CYRIACUS LIVERPOOL CLAIMANT AND CECILY ASSON T & T NEWS CENTRE LIMITED DEFENDANT [2007] TTHC 37 (28 June 2007)

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Rajagopal and another v State of Tamil Nadu, Law Reports of the Commonwealth, India (1995) 3.

G.K.R. Karate Ltd. v Yorkshire Post Newspapers Ltd. (No.2) (2002) EML R 440.

Charleston and another v News Group Newspapers Ltd and another (1995) 2 A.C.

G.K.R. Karate Ltd v Yorkshire Post Newspapers Ltd (No. 2) (2002) E.M.L.R. 410.

JUDGMENT

The “Punch” Newspapers is noted for its sensationalism with emphasis on sexy pictures and articles. A director of the Defending Company admitted in his evidence that the newspapers were known as “Scandal Sheets”.

A publication by the Defendants in the “Sunday Punch” of January 14, 2001 gave rise to the claim herein. This is the publication:

Victim: He’s the first Negro man I ever had, and we’ll never part. ROMEO COP…in shocking love triangle scandal.

The name of former top cop ACP Cyracius Liverpool has been called in a love scandal at Suchit Trace, Penal, in which a young woman has been reportedly left languishing in an unfurnished house.

And distraught relatives say they fear the worst for their loved one, 30-year old Sandra Heeralal, who they claim, has become “a victim” in the end.

According to them, her mental and physical health continue to deteriorate rapidly.

They have been complaining that she hardly eats, as there is never food in the house.

“She’s not the Sandra we know,” sobbed mom Sonia Soogrim, “somebody has done something to my daughter.”

A lovestruck Heeralal and Liverpool reportedly shared a common-law relationship at the family’s (Soogrim) three-bedroom Penal home.

But in a shock move, the retired Liverpool recently walked up the aisle with former assistant DPP Indra Ramoutar in a lavish ceremony in South Trinidad.

They say he had promised to marry Sandra when he moved her from Maraval, where she had been living for sometime.

The couple moved in together at the family’s (Soogrim) three-bedroom Penal mansion last December, 1999.

Soogim said she, too became a “victim “ soon after her daughter returned home.

“They kick me and all my belongings out the house,” she went on, “but I never stopped loving my child because I know she wasn’t responsible.”

Family members allege that although Liverpool has since been married, he continues to “live with” Sandra.

“She still don’t want to believe what has happened and she won’t listen to us,” Soogrim moaned, “her brothers and sisters tired talk.”

They further disclosed that since she “shacked up”, her life has changed dramatically.

Heeralal, a typical country girl, moved out of Penal and worked in Maraval at Captain Cabin.

“She told us about him and he used to call home to inquire about her,” Soogrim explained.

In October 1999, her workplace was burnt to the ground and she returned to Penal with her common-law husband in tow.

“She used to walk with him through the village proud on mornings when they going for morning papers.”

Her relatives say they are baffled by the way Sandra, who is now “skin and bone,” has turned herself into a recluse to the point where she has even stopped eating.

Relatives describe the still very much in love Heeralal as once “very attractive and carefree.”

“I’m very frightened for her,” she added, as she drooled over a passport size picture of her daughter.

“The thing about this relationship is that he is the first Negro man I ever had,” she quipped, as she laughed out loud.

“That bond no one could ever break, despite what, I love him, I love that man…”

When contacted, Liverpool denied knowledge of Sandra Heeralal or any members of her family.

When told that Liverpool denied knowing them, relatives referred Sunday PUNCH to other independent persons.

One man, who asked not to be identified, said he was there in the beginning of the couple’s relationship and was their confidante.

In their Defence the Defendants admit publishing the offending words. Their defences will be considered later.

He went on to attempt to show that the newspaper had complied with the responsibilities attached to responsible journalism and the role of a true press in maintaining democracy in a free society. Upon cross-examination he was obliged to admit that the Plaintiff was “innocent” of the conduct attributed to him in the newspapers.

