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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV 2010-04909

BETWEEN

DR KEITH CHRISTOPHER ROWLEY

CLAIMANT

AND

MICHAEL ANNISETTE

DEFENDANT

Before the Honourable Mr Justice Ronnie Boodoosingh

Appearances:

Mr Reginald T.A. Armour SC and Ms Vanessa Gopaul instructed by Mrs Dawn Gillian

Seecharan for the Claimant

Ms Kandace Bharath for the Defendant

Dated: 12 February 2014

JUDGMENT

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1. The claimant, Dr Keith Christopher Rowley (Dr Rowley /the claimant), is the Leader of

the Opposition and Political Leader of the Peoples’ National Movement. In October

2009, he was an elected Member of Parliament for the constituency of Diego Martin

West. The defendant, Mr Michael Annisette (Mr Annisette /the defendant), was an

independent senator appointed by His Excellency the President. At the time he also held

directorships on a number of state corporations and was the President General of the

Seamen and Waterfront General Workers’ Trade Union (SWWTU) and President of the

National Trade Union Centre (NATUC).

FACTS

2. This is a claim for defamation. The claim arises from statements made by the defendant

during debate in the Senate on 1 October 2009 during debate on the Commission of

Enquiry (Validation and Immunity from Proceedings) Bill (the Validation Bill). The

claimant’s case, in summary, is that the defendant made defamatory statements of him on

that occasion under cover of parliamentary privilege, which he then adopted/confirmed

and caused to be republished on 8 and 9 October 2009 outside of Parliament. The claim is

therefore not based on the defendant’s parliamentary statements of 1 October 2009 but

rather on the subsequent adoption and republication of those defamatory statements on 8

and 9 October 2009. Specifically, the claimant contends that the defendant is liable:

(i) in slander, for the repetition/adoption and confirmation of the defamatory

statements published in the Senate on 1 October 2009, during a telephone

interview with Mr Clint Chan Tack, a reporter of the Newsday newspaper on 8

October 2009;

(ii) in libel, for the republication of his extra-parliamentary statement to Mr Chan

Tack on 8 October 2009, contained in an article entitled “Bring proof Annisette”

published in the Newsday newspaper on 9 October 2009; and

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(iii) for republication of the defamatory statements spoken and published by the

defendant on 1 October 2009.

3. For his part, Mr Annisette admits to making certain statements in the Senate during

debate on the Validation Bill on 1 October 2009. He however denies the meanings

ascribed by the claimant to the statements made and pleads absolute privilege in relation

to them. He admits speaking to members of the media from time to time on the matters he

raised during his Senate contribution. However, by paragraph 4 of his defence, he denies

having a telephone interview or making the alleged statements to Mr Chan Tack or

anyone from the Newsday on 8 October 2009, or at all. He further denies that he caused

or authorised the publication of the Newsday article on 9 October 2009.

AGREED ISSUES

4. The parties helpfully agreed on the issues as follows:

1. Whether the words spoken by the defendant in the Senate on 1 October 2009 under

cover of parliamentary privilege are defamatory of the claimant?

2. Whether the defendant had a telephone interview with Mr Clint Chan Tack, a reporter

employed with the Daily News Ltd (“Newsday Reporter”) on 8 October 2009?

3. Whether the defendant spoke the words complained of to the Newsday reporter

during the said telephone interview?

4. Do the words spoken by the defendant to the Newsday reporter amount to a

repetition, adoption and/or confirmation of the words spoken of the claimant by the

defendant in the Senate?

5. Did the defendant authorise or cause the publication of the article entitled “Bring

proof Annisette” in the issue of the Newsday of 9 October 2009?

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6. Further and/or in the alternative, was the publication of the said article the natural and

probable and/or reasonably foreseeable result of the defendant’s interview with the

Newsday reporter?

7. Is the defendant entitled to the protection of absolute privilege in relation to the words

spoken to the Newsday reporter and/or the words written in the said article?

8. In the event that the defence fails, what damages is the claimant entitled to recover?

9. Is the claimant also entitled to aggravated damages?

This statement of issues is also in logical order so I propose to deal with them in the order

as set out.

Were the words spoken by the defendant in the Senate on 1 October 2009 defamatory?

5. It is not in dispute that the defendant spoke the words complained of in the Senate on 1

October 2009. Further, the statements are set out verbatim in the Official Report of

Parliamentary Debates (Hansard) Session 2009, volume 10, pages 97-103, which the

claimant relies on for the text of the words republished.

6. It is necessary to set out the parts of the contribution complained of as set out in the

claimant’s statement of case and the Hansard report:

“I think it is necessary that the general public begins to understand the issue, so

that all the fanfare, special interests and cartels who have been manipulating the

press to make it appear that the construction industry is UdeCott and no one has

taken the time to ask the question that in terms of the construction industry, both

private and public, are we the citizens of Trinidad and Tobago happy with what is

happening? Cost overruns- while I am not justifying them – are some things that

everyone knows happens in the construction industry in Trinidad and Tobago,

because there are cartels and special interests that run the industry.............

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We have to begin to understand what is happening in Trinidad and Tobago when

you decide to tackle special interests, they would use the news media to destroy

you. That is what is happening to Udecott. That is the issue, How dare Udecott

start to talk about design build and interfere with Emile Elias and his cohorts?

