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Basdeo Panday App. and Kenneth Gordon Resp Civil Appeal - Warner, J.A [2003] TTCA 27 (31 October 2003)

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

CvA. NO. 175 of 2000

BETWEEN

BASDEO PANDAY DEFENDANT/APPELLANT AND

KENNETH GORDON PLAINTIFF/RESPONDENT

CORAM:

S. Sharma, C.J.

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

APPEARANCES:

Dr. F. Ramsahoye S.C. for the Appellant with him Mr. A. Ramlogan

Mr. D. Mendes and Ms. V. Gopaul for the Respondent

DATE DELIVERED

31 ^st October, 2003

JUDGMENT

Delivered by Warner J.A.

1. On 30 ^th May 1997, the appellant addressed a large gathering which included journalists and representatives of the electronic media, on the occasion of a national holiday. This case concerns certain statements which the appellant made during the course of that address, which the respondent contends were libellous, and which injured him in his credit and reputation, and in his profession as a publisher, businessman and company director. The trial judge gave judgment for the respondent and awarded him damages in the sum of $600,000. with interest and costs.

2. The allegations made by the respondent in support of his claim were set out in paragraph 10 of his Statement of Claim as follows –

“At a meeting held at Chandernagore in the County of Caroni on Indian Arrival Day of 1997, the defendant was invited to deliver the feature address and in doing so falsely and maliciously spoke and published the following words of and concerning the Plaintiff and of concerning him in the way of his profession as a businessman aforesaid and/or of his positions as Chief Executive Officer and/or Chairman and/or Company Director as aforesaid:

“As you join…. as you join me in this crusade for national unity you’ll meet many people who do not want national unity. They are the ones who in the past had benefited and thrived on maintaining division of society. I call them the pseudo racists.

I call them pseudo racists, I call them pseudo racists and I call them pseudo racists because they are not real racists. Real racists are people who look after their race. These fellas use race only to look after theyself. They are pseudo racists. So I say the pseudo racists who have divided the society to maintain the political power and even now are doing so in the hope of political survival. The Ken Gordons who want to maintain his 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. We pass laws to deal with criminals, they condemn us, we sign an agreement with the Americans to deal with drug lords, they condemn us, we try to change URP. When they spoke of that, both….. both persons… and teacher… We try to change URP, they accuse us of racism, if someone gets fired from a State enterprise because he is…. corruption…. Because he is corrupt, they scream, they doh want change, they want to continue in their old ways.”

3. The respondent relied on the natural and ordinary meaning of the words, as well as their inferential meaning. He testified about his standing in the community, his association with a number of companies in Trinidad and Tobago and in the Caribbean. He also set out in detail his connection with the printed and electronic media. It is well known that he was the Chairman and later, Chief Executive Officer of the Caribbean Communications Network and founder director of the Caribbean News Agency (CANA). He also served as a Minister of Government during the period 1986 to 1990. The defendant did not testify. In May 1997, he was the Prime Minister of Trinidad and Tobago. During the period 1986 to 1991, both he and the respondent were members of the Cabinet of the

Government of Trinidad and Tobago.

4. In 1997, the Government of Trinidad and Tobago published a ‘Green Paper’ on Media Reform. It is not in dispute that the respondent opposed the measures proposed in that paper.

5. With respect, I must decline Counsel for the appellant’s invitation to construe Section 4 (e) of the Constitution of Trinidad and Tobago, which

recognizes the right of the individual to join political parties and express political views, as providing a defence to this action for libel. This novel argument was inspired by the Australian case of Lange v Australian Broadcasting

Corporation [1997] HCA 25; (1997) 189 C.L.R. 520 a New South Wales defamation case.

6. In this court, the debate centred primarily on the appellant’s belated ground of appeal which was couched in this manner –

“The judge erred in failing to consider that the words complained of could not be defamatory of the respondent because the appellant was entitled to speak them in pursuance of his right to freedom of thought and of expression and his right to make political speeches in pursuance of the Constitution of Trinidad and Tobago.”

7. In point of form and substance, since this new issue was not raised in the court below, the averment that the trial judge ‘erred” is not strictly correct.

The only reference to any right to constitutional protection in the appellant’s pleaded case was a general plea grounded on section 4 (i), the right to freedom of expression. The contention was that the speech was “constitutionally privileged” and would therefore attract no liability under any other law.