On 4^th January, 2001, Ms. Asson went on to say, she visited Sandra Heeralal at her home at Sudit Trace, spoke to her and was told that “Liverpool” was coming to see her later that day. She spoke to several other persons and gave instructions to the newspaper’s photographer Anil Rampersad to obtain a picture of Sandra Heeralal. She spoke to the Plaintiff and said “Based on all the information I gathered and the interviews I had conducted” she wrote the story.

The Defendants in complying with order 79 Rule 3(2) of the Orders and Rules of the Supreme Court of Judiciary, 1975 said they would rely on statements made by Sonia Soogrim, Baldath Sookbir, Sandra Heeralal, Ken Ragoo and Anil Rampersad.

“(h) The Defendant shall call these person as witness at the trial of this action who shall give viva voche evidence and testify to the truth and justification of the words set out in paragraphs (4) and (5) of the Statement of Claim.”

The House of Lords in Charleston and Another v News Group Newspapers Ltd and another^¹ held, dismissing the appeal, that the two basic principles of the law of libel were that, where no innuendo was alleged, the natural and ordinary meaning of an allegedly defamatory publication was the meaning, including any inferential meaning, conveyed to the mind of the ordinary, reasonable and fair-minded reader and that the jury were required to determine the single meaning conveyed by the publication to the notional reasonable reader and base its verdict and damages on the assumption that the single meaning was the sense in which all readers would have understood it; that, although the question whether the text of an article was sufficient to neutralise an otherwise defamatory headline was a matter for the jury, a claim for libel could not be founded on a headline or photograph in isolation from the related text and the question whether an article was defamatory had to be answered by reference to the response of the ordinary, reasonable reader to the entire publication.

2) FAIR COMMENT.

The Defence also gave particulars of facts and matters on which the fair comment was based pursuant to Order 79 Rule 3(2) of the 1975 Rules.

As a consequence the Defendants as part of the free press of Trinidad and Tobago had a legal and moral and or social duty to publish and or report on the matters contained in or complained of in the words and or articles referred to and stated in paragraphs (4) and (5) of the Statement of Claim and the facts and or matters pleaded and stated and or referred to in this paragraph to the public of Trinidad and Tobago as a matter of legitimate public interest and importance who had a corresponding duty and or interest to read and receive same.

However, as the “facts and matters” pleaded turned out to be totally without any factual basis. This defence fails.

I have no doubt that the article complained of was defamatory of the Plaintiff. This defence also fails.

First of all it is interesting to note that the defence or even the concept is not to be found either in the Libel Act Chap. 11:16 or in the Order and Rules of the Supreme Court, 1975, or in the Civil Proceedings Rules 1998.

There are circumstances in which, on grounds of public policy and convenience, less compelling than those which give rise to absolute privilege, a person may yet, without incurring liability for defamation, make statements about another which are defamatory and in fact untrue. In such cases a person is protected if the statement was “fairly warranted by the occasion”, that is to say, fell within the scope of the purpose for which the law grants the privilege, and as long as it is not shown that the statement was made with malice, i.e. with some indirect or improper motive or knowing it to be untrue, or with reckless indifference as to its truth.^²

Qualified privilege saw the light of day from the case law of the 19^th century as a defence to defamation actions. The reason was given by Parke B in Toogood v Spyring^³, where he explained why there were “cases where the occasion of the publication affords a defence in the absence of express malice”. Parke B stated that:

In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.

Proof of malice defeats the defence of qualified privilege, though the concept probably has no relevance to the ‘media’ privilege created by Reynolds v Times Newspapers Ltd^⁴, where the emphasis is on a reasonable or responsible conduct. The concept of ‘malice’ is concerned with the conventional, pre Reynolds categories of qualified privilege.^⁵

Lindley LJ in Stuart v Bell^⁶ explained the word ‘malice’ (as used by Parke B), when he said “A privileged occasion is one which is held in point of law to rebut the legal implication of malice which would otherwise be made from the utterance of untrue defamatory language”, and Erle CJ said in Whiteley v Adams,^⁷ “I take it to be clear that the foundation of an action for defamation is malice. But defamation pure and simple affords presumptive evidence of malice. The presumption may be rebutted by showing that the circumstances under which the libel was written or the words uttered were such as to render it justifiable.”