That is the issue. You are talking about corruption. What? What corruption yuh

talking about? ........

.....Let me make it clear to the public. Dr. Rowley, I eh fraid yuh. Yuh make ah

mistake to interfere with a dock worker an ah go deal with yuh tonight. Dr.

Rowley submitted a document trying to implicate me in the NUGFW deal with

Udecott...He made all types of allegations. I responded through my attorney to the

same commission of enquiry...Doctor Rowley is aware of this. He comes in the

Newsday Tuesday September 29, 2000 and raises the issue again, misleading the

public because there is a perception. Kill Udecott or anybody on the board

because there is a perception. We close to the Prime Minister. We doing the

bidding of the Prime Minister. Misrepresent the facts. Dr. Rowley failed to tell

people that his good friend Emile Elias has a company. I eh hear no comrade,

Sen, Wade Mark who does buss mark, he eh buss dis mark, buh I go buss it now.

Sen. Wade Mark I went to get it. I want the TV to take it out. Look it here! Look it

here! I have it. Mr. Bagoo I want you to come and get it. I kept an extra copy for

you.

NH International Caribbean Limited registered where? In the Cayman Islands

British West Indies. Tax haven country. Do you know what that means? That he

has gotten over $1 billion of taxpayers’ money for doing government work but his

company is registered in a tax haven. What does that mean? Nothing comes back

to Trinidad and Tobago. Nobody eh mention dat. What is ironic? I will show you

the connection [quotes from the testimony of Dr. Rowley in the Commission of

Enquiry in the Construction Industry where he unhesitatingly admits a friendship

with Emile Elias]....

I want to tie it with the misconception about Udecott and the construction

industry. I am just trying to show the connection...........He went on to say that

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Emile Elias is his personal friend. ‘Did Emile Elias finance you in 1996 with the

People’s National Movement? Yes, he contributed. How much? I can’t say

because he has somebody in charge.’ I know that is not so. Ah could tell yuh de

amount but ah wouldn’t embarrass him. Yuh want to know? $500,000. Having

said that where is Bagoo? Not there. Landate Report. We are talking about

corruption. I am now calling on the Attorney General. This is the report and I am

quoting from the Commission of Enquiry into Allegations of the Removal of

Materials, Equipment and Resources by NH International Caribbean

Limited...[quotes from the Commission of Enquiry into Allegations of the Removal

of Materials, Equipment and Resources by NH International Caribbean

Limited]...

Emile: They concluded that he should be charged...I now call on the Attorney

General to investigate this. I am now calling upon you because it is recommended

that he should be charged for larceny. I will hand you the report. Do you want me

to bring it for you. We are talking about corruption and I am showing you the

connection. I am not worried about that...

My right and duty is to speak freely, as his Excellency the President has

appointed me, and expect me, to do. No one- they can say what they want in the

newspapers; they can talk what they want – will stop me from saying my piece.

Get that clear Emile; get that clear Rowley! You will not stop me.”

7. The question is whether these words are defamatory. Whether a statement is defamatory

is a question of fact in each case. The approach is to first decide what the words mean, in

their ordinary and natural meaning, to the ordinary reasonable man, and then whether that

meaning is defamatory.

8. A defamatory statement is one which tends to lower the claimant in the estimation of

right-thinking members of society generally, or be likely to affect the claimant adversely

in the estimation of reasonable people generally. A defamatory imputation has also been

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expressed as one to the claimant’s discredit or causes him to be shunned or avoided, or

exposes him to hatred, contempt or ridicule: see Gatley on Libel and Slander 11th

edition, para. 2.1; Sim v Stretch [1936] 2 All ER 1237 at 1250.

9. In Lewis v Daily Telegraph Ltd [1964] AC 234 Lord Reid stated at page 258:

“There is no doubt that in actions for libel the question is what the words would

convey to the ordinary man: it is not one of construction in the legal sense. The

ordinary man does not live in an ivory tower and he is not inhibited by knowledge

of the rules of construction. So he can and does read between the lines in the light

of his general knowledge and experience of worldly affairs...

What the ordinary man would infer without special knowledge has generally been

called the natural and ordinary meaning of the words. But the expression is rather

misleading in that it conceals the fact that there are two elements in it. Sometimes

it is not necessary to go beyond the words themselves as where the plaintiff has

been called a thief or murderer. But often the sting is not so much in the words

themselves as in what the ordinary man will infer from them, and that is also

regarded as part of their natural and ordinary meaning.”

