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TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV 2006-02092 HCA #1386 of 2003

BETWEEN

CONRAD ALEONG Claimant

AND

TRINIDAD EXPRESS NEWSPAPERS LIMITED

Limited

CRAIG REYNALD, SUNITY MAHARAJ & CAMINI MARAJH

Defendants

Before: The Hon. Mr. Justice Bereaux Appearances: Russel Martineau SC, & Ian Benjamin for the claimant Alvin FitzPatrick SC, & Faarees Hosein for defendants

REASONS

Introduction

[1] On 16th April, 2009, in an oral judgment, I granted judgment for the claimant, holding

that he had been libelled by the defendants in respect of seven of eight articles

published between 6th April, 2003 and May 3rd, 2003. I awarded the sum of four

hundred and fifty thousand dollars ($450,000.00) general damages with interest at

12% from the date of the writ as well as exemplary damages in the sum of two

hundred thousand dollars ($200,000.00). I found that one article, an editorial

published on 20th April, 2003, constituted fair comment. The oral judgment, though

summarily given, was taken from a fully handwritten script, not all of which was read

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out but which now forms the basis of my reasons for decision which I now set out

hereunder.

[2] The claimant contended that eight (8) articles published by the first defendant, the

Trinidad Express Newspapers Limited, were defamatory of him. The publications

were made on successive Sundays over five weeks from April 6, 2003 to May 4, 2003.

He was then the president and chief executive officer of the now defunct BWIA (West

Indies) Limited (“BWIA”), which was described as the national airline of Trinidad and

Tobago. BWIA was a public company listed on the Trinidad and Tobago Stock

Exchange. The government of Trinidad and Tobago owned forty-nine per cent of its

shares.

[3] The articles in question were seven articles researched and written by the fourth

defendant and printed and published in the Sunday Express over the period in

question, headlined as follows;

(i) “How BWIA’s flight plan went off course” dated Sunday April

6, 2003 (‘the first article’).

(ii) “BWIA fighting to stay in the air” dated Sunday April 13,

2003 (“the second article”).

(iii) “Aleong’s Pay Deal” dated Sunday April 13, 2004 (“the third

article”)

(iv) “BWIA $m bailout, but …” dated Sunday April 20, 2003 (“the

fourth article”)

(v) “BWIA’s Board blanks Government… demands Manning’s

bailout plan in writing” dated April 27, 2003 (“the fifth

article”)

(vi) “BWIA Board to meet Government on Tuesday” dated May 4,

2003 (“the sixth article”).

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(vii) “Fat cows can’t fly” dated Sunday May 4, 2003 (“the seventh

article”).

[4] The other article was in fact an editorial captioned “Passing the BWIA buck”,

published in the Sunday Express on 20th April, 2003 and was written by Mr. Maxie

Cuffie, who was then head of news at TV6, a television broadcasting station owned

and operated by the parent company of the first defendant.

[5] The articles concerned the claimant’s stewardship of BWIA, an airline company then

majority owned by the government of Trinidad and Tobago. The airline, which had a

history of financial dependency on the government of Trinidad and Tobago, had once

again approached the government for financial assistance and its future was the subject

of much public debate.

[6] The defendants raised qualified privilege as their main defence. This defence is now

governed by the decision of the House of Lords in Reynolds v Times Newspapers

Ltd [1999] 3 WLR 1010. The defence of qualified privilege arises only after the

articles are found to be defamatory. The Reynolds Privilege defence seeks to strike a

balance between competing public interest concerns, the protection of the reputation of

the individual and, the right of the press to publish (and the right of the public to

receive) frank and unrestricted information from a particular source.

[7] The balance is struck by seeking to adhere to a standard of responsible journalism.

This requires that a court first consider whether the publication was in the public

interest. In matters of public interest, it is now to be accepted, as a general proposition

of law, that there is a professional duty on the part of journalists to impart information

to the public and an interest in the public receiving it. (per Lord Hoffman in Jameel &

Others v The Wall Street Journal Europe spr [2007] 1A C 359). Once such a

public interest is established, those duties are taken as existing and the court then has

to consider, whether, on the facts of the particular case, the maker of the publication

(and to a lesser extent the publisher) had acted responsibly, taking into account certain

guidelines and considerations.