“covers not only an improper purpose for publication but also a reckless disregard for the truth of the published material. Recklessness arises if:

An extension of the privilege will thus not lead to a licence for irresponsible journalism. On the contrary, newspapers pay a significant price in seeking to rely on the defence of qualified privilege as the focus of the trial shifts from the plaintiff’s conduct to the newspaper’s.”

The manner in which qualified privilege should operate in relation to an individual and mass media is different. There must be a higher standard expected of a newspaper whose staff works to professional standards under an editorial team in a commercial enterprise. It will be much easier to find a lack of honest belief in the truth of the publication in the case of a newspaper than in the case of an ordinary citizen.^⁹

Frequently a privileged occasion encompasses publication to one person only or to a limited group of people. Publication more widely, to persons who lack a requisite interest in receiving the information, is not privileged. But the common law has recognized there are occasions when the public interest requires that publication to the world at large should be privileged. In Cox v Feeney^¹⁰, the court approved an earlier statement by Lord Tenterden CJ that “a man has a right to publish, for the purpose of giving the public information, that which it is proper for the public to know”. Whether the public interest so requires, depends upon an evaluation of the particular information in the circumstances of its publication. Through the cases runs the strain that, when determining whether the public at large had a right to know the particular information, the court has regard to all the circumstances. The court is concerned to assess whether the information was of sufficient value to the public that, in the public interest, it should be protected by privilege in the absence of malice.^¹¹

The categories of qualified privilege at common law are not closed but they may be broadly grouped under the following heads^¹²:

In both cases the recipient of the communication must have a corresponding interest or duty in receiving it. The classification is not a precise or rigid one and some cases may, no doubt, be regarded as falling under both heads.

In the case of Adam v Ward^¹³, Lord Atkinson “appears to place fairly rigid limits on the occasions that can attract qualified privilege”^¹⁴, when he said “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.”

The requirement of corresponding duty and interest meant that publications in the mass media were generally outside the scope of qualified privilege at common law.^¹⁵ Once the occasion is held to be a privileged one, the issue is whether the defendant acted honestly (i.e. without malice) not whether he behaved reasonably or took due care.^¹⁶

The media defendant (or other defendant who causes his statement to be published in that way) is in no different position from anyone else^¹⁷ and has to show the relevant reciprocity of duty and interest. Such a duty only arise “where it is in the interests of the public that the publication should be made and will not arise simply because the information appears to be of legitimate public interest.”^¹⁸

From the broad general principle, that certain communications should be protected by qualified privilege in ‘the general interest of society’^¹⁹, the courts have developed the concept that there must exist between the publisher and the publishee some duty or interest in the making of the communication. Lord Campbell, on this issue stated in Harrison v Bush^²⁰ :

A communication made bona fide upon any subject matter in which the party communicating interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter which, without this privilege, would be slanderous and actionable.

An occasion is privileged when the person who makes the communication has a moral duty to make it to the person to whom he does make it, and the person who receives it has an interest in hearing it. Both these conditions must exist in order that the occasion may be privileged.

More recently, Lord Diplock, on this issue, said in the judgment of Horrocks v Lowe^²² that:

The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognizes that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue. With some expectations which are irrelevant to the instant appeal, the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused.

However, there have been a few decisions which expressed the view that there was a more general, but limited, category of cases where there could be privilege for publication in the media. This was seen in the cases Allbutt v General Council of Medical Education^²³ and Perera v Peiris.^²⁴

THE EXTENSION TO THE DUTY/INTEREST TEST- Reynolds v Times Newspapers Ltd.

