IN THE HIGH COURT OF JUSTICE. Between AND TRINIDAD EXPRESS NEWSPAPERS LIMITED OMATIE LYDER ASHA JAVEED IRENE MEDINA

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO Claim No. CV IN THE HIGH COURT OF JUSTICE Between SEEBALACK SINGH Claimant AND TRINIDAD EXPRESS NEWSPAPERS LIMITED OMATIE LYDER ASHA JAVEED IRENE MEDINA Defendants Before The Honourable Mr. Justice Frank Seepersad Appearances: 1. Mr. P. Deonarine and Ms. Narine for the Claimant 2. Mr. F. Hosein for the Defendants Date of delivery: 12 th May, 2016 Page 1 of 51

2 Decision 1. This claim for damages for libel arises out of a series of two investigatory articles. The first was published in an edition of the Daily Express dated 22 nd April, 2013 headlined Contractor sues EMBDC for millions (hereinafter referred to as the First Article or April Article ) and the second was an article published in the edition of the Sunday Express dated 30 th June 2013 headlined 22m payment for shoddy work (hereinafter referred to as the Second Article or June Article ), (Collectively called the Articles). 2. The First Article was researched and written by the Fourth Defendant, Irene Medina and the Second Article was researched and written by the Third Defendant, Asha Javeed. Both articles were published by the First Defendant, Trinidad Express Newspapers Limited. 3. The Claimant Seebalack Singh was at all material times the Chief Executive Officer of the Estate Management and Business Development Company Limited ( EMBDC ) and the person who was charged with the responsibility of managing the affairs of EMBDC. He also had overview in relation to the payments made by EMBDC to persons awarded contracts to carry out work which came under the purview of EMBDC. 4. The Articles focused on the affairs of EMBDC and raised inter alia issues in relation to governance, transparency and accountability of EMBDC. 5. The Claimant claimed that certain aspects of the Articles were defamatory of him. The Defendants deny this and they assert that, in any event, the Articles reported on matters of significant public interest and they meet the standards of responsible journalism. Accordingly, they claimed that they are entitled to the protection of Reynolds privilege. Page 2 of 51

3 6. In relation to the articles the Claimant s claim was as follows: The First Article/ April Article 7. The First Article, Contractor sues EMBDC for millions was published on page 08 of the Daily Express dated the 21 st April, 2013 in the online version and 22 nd April, 2013 in the print version. 8. The words complained of in respect of this article were set out at paragraph 29 of the Amended Statement of Case as follows: The troubled Estate Management Business Development Company (EMBDC), whose chief executive officer (CEO) Seebalack Singh resigned earlier this month amid allegations of misconduct in the issuance of contracts worth over $200 million, is now facing a multi-million dollar lawsuit for breach of contract 9. At paragraph 31 of the Amended Statement of Case, the Claimant further averred that those words, understood in their natural and ordinary meaning, meant: a) The Claimant engaged in illegal and/or unlawful activities; b) The Claimant did not carry out his duties in a professional manner; c) The Claimant was guilty of acts of corruption and/or dishonesty; d) The Claimant was unfit to hold office as CEO of EMBDC; and e) The Claimant had to resign his post because of dishonesty and/or misconduct whilst holding office as CEO of EMBDC. The Second Article/ June Article 10. The Second Article, $22m payment for shoddy work, was published on page 09 of the Sunday Express dated the 29 th June, 2013 in the online version and 30 th June, 2013 in the print version. Page 3 of 51

4 11. With respect to this article at paragraph 30 of the Amended Statement of Case, the Claimant particularised the defamatory words as follows:- a. $22m payment for shoddy work (HEADLINE) b. With no board of directors in place, former chief executive of the Estate Management and Business Development Company Ltd (EMBDC) Seebalack Singh signed off on a $22 million payment for contractor Mootilal Ramhit and Sons Contracting Ltd. c. The payment, which is above the chief executive s ceiling of $2 million, was made despite the fact that former line Minister Vasant Bharath had previously refused to authorise the payment, referring the matter to arbitration because the job did not meet the required specification. d. On June 1, 2012, Singh had written to the contractor to inform them that EMBDC was not satisfied with the job or the invoiced sum and would refer the matter for arbitration. e. Eight months later, with no board in place, Singh approved the payment, which was in breach of the company s internal rules which state that payments of such sums have to be approved by the company s board of directors, especially given that it was a source of a sixmonth issue between the company and the contractor. f. Singh subsequently resigned g. The Sunday Express was told that the Cunupia-based contractor, which is a family-run organisation, is linked to a Government Minister. h. EMBDC employees told the Sunday Express that it was a Government minister who ordered officials of EMBDC to settle the amount referred to arbitration. Page 4 of 51

