IN THE HIGH COURT OF JUSTICE BETWEEN AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No: CV BETWEEN GEETA RAGOONATH Claimant AND ANCEL ROGET Defendant Before the Honourable Mr. Justice V. Kokaram Date of Delivery: Friday 6 th May 2016 Appearances: Mr. Kelvin Ramkissoon, Mr. Kent Samlal and Mr. Douglas C. Bayley led by Mr. Anand Ramlogan SC for the Claimant Mr. Anthony Bullock led by Mr. Douglas Mendes SC for the Defendant JUDGMENT Introduction 1. Saying I m sorry maybe a difficult proposition for a wrongdoer. On the one hand an apology for conduct which has caused injury may have legal consequences and on the other it may be perceived as a sign of weakness. For this reason the wall of silence deepens the despair of the Claimant and the anxiety of the Defendant in litigation in defamation actions. In such claims where words have caused hurt, embarrassment and humiliation, the simple words I m sorry may be all the more valuable to the Claimant. It is therapeutic. It sometimes heals relationships. It gives the person wronged a sense of relief and vindication. It indirectly reforms wrongdoers by endorsing acceptable moral and social codes of conduct Page 1 of 33

2 which promotes responsible action. In defamation claims the person defamed will treasure the words I m sorry and the law already recognizes that the sooner that it is said the better for those who are found to have defamed the characters of others. 2. The predominance of damages in the forefront of available remedies to the defamed simply cheapens and demeans a person s character, dignity and self-worth. Embarking upon a monetary assessment of one s reputation misses the mark of true vindication for the defamed and where the wrongdoer s words of hurt can be transformed to words of healing I m sorry. To recognize the restorative value in an apology would change a culture from one where persons, who could afford it, simply places a price tag on the rights to reputation and dignity of persons in exchange for an exorbitant license for free speech. For this reason court ordered apologies may be as good as gold in defamation claims. In this undefended defamation claim, this judgment examines the value and basis for making such court ordered apologies in addition to an award of damages for the Claimant, Ms. Geeta Ragoonath. 3. Ms. Ragoonath complains of several defamatory statements made by the Defendant, Mr. Ancel Roget at a media conference on 24 th November 2014 and which were widely broadcast on the electronic and print media, over the ensuing two days. He had accused her of attacking the independence of the Industrial Court. In the context of her status and her relationship with him it was a very grave accusation. 4. Ms. Ragoonath was the General Manager, Human Resources of the Trinidad and Tobago National Petroleum Marketing Company Limited (NPMC). She was involved in the dismissal of 68 workers at NPMC which became the subject of a trade dispute before the Industrial Court. Mr. Roget is the President General of the Oilfields Workers Trade Union (OWTU) which is the trade union which pursued the matter on behalf of the dismissed workers at the Industrial Court. It is the largest trade union in the energy sector and the recognized majority union for certain bargaining units at the NPMC. Mr. Roget is also the head of the Joint Trade Union Movement (JTUM) which comprises several leading trade unions in the country. On 19 th November 2014 the Industrial Court ruled that the workers were to be reinstated at NPMC. The judgment was delivered by the President of that Court Page 2 of 33

3 Her Honour Mrs. Deborah Thomas Felix. Shortly thereafter the company filed an appeal and obtained a stay of execution of the Industrial Court s order. 5. Mr. Roget, obviously using his position and status as President of the OWTU, convened the media conference which attracted wide news coverage. In a sudden and startling revelation, he accused Ms. Ragoonath of writing to His Excellency the President of Trinidad and Tobago, complaining about the Industrial Court s decision and calling for the contract of the President of the Industrial Court not to be renewed. He accused her of acting in a high handed and vindictive manner against the Industrial Court simply because she was upset about the court s judgment. It was an allegation which impugned her professionalism and brought her Company into disrepute. However nothing could be further from the truth. 6. The words uttered by Mr. Roget hurt her. It embarrassed her. It caused her to be shunned, ridiculed and talked about by her co-workers. Her children were affected. She felt compelled to leave her job at NPMC. She found it difficult to find other jobs and eventually retired settling for a less paying job at ANSA McAl but also in the human resources area. At the trial, two years after the words were said about her, she still carries the emotional hurt and she still saw the need for and value in a public apology from Mr. Roget. 7. At the trial there was no contest that the words published by Mr. Roget were defamatory of her and there was no defence to her claim for defamation. I therefore begin this judgment by making a declaration that the statements made by Mr. Roget were wholly without merit and without any supporting evidence. I have formulated the declaration in the following terms: That Mrs. Ragoonath never wrote nor petitioned His Excellency the President of the Republic of Trinidad and Tobago nor made any complaint whatsoever against the President of the Industrial Court or of its judicial process in relation to the trade dispute 717 of 2013 and IRO 23 of 2013 by seeking to have her contract not renewed. Mrs. Ragoonath had at all times accepted and respected the ruling of the Industrial Court delivered by its President Her Honour Mrs. Deborah Thomas Felix. The statements made by Mr. Roget impugning improper motives to Mrs. Ragoonath is wholly unsupported and untrue. Page 3 of 33

