Upload
others
View
6
Download
0
Embed Size (px)
Citation preview
Page 1 of 25
THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV 2012 – 03304
Between
VIRO CHEM JANITORIAL SERVICES COMPANY LIMITED
KEINO O’NEIL
Claimants
And
ACKBAR KHAN
Defendant
Before the Honourable Mr Justice Ronnie Boodoosingh
Appearances:
Mrs Salliann Holdip-Francis for the Claimants
Mr John Heath instructed by Mr Lionel M. Luckhoo for the Defendant
Date: 27 July 2016
JUDGMENT
1. This claim is for defamation which arises out of a letter dated 17 July 2010 written by the
defendant to the then Minister of Works and Transport, Mr Jack Warner and copied to the then
Attorney General, Mr Anand Ramlogan.
Page 2 of 25
2. In that letter statements were made about the claimant company and the second claimant
who owns and manages the claimant company.
3. The defendant is a Justice of the Peace, well known in Trinidad and Tobago. He was also
the owner of a company called Century 21 which carried on the same business as the claimant
company. This included janitorial services.
Law
4. Whether a statement is defamatory is a question of fact in each case. The court’s
approach is to first decide what the words mean, in their ordinary and natural meaning, to the
ordinary reasonable man, and then to consider whether that meaning is defamatory.
5. A defamatory statement is one which tends to lower the claimant in the estimation of
right-thinking members of society generally, or is likely to affect the claimant adversely in the
estimation of reasonable people generally. A defamatory imputation has also been expressed to
be one to the claimant’s discredit or which 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.
6. 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
Page 3 of 25
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.”
7. On the issue of damages 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:
(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)
8. 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
Page 4 of 25
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
that the publication was true, or refuses to apologize, or cross-examines the
plaintiff in a wounding or insulting way.”
The Letter
9. The letter written by the defendant to the Minister of Works and Transport is central to
this case and I therefore set it out in full as follows.
July 17th 2010.
DELIVERED BY HAND
HON. JACK WARNER
Page 5 of 25
Minister of Work and Transport
Ministry of Works and Transport
Richmond & London Streets
PORT-OF-SPAIN.
Dear Minister Warner:
SUBJECT: RE: CARIBBEAN AIRLINES COMPANY LIMITED (CAL)
______________________________________________________________________
Sometime in the month of February 2009, I called Phillip Saunders, Chief Executive
Officer of Caribbean Airline informing him that Mr. Djarlon Sealey, Property Services
Manager, Caribbean Airlines told me that my contract (which was valued at
approximately $99,000 per month) with Caribbean Airlines was terminated as of January
2009, and that the company was going for a new tender. I also mentioned that Mr. Sealy
told me that he wanted me to submit my tender documents to him by January 19th 2009.
This I did.
Subsequently, a week after Mr. Sealy communicated to me via telephone, that my tender
was not successful and that a company called Viro-Chem Janitorial Services Company
Limited was awarded the contract (for $100,000. plus per month). During our
conversation, I enquired whether the tendering process went to the ‘Tenders Board’ for
their consideration (taking into consideration the size of the contract and the fact that the
procedure is that all tenders should go through the Tenders Committee). Mr. Sealy
responded in the negative, adding that Mr. Phillip Saunders, the Chief Executive Officer
of Caribbean Airlines gave him the authorization to handle the tender by not worrying
with the ‘Tenders Committee’. I mentioned to Mr. Sealy that this is a highly unusual
situation, since the procedure is that all tenders should go through the ‘Tenders
Committee’.
Thereafter, I called and went to see Mr. Philip Saunders to ascertain what was going on
and the reasons for my company’s termination. Mr. Saunders told me that he will give
the instructions to have my company reinstated. True to his word, the following day we
started to work again. However, within one (1) week, Mr. Sealy again terminated our
contract.
Page 6 of 25
At this point, I became concerned about this situation and wondered about this
company – Viro-Chem. As a Justice of the Peace in Trinidad and Tobago for the past
forty-seven (47) years, I decided to do some investigating into the background on Viro-
Chem Janitorial Services Company Limited.