5 12. The Claimant averred that the aforementioned words in their natural and ordinary meaning were understood to mean: a) The Claimant engaged in illegal and/or unlawful activities; b) The Claimant engaged in corrupt activities to defraud the State Enterprise; c) The Claimant did not carry out his duties in a professional manner; d) The Claimant gave preferential treatment to MRSCL; e) The Claimant paid monies in the absence of a Board; f) The Claimant was corrupt and/or dishonest; g) The Claimant was guilty of acts of corruption and/or dishonesty; h) The Claimant acted in an unethical and/or unprofessional manner in relation to the payment to MRSCL; i) The Claimant was guilty of illegal activities and his conduct warrants criminal investigations; j) The actions and/or conduct of the Claimant merits review and investigation; k) The Claimant was unfit to hold office of the CEO of EMBDC; and l) The Claimant had to resign from his office as CEO of EMBDC because of dishonesty and/or misconduct. Background Facts 13. The Claimant is the former CEO of the state owned Estate Management Business Development Company (EMBD). He assumed office on the 26 th April, 2010 and his contract of employment had an end date of the 25 th April, During the period 2008 to March 2010, a Commission of Inquiry into the Construction Sector was set up, commonly known as Uff Inquiry and a Commission report was submitted to the President of Trinidad and Tobago on or around the 30 th March, Page 5 of 51

6 15. General Elections were held in May 2010 which resulted in a change of government and the People s Partnership was elected into office. Subsequently, a directive from the then line Minister of Food Production, Land and Marine Affairs was issued to the then CEO of EMBD, Mr. Keith Gray, to cease all construction projects on the Caroni Estates, including contracts awarded in A new Board of Directors ( the Board ) of EMBD was appointed in December, 2010 and its term was set to expire on the 2 nd December, The Board was responsible for the management, business and affairs of the EMBD which included the issuance of construction contracts to contractors and payment for work done by those contractors. 17. The Claimant s contract of employment provided that as CEO, he shall exercise and carry out all such powers and duties and shall observe all such directions and restrictions as the Company and the Board of Directors impose upon him. 18. Pursuant to directive issued by Minister Bharath in 2010, work on the Caroni Estates remained suspended well into Some contracts were also terminated which led to several claims being made by contractors for loss of profit, retention fees and other monies due and owing under the construction contracts. Two of those contractors were Mootilal Ramhit and Sons Contracting Limited (MRSCL) and Stephen Sawh Contractors. 19. The Claimant s case is that his tenure as CEO of EMBD was coming to an end by virtue of effluxion of time and he testified that he was not interested in renewing his contract as he was involved in negotiations in relation to taking up a job with his previous employer, First Citizens Bank. He therefore tendered his resignation by letter dated the 28 th March, Following the aforesaid events, the First Defendant published the articles. Page 6 of 51

7 Prior Article (11 th April 2003) 20. While there is no complaint about this Article, the Court considered it, as it set the stage for the subsequent publication of the First and Second Article. 21. This prior article reported inter alia:- In the middle of the payout of more than $200 millions in contracts, said to have been awarded without proper tendering, Seebalack Singh, chief executive officer (CEO) of the Estate Management Business Development Company (EMBDC), has tendered his resignation. This was confirmed yesterday by Housing and Environment Minister Dr. Roodal Moonilal, under whose portfolio the EMBDC falls. The Minister said that Singh was on cumulative leave and had indicated in a letter to the Ministry that he was resigning as CEO. Moonilal also explained that the CEO s contract comes to an end on May 6 and added that over the past six months Singh was forced to proceed on sick leave and to seek medical treatment because of ill health. The Defendant s Pleaded Case 22. The Defendants denied in their Defence that the words complained of bear any meaning which is defamatory of the Claimant and pleaded that if the said Page 7 of 51

8 words were found to be defamatory, the publications attracted Reynolds Privilege. The Issues 23. The relevant issues that fell to be determined by the Court were as follows: (i) Whether the words written printed and published by the Defendants and contained in the First and/or Second Articles were defamatory of the Claimant; (ii) If so, whether the Defendants are able to rely on the defence of Reynolds qualified privilege in respect of the First and Second Articles or either of them; (iii) If the Defendants are not able to make out the defence of Reynolds privilege in respect of any of the publications: (a) (b) (c) (d) What, if any, are the general damages that the Claimant is entitled to recover? Is the Claimant entitled to aggravated and exemplary damages? Is the Claimant entitled to special damages for loss of his office at First Citizens Bank Limited? Is the Claimant entitled to an award of interest? The Evidence 24. The Claimant relied on his own evidence as set out in his Witness Statement filed on 16 th January, The Defendants relied on the evidence of the Third Defendant, the Fourth Defendant, Curtis Rampersad, the Editor of the Second Article, and Marlon Page 8 of 51