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[8] I found the seven articles to be defamatory. I also found that while there was an

obvious public interest in having the articles published, on the facts of this case the

seven articles could not be said to have been the products of responsible journalism.

The parties

[9] The claimant is a chartered accountant since 1972 and a member of the Canadian

Institute of Chartered Accountants. He practiced as a chartered accountant at Price

Waterhouse Coopers in Canada between 1974 and 1993 and held a series of

managerial positions with Air Canada, a commercial airline company. Between 1995

and 1997, he was president of ALM Antillean Airlines. He was president and chief

executive officer (“CEO”) of BWIA from 1993 to 1994 and 1998 to May 2003. He

was also the chief executive officer of Air West Indies Limited, (“AWIL”) trading as

CA International, which was his own company and which had an executive supply

contract with BWIA.

[10] The claimant was also the chairman of the local airline, Tobago Express Limited, a

director of Allied Caterers Limited and of Katerserv Limited, (both of which were, at

one time, subsidiary companies of BWIA), a director of West Indian Airways Aircraft

Limited (“WIAAL”) and a director of West Indian Airways Aircraft No. 2 Limited

(“WIAAL (No. 2)”), both of which were subsidiary companies of BWIA and were

incorporated in the Cayman Islands. He was also the chairman of the United Way of

Trinidad and Tobago, a non profit company incorporated under the laws of Trinidad

and Tobago.

[11] The first defendant is the proprietor and printer of two newspapers, the Sunday

Express and the Daily Express. It is also the proprietor and publisher of the web-site

known as “The Internet Express” which is accessible to any user of the World Wide

Web system of the Internet. The second defendant was joint publisher of both

newspapers. The third defendant was editor of the Sunday Express and the fourth

defendant (Ms Marajh) is a journalist employed by the first defendant for over twenty

years. The Sunday Express describes itself as the national newspaper of Trinidad and

Tobago and has the largest circulation of all newspapers in Trinidad and Tobago.

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The claimant’s case

[12] The claimant alleged that in early March 2003, the fourth defendant requested an

interview with him about allegations made against BWIA in a high court action

brought by a minority shareholder of BWIA. The action had been withdrawn. After

initially declining the interview, he had a change of heart and agreed. According to

the claimant, Ms Marajh represented (or misrepresented) to him that the focus of the

story would be on the state of the airline industry and how BWIA was coping. A four

hour interview was conducted on the 2nd day of April, 2003. During the course of the

interview, the claimant furnished Ms Marajh with certain documents which provided

information about BWIA, relevant to her enquiries, including the figure for the total

executive payroll of BWIA, the executive supply contract between BWIA and AWIL

and other information pertinent to BWIA and the claimant’s role therein.

[13] On 5th April, 2003, the defendants advertised on the front page of the Saturday

Express, an “exclusive investigation” to be published in the Sunday Express entitled

“Inside the BWIA fiasco”, encouraging members of the public to purchase the Sunday

Express and to read the articles published therein. The claimant contended that

through the subsequent articles in the Sunday Express, the defendants falsely and

maliciously wrote, printed and published, words defamatory of him, in the way of his

offices as president and CEO of BWIA and as president and CEO of AWIL and his

profession. Extracts from the articles containing the alleged defamatory words are

included in the statement of claim. The full articles were admitted into evidence and

are (mostly) reproduced later in this judgment.

[14] The claimant contended that the words in their natural and ordinary and inferential

meaning, meant and were understood to mean, that the claimant-

• was or was reasonably suspected of being greedy or motivated

by greed;

• engaged in, or was reasonably suspected of having engaged in

smear tactics, personal vendettas, secret, shady and suspicious

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deals, financial impropriety, fraudulent, suspicious and

questionable accounting practices, suspicious and questionable

and unethical or illicit shady and clandestine dealings or

business practices, improper and illegal activities.

