify it as an expression of political views it could not be justifiably maintained that the issue was simply one of law . Without the requisite evidence, the defence was not available to the appellant and I would reject it outright.

72 In the final analysis, I do not consider that the circumstances in the instant appeal justify a pronouncement by the Court as to which approach is preferable in this jurisdiction – that of the Courts in the Antipodes or that of the House of Lords, given our constitutional arrangements. However, it may be that the issue is stare decisis in light of the fact that the Privy Council appears to have followed the Reynolds principle in Bonnick v Morris [2002] UKPC 31; [2002] 3 WLR 820.

Damages

73 Counsel contended that the damages awarded were excessive. The trial judge considered that an award of $600,000.00 was a fair sum to compensate the respondent for his injured feelings and to vindicate his reputation. He included in that award a sum to cover aggravated damages. In arriving at his decision, the trial judge took into account (i) the extensive coverage that the speech of the appellant received; (ii) the fact that it was the Prime Minister who had spoken the defamatory words; (iii) that he had used the occasion to injure the respondent’s reputation; (iv) the seriousness of the libel; (v) the absence of an apology or at least some clarification that the reference to pseudo racists was not intended to refer to the respondent; (vi) the words were spoken with express malice and with an oppressive intent to silence the plaintiff; (vii) the fact that the appellant did not honestly believe that the respondent was a pseudo racist and made the remarks with the intention of hurting and injuring the respondent; and (viii) the defence of fair comment was maintained until the very end of the trial when it was abandoned.

74 He looked at the awards in two previous local cases ( Solomon and Forde ) and expressed the view that the libel in the instant appeal was far greater than in both those cases. In the former, the defendant had accused the plaintiff of shooting at the home of the then Chief Justice. The Court of Appeal increased the Master’s award of $30,000 to one of $150,000.00. In the latter, the defendant claimed that the plaintiff had contacted AIDS, had transmitted it to a Minister of Government and had subsequently died. She was alive and well. It attracted an award of $100,000.00 which included exemplary damages of $10,000.00. Both awards were made some thirteen to fourteen years ago.

75 The trial judge also considered the recent award of the Court of Appeal in Jamaica in Abraham v The Gleaner Co. Ltd. There, the Court reduced the award made by the jury from J$80,700.000.00 to J$35,000,000.00, an award the Privy Council chose not to interfere with when it delivered its decision on July 14, 2003.

76 The trial judge found that the appellant was responsible for the re-publication of the slander and therefore liable in damages for libel and slander. I agree with Warner J.A. for the reasons she has given that on the pleadings the trial judge was entitled to find that the claim for damages extended to libel as well as slander.

77 Counsel for the appellant expressed some concern that the newspapers controlled by the respondent’s media house were the chief publishers of the libel and should be taken into account. I do not see that as a reason for reducing the award. The liability attaches to the appellant because he had authorised the republication of the slander. It meant that he had reasonably foreseen that the words would be carried in the press which re-publication would have added to the injury already inflicted on the respondent’s reputation.

78 There was also some concern expressed about the purported motive of the respondent in instituting the action against the appellant alone and not against the press that had published the libel. The respondent, in cross-examination and in answer to a suggestion that he wanted to teach the appellant a lesson , responded that he had sued him because he had –

“…publicly humiliated me. He was the source. I thought it necessary, first to contain the extent of the damages. Second, to get justice in the court. Third, to send a signal, the Prime Minister is not above the law. I consider this fundamental to our democracy.”

79 The source of the defamatory words was the appellant and given the high office he held and the irresponsible way in which the words had been published, I do not think that it would be unjustified for a plaintiff to pursue the perpetrator of the libel alone rather than those whose function it was to publish the news . The respondent’s forthright response to what was plainly a leading question should not be allowed to detract from the fact that the purpose of the action was to have his reputation vindicated. No question of motive arises and, in my view, that rather forthright and fearless answer could not be relevant to liability or quantum of damages.

80 The trial judge did take into account that the defamatory words emanated from no less a person than the Prime Minister. Any lesser source might have attracted little publicity and a minimum of damage, but given the office held at the time the ordinary reasonable man would have been attracted to believing that there was truth in the statement. As Deyalsingh J. observed in Basdeo Panday vs Blast Publications Ltd & ors H.C.A. 1490 of 1984 (unreported):

‘ the local society is by and large a society which believes what it reads. What is in the papers must be true or at the least, have a grain of truth.’

81 I would think that this statement is equally applicable when the source is none other than the Prime Minister himself.

82 Counsel for the appellant did make an oblique reference to the aide-memoire that made reference to racism in the society. The contents of the document do suggest a certain latitude on the part of the respondent when it came to the issue of race. It shows that the respondent, in 1996, had a very open discussion on that issue with the appellant and did not seem too overly concerned when the appellant predicted his demise, were a commission set up to enquire into racial discrimination. The obvious absence of any discomfort in recalling the event to his audience in 1997 is indicative of that latitude permissible in such a discussion. But such exchange is usually confined to a small group of people, as happened on that occasion, and, generally, result in no serious repercussions. There is, undoubtedly, a certain restraint when indiscretions of that nature occur but there is a limit. In the instant appeal there can be no doubt that by publicly describing the respondent as a pseudo racist the permissible limit was transgressed to an unacceptable degree. The words complained of could not be considered mere loose talk among friends , but, given the extensive coverage, a serious indictment on the character and conduct of the respondent in the practice of his profession.