9 Miller, the Editor of the First Article. All these Witness Statements were filed on 9 th February, The Law What is the approach and what are the principles that should guide the Court in its determination of whether the words complained of bore defamatory meanings? 26. The classic exposition as to the principles and approach to be adopted by a Judge in the determination of the defamatory meaning of the words complained is found in Skuse v. Granada Television Limited (1996) EMLR 278 at where Sir Thomas Bingham MR stated as follows: i. The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable viewer watching the programme once in ii. The hypothetical reasonable reader or viewer is not naive but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer, and may indulge in a certain amount of loose thinking. But he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (per Neill L.J., Hartt v. Newspaper Publishing PLC. unreported, 26 th October, 1989 (Court of Appeal (Civil Division) Transcript No. 1015). iii. While limiting its attention to what the defendant has actually said or written, the court should be cautious of an over-elaborate analysis of Page 9 of 51

10 the material in issue. In the present case we must remind ourselves that this was a factual programme, likely to appeal primarily to a seriously minded section of television viewers, but it was a programme which, even if watched continuously, would have been seen only once by viewers many of whom may have switched on for entertainment. Its audience would not have given it the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to the content of a learned article. In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable viewer we are entitled (if not bound) to have regard to the impression it made on us. iv. The court should not be too literal in its approach. We were reminded of Lord Devlin's speech in Lewis v. Daily Telegraph Ltd. [1964] A.C. 234 at 277: My Lords, the natural and ordinary meaning of words ought in theory to be the same for the lawyer as for the layman, because the lawyer's first rule of construction is that words are to be given their natural and ordinary meaning as popularly understood. The proposition that ordinary words are the same for the lawyer as for the layman is as a matter of pure construction undoubtedly true. But it is very difficult to draw the line between pure construction and implication, and the layman's capacity for implication is much greater than the lawyer's. The lawyer's rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory. v. A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society Page 10 of 51

11 generally (Sim v. Stretch [1936] 2 All E.R at 1240) or would be likely to affect a person adversely in the estimation of reasonable people generally (Duncan & Neill on Defamation, 2nd edition, Paragraph 7.07 at p. 32). vi. In determining the meaning of the material complained of the court is "not limited by the meanings which either the plaintiff or the defendant seeks to place upon the words" (Lucas-Box v. News Group Newspapers Ltd [1986] 1 W.L.R. 147 at 152H). vii. The defamatory meaning pleaded by a plaintiff is to be treated as the most injurious meaning the words are capable of bearing and the questions a judge sitting alone has to ask himself are, first, is the natural and ordinary meaning of the words that which is alleged in the statement of claim and, secondly, if not, what (if any) less injurious defamatory meaning do they bear? (Slim v. Daily Telegraph Ltd. above, at p. 176.) 27. The aforesaid principles were adopted by the Board of the Privy Council in Bonnick v. Morris (2002) UKPC 31. Lord Nicholls at paragraph 21 dealt with the single meaning rule and stated: The single meaning rule adopted in the law of defamation is in one sense highly artificial, given the range of meanings the impugned words sometimes bear: see the familiar exposition of Diplock L.J. in Slim v. Daily Telegraph (1968)2 QB 157, The law attributes to the words only one meaning, although different readers are likely to read the words in different senses. In that respect the rule is artificial. Nevertheless, given the ambiguity of language, the rule does represent a fair and workable method for deciding whether the words under consideration should be treated as defamatory. To determine liability by Page 11 of 51

12 reference to the meaning an ordinary reasonable reader would give the words is unexceptionable 28. In the course of its determination the Court must also have regard to the following principles: a) The natural and ordinary meaning refers not only to the literal meaning of the words but also to any implication or inference that the ordinary reasonable reader would draw from the words (as per Mendonca JA at paragraph 11 of Kayam Mohammed and ors C.A. CIV 118/2008); b) The universally accepted meaning of the words, the context and intrinsic circumstances or environment of the publication, and general knowledge should also be ascribed to the offending words as was stated by the Privy Council in Pinard-Byrne v Lennox Linton [2015] UKPC 41 and; c) The determination of this issue is essentially a question for the trial judge. 29. In its determination as to the single meaning that an ordinary reader would give the words complained of, and its assessment as to whether the words complained of are defamatory of a Claimant, the Court should also address its mind to the context in which those words were used. 30. In Charleston v. News Group Newspapers Ltd & Anor. [1995] 2 All ER 313 at 70E-H Lord Bridge stated as follows: a long and unbroken line of authority the effect of which is accurately summarised in Duncan & Neill on Defamation, 2nd ed. (1983), p. 13, para as follows: In order to determine the natural and ordinary meaning of the words of which the plaintiff complains it is necessary to take into account the context in which Page 12 of 51