10. Mr Annisette framed his comments in the context of speaking against the background of

public attacks on and misinformation about UdeCott by special interest groups who are

seeking to protect their turf. He then refers to Dr Rowley by name, and the fact that Dr

Rowley made allegations against him concerning a land transaction between UdeCott and

NUGFW. He accuses him of misleading the public and misrepresenting the facts. That he

was ‘training his guns’ on Dr Rowley is made most evident by his combative statements:

“Dr Rowley, I eh fraid yuh. Yuh make a mistake to interfere with a dock worker an ah go

deal with yuh tonight.” He says he is talking about corruption. He says he was ‘bussing

the mark’ on the claimant and proceeds to reveal the link between Dr Rowley and Emile

Elias and to tie that connection with the misconception about UdeCott and the

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construction industry. He reveals that Elias’ company was registered in a tax haven

country and that he contributed $500,000 to Dr Rowley’s political campaign in 1996

which amount, Mr Annisette says, the claimant lied about knowing to the Commission of

Enquiry into the Construction Industry (Uff Commission). He then refers to the Landate

project and the alleged findings of that Commission of Enquiry that Elias should be

charged for larceny. He reiterates that he is talking about corruption and showing the

connection.

11. In my view, the words complained of in their totality and context inevitably convey an

imputation of impropriety or misconduct on the part of the claimant in his public office. I

accept the claimant’s submissions that the meaning the ordinary reasonable man would

attribute to the words complained of is:

(i) There is a connection between the claimant and Emile Elias of NH International

which is corrupt in nature.

(ii) The claimant abused his office to obtain an improper benefit by the removal of

material from Scarborough Hospital site to the Landate Development Project in

which the claimant had a beneficial interest.

(iii) The claimant’s stance on UDeCOTT and his submissions to the Uff Commission

were driven by ulterior motive, to protect the cartels and special interests that run

the industry.

(iv) The claimant deliberately misrepresented to the Commission, media and the

public, the facts concerning a land transaction between UdeCott and the NUGFW.

(v) The claimant committed perjury before the Uff Commission when he stated he

did not know the amount of his campaign contribution made by Emile Elias in

1996.

(vi) The claimant is guilty of improper conduct as a public official.

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12. The statements when looked at in their ordinary meaning suggest that Dr Rowley is

corrupt; he has acted in his public office with ulterior motive; he deliberately

misrepresented facts concerning UdeCott and NUGFW; he committed perjury, a criminal

offence, before the Uff Commission; and he was guilty of improper conduct. I therefore

find the statements made to be defamatory of the claimant.

Did the defendant have a telephone interview with Mr Chan Tack on 8 October 2009? Did

he speak the words complained of to Mr Chan Tack?

13. I will consider these two issues together. The claimant contends that during the

telephone conversation with Mr Chan Tack, the defendant spoke and published the

following defamatory words of the claimant: “I have documents which show Rowley

and Elias acted improperly.” By these words, the claimant says the defendant repeated,

adopted and confirmed as true the defamatory words spoken of the claimant and

published by him in the Senate on 1 October 2009.

14. I had to decide between Mr Clint Chan Tack and the defendant who I believed in respect

of what was discussed between them. Despite the denial in his defence, the defendant

accepted in cross-examination that he had two conversations with Mr Chan Tack, one in

person and one on the telephone. He denies however that the content of the conversation

was as suggested by Mr Chan Tack.

15. I found that Mr Chan Tack had no reason to tell an untruth in relation to these matters. In

contrast the defendant does. If he had the conversation he will be liable. Mr Chan Tack

was a journalist pursuing a story and it appeared to me diligently so. Further, Mr

Annisette in cross-examination accepted that he had made statements to other journalists

in the days following in which he accepted he had said he had nothing to resign for since

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he had spoken the truth in Parliament. While not as in detailed terms as suggested in the

conversation with Mr Chan Tack what he in effect did was to confirm the truthfulness of

what he had said in Parliament. The difference is that Mr Chan Tack seemed to have

pursued the story somewhat, which of course he was entitled to do.

16. Additionally, the defendant noted he knew Mr Chan Tack to whom he had given several

interviews before. No reason was suggested as to why Mr Chan Tack would say that the

defendant had promised him documents to support the allegations made when he had not

done so. I thought on the evidence between the two that Mr Chan Tack fared far better in

cross-examination. His account was also more detailed on the issue than the defendant.

17. Mr Chan Tack wrote the 9 October 2009 article stating that Mr Annisette insisted he had

documents which showed Dr Rowley and Mr Elias acted improperly. There is no

evidence before the court of anything done by the defendant by way of writing to or

communicating with Mr Chan Tack to dispute that he had in fact promised him with

documents.

18. Further, the defendant accepts that Mr Chan Tack called him on the telephone while he

was in Antigua attending a conference. Mr Chan Tack’s version is that he had got the

phone number from someone at the SWWTU office after he explained the purpose of

needing to speak to the defendant. This seems more plausible since the defendant does

not offer a contrary explanation about how Mr Chan Tack got his phone number or would

know he was in Antigua to call him.

19. The defendant’s witness statement was filed before the witness statement of Mr Chan

Tack, the claimant having been given an extension to file their witness statements. In

those circumstances it was open to the defendant to file a supplemental witness statement

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fully disputing what Mr Chan Tack had stated or even seeking to amplify his witness

statement at the trial to deal with the issue fully. This was not done. One would have

expected this would be done since this was the crux of the defendant’s case, that he did

not have the conversation with Mr Chan Tack.