My investigation revealed some interesting and disturbing facts, namely:
(1) Exhibit ‘A’ – Directors of Viro-Chem - Maria Sealey, Keino O’Neil and Peter
Taylor, Attorney at Law of #37 Abercromby Street, Port of Spain and former
minister of Legal Affairs.
(2) Exhibit ‘B’ and ‘C’ – Caribbean Airlines had requested Essential Services Limited
to do a background investigation on Maria Juliet Sealey and Keino David Sylvan
O’Neil in order for them to obtain clearance of good character which would enable
them to obtain restricted passes which are issued by the Airports Authority of
Trinidad and Tobago.
These investigations revealed that Maria Sealey was in fact in a common-law
relationship with Mr. O’Neil; and Mr. O’Neil is addicted to substance abuse and has a
criminal charges pending.
(3) Mr. Djarlon Sealy who was Project Manager of Caribbean Airlines was also on the
payroll of Viro-Chem (see Exhibit ... which highlights cheques (one of them a Nova
Scotia cheque for $4,000) and (see Exhibit ‘E’ interviewed Deborah Joan Neptune
who decided to take an oath on July 28th 2009) in the presence of a Notary Public
and which substantiate my investigation) and were paid to Mr. Djarlon Sealy’s
account.
(4) Exhibit ‘F’ – sometime later – bank statement dated May 31st, 2009 revealed that
Ms. Maria Sealey deposited a cheque in the amount of $400,000 on May 21st 2009
at Republic Bank in Tunapuna. On that same day she also cashed out a number of
cheques in other banks concerning that account. It is alleged the teller informed
her supervisor and it was confirmed by the said supervisor that it was a good
cheque. Ms. Maria Sealey then visited various banks the same day and cashed out
the cheques.
Page 7 of 25
On the bank statement it should be noted that on May 26th 2009 the bank posted a NSF
(not sufficient funds) against the cheque.
Sometime thereafter, my daughter Jennifer Khan and I visited the Republic Bank in
Port of Spain and informed them of the situation. They were shocked and dismayed
and had no knowledge that such goings on had taken place. Subsequently, they
launched an investigations which resulted in two (2) employees being fired from the
Tunapuna Branch.
The Fraud Squad was also apprised of the situation.
(6) Exhibit ‘G’ details other improprieties that surfaced during my investigation.
I also called Mr. Phillip Saunders and brought him up to speed with new developments.
He appeared to me to be in a state of panic. He suggested that we should meet outside of
the office. I suggested the Valpark Chinese Restaurant, in the Valpark Plaza.
Sometime in early August 2009 we did meet at the aforementioned restaurant and I told
him everything. I also mentioned that I have some connections with Scotland Yard and
Interpol in Trinidad and Tobago and had found out some information about Maria
Sealey, namely; that she had swallowed sixteen (16) tablets filled with a narcotic
substance with the intention of trafficking. She was caught and sentenced to five years in
a London jail. She, however, served three (3) years and was subsequently, deported to
Trinidad. (see Exhibit ‘H’).
I also expressed to Mr. Saunders that as an Englishman he was a disgrace to his country
and that I had warned him before about the clandestine going on, but that he chose not to
take heed. I mentioned as well, that I would be reporting this entire matter to the higher
authority.
Within two (2) days, Mr. Philip Saunders tendered his resignation from Caribbean
Airlines Company Limited. I was surprised though to learn that Mr. Courtney Mc Nish,
Vice President of Human Resources (and a former employee of TCL) had also resigned
(he apparently was brought into the company by Dr. Sultan Khan and .... out of the
reach).
Page 8 of 25
I spoke with Mr. Kurt Gould, Manager, Security of CAL and apprised him of the situation
regarding Maria Sealey and the fact that she should not be allowed in the airport for
obvious security reasons. I also added that as head of security it is his responsibility to
do a background check on personnel working in the airport. In my opinion, Mr. Gould
failed to discharge his responsibilities.
Mr. Martin Joseph, the then Minister of National Security was also told of the situation,
he reacted in an abrupt manner to my communication.
Correspondence was sent to Mr. Arthur Lok Jack, Chairman, CAL duly informing him of
the entire situation (dated May 18th and September 3rd 2009). I was shocked that no
action was taken. See Exhibit ‘I’.