4 8. Such a declaration is made with the intention of clearing the clouds which have hung over Ms. Ragoonath on this issue and to address an element of her need for vindication of her reputation and professional standing as is explained later in this judgment. 9. The task of the Court now is to determine the most appropriate form of compensation for Ms. Ragoonath for those defamatory remarks, to find the appropriate vindication of her reputation and good name and solace through an award of damages or the exercise of the Court s equitable jurisdiction in granting injunctive relief. Although common law damages is accepted as the traditional remedy, in understanding the purpose of an award of damages and the principles that underpin it demonstrates that other remedies are effective in achieving those goals. 10. Insofar as an award of damages is concerned, the tests are well settled. Its purpose is threefold; to compensate the Claimant for damage to her reputation, vindicate her good name and take account of the distress hurt and humiliation which the publication has caused. See John v MGM [1997] QB 586 and Kayam Mohammed CA Civ. 118 of I have examined both objective and subjective elements of the publication and matters that may tend to mitigate or aggravate the injury in arriving at a suitable award. Consideration was given to other awards for damages for defamation that create a framework for determining the appropriate award for compensation. Consideration was also given to Panday v Gordon [2005] UKPC 36 which sought to raise the bar in the level of damages from previously conservative awards. In this Court s view, a fair award of damages which is not too high as to have a chilling effect on freedom of speech but not too low as to render meaningless the right to reputations is within the range of $180, to $250, together with aggravated damages. It is also a suitable case for an award of exemplary damages which I have assessed in the sum of $160, However, in addition to damages this Court has also examined the role court ordered apologies or corrections can play as appropriate equitable relief in Ms. Ragoonath s claim. Whether the Defendant in defamation claims have apologized before the commencement of the trial is already relevant in the assessment of damages. However, apologies as a Court ordered remedy is often ignored, seen perhaps as a misnomer in the law of remedies being Page 4 of 33

5 left for private negotiations or other suitable ADR mechanisms. This is not to say that court ordered apologies or corrections fall outside the Court s jurisdiction. It is simply that precedent has not unearthed any such exercise in the English common law. However the ability of the Court to order the Defendant to apologise in defamation claims is recognized in other jurisdictions as a natural extension of the courts equitable jurisdiction in the grant of injunctive relief. See TV3 Network Ltd v Eveready New Zealand Ltd [1993] 3 NZLR 335 and Cooke v Plauen Holdings Pty [2001] FMCA 91. It can serve to vindicate her name in public. It can equally teach rather than punish. It can reinforce the community s norms and ensure a rebalance in the original hurt and sting of the defamatory remarks. There is therefore an intrinsic moral and restorative value in an apology which the Court should promote in the law of remedies if only as a matter of public policy. Its value has been acknowledged and recognized by Ms. Ragoonath in her own testimony. 12. In this case, the Court cannot ignore the value of an apology in circumstances where Ms. Ragoonath explained how real and how useful such an apology will be to her. To say then that court ordered apologies is within the reach of the Court s equitable jurisdiction, it ought very well then to be within its grasp. Our Courts often order restitution along the principles of what is conscionable and fair. In a principled way then, the law of remedies should begin to grapple with the declared objectives of solace to the Claimant with creative court ordered apologies. 13. I am equally mindful that there may be constitutional implications for forcing a Defendant to apologize and also the nuance of an insincere apology. However, I consider that the right to responsible speech diffuses any concern about court ordered apologies and it should pass constitutional muster. Nevertheless, taking into account that the purpose of the apology is not only to vindicate but to teach the wrongdoer to accept a moral code of responsible speech, as well the status of the Defendant and the powerful positive message he is capable of sending to society of the value of good human relationships and responsible speech, I would prefer to fashion the order on a voluntary basis whereby if the Defendant apologizes in a form acceptable to the Claimant or settled by the Court within 14 days of the date of this judgment, the award of exemplary damages will be reduced by 50%. A rational Defendant will want to apologize and if not, the original exemplary damages award takes into account his refusal to Page 5 of 33

6 apologize. A rational Claimant will want the apology and if forthcoming should be taken into account in reducing the award on exemplary damages. 14. I am grateful to Counsel on both sides for exploring the role of an apology as a remedy in defamation claims and now hopefully our Court and practitioners can begin considering the utilitarian role apologies can play in providing effective relief in defamation claims rather than cheapen and demean a person s reputation by the simple payment of money. It is a remedy fashioned by the Court s exercise of its equitable jurisdiction, which in some cases may be appropriate in the first instance by the Court making the appropriate declaration as made above and if applicable ordering the Defendant to apologize with creative court ordered apologies. 15. In this case the Court assesses the Claimant s damages in the sum of $200, together with exemplary damages in the sum of $160, Should the Defendant publish an apology in a form acceptable to the Claimant or settled by the Court within 28 days of this order the sum payable as exemplary damages shall be reduced by 50%. The claim 16. This claim arose from statements made by the Defendant calling into question the Claimant s conduct in her professional capacity as General Manager, Human Resources of NPMC. These statements were made in the aftermath of a recent industrial relations dispute between NPMC and OWTU (TD 717 of 2013 and IRO 23 of 2013) where the Industrial Court ruled that sixty eight (68) employees of NPMC ought to be reinstated. Importantly, the decision of the Industrial Court was the subject of an appeal and the Court of Appeal on 16 th March 2016 dismissed the Company s appeal and upheld the Industrial Court s ruling by a majority with a dissenting judgment of Narine JA. The order of the Court of Appeal was published a few weeks before the trial and it was argued by Senior Counsel for the Claimant that the libel/slander being originally linked to the dismissal would by necessity have been resuscitated by the publication of the Court of Appeal s decision. Page 6 of 33