13 the words were used and the mode of publication. Thus a plaintiff cannot select an isolated passage in an article and complain of that alone if other parts of the article throw a different light on that passage. The locus classicus is a passage from the judgment of Alderson B. in Chalmers v. Payne (1835) 2 C.M. & R. 156, 159, who said: But the question here is, whether the matter be slanderous or not, which is a question for the jury; who are to take the whole together, and say whether the result of the whole is calculated to injure the plaintiff's character. In one part of this publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together. This passage has been so often quoted that it has become almost conventional jargon among libel lawyers to speak of the bane and the antidote. 31. In Chase v News Group Newspapers Limited [2002] EWCA Civ 1772 at paragraph 45 per Brooke L.J. stated: 45. The sting of a libel may be capable of meaning that a Claimant has in fact committed some serious act, such as murder. 32. In Chase (supra) the Court was concerned with the question of justification and the steps that had to be taken to verify the truth of the libel. The Court of Appeal reiterated that for a defendant to succeed in its defence of justification, the defamatory meaning he/she seeks to prove to be essentially or substantially true must be set out in his Defence. Thus, the defendant is required to adopt an investigative approach to establish whether there are grounds for the defamatory meaning before publishing by giving proper particulars of the facts on which he/she relies to justify that meaning. Page 13 of 51

14 What is Reynolds Privilege and what approach is to be adopted by the Court when considering this defence? 33. In Jameel v. Wall Street Journal Europe (2006) UKHL 44 at Paragraph 46 Lord Hoffman stated as follows: I therefore agree with the opinion of the Court of Appeal in Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783, 806 that "Reynolds privilege" is "a different jurisprudential creature from the traditional form of privilege from which it sprang." It might more appropriately be called the Reynolds public interest defence rather than privilege. 34. Prior to Reynolds v Times Newspapers Ltd [2001] 2 AC 127, the law of defamation made the publication of investigatory reports too risky and investigative reporting on matters of public interest was discouraged. 35. Baronness Hale of Richmond, at paragraph 146 in Jameel,(supra) stated that the defence: springs from the general obligation of the press, media and other publishers to communicate important information upon matters of general public interest and the general right of the public to receive such information. The Reynolds public interest defence is designed to strike an appropriate balance between freedom of expression, freedom of the press and the right of the public to know on the one hand and the protection of a person s reputation on the other. 36. The Reynolds public interest defence strikes the balance between freedom of the press and protection of reputation by applying a 3-stage test to the publication that is complained about. For a Defendant to successfully rely on the Reynolds public interest defence the Court must find: Page 14 of 51

15 (1) that the publication as a whole concerned matters of public interest; (2) that the inclusion of allegedly defamatory material in the publication was justifiable; and (3) that the publication met the standard of responsible journalism. 37. Once all 3 of these conditions are met, the Reynolds privilege defence succeeds. 38. In Pinard-Byrne v Lennox Linton [2015] UKPC 41 the Board stated that the Reynolds privilege defence is perhaps more accurately described as a public interest defence than a privilege. At paragraph 19 the Board stated that it is a privilege which is designed to strike an appropriate balance between the right to freedom of expression and the right to an individual to protect his reputation. 39. The applicable principles that govern the applicability of the Defence can be summarised as follows: i. Unlike the traditional form of qualified privilege which requires the Defendant to satisfy the reciprocity rule, Reynolds privilege is founded on there being a public interest in reporting the defamatory information; ii. iii. iv. If the publication is in the public interest, the duty and interest are taken to exist; It is the material which is privileged, not the occasion on which it is published; The public interest requirement is established once it passes the public interest test. The Defendant must then prove that it adopted the standards of responsible journalism and whether the process that was Page 15 of 51

16 adopted to gather and then publish the matters complained of was fair and reasonable must be considered; v. The defence cannot be defeated by proof of malice What are the factors that the Court should consider so as to determine whether a publication concerns a matter of public interest? 40. In considering the Reynolds privilege defence, the first question for the Court to determine is whether the subject matter of the publication concerned a matter of public interest. This has to be done by considering the article or story as a whole and not by isolating the alleged defamatory statement. Thus, when the House of Lords considered Reynolds privilege in Jameel, (supra) Lord Hoffman at paragraph 48 addressed the issue of public interest in this way: The first question is whether the subject matter of the article was a matter of public interest. In answering this question I think that one should consider the article as a whole and not isolate the defamatory statement In drawing the line between matters which are of public interest and those which are not, the Court recognises that not all matters that the public may be interested in (e.g. gossip about the private lives of celebrities) are matters of public interest. As Lord Hoffman stated in paragraph 49 of Jameel (supra) that: The question of whether the material concerned a matter of public interest is decided by the judge. As has often been said, the public tends to be interested in many things which are not of the slightest public interest and the newspapers are not often the best judges of where the Page 16 of 51