However, in the case Reynolds v Times Newspapers Ltd^²⁵ the House of Lords made an extension of the protection of qualified privilege for press publications on matters of public concern. The method chosen by this court was to add a further element to the traditional test of duty and interest, what it called the “circumstantial test”. The court was of the opinion that when applying the present English common law of qualified privilege, the following questions need to be answered in relation to any individual occasion.

The very existence of the privilege in this type of case is a matter which involves a closer scrutiny of the facts of the particular case. It involves questions like the extent to which the defendant took steps to verify the information he imparts, the urgency of the matter, the extent of the public’s “right to know” about it and whether the defendant has sought any explanation or comment from the person about whom the statement is made.

In Reynolds the plaintiff, a prominent public figure in Ireland, began proceedings for defamation against the defendants, the publishers of the Sunday Times in England, for an article contained in the British mainland edition of a national newspaper. The publication related to the political crisis in Ireland in 1994 culminating in the plaintiff's resignation as Taoiseach, and the collapse of his coalition government which had, during its course, progressed the peace process in Northern Ireland. The plaintiff claimed that the words complained of bore the meaning that he had deliberately and dishonestly misled the Irish Dáil and his cabinet colleagues. The trial judge rejected the defendants’ case that the article was the subject of qualified privilege. The Court of Appeal dismissed an appeal by the defendants on this issue, but the court said that it was time for a liberalization of the principles governing privilege for media publications. Lord Bingham C. J. in delivering his judgment, said:

We do not for an instant doubt that the common convenience and welfare of a modern plural democracy such as ours are best served by an ample flow of information to the public concerning, and by vigorous public discussion of, matters of public interest to the community. By that we mean matters relating to the public life of the community and those who take part in it, including within the expression ‘public life’ activities such as the conduct of government and political life, elections…and public administration, but we use the expression more widely than that, to embrace matters such as (for instance) the governance of public bodies, institutions and companies which give rise to a public interest in their disclosure, but excluding matters which are personal and private…As it is the task of the news media to inform the public and engage in public discussion of matters of public interest, so is that to be recognized as its duty…In modern times what we have called the duty test should, in our view, be rather more readily be held to be
satisfied…We have no doubt that the public also have an interest to receive information on matters of public interest…published in a newspaper, so satisfying what we have called the interest test. In modern conditions the interest test should also, in our view, be rather more readily held to be satisfied.”^²⁷

The case Reynolds, is based in the traditional terminology of ‘duty and interest’^²⁸, and so, the media must have a duty to convey the information which the public has a corresponding interest in receiving.^²⁹ However, Lord Nicholls in Reynolds stated that,

“The requirement that both the maker of the statement and the recipient must have an interest or duty draws attention to the need to have regard to the position of both parties when deciding whether an occasion is privileged. But this should not be allowed to obscure the rationale of the underlying public interest on which privilege is founded. The essence of this defence lies in 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. That is the end the law is concerned to attain. The protection afforded to the maker of the statement is the means by which the law seeks to achieve that end. The publisher must show that the publication was in the public interest and he does not do this by merely showing that the subject-matter was of public interest.”^³⁰

Lord Nicholls in Reynolds rejected another approach of a separate circumstantial test and stated that the factors: the nature; status and source of the material; and the circumstances of the publication “are to be taken into account in determining whether the duty-interest test is satisfied or, as I would prefer to say in a simpler and more direct way, whether the public was entitled to know the particular information. The duty-interest, or the ‘right to know’ test, cannot be carried out in isolation from these factors and without regard to them. A claim to privilege stands or falls according to whether the claim passes or fails this test. There is no further requirement.”^³¹

Lord Nicholls then set out a list of circumstances^³² which would be relevant to the privilege in a ‘media’ case, however, he emphasised that the list was not exhaustive. These are: -

This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary facts will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge, in a reasoned judgment, than by a jury. Over time, a valuable corpus of case law will be built up.