8. Counsel’s oral argument, based on the Lange case may be summarized thus: if, as the point at issue in this case, in the course of a political speech a person is incidentally the subject of a defamatory remark, then that speech is protected. It seems to me therefore, that counsel was indirectly conceding that the words were defamatory. This interpretation is consistent with the trial judge’s observation that such a concession was made. Counsel, in his written

submission, sought to withdraw that concession. Nonetheless, the trial judge had gone on to consider whether the words were defamatory. He applied the two stage test - he first asked, what was the direct or inferential meaning of the words, and then he considered whether the words were defamatory of the plaintiff.

9. The thrust of the plaintiff’s case was that the appellant ‘s statements meant that-

(a) the plaintiff practised racism and/or fomented and/or discouraged racial discord and/or division in the society for his own political and/or commercial disadvantage.

(b) that he was representative of persons who practised racism 10. To apply Lord Devlin’s test enunciated in Lewis v Daily Telegraph (1964)

A.C. 234 at 285 -

“One always gets back to the fundamental question: what

is the meaning that the words convey to the ordinary man.”

11. Lord Reid further explained the test at pages 258 – 260.

“ What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that 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 a murderer. But more 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”…

12. This question must be answered by reference to the article as a whole.

(See Charleston v News Group Newspapers Ltd [1995] UKHL 6; [1995] 2 AC 65 ) In that connection, the trial judge had this to say -

“I have no doubt in my own mind, having seen the video of the Prime Minister’s address, having read the transcript of same and having weighed the competing analyses suggested, that the ordinary listener would have concluded that the Prime Minister was calling the Plaintiff a pseudo racist, who used racism to maintain division in the society and to maintain a commercial or economic advantage over his competitors in the media business.”

13. In my view, it may not be necessary to go beyond the words themselves because the appellant informed his audience directly what meaning he intended to convey. He reasoned that pseudo racists were not real racists because the latter category of persons looked after their race. The clear implication was that pseudo racists were even more despicable than racists. Secondly, there can be no doubt that the appellant was describing the respondent. He made a positive assertion which was particularly referable to the respondent.

14. I am satisfied that the ordinary reasonable listener or reader would have concluded that the respondent used race to his personal and commercial advantage. That to my mind would have been the reaction of the ordinary reader in the context and circumstances in which the words were used.

I have not ignored the fact that in this society there is a tendency to exaggerate;

to resort to a form of unbridled teasing, a pastime which has several colloquial descriptions. However, the impugned statements were not made in a setting of

“chaff and banter” and nothing was said in the entire speech to “neutralise” their effect. They were made on an historical occasion, in a speech in which the speaker bemoaned what he perceived to be the racial divisions in the Country. The statements, in my view, went far beyond that which is acceptable in any contemporary society.

Indeed, I agree with the observations of Eady J. in Baldwin v Rusbridger and

the Guardian Newspapers Ltd [2001] E.M. L.R. 47 that to accuse a person of being a racist can have terrifying consequences.

15. Qualified privilege

The wide general principle which underlies the defence of privilege in all its aspects is that the requirements of public interest are served by the publication.

(See Perera v Peiris [1949] A.C.1)

Qualified privilege is defeated by malice. If it is shown that the defendant did not believe in the truth of the statement or was recklessly careless whether the statement be true or false. Brett L.J. in Clark v Molyneux [1877] 3 Q.B.D 237

at 247 stated –

“If a man is proved to have stated that which he knew to be false, no one need enquire further.”

The law was restated in Horrocks v Lowe [1975] A.C. 135

16. The trial judge in the instant case, emphasised two important aspects under the head of malice, firstly, that counsel for the appellant had conceded that the appellant could never have honestly or reasonably believed that the respondent was a pseudo racist, and secondly, that the appellant had abandoned the plea of fair comment. This in my view, ought to rebut any defence qualified privilege, if indeed it were available to the appellant.

17. The defence of ‘reply to attack’

It must first be noted that according to the record the sequence of the trial was as follows: The plaintiff closed his case on the 11 ^th July 2000 and Counsel for the defendant indicated to the trial judge that he proposed to call no evidence. On the 18 ^th July 2000, Counsel for the appellant, in formulating his argument, stated that reply to attack was one of the defences on which he proposed to rely.

I agree with the trial judge’s ruling that on the pleadings as they stood, the defence of reply to attack was not available to the appellant. This defence was not pleaded. Quite apart from the fact that no particulars were given of such a plea, the theme of the appellant’s address at Chandernagore, that is to say, national unity, had nothing to do with the publication of the “Green Paper,” which was concerned with the reform of Media Law. Further, the instant case was tried without evidence from the defendant to support his pleading. Averments which a litigant makes in his pleading, ought not to be made lightly, nor should pleadings be regarded merely as a vehicle to criticise. This approach, in my view, only serves to aggravate any injury, particularly in a case of this nature.