With regard to Mr. Taylor, sometime in early July 2009 I called him and he
subsequently visited me at home. During our conversation, Mr. Taylor indicated that
he had in fact resigned a long time ago as director of Viro-Chem. Subsequently, my
investigations revealed that he did resign on July 7th 2009 (see Exhibit ‘J’).
However, he was a director of a company while serving as a Minister in government. I
was truly surprised that none of the other ministers was aware of this situation. As well,
I did let Mr. Taylor know about Ms. Maria Sealey’s background and that I considered
her to be a ‘crook’. Mr. Taylor said that he was unaware that she had spent time in jail.
Let me say Mr. Warner, that first of all, I am impartial about politics, but when they
attacked you for serving two (2) masters, no mention was made of he – Mr. Taylor
serving two (2) masters during his tenure as a minister in the previous government. What
irony.
Mr. Warner, I have served this country selflessly and .... for forty-seven (47) years. I am
asking for your assistance to get my contract reinstated. I have invested heavily in
purchasing specific equipment for this contract and would be grateful for your kind
assistance in sorting out this situation.
Honourable Minister, I have written to you as line Minister in-charge of Caribbean
Airlines Company Limited so that you may know about the clandestine practices taking
place within this government company. Viro-Chem has a very high turnover of staff at
the airport and it is alleged that the company does not honour their statutory and other
requirements e.g. payment of NIS for employees, VAT, and Workman’s Compensation
Liability Insurance for employees etc. If an employee should be injured on the job,
Caribbean Airline exposure can be considerable. In my humble view the relevant
statutory authority should perform an audit of Viro-Chem immediately. A copy of this
letter was also sent to Mr. Anand Ramlogan, in his capacity as Attorney General of
Trinidad and Tobago.
Page 9 of 25
I have attached my contact information for your easy reference, and I look forward to
hearing from you soon.
Yours respectfully,
JUSTICE OF THE PEACE OF TRINIDAD & TOBAGO
Ackbar Khan.
ATTS: EXHIBITS A-J.
cc: Mr. Anand Ramlogan, Attorney General of Trinidad & Tobago.
10. The specific matters complained of have been highlighted in the letter. But the letter has
to be looked at as a whole inclusive of the annexures which were sent with it.
11. These annexures were not part of the filed claim. The claimants’ explanation is that only
the letter itself was brought to their attention and therefore this is why the letter alone was put
forward.
12. Submissions were made by the defendant on how this should be viewed by the court.
The court had the benefit of the attachments as disclosed by the defendant. No issue turned on
them. There was no issue of “clean hands” as raised by the defendant. I did not consider the
failure to advance the annexures, assuming the claimants were aware of them, in any way
impacted on the claim. Both the letter and the annexures were before me and I looked at them
both together.
Page 10 of 25
13. The claimants denied these matters highlighted in its claim form. The claimants alleged
that as a result of these false statements the first claimant’s contract with Caribbean Airlines
Limited (CAL) was terminated and that injury to reputation and character has been sustained.
14. The defence accepted the letter was written by the defendant. It disputed the meaning
attributed to the words but also raised justification, fair comment and qualified privilege.
15. In particular, the defence set out:
(i) The contract of the first claimant ended by effluxion of time on 9 February 2011.
(ii) There was no crusade to defame the claimants.
(iii) Peter Taylor was a director of the first claimant company at one time.
(iv) The statement about Djarlon Sealey was fair comment because of a payment of $4,000.00
made to him.
(v) The statements about non payment of NIS was fair comment because Ryan Pierre’s
statement showed NIS was not paid for a period from September 2008 to May 2009.
16. The statements were covered by qualified privilege because:
(i) The first claimant was doing work for CAL.
(ii) The defendant as a citizen had an interest in the operation of CAL.
(iii)The line Minister for CAL had a right to be informed of irregularities.
(iv) The investigation was prompted when the defendant was informed his tender to CAL was
unsuccessful.
(v) The defendant got this information in an unusual way and the termination of his
company, its reinstatement and termination again gave grounds for suspicion.
Page 11 of 25
17. The defence also asserted that:
(i) The defendant exercised reasonable care in obtaining and verifying the information.
(ii) These were matters of public interest.
(iii)The defendant had a moral and social responsibility to communicate this information to
the Minister.