20. The inconsistencies pointed out in the defendant’s written submissions were not, in my

view, material. The most significant one concerned whether Mr Chan Tack had the

documents before he had written the article on 9 October 2009. His witness statement

asserts he got them after. In cross-examination he said he had seen them when he wrote

the article. He further said the sequence of the events may be wrong but he maintained

he had the conversation. These, in my view, were on peripheral matters and can be

explained away by understandable memory lapses with the passing of time. The real

issue was whether he had the conversation and whether Mr Annisette had made the

assertion reported by Mr Chan Tack. These did not impact on the credibility or reliability

of Mr Chan Tack’s evidence.

21. I considered the differences in Mr Annisette’s evidence to be more important. In his

witness statement he said he was in Antigua on his way to a meeting when his mobile

rang. He answered it. A male voice, who may or may not have identified himself, asked

him if he had proof of the amount paid. He said the issue was not one of the amount but

on whether a contribution was made. He then said he had no further comment and he

was running into a meeting. At paragraph 9 he said he did not speak to anyone

identifying himself as Chan Tack or anyone employed with the Newsday. In cross-

examination, however, he said he had two conversations with Mr Chan Tack after the 1

October; one where Mr Chan Tack approached him and another on the phone while he

was in Antigua. He said Mr Chan Tack called him in Antigua. He was satisfied he was

talking to him because “they talk”. There is a marked difference between whether Mr

Annisette while in Antigua talked to Mr Chan Tack to whether he did not. This was a

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more significant inconsistency than whether Mr Chan Tack had the documents before he

wrote the article.

22. For these various reasons I preferred the evidence of Mr Chan Tack on a balance of

probabilities. His evidence seemed more reasonable and plausible. It was also consistent

with the other evidence including the subsequent publications in the other newspapers the

Guardian and Express where Mr Annisette asserted he had no reason to resign for

speaking the truth.

Repetition/ Adoption/ Confirmation

23. The claimant contends that by speaking the words he did to Mr Chan Tack, the defendant

repeated, adopted and confirmed as true the defamatory statements he made previously in

the Senate on 1 October 2009. In this regard, the claimant relies heavily on the Privy

Council decision in the New Zealand case of Jennings v Buchanan, Privy Council

Appeal No. 53 of 2003.

24. The Jennings case in my view is pertinent and clearly sets out the applicable law in

relation to this issue. The brief facts were that Mr Jennings, in the course of a

parliamentary debate, made certain defamatory observations of Mr Buchanan, impugning

his personal and professional integrity. He was subsequently interviewed by a reporter

who asked him in detail about his parliamentary statement and, according to the report of

the interview published in the newspaper said that “he did not resile from his claim about

the officials’ relationship.” The issue before the Board was squarely:

“whether a member of parliament may be held liable in defamation if the member makes

a defamatory statement in the House of Representatives- a statement which is protected

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by absolute privilege – and later affirms the statement (but without repeating it) on an

occasion which is not protected by privilege.”

25. The Board decisively answered the question in the affirmative. As in the present case,

there was no doubt that what was said in Parliament was protected by absolute privilege.

The question was whether that privilege extended to cover republication of the statement

by reference outside the House. In examining the authorities, Lord Bingham at paragraph

14 of his judgment cited the Report of the Committee on Defamation by Faulkes J

(Cmnd 5909) (1975) wherein the issue was mentioned at paragraphs 204-205:

“204. No parliamentary privilege attaches to the repetition outside Parliament of

statements previously made in the course of Parliamentary proceedings.

205. The same principle must clearly apply to a member who verifies such a

statement outside Parliament, for example, by saying ‘every word I spoke in

yesterday’s debate was true’, or who...extends a statement...by saying ‘Mr. X is a

good example of the class of persons I criticised in Parliament yesterday.’ ”

26. The Board went on to cite with approval the decision of the Supreme Court of Victoria in

Beitzel v Crabb [1992] 2 VR 121, where the issue of republication by reference arose.

In Beitzel, the defendant when asked during a radio interview about remarks he made in

Parliament about the plaintiff, replied that ‘he stood by what he said’. The plaintiff

founded his claim on the defendant’s confirmation of what he had earlier said, and the

defendant unsuccessfully relied on absolute privilege. At paragraph 14 Lord Bingham

noted the observations of Hampel J at pages 127 and 128 of that judgment:

“The cause of action in this case lies in the publication by [the defendant] by

adoption and repetition outside Parliament of words spoken by him in Parliament

and published in the media.

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It is a well established principle that members of Parliament may be held liable

for afterwards publishing words spoken by them in Parliament, provided that the

cause of action is founded on that subsequent publication...

“Whether what is said outside Parliament amounts to a publication of defamatory

words is mixed question of fact and law....In Spike v Golding (1895) 27 NSR 379,

a statement referring to a libellous article previously published and claiming that

the publisher could prove the allegations in the first article was held to constitute

actionable republication. In Griffiths v Lewis (1845) 14 LJQB 197, it was held

that if a person has uttered defamatory words of another, and subsequently on

being asked whether he used those words, he says he did and says no more, any

action for defamation must be on the words previously spoken. However, if the

person who makes the statement goes further in response to the question and says

he can prove the statement and repeats the words, he can, according to the

decision in Freeman v Poppe (1905) 25 NZLR 529 be sued on the words so

repeated.