18. The Lange model defence (Australia)

In order to understand the development of the principle of freedom of communication in Australia in recent times, it is essential to refer briefly to the case of Theophanous v The Herald and Weekly Times Ltd. [1995] 182 CLR

104 where it was held by a majority that there was implied in the Commonwealth Constitution a freedom to publish material discussing government and political matters of and concerning Members of Parliament of the Commonwealth relating to the performance of their parliamentary duties, or to their suitability for parliamentary office. Accordingly, such publication was not actionable under defamation law, if the defendant established that he had not been aware of the falsity and the publication was not reckless, but was reasonable in the circumstances. The case arose out of a member of the public’s vigorous criticism of the migration policies, of a member of the House of Representatives. These criticisms were published in the media.

This reasoning was followed in Stephens v West Australian Newspapers Ltd.

[1994] 3 L.R.C 446 where the six plaintiffs were members of the Legislative

Council of Western Australia. The alleged defamatory matter concerned overseas trips which they had taken as members of a Council Committee.

19. In Lange , some aspect of those decisions were revisited. The facts were that the Australian Broadcasting Corporation broadcast a television programme in which certain allegations were made about a former Prime Minister of New Zealand, Mr. David Lange. Briefly, the defendants claimed that the allegations were published “pursuant to a freedom guaranteed by the Commonwealth

Constitution” to publish material in the course of discussion of government and political matters, of and concerning members of Parliament.

They also pleaded a defence of qualified privilege on the ground that the matters related to subjects of public interest and political matters.

20. The court held that the Commonwealth Constitution protects freedom of communication between the people concerning political or government matters, but stressed that that freedom was not absolute.

The court did not agree that the defence was grounded in the Constitution, but sought to develop the defence within the common law itself. In other words, the court reasoned that the common law rules of defamation like any statute must conform to requirements of the Constitution (at page 566).

21. But it is the concept of reasonableness of conduct which is an important feature, if one is to relate the principles to the instant case. In Lange at page 574, the court stated that –

“whether the making of a publication was reasonable depended upon all the circumstances of the case. But as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation would not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant’s conduct would not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond).”

22. It is noteworthy that in Theophanus Stephen and Lange , the defence was raised against the politician and not by him. I accept however that under Lange , all citizens are entitled to claim the benefit of the privilege as long as he or she acts reasonably.

23. Counsel’s argument however, was that in the Trinidad and Tobago context the requirement of reasonableness did not arise because unlike the Australian situation, the right to express political views was expressly guaranteed under Section 4(e) of the Constitution. If therefore the dominant purpose of a speech was political then if a private citizen became a ‘casualty,’ he or she had no redress.

I disagree. It could equally be argued that Section 4 (c)of the Trinidad and Tobago Constitution guaranteed the right to respect for private life. This protection in my view is aimed at promoting self-worth. Accordingly, a man is entitled to his reputation and to access to the courts to obtain proper redress. In Berkoff v Burchil [1996] EWCA Civ 564; [1996] 4 All ER 1008 a case in which a well-known British actor was described as ‘ hideously ugly,’ at page 1017 Neill L. J cited the sage words of the Supreme Court of Canada in Manning v Hill (A. G. for Ontario

and/or interveners) [1995] 126 DLR (4 ^th ) 129 where the court considered the inter action between Charter Rights and the nature of actions for defamation -

“Though the law of defamation no longer serves as a bulwark against the duel and blood feud, the protection of reputation remains of vital importance

… reputation is the “fundamental foundation on which people are able to interact with each other in social environments”. At the same time, it serves the equally or perhaps more fundamentally important

purpose of fostering our self-image and sense of self-worth. This sentiment was eloquently expressed by Stewart J. in Rosenblatt v Baer [1966] USSC 25; (1966) 383 US 75 at

92) who stated: ‘The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being - a concept at the root of any decent system of ordered liberty’.”

24. In R v Dyment 1988, 55 D.L.R. (4 ^th ) 503 , a decision of the Supreme Court of Canada La Forest J. at 512-513 observed, that privacy including privacy in relation to information is grounded in a man’s physical and moral autonomy and

“is essential for the well being of the individual.” I think that there is much to be said for this type of approach and reasoning.