17 line should be drawn. It is for the judge to apply the test of public interest. 41. Similarly, Baronness Hale of Richmond at paragraph 146 in Jameel (supra) confirmed that: there must be a real public interest in communicating and receiving the information. This is, as we all know, very different from saying that it is information which interests the public - the most vapid tittle-tattle about the activities of footballers' wives and girlfriends interests large sections of the public but no-one could claim any real public interest in our being told all about it. 42. In giving judgment in the Court of Appeal in Reynolds, Lord Bingham of Cornhill in Reynolds TD v. Times Newpapers Limited [1998] EWCA Civ 1172 at Part XIX Lines 2-5) described matters that are of public interest (and distinguished them from those that are not of public interest) in this way: By that we mean matters relating to the public life of the community and those who take part in, 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 broadly 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 disclosure, but excluding matters which are personal and private, such that there is no interest in their disclosure. Page 17 of 51

18 How is the Court to determine whether the inclusion of alleged defamatory material in the publication is justifiable? 43. Assuming that the first requirement is met and the Court finds that the publication or story as a whole dealt with matters of public interest, the next question to be considered is whether the inclusion of allegedly defamatory material in the publication was justifiable. In dealing with this issue Lord Hoffman in Jameel (supra), at paragraph 51, stated as follows: 51. If the article as a whole concerned a matter of public interest, the next question is whether the inclusion of the defamatory statement was justifiable. The fact that the material was of public interest does not allow the newspaper to drag in damaging allegations which serve no public purpose. They must be part of the story. And the more serious the allegation, the more important it is that it should make a real contribution to the public interest element in the article In undertaking its assessment as to whether defamatory material in a publication was justifiable, the Court must be mindful of the fact that the question of whether to include that material is often a matter of how the story should be presented. Accordingly, the Court must make allowance for editorial judgement and be wary of allowing hindsight to second-guess the editorial judgement involved. Thus, Lord Hoffman in Jameel (supra) continued his explanation at paragraph 51 as follows: But whereas the question of whether the story as a whole was a matter of public interest must be decided by the judge without regard to what the editor's view may have been, the question of whether the defamatory statement should have been included is often a matter of how the story should have been presented. And on that question, allowance must be made for editorial judgment. If the article as a whole is in the public Page 18 of 51

19 interest, opinions may reasonably differ over which details are needed to convey the general message. The fact that the judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defence. That would make the publication of articles which are, ex hypothesis, in the public interest, too risky and would discourage investigative reporting. How is the Court to determine whether a publication meets the standard of responsible journalism? 45. If the publication passes the first two tests (i.e. if the story as a whole dealt with matters of public interest and the inclusion of the allegedly defamatory material was justifiable, making due allowance for editorial judgment) then the Court must consider whether the publication meets the standard of responsible journalism. In Jameel Lord Hoffman at paragraphs 53 and 54 stated as follows: 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. As Lord Nicholls said in Bonnick v Morris [2003] 1 AC 300, 309: 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. Page 19 of 51

20 Lord Nicholls was speaking in the context of a publication in a newspaper but the defence is of course available to anyone who publishes material of public interest in any medium. The question in each case is whether the defendant behaved fairly and responsibly in gathering and publishing the information. But I shall for convenience continue to describe this as responsible journalism. 46. In Reynolds Lord Nicholls identified a non-exhaustive list of 10 matters which, in suitable cases, might be taken into account when seeking to determine if the publication has met the standards of responsible journalism and is entitled to be protected by the Reynolds defence. However, it is important to recognise that these are matters of potential relevance and not a series of hurdles that the publisher has to cross to rely on the Reynolds defence. Rather, the standard of conduct required of the publisher must be applied in a practical and flexible manner with due regard to the practical realities. 47. In Jameel, Lord Hoffman at paragraph 56 emphasised this point in this way and he opined as follows: 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. That is how Eady J treated them. The defence, he said, can be sustained only after "the closest and most rigorous scrutiny" by the application of what he called "Lord Nicholls' ten tests". But that, in my opinion, is not what Lord Nicholls meant. As he said in Bonnick (at 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. Page 20 of 51

21 48. Lord Bingham of Cornhill at paragraph 33 in Jameel stated that: Lord Nicholls (at 205) listed certain matters which might be taken into account in deciding whether the test of responsible journalism was satisfied. 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. Lord Nicholls recognised (at pp ), inevitably as I think, that it had to be a body other than the publisher, namely the court, which decided whether a publication was protected by qualified privilege. But this does not mean that the editorial decisions and judgments made at the time, without the knowledge of falsity which is a benefit of hindsight, are irrelevant. Weight should ordinarily be given to the professional judgment of an editor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner. 49. In the recent decision of the UK Supreme Court in Flood v Times Newspapers Limited [2012] UKSC 11, Lord Mance at paragraph 127 referred to Bonnick (supra) and stated that: the Court gives weight to the ordinary standards of responsible journalism. It does so in a broad and practical way, and in contexts going beyond the steps taken to check material. 50. At paragraph 130 in Flood (supra), Lord Mance continued his analysis of the approach that the court should take when making a decision as to whether the standard of responsible journalism has been met in any case and stated that: Page 21 of 51