7 The defamatory words 17. Mr. Roget seized the opportunity of a media conference to defame Ms. Ragoonath by falsely accusing her of attacking the Industrial Court s decision and painting a twisted picture of her as orchestrating a move to get rid of the President of the Court. His attack grabbed media attention in the print and electronic media. The particulars of the defamatory statements pleaded and proven by the Claimant in her witness statement are as follows: a) On the radio station I95.5 FM News Report on 26th day of November 2014:- Manager of Human Resource, General Manager of Human Resource, told the State her intent of that Judgment, has written to The President of the Republic of Trinidad and Tobago, requesting that the President of the Court be removed, that the President of the Court, her contract not be renewed. Now that has to be one of the most disturbing development coming out of a State enterprise simply because they did not or they are not in agreement with what Judgment was handed down by the Court.... That action on the part of the General Manager Human Resource of NP could not have been an action without the support of the Line Minister; Minister Ramnarine, Minister of Energy, Board of Directors of NP, and of course Cabinet of Trinidad and Tobago. And we want to pose the question directly to the Cabinet. Is the Cabinet of Trinidad and Tobago in support of the actions of the General Manager? Is the Cabinet in support of that? This is a frontal attack on the independence of the Industrial Court, a blazon attack on the workers in this country. b) On the television station WIN TV News report on 26th day of November 2014:- The company has since filed an appeal and were able to be successful in having the appeal court have a stay of that judgment that is to say that the judgment will be withheld the Industrial Court s judgment of reinstatement will be withheld until the full appeal is held next year in March. Now that, having done that they were not satisfied enough but she felt that she had the power to go the President of the Republic of Trinidad and Tobago and write to him asking that he not renew the Industrial s Court President s contract.... As an affront to the Labour Movement Page 7 of 33

8 and workers in this country and we are asking the President if it, is it true he told her to go and get some support and come back and on the receipt of that support he will then act. Because that too we came by that information. Win TV Channel 12 at 6:30pm on 26th November 2014: Leader of the Oilfield Workers Trade Union Ancil Roget calling on President Anthony Carmona to clear the air about his involvement in attempts to remove the President of the Industrial Court. During an emergency press conference on Wednesday, Roget claimed that NP s Human Resource-General Manager Geeta Ragoonath is seeking the President s assistance to have the Industrial Court President sacked. The said broadcast contained excerpts of words uttered by the Defendant including the following: The Company has since filed an appeal and were able to be successful in having the appeal court have a stay of that judgment that is to say that the judgment will be withheld the Industrial Court s judgment of reinstatement will be withheld until the full appeal is held next year in March. Now that, having done that they were not satisfied enough but she felt that she had the power to go to the President of the Republic of Trinidad and Tobago and write to him asking that he not renew the Industrial s Court President s contract... As an affront to the Labour Movement and workers in this country and we are asking the President if it, is it true he told her to go and get some support and come back and on the receipt of that support he will then act. Because that too we came by that information. c) The following day on the radio station I95.5FM News Report dated the 27th November 2014 at prime time 7:00am and repeated at 8:00am:- The Manager of Human Resource, General Manager of Human Resource so disturbed, so incensed of that judgment has written to the President of the Republic of Trinidad and Tobago, the President of the Republic of Trinidad and Tobago requesting that the President of the Court be removed, that the President of the Page 8 of 33

9 Court s contract not be renewed. Now that has to be one of the most disturbing developments coming out of a State Enterprise simply because they are not in agreement with what judgment was handed down by the Court.... We call on the President of the Republic of Trinidad and Tobago to make public contents of that letter that was sent to him by this General Manager of NP made public... to confirm or not confirm... spoke about preserving the independence of the Industrial Court.... That action on the part of the General Manager of Human Resource of NP could not been action without the support of the Line Minister, Minister Ramnarine, the Minister of Energy, Board of Directors of NP and of course the Cabinet of Trinidad and Tobago and we want to pose the question directly to the Cabinet. Is the Cabinet of Trinidad and Tobago in support of the actions of the General Manager? Is the Cabinet in support of that? This is frontal attack on the independence of the Industrial Court, a brazen attack on workers in this country. d) Still a day later on the radio station I95.5FM News Report dated the 28th November 2014 and again at prime time 7:00am:- The Manager of Human Resource, General Manager of Human Resource so disturbed, so incensed of that judgment has written to the President of the Republic of Trinidad and Tobago, the President of the Republic of Trinidad and Tobago requesting that the President of the Court be removed, that the President of the Court s contract not be renewed. Now that has to be one of the most disturbing developments coming out of a State Enterprise simply because they are not in agreement with what judgment was handed down by the Court. (e) The words were republished On the News aired on I95.5 FM dated the 26th day of November 2014:- Manager of Human Resource, General Manager of Human Resource, told the State her intent of that judgment, has written to the President of the Republic of Trinidad and Tobago, the President of the Republic of Trinidad and Tobago requesting that the President of the Court be removed, that the President of the Court, her contract not be renewed. Now that has to be one of the most disturbing development coming out of a Page 9 of 33