An important note to point out is the statement made by Lord Nicholls when he described the important role of the newspaper and that importance should be taken into consideration. He said “the press discharges vital functions as a bloodhound as well as a watchdog. The court 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.”^³³

The overall issue to determine in such a case is whether the newspaper conformed to the standards of “responsible journalism”^³⁴, but this is likely to be an open issue which involves balancing factors which may point in different directions, so it is unlikely that the decision in one case will provide an automatic solution in another.^³⁵ The Court in Loutchansky v Times Newspapers Ltd ( Nos 2-5)^³⁶ said on this matter that:

The …duty on the journalist (and equally the editor)…is to behave as a responsible journalist. He can have no duty to publish unless he is acting responsibly any more than the public has an interest in reading whatever may be published irresponsibly. That is why in this class of case the question whether the publisher has behaved responsibly is necessarily and intimately bound up with the question whether the defence of qualified privilege arises. Unless the publisher is acting responsibly, privilege cannot arise. That is not the case with regard to the more conventional situations in which qualified privilege arises. A person giving a reference or reporting a crime need not act responsibly: his communication will be privileged subject only to relevance and malice.

If the publication, including the defamatory statement, passes the public interest test, the inquiry then shifts to whether the steps taken to gather and publish the information were responsible and fair.^³⁷ As Lord Nicholls said in Bonnick v Morris^³⁸,

Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege.

Lord Hoffman in Jameel (Mohammed) v Wall Street Journal Europe Sprl was of the opinion that “the question in each case is whether the defendant behaved fairly and responsibly in gathering and publishing the information.”^³⁹ He also stated that responsible journalism can be divided into three topics: (1) the steps taken to verify the story; (2) the opportunity given to Jameel group to comment; and (3) the propriety of the publication in the light of the United States diplomatic policy at the time.^⁴⁰

In applying the standard of responsible journalism the court may face issues of meaning, of the imputations which the words complained of convey. If the words in question are ambiguous to such an extent that they may readily convey a different meaning to an ordinary reasonable reader to that which is found by the trier of fact, the court may properly take this other meaning into account when considering whether the Reynolds privilege is available as a defence. However, this should be limited and “not pressed to far.” ^⁴¹

Where questions of defamation may arise ambiguity is best avoided as much as possible. It should not be a screen behind which a journalist is “willing to wound, and yet afraid to strike”.^⁴² In the normal course a responsible journalist can be expected to perceive the meaning an ordinary, reasonable reader is likely to give to his article. Moreover, even if the words are highly susceptible of another meaning, a responsible journalist will not disregard a defamatory meaning which is obviously one possible meaning of the article in question. Questions of degree arise here. The more obvious the defamatory meaning, and the more serious the defamation, the less weight will a court attach to other possible meanings when considering the conduct to be expected of a responsible journalist in the circumstances.^⁴³

The protection of a person’s reputation is still very important and is a factor that should be considered. Lord Nicholls in Reynolds stated in the judgment that:

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, 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 one’s reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. 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. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognize 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 reputations of others. ^⁴⁴

Also Brooke LJ, said in the case Loutchansky v Times Newspapers Ltd.^⁴⁵, that:

To talk of a public right to know, without more, is misleading. The Human Rights Convention explicitly states that the right to freedom of expression carries with it duties and responsibilities, and its jurisprudence shows how the right of freedom of expression is circumscribed by what is strictly necessary and proportionate in a democratic society for the protection of individuals’ reputations…if the public ‘right to know’ was adopted, as it has not, as the sole criterion for conferring immunity from liability for damaging and untrue statements, then the courts would be turning their back on their duty to prescribe such restrictions on freedom of expression as are needed in order to achieve that public good.

In most cases the reliability of the source from which the published material was obtained will be a major factor in deciding whether there is privilege. In general, though, a newspaper’s unwillingness to disclose the identity of its sources is not to weigh against it, though that is not to say that every claim made by the journalist as to the reliability of his unnamed source is to be taken at face value^⁴⁶ and “care should be taken not to give the benefit of the privilege too readily to persons or organizations whose sources of information are themselves protected to an extent which renders the issue of malice inscrutable.”^⁴⁷ This issue was discussed in Gaddafi v Telegraph Group Ltd^⁴⁸.