83 Neil LJ in Rantzen v Mirror Group Newspapers (1986) Ltd [1993] EWCA Civ 16; [1994] QB 670 propounded a test to determine whether an award was excessive or not. While he may have been dealing with awards made as a result of a jury trial I see no reason to differ from that approach where a judge sitting alone makes the award.

84 The test is whether the award (i.e. the quantum) was “ necessary to compensate the plaintiff and to re-establish his reputation ”. I have enumerated the several factors taken into account by the trial judge in making his award. Those factors however seem to me to be concerned more with the manner of publication rather than the effect, in the sense that it appears to me that he did not give sufficient consideration to what extent the respondent’s reputation suffered.

85 Applying the test in Rantzen , I would think that, apart from the isolated outburst made by one of the respondent’s friends the following morning to the effect that the appellant had called him a big racist , there was no evidence of any other direct insult by third persons or any suggestion that anyone had held him in contempt or ridicule. However, because I am of the view that to call someone a racist, or worse, as in this case, a pseudo racist, is offensive it would of necessity lead to the implication that the respondent’s reputation would have been lowered in the eyes of a substantial number or persons in society. The evidence does not revel that the respondent, subsequent to the publication remained anything else but a successful businessman and highly respected throughout the Caribbean in the media field. There is nothing to suggest otherwise. I have no doubt whatsoever that his feelings were seriously injured and his reputation tarnished to some extent but whatever loss he may have experienced would have been cushioned by the out-pouring of support he received from the media, both by the press and television, here and abroad. This was an unusual case in that the press, subsequent to the publication of the speech, were strongly condemnatory of the appellant and sympathetic to the respondent and probably, rightly so. In the result, it cannot be suggested that the injury to his reputation was irreparably damaged to any degree, with the result that I find the award to be on the higher end of the scale.

86 While acknowledging that the words must have been offensive and insulting to the respondent and his good name sullied, it is difficult to accept that his reputation in the eyes of the ordinary reasonable person would have suffered to the extent as for example as happened to the plaintiff in the case of The Gleaner & anor v Eric Abrahams , P.C Appeal #86 of 2001(unreported). There, the plaintiff’s business was ruined and his health suffered irreparable harm and the Courts in Jamaica felt that, at least in that jurisdiction, an award of J$35,000,000.00 was an adequate sum to vindicate the plaintiff’s reputation. Such a high award is obviously reserved for the most serious cases. It appears that the trial judge in the instant appeal was prepared to award what would have been regarded as the highest sum in this jurisdiction to, inter alia, vindicate the loss of reputation. This, in the circumstances of this case, was not right, given what I have already said about the loss of reputation.

87 Awards in this jurisdiction have tended to be on the conservative side over the years. It was probably because actions in defamation had not been as prolific as in other jurisdictions. However, the number of newspapers, daily and weekly, has grown in recent years and, by 1990, there were no longer one or two newspapers in circulation. The dissemination of news had made similar strides. The press no longer exhibited the restraint normally associated with responsible journalism (see per Sharma J.A.(as he then was) in Boodram v Attorney General & anor. 47 WIR 459). Sensationalism now is the order of the day and letters before action in defamation claims are no longer matters for concern. They are sometimes published and held up to ridicule.

88 It is of little surprise therefore that the Court of Appeal, no doubt aware of these developments, decided to raise the bar in the Frank Solomon case. The award in Forde followed shortly thereafter. These awards were made some 13 to 14 years ago and the libels were considered “ very serious ”. In Solomon , there was evidence to show that the plaintiff’s law practice had taken a serious blow as a result of the publication of the libel.

In Forde , the accusation alone resulted in a shunning of the plaintiff by her friends and acquaintances. Given the passage of time, the relentless pursuit by the press for sensationalism with little concern for reputation and the fall in the value of money over the ensuing period, if both cases had to be decided today it is quite likely that the respective awards would have been in the vicinity of the award made by the trial judge in the instant appeal.

89 While the allegation made against the respondent is also considered to be very serious, the loss to reputation could not be considered as severe and irreparable as in those two cases. In the circumstances, I would consider an award of $300,000 to be more appropriate and fair to compensate the respondent and re-establish his reputation, bearing in mind that the test in Rantzen sets out to achieve both objectives of compensation and vindication of reputation and the latter in this case had already largely been achieved.

90 I would accordingly allow the appeal to the extent only of reducing the award of

$600,000.00 to $300,000 with interest at the rate of 12% per annum from the date of judgment.

91 Apart from the issue of damages, the appellant has not succeeded in the substantive appeal. I think therefore that a fair order as to costs would be that the appellant pay the respondent seventy five percent of his taxed costs of the appeal.

Roger Hamel-Smith

Justice of Appeal

Context