25. It is well established that the tort of defamation is one of the means by which an individual’s right to privacy and by extension, his reputation is protected.

26. The stringent test of reasonableness in the Lange model of qualified privilege attempts to strike the necessary balance between political discussion and an individual’s right to his reputation. One must also bear in mind that in Australian Law, there appears to be no general right to privacy.

27. The Reynolds’ Privilege

In the court below, the appellant’s counsel indicated to the trial judge that he was not pursuing a defence along the lines of Reynolds v The Times

Newspapers Limited (2001) 2 A C 127

In Reynolds the House of Lords disagreed with the submission that the common law should develop a generic privilege relating to the publication of political information. Their Lordships, while recognising that publication of that nature might well attract privilege, held that it would be necessary to examine the circumstances of the publication before determining whether the occasion attracted qualified privilege.

In reference to the Lange type privilege, Lord Cooke had this to say at page 220

–

“It is doubtful whether the suggested new defence could sensibly be confined to political discussion. There are other public figures who exercise great practical power over the lives of people or great influence in the formation of public opinion or as role models. Such, power or influence may indeed exceed that of most politicians. The rights and interests of citizens in democracies are not restricted to the casting of votes. Matters other than those pertaining to government and politics may be just as important in the community; and they may have as strong a to be free of restraints on freedom of speech.”

The observations of Lord Hobhouse in Reynolds at page 238 are also in point -

“The liberty to communicate (and receive) information has a similar place in a free society, but it is important always to remember that it is the communication of

information not misinformation which is the subject of

this liberty. There is no human right to disseminate

information that it is not true. No public interest is

served by publishing or communicating misinforma-

tion. The working of a democratic society depends on the members of that society, being informed not misinformed. Misleading people and the purveying as facts statements which are not true is destructive of the democratic society and should form no part of such society.” (Emphasis added)

27. While I accept that given the changing face of society a greater latitude may be acceptable in the reception of frank, uninhibited comments, of a political nature, in my view however, this is not such a case. The appellant’s statements were without foundation, were clearly defamatory, and attracted no form of privilege.

For all the above reasons, I do not therefore accept that the Constitution of

Trinidad and Tobago has fundamentally altered the law of defamation.

28. I turn now to the appellant’s challenge to the trial judge’s finding that there was before the Court a valid claim for damages for libel. In order to appreciate the point in issue, it will be necessary to refer to the endorsement on the Writ, which was as follows –

“The Plaintiff’s claim is for –

1. Damages for slander contained in a speech delivered by the Defendant at a public meeting at Chandernagore, in the County of Caroni on

30 ^th May 1997.

2. Damages for libel arising out of the publication

(which was impliedly authorised by the

Defendant) of a report of the said speech in –

a. An article in the “Daily Express” newspaper of 1 ^st June, 1997 headlined “Panday attacks Gordon” at page 3 thereof;

b. An article in the “Trinidad Guardian” newspaper of 3 ^rd June, 1997 headlined “Gordon to resign over racism charge” at page 1 thereof;

c. Two articles in the “Newsday” newspaper of 2 ^nd June, 1997, headlined “PM calls Gordon ‘pseudo

racist’ and Panday hits pseudo- racist’ at pages 5 and 7 thereof respectively;

d. An article in “The Independent” newspaper of 2 ^nd June, 1997 headlined “PM calls Gordon ‘pseudo racist’ at page 5 thereof.

3. An injunction to restrain the Defendant by himself his agents or servants or otherwise from further speaking or publishing the said or any similar words defamatory of the Plaintiff.

4. Costs

5. Further and other relief.”

29. The reliefs sought in the Statement of Claim was framed in the following manner –

“AND THE PLAINTIFF claims:

i. Damages, including aggravated and exemplary

damages for slander.

ii. An injunction to restrain the Defendant whether by his servants, agents or otherwise howsoever from publishing or causing to be published the words complained of or any other words to the same or any similar effect defamatory of the Plaintiff.” (Emphasis added)

30. The appellant argued that there was no valid claim before the court for libel so that the court had no jurisdiction to award damages for libel. In that regard, Counsel based his submission on dicta in Cargill v Bower [1878] 10

Ch.D 502 and Lewis v Dunford [1907] TLR 64.