The disclosure of sources has rarely been a factor in libel cases as newspapers rarely published anything from an undisclosed source as such sources cannot be put in the witness box to defend a libel action.^⁴⁹

Putting the proposed story to the claimant and seeking his version is not in all cases a requirement of reliance on privilege.^⁵⁰ Failure to do so or to make adequate efforts to do so^⁵¹ will generally weigh in the scales against the defendant but the ultimate issue is one that depends on a number of other factors, which may point in the other direction. In Australia, under the dispensation governing privilege for statements relating to government and political matters, it is a requirement that the defendant’s conduct must have been reasonable and part of this is a requirement to seek a response from the person defamed, unless this is impractical or unnecessary in the circumstances.^⁵²

Where the defendant has received the claimant’s side of the story, but fails to publish it, or does not publish it truthfully or only partially, this will count against him. This was discussed in Reynolds where the plaintiff had given his side of the story, but it was omitted in the article. The court stated, on this issue that:

It goes without saying that a journalist is entitled and bound to reach his own conclusions and to express them honestly and fearlessly. He is entitled to disbelieve and refute explanations given. But this cannot be a good reason for omitting, from a hard-hitting article making serious allegations against a named individual, all mention of that person’s own explanation…By omitting Mr. Reynolds’ explanation English readers were left to suppose that, so far, Mr. Reynolds had offered no explanation. Further, it is elementary fairness that, in the normal course, a serious charge should be accompanied by the gist of any explanation already given. An article which fails to do so faces an uphill task in claiming privilege if the allegation proves to be false and the unreported explanation proves to be true.”^⁵³

A NEW LOOK AT QUALIFIED PRIVILEGE- Jameel v Wall Street Journal Europe Sprl.

The Court in Jameel v Wall Street Journal Europe Sprl gave new weight to the concept of qualified privilege with respect to journalism in the media. The court’s opinion was that the list of ten (10) factors which had been set out by Lord Nicholls in Reynolds was not a list which acted as a hurdle for determining whether the test of responsible journalism is satisfied. Lord Bingham in Jameel stated that the list set out by Lord Nicholls in Reynolds was that he “intended these as pointers which might be more or less indicative, depending on the circumstances of a particular case, and not, I feel sure, as a series of hurdles to be negotiated by a publisher before he could successfully rely on qualified privilege.” ^⁵⁴

In Reynolds, Lord Nicholls gave his well-known non-exhaustive list of ten matters which should in suitable cases be taken into account. They are not tests which the publication has to pass. In the hands of a judge hostile to the spirit of Reynolds, they can become ten hurdles at any of which the defence may fail…but that, in my opinion, is not what Lord Nicholls meant. As he said in Bonnick, at p 309, the standard of conduct required of the newspaper must be applied in a practical and flexible manner. It must have regard to practical realities.^⁵⁵

Lord Scott in Jameel was also of the opinion that the judgment of Lord Nicholls in Reynolds was designed to meet the undesirable rigidity of the law of qualified privilege. He opined that, “Lord Nicholls did not turn his back on the reciprocal duty/interest test for qualified privilege. Instead he molded the test so as to cater for the publication of information that the public as a whole, as opposed to a specific individual(s), was entitled to know.^⁵⁶

Lord Scott^⁵⁷ continued that he was of the opinion that “the House (in Reynolds) was, in the context of journalistic reporting, reinvesting qualified privilege with the flexibility that Parke B in Toogood v Spyring^⁵⁸ and Lindley LJ in Stuart v Bell^⁵⁹, would have accorded to it.”

As the Court of Appeal said in Loutchansky, “Reynolds privilege is a different jurisprudential creature from the traditional form of privilege from which it sprang.” It may more appropriately be called Reynolds public interest defence rather than privilege.

In my respectful opinion “bane and antidote”, so far as newspapers are concerned, is now disappearing over the horizon. In Jameel, the Plaintiff was never spoken to by the newspaper. The new or present defence appears to be: is the publication, including the defamatory statement, in the public interest and is the result of responsible journalism.