• was incompetent or was not accountable;

• was involved in dishonest or fraudulent or corrupt dealings and

activities;

• had compromised or was reasonably suspected of having

compromised or sacrificed, or participated in compromising or

sacrificing, the interests of BWIA and the shareholders of

BWIA to private individuals including himself;

• conspired or had conspired with others or was reasonably

suspected of conspiring with others to establish secret

companies in offshore locations for illegal and improper or

illegitimate purposes;

• had manipulated or participated in the manipulation of the

accounts of BWIA in a manner calculated to mislead and

defraud and for his own financial gain;

• had given away, or conspired with others to give away, assets

or income generating assets of BWIA to, or to benefit private

individuals;

• was getting rich at the expense of BWIA and its shareholders;

• was a liar, was evasive;

• was guilty of deception, or shocking or shameful conduct;

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• had demonstrated conduct which merited review or

investigation;

• did not act, or had not acted, or was reasonably suspected of

not having acted in the interest of BWIA or its shareholders or

employees but in his own self-interest;

• was unfit to hold office as president and CEO of BWIA or

other business entity;

• had committed, or was reasonably suspected of committing,

illegal and unethical or unprofessional acts;

• should be dismissed as president and CEO of BWIA.

[15] The claimant alleged that the Sunday Express enjoys a readership of approximately

79,000 in Trinidad and Tobago, as well as other readers in the Caribbean and on the

internet, all of whom would have read the articles. The facts and matters therefore,

would have been known to a substantial but unquantifiable number of unidentifiable

readers who would have understood the words to bear those meanings.

[16] The claimant relied on the following facts and matters in support of his claim for

damages (including aggravated damages) -

• the defendants embarked upon and pursued an orchestrated and

relentless campaign to discredit him;

• the articles complained of, were published by the defendants

on dates closely following one another;

• the second defendant, Craig Reynald, had been terminated

from BWIA by the claimant on the 30th day of June, 1993, as

the second defendant and Ms Marajh well knew;

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• Mr. Reynald was a close friend of Captain Goddard, a pilot

employed by BWIA who was antagonistic to the claimant and

who had openly questioned the claimant’s authority, as the

second defendant and Ms Marajh well knew;

• Orion Ganase (son of Pat Ganase, former director, Corporate

Communications of BWIA, who was terminated from BWIA

by the claimant, as Ms Marajh well knew) had written negative

articles in the Express concerning BWIA;

• the articles referred to, contained many of the allegations raised

in the withdrawn High Court Action;

• following the publication of one of the articles, the claimant

complained to the second defendant via letter dated the 2nd day

of October, 2001, that there may be a conspiracy to discredit

him;

• on the front page of the Saturday Express dated the 5th April,

2003, the defendants advertised highlighted and promoted an

“exclusive investigation”, to be published in the Express

newspaper under the caption “Inside the BWIA fiasco” thereby

encouraging members of the public to purchase the Sunday

Express to read the articles;

• at the time of the publication, BWIA was making, or had made,

a submission to the government, a major shareholder, for

emergency financial assistance to save BWIA, as Ms Marajh

well knew;

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• at the date of the publication, there was considerable public

interest and widespread media coverage of the operations of

BWIA;

• the claimant requested an apology from the defendants and

requested that they desist from publishing any similar libel but

instead the defendants ignored and disregarded the request and

with cynical disregard for the claimant’s rights, published

subsequent articles concerning him;

• on page 12 of the Express dated 8th April, 2003, the defendants

printed and published letters to the editor, referring to Ms

Marajh and praising one of the articles referred to;

• on or about the 9th April, 2003, BWIA issued a press release

which sought to correct the inaccuracies and libels contained in

the article but the defendants in a subsequent article,

mockingly referred to the press release and ignored same;

• following the publication of the articles, the government agreed

to provide financial assistance to BWIA on the basis of a

precondition that BWIA implement a review and revision of

executive compensation contracts and a review of the

management team in the shortest possible time;

• the fourth defendant is an award winning journalist.