10 State enterprise simply because they did not or they are not in agreement with what judgment was handed down by the Court.... That Action on the part of the General Manager Human Resource of NP could not have been an action without the support of Line Minister, Minister Ramnarine, Minister of Energy, Board of Directors of NP, and of course Cabinet of Trinidad and Tobago. And we want to pose the question directly to the Cabinet. Is the Cabinet of Trinidad and Tobago in support of the actions of the General Manager? Is the Cabinet in support of that? This is a frontal attack on the Independence of the Industrial Court, a brazen attack on the workers in this country. A true copy of an audio recording with respect to the aforementioned words is hereto contained in a compact disc and marked B. h) On the news report aired on i95.5fm at 7:00am on 27th November 2014 and subsequently re-aired on even date at 8:00am and 4:00pm, the following words were broadcast: The Manager of Human Resource, General Manager of Human Resource so disturbed, so incensed of that judgment has written to the President of the Republic of Trinidad and Tobago, the President of the Republic of Trinidad and Tobago requesting that the President of the Court be removed, that the President of the Court s contract not be renewed. Now that has to be one of the most disturbing developments coming out of a State Enterprise simply because they are not in agreement with what judgment was handed down by the Court. We call on the President of the Republic of Trinidad and Tobago to make public contents of that letter that was sent to him by this General Manager of NP made public to confirm or not to confirm spoke about preserving the independence of the Industrial Court. That action on the part of the General Manager of Human Resource of NP could not been action without the support of the Line Minister, Minister Ramnarine, The Minister of Energy, Board of Directors of NP Board of Directors of NP, and of course Cabinet of Trinidad and Tobago. And we want to pose the question directly to the Page 10 of 33

11 Cabinet. Is the Cabinet of Trinidad and Tobago in support of the actions of the General Manager? Is the Cabinet in support of that? This is a frontal attack on the Independence of the Industrial Court, a blazon attack on the workers in this country. (e) The defamatory words appeared in the daily newspapers: Article in the Trinidad Express Newspaper on 27th November 2014 entitled Govt attacking independence of Industrial Court The joint Trade Union Movement is calling on President Anthony Carmona to make public the contents of a letter which it alleges was sent to him by NPs general manager of human resources, Geeta Ragoonath, asking that he not renew the contract of President of the Industrial Court; Deborah Thomas Felix,...Ancil Roget JTUM head also called on Cabinet to state publicly whether it supports his brazen and frontal attack on the independence of the Industrial Court. He said line Minister Kevin Ramnarine in particular must say whether he had knowledge of or gave consent to the writing of this letter. He charged that the general manager of human resources NP, could not have taken the action of writing the President without the support of the line Minister and the Cabinet as well as the board of NP. Roget said the JTUM was certain that a letter was written and sent to Carmona. He said it was some of the employers whose support was being solicited to go to the President and make a similar request that he remove the President of the Industrial Court that informed the JTUM about the letter. We got this information this morning and it is a serious heart attack for us in the trade union movement he said. He called on President Carmona to reject any attempt to have the President of the Industrial Court removed by underhand, vindictive political means and motives. Roget said the independence of the Industrial Court must reign supreme. And therefore we ask, hands off against the attack against the Court. He said, He said it was urgent and critical that these developments be made known to the national community Because we can wake up tomorrow morning and hear that the contract of the President of the Industrial Court has not been renewed and the reason for that has to do with person wanting to get control of the Court. We are also in possession of anonymous letters Page 11 of 33