22 The second, presently relevant, aspect of Bonnick v Morris is that, in forming its overall judgement as to the availability of the defence of public interest on the facts, the Privy Council was prepared to overlook some respects in which the journalist s conduct could legitimately be criticised. The activities of the company and the competence of its management were matters of considerable public interest. The journalist had fallen short of the standards to be expected of a responsible journalist by not making further enquiries of the anonymous source about the reasons for Mr. Bonnick s dismissal and not including his explanation (so that the case was near the borderline ). But despite this the publication was held overall to be covered by public interest privilege. 51. Lord Nicholls non-exhaustive list of the ten matters that should be taken into account when the Court is assessing whether to hold that a publication has met the standard of responsible journalism are: i. The seriousness of the allegations; ii. The nature of the information and the extent to which the subject matter is a matter of public concern; iii. The source of the information; iv. The steps taken to verify the information; v. The status of the information; vi. The urgency of the matter in relation to which Lord Nicholls stated that: News is often a perishable item ; vii. The consideration as to whether comment was sought from the Claimant; viii. Whether the article contained the gist of the Claimant s side of the story; ix. The tone of the article; and x. The circumstances of the publication, including timing. 52. Ultimately when engaged in this exercise, the Court should always be mindful that: Page 22 of 51

23 (i) (ii) The standard of conduct ( responsible journalism ) required of the newspaper must be applied in a practical and flexible manner and it must have regard to practical realities; and Weight should ordinarily be given to the professional judgment of an editor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner. 53. In Flood (supra) Lord Mance at paragraph 136 cited with approval the dictum of Lord Rodger in Re Guardian News and Media Ltd [2010] UKSC; [2010] 2 AC 697 as follows: Lord Hoffman observed in Campbell v MGN Ltd, para 59, judges are not newspaper editors. See also Lord Hope of Craighead in In re British Broadcasting Corpn [2010] 1 AC 145, para 25. This is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive. 54. Lord Mance at paragraph 137 concluded that: The courts therefore give weight to the judgment of journalists and editors not merely as to the nature and degree of the steps to be taken before publishing material, but also as to the content of the material to be published in the public interest. The courts must have the last word in setting boundaries of what can properly be regarded as acceptable Page 23 of 51

24 journalism, but within those boundaries the judgment of responsible journalists and editors merits respect. This is, in my view, of importance in the present case. Determination of the Issues Whether the words written printed and published by the Defendants and contained in the First and Second Articles were defamatory of the Claimant. The First Article 55. The Court undertook an examination and analysis of the said article and noted as follows:- (i) The placement of the Claimant s photograph under the embolden headlines Contractor sues EMBDC for millions, created a circumstance where the reader was left to make an inference that the Claimant had resigned because of this million dollar claim for which EMBDC was sued and; (ii) By printing the words, The troubled Estate Management Business Development Company (EMBDC), whose chief executive officer (CEO) Seebalack Singh resigned earlier this month amid allegations of misconduct in the issuance of contracts worth over $200 million, is now facing a multi-million dollar lawsuit for breach of contract, it was also left to the reader to infer that the Claimant s resignation was hinged to the allegations of misconduct; 56. The Court also noted that the First Article had 19 paragraphs but a complaint was only levied in relation to the first paragraph. Page 24 of 51

25 57. The 1 st Paragraph dealt with the allegation that the EMBDC, whose CEO had resigned amid allegations of misconduct in the issuance of contracts worth over $200 million, was facing a multi-million dollar lawsuit. 58. Paragraphs 2, 4, 5, 6, 7 to 14 of the article outlined the claim made by the contractor against EMBDC. 59. Although the Claimant was not mentioned by name, a reference to his position as CEO was made at paragraph 17. In relation to the approval of payments in the amount of $239 million at paragraphs 19 and 20, two companies were named as well as the Claimant and the manner in which the sums were made up was stated. 60. At paragraph 18 it was stated that a senior official instructed the board to approve a payment of $99,825, to Namalco. 61. The 20 th paragraph related to a payment to LCD Contractors Limited in respect of which there was also approval and payment. 62. The Court applied the fundamental principle that the words complained of must be read in their context and read the article as a whole. The Court did not dissect the article into its various parts which were read in isolation and having engaged in the aforesaid exercise, the Court concluded that the first article was defamatory of the Claimant and found that what was said in the first paragraph was not offset by what was said at paragraphs 18 to The Court found that the words complained of could have been understood to mean that the Claimant: a) engaged in illegal and/or unlawful activities; b) did not carry out his duties in a professional manner; c) was guilty of acts of corruption and/or dishonesty; d) was unfit to hold office as CEO of EMBDC; and e) had to resign his post because of dishonesty and/or misconduct. Page 25 of 51