(iv) The reason for the termination of the first claimant’s contract in December 2011 was
because of the complaints about the performance of the first claimant.
(v) The defendant had an honest belief in these matters.
(vi) The defendant “may have only misconstrued the reference to addiction to substance
abuse and habits” by the second claimant. But the attachment to the letter at “C” noted
the second claimant was “Not known to be addicted to any substance or habits legal or
otherwise”.
(vii) The criminal records office showed charges were outstanding for the second
claimant.
(viii) The defendant denied he was actuated by malice or a desire to further his
commercial interests.
(ix) The facts were communicated to defend the legitimate interest of the State.
18. The second claimant gave evidence on his own behalf. The defendant had filed a witness
statement. However, he did not give evidence. He was reported to be ill at one stage. The court
adjourned the matter for him to give evidence. On the adjourned date his counsel declined to call
him. Ryan Pierre, an employee of Century 21, was however called.
19. The second claimant gave evidence on behalf of himself and the company. He is the
manager and owner of the first claimant. The company is registered. Before going into business
he was a member of the Coast Guard.
Page 12 of 25
20. A professional relationship with CAL developed following a successful bid on an open
tender. This began about September 2008. Following this, in February 2009, the first claimant
was to provide janitorial services for CAL at a monthly sum of $100,986.00. Century 21 was a
business competitor. He learnt that Century 21 had provided janitorial services to CAL for about
8 years before. After 6 to 8 weeks of the contract he was summoned to a meeting by CAL with
its property manager Djarlon Sealey in relation to claims that the first claimant was in
contravention of statutory requirements relating to NIS, VAT, and workmen’s compensation
liability for its employees. He was required to present evidence that it had fulfilled its statutory
responsibilities which he did on behalf of the first claimant. After two weeks again, another
manager, Courtney Mc Nish, made a similar request for proof which he provided again.
21. For about 8 times over 2 years he was called by managers to refute claims and on each
occasion he had to do so.
22. Without warning on 14 December 2011 he was informed by the Vice President of
Maintenance and Engineering at CAL, Mr Colville Carrington, that the company’s contract was
terminated with immediate effect.
23. He did not know of the reasons but he became suspicious it was because of allegations
made by the defendant. He also noticed that the very afternoon his contract was terminated
persons with the Century 21 emblem entered the compound with equipment and apparatus. He
later received proof of the letter.
24. With respect to the allegations made, he said Peter Taylor, who was Minister of Legal
Affairs from late 2007, was a director of the first claimant but he had been removed as a director
in May 2007, as shown by the Change of Directors Form filed at the Companies Registry, which
he referred to.
Page 13 of 25
25. Maria Sealey was also removed from the company following investigations about her
alleged fraudulent conduct and was not part of the contractual arrangements with CAL.
26. He said he was never addicted to any substance.
27. At the time of the defendant’s communication the claimant had no charges pending. He
said he had been charged before relating to offences where former employees had made
allegations against him, but that these charges were dismissed as of 17 November 2009. He
provided the relevant court extract to show this. He provided evidence of his VAT registration
from 26 March 2007. He provided the company’s certificate of incorporation of 9 January 2007.
He provided the NIS registration done in February 2007. He provided VAT and income tax
clearance certificates from 2011. He provided the payment for the insurance for workmen’s
compensation for the period 26 March 2010 to 25 March 2011 which period covered the date of
the letter sent by the defendant.
28. Ryan Pierre was called for the defendant. He worked with Century 21 when he left
school. He knew a person named Djarlon Sealey from 2008 as a manager at CAL. He got a job
in 2008 with the first claimant. He was a driver/custodian. He noticed certain things at Viro-
Chem. He performed banking duties. He saw a man named Courtney Mc Nish on the second
claimant’s verandah on more than one occasion drinking. He also saw him at an office party for
the first claimant. He also saw Djarlon Sealey visiting the second claimant. They would be
drinking and “conversations were usually about the contract they had gotten at the airport and
dogs”. He also got cheques to cash, but the significance of this evidence eludes me. On 28 July
2009 he made a statutory declaration before a notary public, Mr Winston Thompson. He left
Viro-Chem because of discrepancies with his NIS account and unsatisfactory answers to non-
payment of NIS. He was hired again by Century 21. He left after a year to go back with the first
claimant in late 2011. His salary was cut at one point due to financial difficulties the company
had. He once again went to work for Century 21.