It is undoubtedly arguable on the facts of this case that, despite the fact that the

words previously spoken in Parliament were not subsequently repeated,

there would be a sufficient temporal and substantive connection made by the

listening public between the words spoken in Parliament by [the defendant]

which were repeated in the media and the comments by him in the press

conference and interview of 30 January 1990 for there to have been a

defamatory publication by adoption by [the defendant] on that day.”

(emphasis supplied)

27. In light of this statement of the law, I fully accept the claimant’s submission that to be

actionable as a repetition, adoption or confirmation as true of the statements made in the

Senate, it is enough if the defendant’s extra-parliamentary statements either verify or

includes by reference the words previously spoken, and/or has a temporal and substantive

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connection to them. The words do not have to repeat verbatim the previous defamatory

statements made.

28. In the present case, the defendant said to Mr Chan Tack that he had documents to show

that the claimant and Emile Elias acted improperly. This was in response to Mr Chan

Tack’s enquiry about the allegations of improper conduct made by the defendant in the

Senate on 1 October 2009. Of significance too was Mr Chan Tack’s evidence that he had

first contacted Mr Annisette by phone who told him that he had documents to show that

Mr Elias and Dr Rowley had acted improperly and he gave the assurance that he would

make them available to him when he got home. Two days later he again contacted Mr

Annisette on the phone about the documents and Mr Annisette told him to go over to

SWWTU office and introduce himself to the receptionist who would give the documents

to him. Mr Chan Tack did so and collected a voluminous pile of documents. Mr Chan

Tack perused them but he did not find evidence to support Mr Annisette’s claims. He

again contacted Mr Annisette who pointed him to specific parts within certain documents

but they did not support or corroborate the allegations he made to him on the telephone.

29. When considered in its context the connection to the previous parliamentary statements is

sufficiently clear. The defendant was in effect confirming as true his previous statements

that he had the documents to prove the allegations of improper conduct he made against

both the claimant and Mr Elias in the Senate. As in the Jennings case, the defendant

while not repeating his parliamentary statements, confirmed or adopted them by

reference. I therefore find that by the words spoken to Mr Chan Tack on 8 October 2009

the defendant adopted and confirmed as true the defamatory words spoken by him in the

Senate on 1 October 2009, and further, this constituted a republication by reference of

those words.

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Did the defendant authorise or cause the publication of the article on 9 October 2009? Was

publication in the newspaper a natural and foreseen consequence?

30. The claimant submits that the defendant implicitly authorised Mr Chan Tack to publish

the words complained of or intended that he do so. Further, they argue that the

publication of the article was the natural and probable or reasonably foreseeable result of

the defendant’s interview with Mr Chan Tack.

31. Lopes J in the case of Speight v Gosnay (1891) 60 LJQB 213 at page 232 set out the

circumstances where a maker of a defamatory statement may be held liable for

republication of that statement. They include:

(i) where the slanderer authorised the repetition of the slanderous words;

(ii) where the slanderer intended that the slanderous words be republished;

(iii) where the repetition of the slanderous words was the natural consequence of the

making of the slanderous words.

32. In relation to ‘foreseeability’, in McManus v Beckham [2002] EWCA Civ 939, Waller

LJ stated at paragraph 34:

“What the law is trying to achieve in this area is a just a reasonable result by

reference to the position of a reasonable person in the position of the defendant.

If a defendant is actually aware (1) that what she says or does is likely to be

reported, and (2) that if she slanders someone that slander is likely to be repeated

in whole or in part, there is no injustice in her being held responsible for the

damage that the slander causes via that publication. I would suggest further that if

a jury were to conclude that a reasonable person in the position of the defendant

should have appreciated that there was a significant risk that what she said would

be repeated in whole or in part in the press and that that would increase the

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damage caused by the slander, it is not unjust that the defendant should be liable

for it...”

33. Laws LJ at paragraphs 42 and 43 of the same judgment also stated:

“...The root question is whether D, who has slandered C, should justly be held

responsible for damage which has been occasioned, or directly occasioned, by a

further publication by X... I think it plain that there will be cases where that will

be entirely just... It will not however in my judgment be enough to show that D’s

slander is a cause of X’s further publication...It must rather be demonstrated that

D foresaw that the further publication would probably take place, or that D (or a

reasonable person in D’s position) should have so foreseen and that in

consequence increased damage to C would ensue”

34. On the facts of the present case, the defendant must have known there was significant

media interest in his parliamentary statements concerning Dr Rowley and Mr Elias and

admits to giving several interviews to the media in the days following. He admitted

speaking twice to Mr Chan Tack who he knew to be a newspaper reporter and who he

had interacted with on previous occasions. I find on the evidence as well that he placed

no restriction on publication of what he said to Mr Chan Tack during the telephone

interview on 8 October 2009. Given this backdrop and his knowledge, the defendant, in

my view, if not actually aware, ought to have at least appreciated the significant risk or

likelihood that what he said would be repeated and reported in the media. I therefore find

that publication in the newspaper was the “natural and foreseen” consequence of what the

defendant said to Mr Chan Tack on 8 February 2009, and the defendant is as such liable

for the publication of the Newsday article on 9 October 2009.

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Can the defendant rely on absolute privilege in relation to his extra-parliamentary

statements?