12 which we verily believe to be coming from right in the Court itself, operatives in the court who are connected to the Government, writing to President Carmona, attempting to have the Industrial Court President removed. So there is a concerted attempt, a broadside attack on the Industrial Court and the first casualty, if we are not careful, is that the President of the Court will not have her contract renewed. 18. The Claimant s claim is that the statements made by the Defendant greatly injured and disparaged her character and reputation and in her professional capacity as General Manager, Human Resources, brought her into public ridicule, odium and contempt. Further she contends that as a result of these statements she suffered great distress both personally and professionally lowering her in the estimation of the public and more intimately in the eyes of the workers at NPMC over whom she had charge. 19. The defence filed by the Defendant denied that the words were defamatory and relied on the defence of qualified privilege. I had expressed to the Defendant at the first case management conference the challenge that would be faced in convincing the Court that there was an arguable defence of qualified privilege. Counsel for the Defendant signaled that should the Court find the words were defamatory of the Claimant the Defendant may be advised to adopt a certain course. Accordingly that issue was set down as a preliminary issue to be determined and on 25 th January 2016, this Court gave its ruling on the preliminary issue as to whether the words complained of by the Claimant carried any defamatory meaning Senior Counsel had argued at the trial that the Court was free to expand on the meanings found at the preliminary stage. That is not however my understanding of the purpose of delivering that decision in determining the preliminary issue on meanings. One of the main objectives of that exercise was to properly define the meanings attributed to the words complained of. Accordingly it would form the basis on which the Court would proceed on the assessment of the merits of the defences (if the words were found to be defamatory) and 1 See Judgment dated 25 th January Page 12 of 33

13 the assessment of damages. 2 To now expand on those meanings or depart from them without any good reason would be to render that exercise one of futility. 21. The words complained of therefore carry the following meanings which were defamatory of the Claimant: That the Claimant as General Manager Human Resources NP abused her power and acted vindictively, unprofessionally and contemptuously in unfairly attacking the President of the Industrial Court by lobbying His Excellency the President of the Republic of Trinidad and Tobago to remove or not to renew her appointment merely on the basis that the Claimant disagreed with a decision made by the Industrial Court in which the President presided to reinstate certain workers at NP. The Claimant has acted improperly in the performance of her duties as the Human Resources Manager of NP and brought her company into disrepute by taking such course with the President of the Industrial Court. There was no appeal by the Claimant against the Court s ruling on those meanings and the appeal filed by the Defendant was dismissed. The question of course at this stage is what impact did that have on Ms. Ragoonath and what would be the appropriate relief. 22. Unfortunately that was not the end of the matter. The Defendant still wanted directions for a trial of this matter presumably on the defence of qualified privilege although Counsel did raise the issue that the Claimant needed to prove that the Defendant did in fact publish the words complained of. I would have imagined that if that was a live issue, the Court would not have embarked upon the exercise of determining the meaning of the words and in any event with the disclosure of the audio in the possession of the Claimant, this would have been quite an easy matter to settle by agreement between the parties. Directions were given with sanctions on the Defendant should he fail to meet the deadlines set by the Court. Those sanctions were necessary having regard to a history of default in compliance with the Court s 2 See Mapp v News Group Newspapers Ltd [1998] QB 520; Skuse v Granada Television [1996] EMLR 278; Charman v Orion Publishing Group [2005] EWHC 2187 Page 13 of 33

14 case management orders for the filing of its advice on quantum and agreed statement of facts and what I had perceived to be a disposition to prolong the matter although giving the Defendant the benefit of the doubt of testing his defence at a trial. 23. However on the day fixed for trial in this matter, the Defendant had failed to file any witness statements in breach of the Court s unless order and accordingly judgment was entered against him. 3 Unfortunately no indication was given to the Court prior to the trial that the Defendant intended not to file any evidence. As a result of that order, the Defence stood automatically dismissed and the only matter left for consideration which was accepted by attorneys for both parties at the trial was the question of the assessment of damages. Ms. Ragoonath s evidence consisted of her witness statement and there was brief cross examination. Indeed the right of the Defendant to cross examine in the absence of a defence is limited if indeed it exists. The Court recalled the witness subsequently to give further evidence on what she perceived to be the value to her of an apology from Mr. Roget. Both parties had earlier filed their respective written submissions on quantum and at the trial they provided further oral submissions on the issue of quantum. Upon the Court s invitation they also filed further written submissions on the issue of the Court s jurisdiction to order an apology. Submissions on Quantum 24. There were two main submissions which formed the axis of the Claimant s submissions for damages. First that the Claimant was relatively unknown and had no public profile and whose only claim to fame now is this distorted view painted of her by Mr. Roget. Second that 3 The material part of the Court s case management order on 25 th January 2016 was as follows: 1. The Claimant to file an agreed transcript of the recordings from WIN TV, Channel 12 and I95.5 as disclosed by the Claimant in her list of documents dd. 28 th August 2015 on or before 18 th February The parties to file and exchange their witness statements on or before 29 th March In default of the Defendant filing and exchanging their witness statements in compliance with this order the Defence shall be struck out and there will be Judgment for the Claimant. Page 14 of 33