Page 14 of 25
29. I considered Ryan Pierre’s evidence in chief and cross examination and was not
impressed. He moved from company to company. His statements were vague. They were
unsubstantiated. He was easily moved in cross-examination. What he considered were
suspicions did not amount to much. He had a clear interest to serve in being an employee of the
defendant’s company Century 21. His recollections were convenient. I considered him to be a
witness of convenience brought by the defendant to seek to make a case. I rejected his evidence
in large part. I accepted that there were discrepancies with his NIS. But this, in my view, was
not significant. I accepted he may have done banking transactions as part of his duties, but
nothing he said about these transactions substantiated the allegations made against the claimants.
30. The defendant did not give evidence. In consequence his witness statement and all the
documents referred to in them fell by the wayside.
31. In this claim where fair comment and the truth of allegations were advanced it was
necessary for the defendant to call evidence in support of the contentions unless the witness
statement or cross-examination of the claimants’ witness rendered it unnecessary to do so.
32. I will therefore turn to the cross-examination of the second claimant. The defendant
makes various submissions on how I should construe his evidence.
Re: Peter Taylor
33. It was central to the defendant’s contention in this letter that the contract was awarded
due to Mr Taylor being a director or influential in the process. There is reference to Mr Taylor
“serving two masters”. The implication must have been that Mr Taylor, being a government
minister, would have been using his influence on behalf of the claimant company. This
suggested the company was engaged in a corrupt practice. The context of the letter was that the
Page 15 of 25
defendant’s company was unceremoniously removed as the contractor and replaced for no good
reason by the claimant company.
34. It is clear that Peter Taylor was a director of the claimant company. It is equally clear
from the evidence that he was removed as a director well before he became a government
Minister and well before any contract was awarded to the claimant company.
35. Further, the first claimant’s notice of change of directors form showed that Mr Taylor had
been removed as a director since May 2007, before he became a government Minister. The
defendant’s letter said he was a director up to July 2009 and referred to him serving two masters.
This can be interpreted to mean that the claimant company benefitted from his status and that it
allowed him to remain a director while he was serving as a government Minister. For this
allegation there was no evidence by the defendant. There was therefore no justification for the
statement in relation to Peter Taylor which was false. Nothing in the cross-examination
disturbed this finding.
Pending Charges
36. The second claimant admitted to having charges against him. What is equally clear is
that while the Essential Securities Services Limited identified charges, this report was done on 1
March 2009, more than a year before the letter was written. Further, from the evidence of the
second claimant and the extract of the court casebook, the charges against him were dismissed
since November 2009. Thus there were no pending charges at the time of the letter written by
the defendant. Even if the police data base showed this, there is no evidence before this court
about its accuracy or reliability. The defendant would have been reckless to rely on this. On the
relevant date, which is the date of the publication, the statement would have been false.
Page 16 of 25
Substance Abuse
37. The defendant’s letter included:
“My investigation revealed some interesting and disturbing facts, namely;
...
These investigations revealed that Maria Sealey was... (indecipherable) in a common-law
relationship with Mr. O’Neil; and Mr. O’Neil is addicted to substance abuse and has a
criminal charges pending.”
38. The Essential Services Report attached about Mr O’Neil stated: “He is not known to be
addicted to any substance or habits legal or otherwise.” This was the opposite of what was
written in the letter.
39. The defendant advanced no evidence to support his contention in the letter. The claimant
has denied he is addicted to any illegal substance.
40. Counsel for the defendant puts this down to a mistake and adds that the Essential
Services Report was attached so that the second claimant is really being fussy when he makes a
complaint about it. This submission ignores certain material facts. First, the statement was
preceded by the defendant bringing to the attention of the Minister “some interesting and
disturbing facts”. Second, the defendant put this letter in the context of a complaint about the
contract being awarded to the claimant company and being taken away from the defendant’s
company. Third, there were material differences between the Essential Services Report and what
the defendant stated. He left out the most important “not known”. He added the word “abuse”.