[17] In support of his claim for exemplary damages, the claimant contended, additionally,

that;

• the words were published by the defendants in a sensational

and prominent manner and with a reckless disregard as to the

accuracy thereof and whether the words were libellous of him;

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• the words were published with eye-catching headlines and with

photographs of the claimant and on dates closely following one

another;

• the defendants knew or ought to have known that the

allegations contained in the articles were untrue;

• the claimant had furnished Ms Marajh with documents and

information giving the facts which were the subject of the

articles;

• the defendants had advertised, highlighted and promoted the

“exclusive investigation” thereby encouraging members of the

public to purchase the Sunday Express to read the articles;

• the first and second defendants falsely printed and maliciously

published or caused to be printed and published the words of

and concerning the claimant and of him in the way of his

offices;

• the claimant had complained to the second defendant that there

may be a conspiracy to discredit him;

• the defendants knew or ought to have known that the

allegations complained of, would be of a particularly

sensational nature and that the defendants published the words

knowing that they were libellous, having established that the

prospect of material advantage outweighed the prospect of

material loss;

• the claimant requested an apology from the defendants which

was ignored or disregarded;

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• the defendants mockingly referred to the press release issued

by the claimant in one of the articles complained;

• the first defendant is a successful company with substantial

financial resources.

The defendant’s case

[18] There was no dispute that publications refer to the claimant in his professional capacity

as president and CEO of BWIA and as a director of its two subsidiaries and to his

consultancy company Air West Indies Limited (“AWIL”). The defendants also

admitted;

(a) that on 2nd April, 2003, Ms Marajh interviewed Mr. Aleong

before the series was published;

(b) that Mr. Aleong provided Ms Marajh at that interview with

certain documents;

(c) that on 5th April, 2003 the newspaper advertised and promoted

the series as an exclusive investigation “Inside the BWIA

Fiasco”;

(d) the wide circulation of their publications;

(e) their availability on the internet;

(f) that immediately after the first of the series was published, the

claimant sent a pre-action letter dated 7th April, 2003, seeking

an apology and a stop to any further publication in the series;

(g) that they chose to go ahead with the rest of the series.

[19] With respect to the seven articles and the editorial, the defendants raised three

defences-

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(i) as to all eight articles, that the words did not bear, nor were they

capable of bearing, nor understood to bear, the meanings

pleaded;

alternatively,

(ii) as to all eight articles, that their publication were on occasions of

qualified privilege;

(iii) as to the editorial, that the words of the editorial constitute fair

comment on a matter of public interest, to wit – the conduct of

the claimant in his role as president and CEO of BWIA, having

regard to BWIA’s financial difficulties and to the approach by

BWIA to the Government for financial assistance.

[20] Ms Marajh denied that she represented to the claimant that the focus of the proposed

interview was to be limited to the state of the airline industry and how BWIA was

coping with the same but added that if she so represented then the claimant, by his

own actions in answering the questions relating to the matters reported in the articles,

widened the scope of the interview.

[21] The particulars upon which the defences of qualified privilege and fair comment were

based included the following -

• the claimant was (a) CEO of BWIA (b) president and CEO of

AWIL, (c) a director of WIALL and WIAAL (No. 2), (d) a

director of Katerserv Limited, a company in which WIAAL

(No. 2) was a fifty-five per cent (55%) shareholder, (e)

chairman and director of Tobago Express Limited;

• BWIA was a company listed on the Trinidad and Tobago Stock

Exchange in which the government held a forty-nine per cent

(49%) shareholding and was the major shareholder, the other

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shareholders comprising citizens of Trinidad and Tobago and

other private investors;

• in or about 1998, AWIL entered into a performance based

executive supply contract with BWIA to supply key personnel

to manage the operations of BWIA. Under the contract, fees

were payable monthly and were related to the remuneration

payable to key management personnel;

• as part of the contract, BWIA granted to AWIL, options to

acquire up to six hundred thousand (600,000) shares at US

$0.25 per share by no later than January 31st 2001. As at the

time of publication of the third article, AWIL had exercised its

right in respect of the two hundred thousand (200,000) shares;