15 the pith and substance of the defamatory remarks was contextualized in an ongoing dispute with the dismissal of the 68 workers at NPMC. Accordingly until that matter was resolved the remarks about Ms. Ragoonath s conduct would be a talking point in the public domain. 25. These submissions are important as they form the bedrock of his assessment of Ms. Ragoonath s claim. Being a relative unknown, one immediately sees the disadvantage that she is placed in being bullied in the public by a well-known public figure. Mr. Roget would have at his disposal the ability to make public statements and attract to himself public attention. Being a public figure he would be accustomed to the glare of the public. Not so for Ms. Ragoonath and importantly she would not have been accustomed to or even resourced to defend herself in the public domain. It is a fight in which she was unevenly matched. For this reason her subjective feeling of hurt would be much greater, being such a private individual with no recourse and unaccustomed to such public disaffection her hurt and suffering would have been magnified. Importantly therefore when such reports are constantly repeated a public figure accustomed to the glare of publicity and the nuances of reporting can brush it off. A private person however faced with this for the first time would tend to remember it as it tends to seep into the crevasses of her soul and subconscious and add to her mental distress. Indeed such pain and agony would linger, so long as that case remained unresolved and it would have been a bad memory for her to relive it when the Court of Appeal upheld the Industrial Court s decision thus reliving the sting of Mr. Roget s attack. 26. Senior Counsel for the Claimant further submits that she is entitled to aggravated damages, claiming that the Defendant willfully and maliciously defamed the Claimant in order to enhance his image as a union leader from the damage to her reputation. Some of the aggravating features of her case included her having to leave her job. There was no checks or verification by Mr. Roget before making his statement. No evidence of credible sources of the statement and no attempt to call the Claimant or to apologize. Her children were subjected to taunts. The attack occurred while she was studying for her MBA examinations. The litigation was conducted taking her to trial dragging and screaming when suddenly at the trial it is declared that the defence is not being pursued. Page 15 of 33

16 27. The Claimant submits that the facts of this case fall closely to that of Conrad Aleong v Trinidad and Tobago Express Newspaper Ltd Civ App. 122 of 2009 and Ramlogan v Warner CV and Rowley v Annisette CV Senior Counsel for the Claimant submits that an award of in the sum of $350, $400, for general damages and $100, $150, for exemplary damages be awarded to the Claimant for the damage done to her reputation. 28. The status of Ms. Ragoonath also formed the axis of the submissions of Counsel for the Defendant. That she is not a public figure is important as higher awards are usually awarded to those in prominent positions. This would be so as the defamatory remarks of a public figure will generate greater public attention, have greater influence, it is more likely to be discussed and quite likely to be repeated. The Claimant s reliance on those cases where high awards were given are therefore irrelevant according to the Defendant as they dealt with the defamed character of public figures. 29. He also criticized the Claimant s evidence as being mere assertion without supporting evidence. At best the evidence produced by Ms. Ragoonath alone should be treated cautiously as it is not corroborated. Counsel insisted that the Defendant did not adopt an adversarial approach to the claim and that an offer to settle was made on 16 th March 2016 and the parties were engaged in discussion in March 2016 but there was no resolution. 30. Counsel for the Defendant submits that the Claimant not being a public figure and not holding public office ought not to be awarded more than the claimant in the matter of Mohammed v Warner CV In that case Mohammed, a newcomer to the political field was accused of taking bribes and selling his soul for money by his former political leader when he voted against the political party to which he was aligned. A sum of $220, was awarded to the claimant as damages. Counsel also submitted that this is not a case fit for exemplary damages. 31. The Defendant further relied on cases such as Gita Sakal v Michael Caraballo CV and Reuben Cato v CNMG HC 1810 of 2011, where the sum for the award of damages was in the range of $50, $150, respectively. Page 16 of 33

17 Principles 32. A defamatory statement is one which tends to lower the claimant in the estimation of rightthinking members of society generally, or one which is likely to discredit the claimant or cause her to be shunned or avoided, or exposes him to hatred, contempt or ridicule Gatley on Libel and Slander 12 Ed. (2013), para The primary remedy for a successful claimant in a defamation action is the recovery of general damages which are compensatory and are at large that is not subject to a precise arithmetical calculation or objective formula. The Court is entitled to take into account a wide range of subjective and objective factors. 33. In John v MGN Ltd (1997) QB 586 at page 607 Sir Thomas Bingham in providing future guidance on the guidelines for awarding damages stated: The successful Plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation, the most important factor is the gravity of the libel; the more closely it touches the Plaintiff s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of the publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or crossexamines the plaintiff in a wounding or insulting way. 34. Sir Bingham went further to comment that the legal process by which the award is obtained should yield an award that is conservative that is not too much nor too little No other result can be accepted as just. The framework for awarding damages is thus governed by a principle of proportionality and balance as it serves no public purpose to encourage plaintiffs to regard a successful libel action, risky though the process undoubtedly is, as a Page 17 of 33