26 64. The words complained of coupled with the photograph of the Claimant with the caption RESIGNED: Seebalack Singh, together with the subject heading Contractor sues EMBDC for millions, on a balance of probabilities, were capable of causing an ordinary reader, who is neither naive nor unduly suspicious and who has ordinary intelligence and who read the article as a whole, to reasonably ascribe the defamatory imputations referred to above. Consequently the Court found as a fact that the words complained of in the first article were defamatory of the Claimant. The Second Article 65. The Second Article had 14 paragraphs and the Claimant s complaint was made in relation to the 1 st, 2 nd, 5 th, 6 th, 7 th, 8 th, 9 th and 10 th paragraphs. 66. At paragraph 32 of the Statement of Case, the alleged natural and ordinary meanings of the words in the Second Article were pleaded. 67. The 1 st, 2 nd and 5 th paragraphs outlined the allegations relating to the Claimant s involvement in the payment of sums of money and at the 8 th and 9 th paragraphs it was stated that the payments alleged to have been made, were made without the requisite board approvals. 68. The ordinary reasonable reader who read the second article as a whole would have reasonably ascribed, having regard to the natural and ordinary meaning of the words complained of, the meaning that the Clamant was: a) engaged in illegal and/or unlawful activities; b) engaged in corrupt activities to defraud the State Enterprise; c) that he did not carry out his duties in a professional manner; Page 26 of 51

27 d) that he gave preferential treatment to Mootilal Ramhit and Sons Company Limited (MRSCL); e) that he authorised payment of monies- to MRSCL in the sum of $22m- in the absence of a Board of Directors and did so notwithstanding the expressed directives of then line Minister, Mr. Vasant Bharath, who refused to authorise the payment, referring the matter to arbitration because the job did not meet the required specification ; f) that he exceeded his financial approval limit in authorizing such payments; g) that he was corrupt and/or dishonest; h) that he was guilty of acts of corruption and/or dishonesty; i) that he acted in an unethical and/or unprofessional manner in relation to the payment to MRSCL; j) that he was guilty of illegal activities and that his conduct warranted criminal investigation; k) that he acted and/or conducted himself in such a manner meriting review and investigation; l) that he was unfit to hold office of the CEO of EMBDC; and m) that he had to resign from his office as CEO of EMBDC because of dishonesty and/or misconduct. Page 27 of 51

28 69. When read as a whole and in context, the Court found on a balance of probabilities that this article also went so as far as to impute allegations of corruption, illegality and unprofessionalism against the Claimant. 70. The juxtaposition of the caption against a photograph of the Claimant, together with the words shoddy work and issuance of contracts sought to link the Claimant s resignation to those circumstances and no other explanation for his resignation was advanced in the article. The reasonable reader was therefore left to infer that the Claimant was unethical and dishonest, and the words complained of had the effect of disparaging the Claimant by way of his profession and were therefore defamatory. 71. There was no evidence before the Court to suggest that either Ms. Medina or Ms. Javeed perceived that more than one possible meaning could have been attributed to the words complained of in the first and second articles. In any event, a journalist s perception as to the non defamatory meaning to defamatory statements is only relevant where the journalist was fully engaged in an attempt to verify the information. In this case, for the reasons that will be outlined later on the judgment, the Court formed the view that reasonable steps to seek verification were not undertaken. 72. Having found that both articles bore defamatory meanings, the Court proceeded to consider issue (ii) that is whether the Reynolds defence was open to the Defendants. Did the two articles concern matters of public interest? 73. The Articles focused inter alia on issues and questions of governance, accountability and transparency at the EMBDC. These issues had to be considered in the context of the fact that a significant amount of taxpayers money had been provided to EMBDC to pay to contractors. Page 28 of 51

29 74. The EMBDC was set up as a private limited company since 2002 to manage and develop the lands formerly owned by Caroni (1975) Limited, and it engaged in the management of large sums of public funds which, over the course of its existence, was disbursed to contractors in the private sector; 75. There were issues at EMBDC that were brought to the attention of the First Defendant s journalists which warranted investigation having regard to the matters revealed by the Uff Inquiry and the recommendations made by the Uff Inquiry Report as they related to public procurement; 76. The manner in which elected officials and the board members nominated by them manage and/or utilise public funds and discharge their oath of office are matters that should always be at the forefront of this Nation s consciousness. The Court found that significant aspects of the matters contained in both articles were matters that attracted significant public interest. The fact that an individual who has been appointed as the Chief Executive Officer of a body such as the EMBDC has resigned, whether the demition of office was due to the effluxtion of time or whether it was done voluntarily or whether the appointed was terminated for cause is of public interest. So are any issues that relate to the manner in which tax payers money is dispersed. The next issue that the court had to address was whether the inclusion of the defamatory words in the first and second articles was justifiable? 77. Guided by the relevant principles of law that have been outlined the Court found that in relation to the articles, the defamatory words were not published with justification and the Court s reasons for arriving at the aforesaid conclusion are as follows: Page 29 of 51