Even if the defence of “bane and antidote” was available to the defendants they have failed miserably. Both defendants gave evidence but called no witnesses despite promising to do so.

The question of damages was “revised” in Rookes v Barnards^⁶⁰ and discussed in Cassell & Co. Ltd v Broome and another^⁶¹.

The Plaintiffs claimed exemplary damages, variously called primitive punitive, penal, aggravated, vindictive or even retributory damages. Essentially, what the plaintiff wants is for the defendant to be punished by the award of a higher sum than would ordinarily apply, which is as a vindication of his reputation in the eyes of the public and as a solatium for the wrong done to him.

Viscount Dilhorne: “In Rookes v Barnard, Lord Devlin expressed the view that there were only three categories of cases in which exemplary damages could be awarded (1) where there had been oppressive, arbitrary or unconstitutional action by servants of the government, (2) where the defendant’s conduct had been calculated by him to make a profit for himself which might well exceed the compensation payable to the plaintiff; and (3) where exemplary damages are expressly authorised by statute.”

Lord Diplock in Cassell & Co. Ltd considered Rookes v Barnard, stating, “The tort of defamation, to which Lord Devlin made only a passing reference in Rookes v Barnard, has special characteristics which may make it difficult to allocate compensatory damages between head (1) and head (2). The harm caused to the plaintiff by the publication of a libel on him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. A solatium of injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages under head (1) itself even in cases in which there are no grounds for “aggravated damages” under head (2). Again the harm done by the publication, for which damages are recoverable under head (1) does not come to an end when the publication is made.”

it is impossible to tract the scandal, to know what quarters the poison may reach. So long as its withdrawal is not communicated to all those whom it has reached it may continue to spread; I venture to think that this is the rational of the undoubted rule that persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages. By doing so he prolongs the period in which the damage from the original publication continues to spread and by giving to it further publicity at the trial, as in Ley v Hamilton, extends the quarters that the poison reaches. The defendant’s conduct between the date of publication and the conclusion of the trial may thus increase the damages under head (1). In this sense it m ay be said to “aggravate” the damages recoverable as, conversely, the publication of an apology may mitigate them. But this is not’ aggravated damages’ in the sense that that expression was used by Lord Devlin in Head (2). On the other hand, the defendant’s conduct after the publication may also afford cogent evidence of his malice in the original publication of the libel and thus evidence on which ‘aggravated damages’ may be awarded under head (2) in additional to damages under head (1). But although considerations such as these may blur the edges of the boundary between compensatory damages under head (1) and compensatory damages under head (2) in the case of defamation, they do not effect the clear distinction between the concept of compensatory damages and the concept of exemplary damages under head (3).

In spite of Lord Diplock’s critical comments later on, this is the law as it stands.

Lord Devlin himself gave directions as to how a sum for compensation may be increased. He said: “In a case in which exemplary damages are appropriate, a jury should be directed that if, but only if, the sum which they have in mind to cover as compensation (which may if course be a sum aggravated by the way in which the defendant has behaved to be plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and to defer him from repeating it, they can award some larger sum”.

The plaintiff’s attorney-at-law directed me to the cases of Panday v Gordon^⁶³ and Rahael v TNT News Centre Ltd^⁶⁴ as useful guides to the assessment of damages in the present case. I respectfully disagree. The Counsel submitted “that an award should be in the region of $1,000,000.00.” I have considered that the evidence is that the Plaintiff retired from the police service in 1989 while the allegations regarding his relationship with Sandra Heeralal commenced in the latter part of 1999, that the “Punch” is a well known scandal sheet; that the Defendant knew the allegations were false and did nothing to withdraw them or apologise for the publication, that I can gave no compensation to his wife, that although called “ACP Liverpool” he could suffer no detriment in his job as he was retired.

It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason compensation by damages operates in two ways-as vindication of the plaintiff to the public, and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.