35. In determining this question, the Board at paragraph 16 of its judgment in Jennings

quoted the following observations of the European Court of Human Rights in A v United

Kingdom (2002) 36 EHRR 917 (paras 23 and 84):

“23. Statements made by MPs outside the Houses of Parliament are subject to the

ordinary laws of defamation and breach of confidence, save where they are

protected by qualified privilege...

84....In particular, the immunity attaches only to statements made in the course of

parliamentary debates on the floor of the House of Commons or the House of

Lords. No immunity attaches to statements made outside Parliament, even if

they amount to a repetition of statements made during the course of

Parliamentary debates on matters of public interest” (emphasis supplied).

36. The Board then held at paragraph 17:

“The right of Members of Parliament to speak their minds in Parliament without

any risk of incurring liability as a result is absolute, and must be fully respected.

But that right is not infringed if a member, having spoken his mind and in so

doing defamed another person, thereafter chooses to repeat his statement outside

Parliament. It may very well be in such circumstances the member may have the

protection of qualified privilege, but the paramount need to protect freedom of

speech in Parliament does not require the extension of absolute privilege to such

statements.”

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37. I have already found the defendant’s extra-parliamentary statements amounted to a

repetition by adoption/ confirmation of the statements made by him in the Senate on 1

October 2009. The defendant’s parliamentary privilege in these circumstances is

therefore no defence to the extra-parliamentary statements made by him to Mr Chan Tack

on 8 October 2009 and published in the Newsday article of 9 October 2009. It is

important to note that this is not an intrusion by the court into the sphere of parliamentary

privilege in circumstances such as the present. As Lord Bingham noted at paragraph 18

of Jennings:

“In a case such as the present, however, reference is made to the parliamentary

record only to prove the historical fact that certain words were uttered. The claim

is founded on the later extra-parliamentary statement. The propriety of the

members’ behaviour as a parliamentarian will not be in issue. Nor will his state of

mind, motive or intention when saying what he did in Parliament...The claim will

be directed solely to the extra-parliamentary republication, for which the

parliamentary record will supply only the text.”

Damages

38. Having regard to the conclusions above that Mr Annisette defamed Dr Rowley by his

republication of his Parliamentary statements, the next issue is damages. The claimant

seeks compensatory and aggravated damages for slander and libel and republication of

the words spoken and published by the defendant.

39. In TnT News Centre Ltd v John Rahael Civ. App. No 166 of 2006 (delivered 9 July

2009) the Court of Appeal affirmed the threefold nature or purpose of an award of

damages in a defamation action:

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(i) to compensate the claimant for damage to his reputation,

(ii) to vindicate his good name, and

(iii) to take account of the distress, hurt and humiliation which the defamatory

publication has caused.

(See John v MGN Ltd [1996] 2 All ER 35; Gatley on Libel and Slander 10th

edition

at para 9.2)

40. In John v MGN Ltd Sir Thomas Bingham MR stated at pages 46 and 47:

“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 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. A successful plaintiff may properly look to an

award of damages to vindicate his reputation: but the significance of this is much

greater in a case where the defendant asserts the truth of the libel and refuses any

retraction or apology than in a case where the defendant acknowledges the falsity

of what was published and publicly expresses regret that the libelous publication

took place. 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

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that the publication was true, or refuses to apologize, or cross-examines the

plaintiff in a wounding or insulting way.”

41. In assessing the appropriate damages, it has been held that relevant factors to be

considered include the position and standing of the claimant; the standing of the

defendant; the nature and gravity of the slander/libel; the extent or range of the

publication; and the conduct of the defendant.

42. In the instant case, it is not in dispute that Dr Rowley is a well-known public and political

figure. He is currently the Leader of the Opposition and has in the past held several

ministerial and Cabinet portfolios in the government of Trinidad and Tobago. Up to the

time of the defendant’s defamatory statements, Dr Rowley had publicly raised issues of

transparency and challenged the lack of Cabinet oversight in relation to the operations of

UdeCott. This was followed by his eventual dismissal as a Minister of government in

2008 and the holding of the Uff Commission of Enquiry into the construction sector. Dr

Rowley had also been cleared of allegations of wrongdoing in relation to the Landate

Development Project by both the Integrity Commission and a Commission of Enquiry.

At the time of the publication, he was a Member of Parliament who had been raising

issues of corruption in relation to the conduct of members of his own political party. It is

to be emphasised the court must consider what was Dr Rowley’s position at the time of

the defamation. Although he has since been elected the political leader of his party and

appointed Leader of the Opposition, the court must consider how he stood then and not

now.

43. Mr Annisette was a well known and respected public figure, holding senior positions in

two established trade unions and directorships on the Boards of several state

corporations. Further, and very significantly, he was an independent senator. The effect

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of his statements would, in my view, have been exacerbated by the fact that the

statements were made by an independent senator. This would have resulted in more

weight and credibility being attached to them as compared to statements being made by

members of opposing political parties engaged in a contest for government in a

democratic society. An independent senator would be considered to be in a different

position from another member of parliament who belongs to one of the political parties.

It would be more expected in the cut and thrust of debate involving political adversaries

that less credibility would sometimes attach to statements being made about each other.