30 78. The publication of defamatory statements which impugn upon citizens professional competence and which imputes criminal culpability can never be viewed as a circumstance that is in the public s interest. 79. The bane of the first article was exacerbated when Ms. Medina who wrote same conceded under cross examination that the issuance or award of contracts are powers and functions exclusively exercised by the board of directors, not the CEO. 80. The office of the CEO of a state body such as the EMBDC is not caught within the meaning of a public official for the purposes of the Integrity of Public Life Act Chapter 22: In cross examination, Ms. Medina agreed that,...the line Minister would have the overall responsibility for the state enterprise. The CEO would have the operational responsibilities. And the board is there to ratify decisions or make decisions and act in the public interest..with respect to procurement to contracts, the board should carry the responsibility with effect to awarding contracts. if it is properly operational. 82. Even if allowances are given for editorial judgment, there was no reason why the defamatory statements should have been included and the said statements were not relevant to the story that was being told. 83. In relation to the Second Article, Mr. Curtis Rampersad, the editor of same, appeared uncertain as to whether there was in fact payment for shoddy work and whether this was done with no board in place. 84. His evidence revealed that he was fully cognisant of the true reasons for Mr. Singh s resignation and that the payment of $22m to Mootilal Ramhit and Sons Contracting in January 2013 was sanctioned by the Board. In relation to the Second Article, the Court formed the view that the inclusion of the defamatory Page 30 of 51

31 material was not justifiable. Damaging allegations were made against the claimant which served no public purpose, and the elements of public interest in the story could have been told without the presentation of same. One cheque payment voucher was reffered to in the Second Article and the Claimant s signature was appended thereto as he was required to do once the payment had been approved by the relevant committee. The said cheque in isolation could not have reasonably led to the justification for the suggestion that the claimant was directly involved in the ensuing dispute that arose. 85. Having found that the publication of the defamatory material was not justifiable, the applicability of the Reynold s defence ends. The Court however proceeded to consider the third limb of the test in the event that it was wrong in relation to its finding that the inclusion of the defamatory material was not done with justification. The Court next considered the issue as to whether or not the publications met the standard of responsible journalism. 86. The first article contained serious allegations and the assertion that Seebalack Singh resigned earlier this month amid allegations of misconduct in the issuance of contracts worth over $200 million which was not accurate. The Defendants had published in the prior Article the fact that the Minister for the EMBDC had stated that the Claimant was on cumulative leave and the Claimant had indicated in a letter to the Minister that he was resigning as CEO of EMBDC. In the said letter the reasons for the Claimant s resignation were clearly expressed. 87. The prior article indicated that the Minister of Housing had confirmed the Claimant s resignation as the Chief Executive Officer and the issue of the Claimant s ill health was raised. Page 31 of 51

32 88. The Fourth Defendant, having wrote the prior article and having subsequently obtained information which was regarded by her to be of high quality and which contradicted the information upon which the prior article was premised, should have made further enquiries so as to ascertain the real reasons for the Claimant s resignation. 89. The Claimant s letter of resignation dated the 28 th March, 2013 stated that he tendered his resignation because of ill health and his contract as CEO of EMBD was coming to its natural end. 90. The prior article of the 10 th April, 2013, entitled State firm CEO quits stated inter alia that Moonilal also explained that the CEO s contract comes to an end on May 6 and added that over the past six months Singh was forced to proceed on sick leave and to seek medical treatment because of ill health. 91. Ms. Medina in cross examination accepted that the Claimant resigned due to illhealth and that his term as CEO of the EMBD was coming to its natural end as reported in the prior article. 92. Notwithstanding the statements made at paragraphs 9 and 22 of her witness statement, Ms. Medina was unable to point to, and said she never saw, any contracts which were not in conformity with tender rules and procedures. She was also unable to demonstrate that there were contracts issued by the Chief Executive Officer (CEO) without any or any proper Board approval and she did not know when the contracts referred to in the article were awarded 93. Ms. Medina agreed that only two contracts mentioned in her article worth over $200m were awarded prior to 2010 and that those were in relation to Namalco and LCD Contractors and none of those contracts could have been awarded by the Claimant since he assumed office as CEO in 2011; Page 32 of 51