• in pursuance of a public share offer by BWIA in 2000, a

prospectus was issued in which details of the contract were

given but the value of the contract was not stated;

• in or about December 2000, BWIA offered for sale to members

of the public, twelve million (12,000,000) shares at a price of

one US dollar and twenty five US cents ($1.25), representing

27% of the BWIA’s ordinary share capital and voting rights

and 23% of BWIA’s issued share capital;

• BWIA, as a company listed on the Trinidad and Tobago Stock

Exchange, was required to publish its audited accounts and

financial statements and to file the same with the Trinidad and

Tobago Securities and Exchange Commission;

• the claimant had a key role to play in BWIA’s approach to the

government for funds to assist the airline to pay its creditors in

order to continue its operations and to keep the airline from

being placed into receivership;

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• in or about November 2002, it was widely reported in the

media that the government agreed to provide BWIA with a

loan of thirteen million, seven hundred and fifty thousand

United States dollars (US $13,750,000.00) to be paid in a series

of instalments;

• in or about January 2003, it was widely reported in the media

that the government issued a letter of comfort to BWIA to

borrow seven million, seven hundred thousand United States

dollars (US $7,700,000.00) as part of the financial assistance

agreed to be given;

• in or about January 2003, BWIA retrenched six hundred and

seventeen (617) of its employees in an effort to reduce its

operating costs and to make the airline financially viable;

• in or about March 2003, the claimant was reported to have

stated in the media, that BWIA’s then current daily loss was

one hundred thousand United States dollars (US $100,000.00);

• it was reported in the media that in or about late March 2003, a

delegation from BWIA met with the Ministry of Finance

seeking financial assistance for the airline;

• the government was reported in the media to have given BWIA

a two week deadline to come up with a plan to give BWIA

viability in the future;

• on or about 27th March, 2003, Prime Minister and Minister of

Finance, Mr. Patrick Manning was reported in the media to

have stated that the business plan submitted by BWIA’s

management was not as good as was first thought and that was

why BWIA had returned in or about March 2003 for more

financial assistance;

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• on or about 1st April, 2003, the claimant met with Mr. Manning

to outline the financial assistance needed to bail out the airline;

• at a post Cabinet news conference held on 17th April, 2003,

Minister of Information and Public Administration, Dr. Lenny

Saith, stated that the Cabinet had agreed to lend one hundred

and sixteen million, eight hundred thousand dollars

($116,800,000.00) to BWIA, subject to several conditions,

inter alia, a review of the management structure of the airline

and the management team, the improvement of productivity,

the reduction in pay of BWIA’s executives and the review of

salaries and allowances of all BWIA’s employees;

• at the news conference, Minister in the Ministry of Finance,

Mr. Kenneth Valley stated that if the government were

convinced of BWIA’s management, it would not have asked

for a review and that the government needed to know;

• at the news conference, Minister of Information, Dr. Lenny

Saith also indicated that it was the government’s intention to

send a consultant into BWIA to advise, inter alia, on the

merger of BWIA with LIAT, to form one regional airline;

• the plan requested by the government was submitted by BWIA

on or about 8th April, 2003, which plan was to be analysed by a

government team lead by Dr. Lenny Saith;

• the matters reported in the articles were fully investigated by

Ms Marajh and information obtained from various sources was

reasonably considered to be reliable, responsible and

authoritative and on which information, the claimant was

invited to give his explanations and responses and which

responses and explanations were published in the articles;

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• the articles were published after an in-depth interview between

the claimant and Ms Marajh in which all the matters reported

in the articles were raised and fully and frankly discussed and

the claimant’s responses were reported in the articles;

• the articles were published with an honest belief in the truth of

the matters contained therein and without malice or reckless

disregard for the truth or falsity of the matters;

• the publication of the matters contained was in the public

interest and that the defendants acted responsibly in writing,

printing and publishing the same;

• the defendants and each of them, in the premises, were under a

social, moral and civic duty to publish the articles which were

concerned with matters of the public interest and the members

of the public to whom publication of the articles were made,

had a corresponding interest in the matters reported and a like

duty and legitimate and proper interest to receive the same.