Briefly, in the Cargill case, it appears that the plaintiff sought to rely on a prayer for ‘further relief’ to cover a claim for rescission of a contract, which had not been claimed in the Writ. Fry J. had this to say –

“The notion that the prayer for further relief will cover a claim for the rescission of the contract seems to me to be excluded by this consideration, that such a prayer must always be limited by two things – the facts which are alleged and the relief which is expressly asked. You cannot, under a

general prayer for further relief, obtain any relief

inconsistent with that relief which is expressly asked for. And here there is no allegation in the statement of claim of any right to rescind the contract.” (Emphasis added)

31. The Cargill case is clearly distinguishable. The prayer for ‘further relief’ gave the defendant no indication that he was seeking rescission. The respondent in the instant case, at paragraph 11 of his Statement of Claim alleged that the appellant was responsible for the republication of the slander in four newspaper articles and a television broadcast. Dates were given in respect of the newspaper articles. No date was provided in relation to the television broadcast, but according to the evidence, the appellant was aware that representatives from the Television Station (ttt) were present at the meeting. It would have been clear to the appellant that the respondent had not altered or modified his claim. (In Lewis the dictum in Cargill was followed).

The question which arose therefore, was whether the defendant, having addressed the gathering at Chandernagore, was responsible for the fact that third parties published his speech.

32. The test is set out in Mc Manus v Beckham [2002] 4 All ER 479. In order to determine whether ‘D’ who has slandered ‘C’ should justly be held responsible for damage which has been occasioned or directly occasioned by a further publication, the question is whether the damage in question flowing from ‘X’s’ act be foreseen or reasonably foreseeable by ‘D’ or the reasonable person in ‘D’s’

position.

The trial judge thoroughly analysed the pleadings, the evidence and several authorities, and he concluded that the Prime Minister both impliedly authorised and intended that his slander of the plaintiff would be published throughout the length and breadth of Trinidad and Tobago and abroad.

The purpose of the pleadings is to inform ones opponent precisely the case he has to meet. In the instant case, unlike Cargill, from the facts alleged and the prayer for ‘damages’ the appellant well knew that the plaintiff was claiming

‘damages’ for libel and slander. Moreover, at paragraph 15 of the Statement of

Claim the plaintiff pleaded that further and/or alternatively the plaintiff will rely on the matters set out in paragraphs 11 and 12 as flowing from their original publication for the purposes of assessing damages.

33. The appellant also argued that the precise words which were published that are alleged to be defamatory must be set out, not only their substance and effect. The case of Collins v Jones [1955] 1 QB 564 does not in my view assist. In that case a defendant requested particulars of an allegedly defamatory letter identified in a Statement of Claim. It turned out that neither the plaintiff nor her advisers had seen the letters - they were only guessing. The reasoning in

that case was that a plaintiff was not entitled to bring a libel action on a letter he had never seen and the contents of which he was unaware. He ought to have set out the words in his pleading with reasonable certainty, and to do this the letter had to be before him, or at least sufficient material from which to have stated the actual words in it.

34. Quantum of damages

Hamel-Smith J.A., has adequately set out reasons for varying the quantum of the award of general damages. They are in essence, that given the reputation of the respondent, the negative effects of the disparaging statements would have abated with time and would not have been as ‘irreparable’ as the trial judge concluded.

Assessment of damages for defamation is a daunting task and as Lord Hoffman observed in the case of The Gleaner Co. Ltd. v Abrahams Privy Council

Appeal 86 of 2001 . “It will be impossible to produce a formula which

explains why so many times earlier awards is sufficient but double that amount is too much.”

The trial judge in the instant case, did refer to Abrahams (above). This was a case in which in a libel action in Jamaica, a jury awarded a former Minister of Tourism the sum of $80,700,000. The Jamaican Court of Appeal reduced the sum to $35,000,000. (the equivalent of $3,000,000 (TT). The Privy Council declined to interfere with the Court of Appeal’s decision, despite the fact that the Court did not explain how it arrived at that figure. The Board’s view was that the Court of Appeal, sitting as the highest court in Jamaica would have been seized

of all relevant matters which would have amplified the effect of the libel on the plaintiff.

To return to the assessment in the present case, the trial judge, in my view, did not, in considering Abraham, take cognisance of the fact that the defamatory imputations in the instant case, were confined to two statements, while in Abraham the impugned publications were lengthy. According to Langham J.A. in the Court of Appeal, the case had ‘outrageous features which put it in a class by itself.’

I agree that the sum of $300,000. is sufficient to vindicate the respondent absolutely and compensate him for the distress he has suffered. There will be interest on that sum at the rate of 12% per annum from the date of judgment.

35. Costs

I would order that the appellant pay three quarters of the respondent’s cost of the appeal.

Margot Warner, Justice of Appeal

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