The public would be entitled to think that those statements are made in political

discourse. An independent senator appointed by the President however would be seen in

a different light, less partisan and less given to unjustified or intemperate attacks.

Statements made by an independent senator would therefore more than likely be given

more serious consideration and credence.

44. The next point is the nature and gravity of the slander/libel. The more closely the

defamation touches the claimant’s personal integrity, professional reputation, honour,

courage, loyalty and the core attributes of his personality, the more serious it is likely to

be – John v MGN Ltd. There is no doubt that the nature of the defamatory imputations

as noted earlier undoubtedly touch and concern both Dr Rowley’s professional reputation

and personal integrity. His reputation and standing would have been seriously damaged.

45. I considered the extent of the publication very relevant in this case. The publication to Mr

Chan Tack on 8 October 2009 of the words via telephone and in the following

conversations is of course limited in its extent. However the republication in the Newsday

article of 9 October 2009 was significantly wider. I accept the Newsday being a daily

newspaper would have attracted a wide circulation and readership locally and also

regionally and internationally via its website. The defendant simply denies the extent of

publication, and in the absence of a contrary assertion, the court is entitled to accept the

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claimant’s pleaded case of the extent of publication. It is also entitled to take judicial

notice of the fact that the Newsday does enjoy a significant readership amongst the daily

newspapers locally.

46. The defendant’s conduct in my view was also particularly injurious. First, by both his

parliamentary and extra-parliamentary statements, Mr Annisette specifically targeted Dr

Rowley by name so there was no doubt in the public’s mind about whom he was

speaking. Second, that he was conscious of attracting media attention is made clear

during his Senate contribution: “I want the TV to take it out. Look it here! Look it here! I

have it. Mr Bagoo [a journalist] I want you to come and get it. I kept an extra copy for

you.” Third, following his Senate contribution, Mr Annisette persisted in his assertions

by insisting to other journalists/ reporters that his statements were true. Apart from the

Newsday article, both the Express and Guardian newspapers ran articles on the days

following in which he accepted saying that he had no reason to resign as an independent

senator because he was speaking the truth. Fourth, by repeating allegations of which Dr

Rowley had already been cleared no doubt would have resuscitated them in the public’s

mind by suggesting that there were documents which proved Dr Rowley acted

improperly. Dr Rowley’s previous vindication would have therefore been tarnished and

doubts over his integrity renewed in light of Mr Annisette’s statements. Fifth, while Mr

Annisette has claimed that the Newsday article is misleading or incorrect, he has not

sought a retraction or correction nor has he apologised to Dr Rowley to date.

47. I have considered all of the above in relation to the defendant’s conduct as aggravating

circumstances in this case.

48. Dr Rowley by paragraphs 21 and 22 of his witness statement says that as result of the

defendant’s allegations he continues to live and work under a cloud of suspicion. He says

that he has had to defend himself time and time again when members of the public raise

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questions about the ‘proof’ the defendant says he had and expressed their belief that the

defendant would be in a position to know because he was a senator. He says his

confidence, ability and credibility to speak on matters of public accountability and

integrity in public life have been seriously damaged by the renewed allegations hanging

over his head. Not only has it been a continuing stain on his political life, but it has

affected his personal and family life having to address his children’s concerns and

embarrassment about the allegations. The damage to Dr Rowley must therefore be seen

to be at the upper end of the spectrum.

49. In light of the above, I have considered previous decisions in assessing what would be an

appropriate quantum of damages in this case.

In Tnt News Centre Ltd v John Rahael Civ. App. No. 166 of 2006 (delivered 9 July

2009) – there was an allegation that Mr John Rahael, the then Minister of Health and a

Member of Parliament, was involved in the drug trade. The Court of Appeal reduced the

trial judge’s award of damages from $400,000.00 to $250,000.00 on the ground that there

was no direct evidence as to the full extent of the injury to Mr Rahael’s feelings and

reputation. Had there been such evidence they may have maintained the award.

In Kayam Mohammed & Others v Trinidad Publishing Co. HCA No. 3552 of 2003

(delivered 6 June 2008) – it was held that the publication here was protected by qualified

privilege but the judge proceeded to set out what damages would be appropriate in the

event the defendants failed to avail themselves of it. The defamatory imputation of the

first claimant, chairman of the board of directors of PLIPDECO, was one of corruption

and dishonesty. The court considered $450,000.00 would have been appropriate

compensation for hurt feelings and for vindication of his reputation without aggravation.

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In Conrad Aleong v Trinidad Express Newspapers Ltd. CV2006-02092 (delivered 30

July 2010) - the claimant was awarded the sum of $450,000.00 in general damages and

$200,000.00 in exemplary damages. No aggravating factors were mentioned. It was held

that the publication of allegations over a 5 week period conveyed to the reasonable reader

that the claimant, the then Chief Executive Officer of BWIA, was dishonest and devious

and manipulated the airline’s accounts among other things for private gain.

In Robin Montano v Harry Harnarine CV2008-03039 (delivered 22 March 2012) – it

was held that the defamatory imputation that the claimant, a senior attorney and well-

known figure in the political arena, was a racist and hypocrite, attracted an award of

$250,000.00. No aggravating circumstances were found.