18 road to untaxed riches. Nor is it healthy if any legal process fails to command the respect of lawyer and layman alike, as is regrettably true of the assessment of damages by libel juries. 35. Lord Hailsham in Cassell & Co Ltd v Broome [1972] 1 All ER 801 HL observed that: Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or 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'. 36. The Court of Appeal in T&T News Centre Ltd v John Rahael CA Civ. 166 of 2006 referring to Cleese v Clark [2004] E.M.L.R. 3 referred to the factors the Court considers in assessing damages: It is necessary always to take into account the full circumstances of the case. Such factors have to be borne in mind as the gravity of the allegation, the scale of publication, the extent to which any readers believed the words to be true, any impact upon the claimant s feelings, reputation or career. There may also be matters of aggravation or mitigation which also need to be put in the scales. It is, moreover, often the case that the claimant s own conduct will have a part to play in arriving at the appropriate figure. A fundamental point always to be remembered is that the purpose of such damages, and indeed compensation awarded under s. 3(5) [Defamation Act 1996 UK], is compensatory and not punitive. 37. Hirst LJ in Jones v Pollard [1997] EMLR 233 found the following a helpful checklist in approaching the assessment of damages in defamation cases: (a) The objective features of the libel itself such as its gravity, its prominence, the circulation of the medium in which it was published and any repetition. Page 18 of 33

19 (b) The subjective effect on the plaintiff s feelings (usually categorized as aggravating features) not only from the publication itself but also from the defendant s conduct thereafter both up to and including the trial in itself. (c) Matters tending to mitigate damages such as the publication of an apology. (d) Matters tending to reduce damages, evidence of the plaintiff s bad reputation or evidence given at the trial which the jury are entitled to take into account in accordance with the decision of the court in Pamplin v Express Newspapers Limited [1988] 1 WLR 116. (e) Special damages. (f) Vindication of the plaintiff s reputation past and future. See also Gur v Avrupa Newspapers Ltd [2008] EWCA Civ. 594; [2009] EMLR 4 and Faaiq Mohammed. 38. It therefore goes without saying that the fact that Ms. Ragoonath is a private individual, virtually unknown to the public at large while on the other Mr. Roget is a public figure, a trade unionist much accustomed to the spotlight utilizing public platforms to air his views and opinions is but one factor to be taken into account in the overall assessment of the circumstances of the publication and the conduct of the parties. I agree with the submission of Senior Counsel that it is painfully obvious that Mr. Roget took advantage of his status to give credence and publicity to his remarks. His accusations were not in the form of a letter but a media briefing broadcast to many. The balance of power could not have been more uneven. 39. While there has been no clear demarcation made by the courts in awarding damages to a defamed private person as opposed to a defamed public person, the distinction between the privacy rights of a private person and that of a public person may be two sides of the same coin in defamation claims. Whereas an assumption can be made that public figures by virtue of their status in society have essentially thrust themselves into the limelight with a perceived open invitation for comments and attention on their actions, no such assumption Page 19 of 33

20 can be attributed to private citizens. On one end of the scale, the defamation of the public figure might gather more publicity and discussion. On the other, the private figure defamed in the public arena cannot lightly shrug off such an attack. It would be perceived by her more dramatically and sensationally not being accustomed to such a sudden plunge into the negative consciousness of the public. It is likely to seep into the intimate circle of family and friends who will perceive it as a stain and shame rather than be softened by such allowances given to the public figure of the normal cut and thrust of public life. It would in my view be wrong to place an undue weight on the anonymity of a person s character as any valid reason to attribute less damage as a result of a public and sustained attack on her character. A plaintiff who is rich and famous should not simply by reason of status be entitled to obtain a larger award than one who is not. See: Esther Louise Rantzen v (1) Mirror Group Newspapers (1986) Ltd (2) Brian Radford (3) Richard Stott (4) Mirror Group Newspapers PLC 1993 WL To do otherwise would allow for a creeping elitism in the award of damages, a matter discussed in Faaiq Mohammed. Ms. Ragoonath clearly has placed value on her reputation in industrial relations, a dynamic arena where the employer and employee relationship is sensitive and precious. I see no reason to discount her damage simply because she is a person of relative anonymity in public life. Nor do I see the awards given to persons in public life distinguishable solely on the basis that they are public figures. All the circumstances must be considered in the round and the exercise calls for a special assessment of and sensitivity to the value of reputations and a good name in small societies such as ours given the social and political history and development uniquely Caribbean. See Faaiq Mohammed. 40. The defamatory remarks were particularly grave and, without any factual base, simply outlandish. It imputed that she abused her power and acted vindictively, unprofessionally and contemptuously in unfairly attacking the President of the Industrial Court. The remarks went even further to suggest that she was petitioning for the removal of the President of the Industrial Court in light of the ruling handed down by the Industrial Court reinstating sixty eight (68) NP employees. These statements coming from the President General of the OWTU can be reasonably assumed to carry sufficient weight. As a union leader representing the workers interests in the employment relationship the Defendant should know that such Page 20 of 33