And he left out “or habits legal or otherwise”. These omissions and additions made the
exculpatory statement in the Report damning. Fourth, these so called mistakes were significant
Page 17 of 25
and demonstrated a marked lack of care by the defendant in reporting what the report stated in
respect of an extremely serious and damaging statement against the second defendant. Fifth,
while the Essential Services Report differed, the defendant presumes that the annexure would
have been read by the receiver carefully and double-checked against his bold assertion which
opened with “These investigations revealed”. Sixth, in the context of where the contract was
located, at an international airport, this lack of care in stating the second claimant was “addicted
to substance abuse” ought to have had a significant impact on the line Minister and certainly on
the Attorney General to whom the letter was copied. Seventh, Mr Khan is an experienced Justice
of the Peace, who has a high profile in the media commenting on criminal justice matters. He
must have known the effect these kinds of allegations would have had on the reader of these
statements.
41. In the absence of an explanation by the defendant, I cannot come to the conclusion that
this was a genuine mistake made by him. He also cannot be excused for this statement.
Djarlon Sealey and Courtney Mc Nish
42. I have already indicated my scepticism about the evidence of the defendant’s witness.
This related to his suspicions about the relationship between the second claimant and the
defendant.
43. The statement was made that Sealey was on the payroll of the claimant company. No
evidence was led to substantiate this. The second claimant did not accept this in cross-
examination. It is to be noted that Ryan Pierre did not state this in his witness statement and the
statutory declaration attached to the defendant’s witness statement did not go into evidence
because of his failure to give evidence. Even if it is accepted that a cheque of $4,000.00 was in
fact written to Sealey or he had been paid this, this assertion cannot be stretched to make it fair to
say he was on the payroll of the claimant company. Being on the payroll suggests he is a paid
Page 18 of 25
employee of the claimant company which is different from receiving a single relatively small
payment in the context of the contract price which was worth over $100,000.00 per month.
44. At its highest what the cross-examination showed was that Courtney Mc Nish visited the
second claimant at his home/place of business.
45. Accordingly again there was no justification for statements relative to these two persons.
Statutory Obligations
46. The next matter raised concerned the allegation that the first claimant does not honour its
statutory obligations regarding payment of NIS, VAT and Workmen’s Compensation. The letter
noted that if an employee of Viro-Chem was injured on the job the exposure of CAL can be
considerable.
47. The sum total of the evidence put forward on this was that Ryan Pierre’s NIS
contributions were not paid for a specific period of time. The second claimant explained this as
an administrative error which was rectified.
48. The allegation went further. It stated the company “does not honour its statutory
obligations”. The statement suggested a deliberate course of behaviour. One instance showing a
failure or discrepancy in respect of the payment of NIS for a specific period does not make a case
for not honouring statutory obligations. Further, no evidence was advanced by the defendant that
VAT and workmen’s compensation were not paid. The claimants have put forward VAT
registration, NIS registration and workmen’s compensation documents. The second claimant
also gave evidence of being called in more than once to account for these matters and he said on
each occasion he satisfied CAL. The defendant’s letter reveals that he had previously been in
Page 19 of 25
contact with Phillip Saunders, CEO of CAL, “to bring him up to speed” on these developments
concerning his own contract and that of Viro-Chem. Thus the letter was the culmination of a
campaign being pursued by the defendant.
49. Another point arising is the defendant’s submission that what was stated was expressed to
be “it is alleged”. It has become fashionable in this country for persons to make the most
outrageous allegations about other persons thinking that by prefacing these with the words “it is
alleged” that this somehow protects the maker of the statement. It does not. By advancing false
statements or statements for which one does not have proper justification and saying “it is
alleged” does not protect the maker of those statements from being held to account for
defamation.
50. I find there was no justification by way of fair comment. I also find that has not been
shown that the allegations were substantially true for the defendant to make the statements he
did.
Maria Sealey
51. It is unnecessary to deal with statements relating to her. She is not a party. No issue has
been taken with statements in relation to her. Thus there is no need to examine the facts relating
to her.
52. I have considered the meaning which the ordinary reader would attach to these
statements. In relation to the first claimant the statements meant that it was unsuitable to provide
janitorial services for CAL. Further that the contract was obtained through some corrupt
dealings and relationship with Mr Djarlon Sealey and Mr Courtney Mc Nish. Also it had failed
to satisfy its statutory obligations for NIS, VAT and workmen’s compensation. This suggests
that the organisation was either incompetent or disreputable or was engaged in illegal acts in
Page 20 of 25
failing to satisfy its statutory obligations. Next that there had been an improper association by
having a Minister of Government on its board of directors and that this must have had some
influence in the award of the contract to it.