The award must include factors for injury to the feelings of the Plaintiff, the anxiety and uncertainty undergone in the litigation, the absence of apology, the reaffirmation of the truth of the matters complained of, and the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’.

I have agonized over the question of damages and have come to the conclusion that $70,000 should be awarded.

Judgment for the Plaintiff for damages in the sum of $70,000 together with interest at the rate of 6% per annum from 14^th January, 2001 to date; an injunction in the terms of paragraph 2 of the Plaintiff’s Claim; and Costs fit for Senior Counsel and instructing attorney-at-law.

2 Gatley (supra) pg. 379, para 14.1.

4 (2001) 2 A.C. 127, HL.

5 Gatley (supra) pg. 509, para 16.2.

8 9^th Ed, paras. 16.2, 16.6.

9 Reynolds (supra) pg. 180.

11 Reynolds v Times Newspapers Ltd. (2001) 2 A.C. 127, H.L.

12 Gatley (supra) pg. 11, para 1.7.

13 (1917) AC 309 pg. 334.

14 Jameel (Mohammed) and another v Wall Street Journal Europe Sprl (2006) UKHL 44.

15 Gatley (supra) pg. 11, para 1.7.

16 Gatley (supra) pg. 380, para. 14.2.

17 Report on the Faulks Committee, Cmnd. 5909 (1975), para. 215.

18 Per Cantley J. London Artists v Littler (1968) 1 W.L.R. 607 at 619 (on appeal [1968] EWCA Civ 3; (1969) 2 Q.B. 375, CA.).

19 See Whitley v Adams [1863] EngR 1000; (1863) 15 CBNS 392 at 418 per Erle CJ.

21 Pullman v Hill (1891) 1 OB 524 at 528.

23 (1889) 23 Q.B.D. 400, CA. This case was distinguished because the interest there was regarded as general, rather than sectional.

25 (2001) 2 A.C. 127, H.L.

26 Reynolds (supra) pg. 167.

27 Reynolds (supra) at pg. 176.

28 Reynolds (supra) pgs. 194, 224, 229, 239.

29 Reynolds (supra) pg. 224, per Lord Cooke.

30 Reynolds (supra) pg. 195.

31 Reynolds (supra), pg. 197.

32 Reynolds (supra), pg. 205.

33 Reynolds (supra), pg. 205.

34 Reynolds (supra), pg. 202.

35 Gatley (supra) pg. 457, para 14.86.

37 Jameel (Mohammed) and another v Wall Street Journal Europe Sprl (2006) pg. 660, para. 53.

39 Jameel (supra) pg. 660 para. 54.

40 Jameel (supra) pg. 661 para 58.

41 Gatley (supra) pg. 458, para 14.86.

42 Gatley (supra) pg. 458, para 14.86.

44 Reynolds (supra), pg. 201.

46 Reynolds (supra), pg. 205.

47 Reynolds (supra), pg. 230, per Lord Hope.

48 (2000) E.M.L.R. 431, CA. and Loutchansky v Times Newspapers Ltd (No. 4) (2001) E.M.L.R. 898 at [50]-[51] and Loutchansky v Times Newspapers Ltd (No. 6) (2002) EWHC 2490 at [32] QB.

49 Reynolds (supra), pg. 184.

50 Reynolds (supra), pg. 205.

51 G.K.R. Karate Ltd v Yorkshire Post Newspapers Ltd (No 2) (2002) E.M.L.R.410.

52 Brander v Ryan and Messenger Press Pty Ltd (2000) SASC 446.

53 Reynolds (supra), pg. 206.

54 Jameel (supra) 654, para. 33.

55 Jameel (supra) pg. 661, para. 56.

56 Jameel (supra) pg. 679, paras. 129 and 130.

57 Jameel (supra) pg. 680 para. 133

60 (1964) 1 A11 ER, 367.

61 (1972)1 A11 E.R., 801.

63 CA No. 175 of 2000.

64 Cv. 59 of 2005.

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Trinidad and Tobago High Court