21 statements are inflammatory and would stir up a rift between the employees and management. 41. This is an important context for appreciating the extent of hurt caused by these words. Ms. Ragoonath had become a pawn to muddy the waters in an ongoing industrial dispute. Reading the judgments of the Courts in that matter it is clear that that dispute between employer and employee was emotionally charged and concerned not only the lives of several workers and by extension their families but a major company in this country which business affects the daily lives of our citizens. It is important for such companies to have a stable industrial relations climate and to that extent the Industrial Court provides the stable platform for the orderly resolution of disputes. To therefore allege that the hand of the employer has surreptitiously interfered with such an institution or that it contemptuously disregards its edicts is in fact no less than a battle cry for workers against employers. 42. Further the fact that the Defendant took no steps to ascertain the veracity of the allegations he was making showed that he had little regard for the effect such statements would cause. The ruling of the Industrial Court was handed down on 19 th November The news conference wherein the defamatory statements were uttered was held one week after the Industrial Court s ruling on 26 th November The Defendant had more than enough time to verify his sources and determine if there was any truth to the allegations. This unsolicited attack on the Claimant which the Defendant characterized as one of the most disturbing developments coming out of a State enterprise condemned Ms. Ragoonath in no uncertain terms with the impact of course of neutralizing her legitimacy in the industrial relations environment. 43. Further there was no apology by the Defendant, nor any attempt by him to contact her to apologize or correct his statements. The Claimant s evidence suggests that she suffered a great deal from the statements made. However equally the Court also notes that there is no corroborating evidence. Her evidence is largely subjective. That being said it was unchallenged. It is not unreasonable to accept that she indeed suffered great embarrassment and distress having been thrown into the limelight in a most negative way. The level of scrutiny would be far more than she had been accustomed to as she was accused of involving Page 21 of 33

22 the President of the Republic of Trinidad and Tobago to do her bidding. There is no doubt significant damage was done to her reputation as a result from the statements made by the Defendant. However I would have expected more corroborating evidence to support a higher award of damages than simply her own assertions. The quality of the evidence is a main distinguishing feature to those cases in which higher awards were made. 44. The evidence of the Claimant is that the Defendant s main intention in calling a news conference was to discredit her in the eyes of the employees and the nation at large. In the aftermath of the news conference and subsequent publications the Claimant avers that she was the victim of ridicule and had to endure hearing and overhearing persons commenting on her character and integrity. Surprisingly it was suggested to her in cross examination that this feeling of discomfort was because she was responsible for the workers dismissal and not because of the words uttered by Mr. Roget. That was flatly denied but such a question clearly demonstrated the unhappy relations between the union and Ms. Ragoonath making the defamatory words all the more egregious. Feeling uncomfortable in her work environment at NPMC, she tried applying for other jobs but was told that she had too much baggage as a result of the issue. She was eventually able to leave NPMC approximately ten (10) months after the issue first came to light when she was re hired by a former employer even in the face of the allegations which she contends was as a result of her prior track record with the company. 45. I did take into account the facts that a settlement offer was made in March 2016 but it was at a very late stage in the proceedings. The Defendant elected not to pursue his defence but did not make it clear to the Court that he has admitted liability, rather that he has simply relied on the sanction that his defence was struck out. The pre action protocol activity did not advance the case of either party towards a resolution. Although each case on defamation is based on its unique facts and circumstances, a reliable framework can be obtained from an analysis of reported awards. In the case of Aleong v Express Newspaper (supra), Mr. Aleong was the president and the chief executive officer ("CEO") of the now defunct BWIA (West Indies) Limited ( BWIA ). He was also a chartered accountant. Over a five week period a series of articles were published accusing Mr. Aleong of being dishonest and manipulating the airline s accounts among other things for private gain. The Court of Appeal found that the Page 22 of 33

23 general damages awarded by the trial judge were inordinately low as it did not take into account certain aggravating features and therefore uplifted the award granted by the trial judge awarding the claimant the sum of $650, in general damages and $200, in exemplary. In the case of Ramlogan v Warner CV , the Defendant made certain statements as to the acquisition of properties owned by the claimant and the manner in which these properties were obtained. The Court in that matter found that the defendant s allegations of the claimant s acquisition of numerous properties by corrupt means during his tenure as Attorney General were baseless and damaging to the claimant s reputation. The claimant was awarded a total of $600, in general damages and $200, in exemplary damages. 46. In the case of Robin Montano v Harry Harnarine CV in the face of damning statements of him being called a racist and a hypocrite by the defendant, the Court awarded the sum of $250, in general damages. Similarly, in the case of Nizam Mohammed v The Trinidad Express Newspaper CV , the claimant was accused of being dishonest and lacking professional ethics as an attorney at law. The Court in that case awarded him the sum of $325, inclusive of aggravated damages. The Court has also had to assess damages in defamation cases where persons were accused of being corrupt either by receiving bribes or in the exercise of their duties. See Faaiq Mohammed v Jack Warner CV and Rowley v Annisette CV respectively. In those cases the successful claimants were awarded $220, and $475, respectively. See also Gita Sakal v Carballo CV and Cato v Caribbean News Media Group CV In the recent awards of Kishore Ramadhar v Prakash Ramadhar the awards made were on the low scale having regard to the context of the publications and the dearth of evidence on the extent of damage. 47. In my view an appropriate award of damages would be in the range of $180, to $250, inclusive of aggravated damages. Exemplary Damages 48. The Claimant in this case is also deserving of an award for exemplary damages in light of the allegations made against her. Exemplary damages are given in instances where a defendant Page 23 of 33