53. In relation to the second claimant, the words meant he was addicted to abusing
substances; that he was, commonly, a drug addict. They also meant he or his company
participated in dishonest and corrupt practices. Further they mean that he was an unsuitable
person for the business he was operating by having pending criminal charges, long after these
were dismissed. While having pending charges did not mean the second claimant was a criminal
since the presumption of innocence applied, they suggested he was unsuitable and his company
was unsuitable to be providing janitorial services for an airline in a sensitive location such as an
international airport.
Qualified Privilege
54. The next issue raised by the defendant was qualified privilege. The defendant’s counsel
has submitted that the defendant was duty bound as a citizen to raise the matters which he did
having regard to the information he had in his possession. Thus he is protected by qualified
privilege.
55. A defamatory statement is generally treated as having been made on an occasion of
qualified privilege where the maker of the statement has a duty to make the statement and the
respondent has a corresponding duty to receive it - see Bereaux J., as he then was, in Cyracius
Liverpool v Matthew Alleyne HCA No. 4170/91 at pages 9 and 10 where he quoted Parke B. in
Toogood v Spyring (1834) 1 C.M & R :
Page 21 of 25
In general, an action lies for the malicious publication of statements which are
false in fact, and injurious to the character of another (within the well-known
limits as to verbal slander), and the law considers such publication as malicious,
unless it is fairly made by a person in the discharge of some public or private
duty, whether legal or moral, or in the conduct of his own affairs, in matters
where his interest is concerned. In such cases, the occasion prevents the inference
of malice, which the law draws from unauthorized communications, and affords a
qualified defence depending on the absence of actual malice. If fairly warranted
by any reasonable occasion or exigency, and honestly made, such
communications are protected for the common convenience and welfare of
society.…
56. Where qualified privilege is raised, the court has to consider whether in all the
circumstances, the occasion is to be regarded as privileged. The burden is on the defendant to
specify such circumstances that would establish the occasion as privileged.
57. Having established privilege, the defendant will be protected if the statement was fairly
warranted by some reasonable exigency or occasion and so long as it is not proved that the
defendant was actuated by malice. The privilege can be defeated if the claimant establishes that
the defendant was actuated by malice - that is, he used the occasion for an improper purpose or
had no honest belief in the truth of the facts he stated (see generally Common Law Series: The
Law of Tort, Chaps 26.89, 26.90 and the cases cited).
58. It is correct that the defendant can be seen to be a citizen who comments on national
issues. However, in this case, more than that, his business was not just a competitor in the same
industry as the claimants, but was a direct competitor with the same client, CAL. The entire
context and tone of the letter revealed that underlying the allegations was the defendant’s plug
Page 22 of 25
for his company to be re-considered for the same contract. The letter revealed prior conduct by
the defendant engaging the CEO of CAL about allegations against the claimants.
59. Further, as the second claimant gave in evidence, shortly after he received the contract,
some 6 to 8 weeks after, he was being called in to CAL to explain business practices. It was only
when he got sight of the letter written in July 2010 that he realised that there had been a
campaign against his company by the defendant.
60. Given the defendant’s peculiar pecuniary interest in this matter and the lack of any proper
basis for these allegations it is clear that the defendant was actuated by malice in these
circumstances. Qualified privilege therefore does not protect him.
61. Further, the defendant must have known, and it is clear this is why he wrote the letter,
that both recipients would have been under a duty to investigate and take action against the
claimant company after receiving his communication. The letter raised corruption, unfitness,
collusion, breach of important statutory duties, and drug abuse.
62. Based on the above therefore I find that the claimants have proved their claim of
defamation against the defendant. I turn therefore to the issue of damages.
Damages
63. Where a company has been defamed the company must show that there was injury to its
reputation and financial prospects.