In Nizam Mohammed v Trinidad Express Newspapers Ltd. CV2011-00265 (delivered

19 July 2013) – the defamatory publication alleged that the claimant had been referred to

the Disciplinary Committee of the Law Association which had made an order against

him. Gobin J. awarded him $325,000.00 inclusive of aggravated damages for the

publication which imputed incompetence, dishonesty, lack of fitness and lack of

professional ethics on the part of the claimant.

In Basdeo Panday v Kenneth Gordon, Privy Council Appeal No. 35 of 2004 - the sum

of $300,000.00 awarded by the Court of Appeal was affirmed by the Privy Council. In

that case Mr Panday had referred to Mr Gordon as a “pseudo racist” at a public meeting

which was later re-published in the newspapers and electronic media.

50. In this case, I considered that Dr Rowley was a Member of Parliament. He had had a

political career for over 25 years. He had been elected to Parliament on several

occasions. He held various ministerial offices. He also had responsibility for UDeCOTT

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during the 2003 – 2007 term of office. He had been removed from the Cabinet after he

had raised questions about oversight of UDeCOTT. He had also taken a strong public

position on instances of corruption in public life. The attack therefore came in that

particular context and must have damaged his reputation in the sense that it was itself

being suggested that he was somehow involved in corrupt activity and perjury. I accept

Dr Rowley’s evidence that this impacted on his family life because he had to address his

children’s concerns. This attack was at least as offensive as the most serious defamations

in the cases above. Further, some time has passed since some of those decisions were

given. The attack here also seemed to be wider. It related to an improper relationship

with Mr Elias, perjury at a Commission of Enquiry and misbehaviour in public life. On

the other hand, I have also noted that in Mr Aleong’s case, one of the highest awards, the

attack was a prolonged one over 5 weeks or so in the newspaper. There were separate

sums for general and exemplary damages. In the present case the publication did not

proceed for such a long period. In Kayam Mohammed the allegations were related to

corruption. In the circumstances of this case and having considered the awards above, I

find that an appropriate award inclusive of an element of aggravated damages is the sum

of $475,000.00.00.

Disposition

51. There is therefore judgment for the claimant against the defendant. The defendant must

pay the claimant damages for slander and libel and republication in the sum of

$475,000.00 inclusive of aggravated damages. An injunction is granted to restrain the

defendant, whether by himself or his agents, from further publishing and causing to be

published the said or any similar words defamatory of the claimant.

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Costs

52. The claimant had filed a budgeted costs application on 13 June 2011 seeking a sum of

$466,596.00 inclusive of VAT in costs. I am of the view that the claim justifies both

senior and junior counsel being retained. This was an important matter for the claimant

as a public figure and he was entitled to retain the services of senior counsel to vindicate

his legal right. However, costs must be proportionate and relevant to the issues and

matters raised. The trial took essentially a day and a couple hours. The submissions

were made on agreed issues but had to be comprehensive. The claimant’s submissions

were substantially longer. One of the issues was novel in this jurisdiction, but not overly

complex. The other issues related to the construction of the words and factual matters as

in most defamation cases. There were two witness statements for the claimant and one

from the defendant. The witness statements were not particularly long. Extensive cross-

examination was not necessary except on the factual issue of whether the defendant had

spoken to and what was the nature of the conversations with Mr Chan Tack. The

evidence of what was said by the defendant in Parliament was also not in dispute. The

main factual dispute related to the discussion with Mr Chan Tack. This claim would have

required dedicated preparation for the attorneys; but I suggest about 20 to 25 hours each

for senior and junior counsel and 20 hours for instructing attorney represents a fair

estimate of the work involved. Given all these factors I am of the view that a reasonable

costs order would be for the sum of $75,000.00 for senior counsel; $50,000.00 for junior

counsel and instructing attorney’s fees in the sum of $35,000.00. The defendant must

therefore pay the claimant his costs in the sum of $160,000.00.

Final Note

53. Trinidad and Tobago is happily a place where there is an admirable degree of freedom of

speech and where public discourse is vigorous and often open. Unfortunately, however,

it has become one of those places where persons tend to be loose with facts and opinions

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about other persons. Licence is taken when the facts do not justify conclusions or even

where no facts are known. With the several media outlets available it is not difficult to

find a forum in which to say things about other people. The availability of the internet,

blogs and social media allow for quick access to a wide audience. Freedom of speech

and expression guaranteed by the Constitution do not, however, give licence to persons to

make unfounded statements about other persons. Even judicial officers are not immune

from groundless attacks. Vigorous criticism of the conduct and the decisions of persons

in public life is the right of the public. However, truth, evidence and justification are

important. Words when said can cause tremendous injury and harm. Many times the

damage caused to reputations can never be reversed. Even the hallowed concept of

parliamentary privilege can be threatened if it is abused. For what it is worth it is

important for persons in public life and those who commit themselves to public

comments about other persons to understand that consequences may follow where loose

and unproven statements are made. This, I advance, as but a word to the wise.

I thank the attorneys and my Judicial Research Assistant, Mr Roshan Ramcharitar, for their

valuable assistance.

Ronnie Boodoosingh

Judge