Page 23 of 25
64. The contract was not terminated immediately. In fact it ran for a year and a half almost
after the letter was written. The termination is therefore some distance away from the
publication of the defamation so that no connection has been shown. Second, the first claimant
has itself asserted that it has lucrative contracts with a number of companies, and there is no
evidence that any of these have been terminated. These continued to run. There does not appear
to me to be any loss of pecuniary prospects or significant injury to the company’s goodwill.
65. The second claimant is a businessman. The defamatory statements concerned how he ran
his company and drug abuse. The publication was restricted to two persons. But again, it would
have been reasonably foreseeable to the defendant, that given their public positions, the
recipients would have been under a duty to at least investigate the allegations in which case they
would have had to bring the allegations to the attention of other persons such as senior
management of CAL, law enforcement authorities and perhaps even Cabinet colleagues. There
is no evidence of the extent of any republication, but some limited republication to the categories
of persons mentioned above is reasonable to presume.
66. Certain authorities were advanced concerning individuals. I was referred to in particular
Rajnie Ramlakhan v Trinidad and Tobago News Centre No. S-6364 of 1999; Robin
Montano v Harry Harinarine and Others CV 2008-03039; Dr Keith Rowley v Michael
Annisette CV 2010-04909; TnT News Centre Limited v John Rahael Civ App No. 166 of
2006.
67. In Gatley on Libel and Slander, 9.17, p. 353 under the rubric “Corporate claimants and
damages” it was stated:
“While substantial damages may be awarded to a corporate entity notwithstanding a
failure to prove any specific damage, in practice, in the absence of at least a general loss
of business, a limited liability company is unlikely to be entitled to a really substantial
award of damages. As was made clear by Lord Reid in Lewis v Daily Telegraph
Page 24 of 25
Limited, “A company cannot be injured in its feelings; it can only be injured in its pocket.
Its reputation can be injured by a libel but that injury must sound in money.” Whilst Lord
Reid went on to say, “The injury need not necessarily be confined to loss of income; its
goodwill may be injured, a company which is unable at trial to point to the slightest
hiccup in its trading figures may be hard pressed to persuade a court that even an
unpleasant libel has seriously injured its reputation. Unlike a personal claimant, it cannot
tug the jury’s heart-strings by describing its distress and humiliation on reading the
defamatory words. This presents a problem for a limited company which has been
defamed, since it is often difficult to prove that the publication caused either a specific or
general loss of business. That there is an entitlement to general damages which are more
than nominal damages is certain, but the amount likely to be awarded to a corporation
may be small in commercial terms, unless the defendant’s refusal to retract or apologise
makes it possible to argue that the only way in which the reputation of the company can
be vindicated in the eyes of the world is by way of a really substantial award of damages
(Applause Store Productions v Raphael [2008] EWHC 1721).”
68. In these local cases cited there was wide publication in newspapers of general circulation.
The publication here was to two persons but to persons who would have been under a duty to
bring the correspondence to the attention of others. I have considered that although there was
not wide publication such as in a newspaper or on the internet, there was publication to key
persons who had authority to substantially act and affect the business operations of the claimants
and who could have caused criminal investigations against the claimants to be begun as part of
their public duty to act. I note also that the claimant did not have such a public profile as some
of the persons in the above mentioned cases.
69. The next issue concerns whether the award should include a sum for exemplary damages.
As noted, the defendant’s company had a financial interest. He was a competitor for the same
job. This was a lucrative contract. As the letter itself showed, the defendant had contact with the
CEO of CAL and pursued this for some time. The letter written in July 2010 was the
Page 25 of 25
culmination of a series of acts. The letter was designed not only to inform the Minister but
raised issues about the appropriateness of continuing the contract with the claimant company.
Further, it went to advocacy of the suitability of the defendant’s company. There were false
statements contained in the letter as of the date of the letter which the defendant was at least
reckless in not verifying. In all the circumstances the awards must include an element of
exemplary damages.
70. There is therefore judgment for the claimants against the defendant. The defendant must
pay damages to the first claimant in the sum of $180,000.00 of which the exemplary damages
aspect is assessed at $80,000.00. The defendant must also pay damages to the second claimant
in the sum of $200,000.00 of which the exemplary damages aspect is assessed at $80,000.00.
71. The defendant must pay to the claimants prescribed costs based on the total figure of
$380,000.00.
Ronnie Boodoosingh
Judge