[22] The defendants relied on additional particulars in respect of the second, fourth, fifth,

sixth and seventh articles as well as the editorial. It is not necessary to set them all out

in this judgment. The defendants also denied -

• that they had embarked upon and pursued an orchestrated and

relentless campaign to discredit the claimant in the way of his

offices and his profession;

• that the second defendant was terminated by the claimant;

• that the defendants knew of any animosity between Captain

Goddard and the claimant;

• that Orion Ganase had written negative articles concerning

BWIA;

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• that the eight articles contained many of the allegations raised

in the high court action;

• that the advertisement published in the Saturday Express

encouraged members of the public to purchase the Sunday

Express and to read the articles on the “exclusive

investigation”;

• that there is a conspiracy to discredit the claimant.

[23] They denied the particulars of exemplary damages and contended that, at all material

times, they acted responsibly in publishing the seven articles and the editorial. They

also raised certain constitutional issues which were not pursued. In my judgment,

those issues were non-starters in light of Lord Nicholl’s dictum in Reynolds at page

1022 letter H to 1023 letter G.

Issues

[24] In order to have succeeded, the claimant was required to establish the fact of

publication, that the published articles referred to him and that they conveyed

defamatory meanings or imputations. It was then for the defendants to establish, in

respect of each publication, the defences relied upon: denial of meaning, Reynolds

privilege (which are both relied upon for all publications in the series) and fair

comment upon facts stated on a matter of public interest (relied upon only for the

editorial dated 30th April, 2003). There was no dispute that the publications referred to

the claimant. The initial issue for the claimant was, therefore, whether they conveyed

a defamatory meaning. Thereafter, it was for the defendants to establish their defence.

Meaning

The Law

[25] The modern approach is set out in the judgment of Sir Thomas Bingham MR in Skuse

v Granada Television Limited [1993] EWCA Civ. 34 [1996] EMLR 278 at

paragraph 14, where he spoke of the following eight considerations which are to be

taken into account in determining whether the report is defamatory. He said:

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“(i) The court should give to the material complained of the

natural and ordinary meaning which it would have conveyed

to the ordinary reasonable viewer …

(2) The hypothetical reasonable reader [or viewer] is not naïve but

he is not unduly suspicious. He can read between the lines.

He can read in an implication more readily than a lawyer, and

may indulge in a certain amount of loose thinking. But he

must be treated as being a man who is not avid for scandal and

someone who does not, and should not, select one bad meaning

where other non-defamatory meanings are available (per Neill

L.J. Hartt v Newspaper Publishing PLC. Unreported 26th

October, 1989 [Court of Appeal {Civil Division} Transcript No.

1015]:

(3) While limiting its attention to what the defendant has actually

said or written, the court should be cautious of an over-

elaborate analysis of the material in issue… Its audience

would not have given it the analytical attention of a lawyer to

the meaning of a document, an auditor to the interpretation of

accounts, or an academic to the content of a learned article.

In deciding what impression the material complained of would

have been likely to have on the hypothetical reasonable viewer

we are entitled (if not bound) to have regard to the impression

it made on us.

(4) The court should not be too literal in its approach. We were

reminded of Lord Devlin’s speech in Lewis v Daily Telegraph

Ltd. [1964] A. C. 234 at 277

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‘My Lords, the natural and ordinary meaning of

words ought in theory to be the same for the lawyer

as for the layman, because the lawyer’s first rule of

construction is that words are to be given their

natural and ordinary meaning as popularly

understood. The proposition that ordinary words

are the same for the lawyer as for the layman is as

a matter of pure construction undoubtedly true.

But it is very difficult to draw the line between pure

construction and implication, and the layman’s

capacity for implication is much greater than the

lawyer’s. The lawyer’s rule is that the implication

must be necessary as well as reasonable. The

layman reads in an implication much more freely;

and unfortunately, as the law of defamation has to

take into account, is especially prone to do so when

it is derogatory.’

(5) A statement should be taken to be defamatory if it would tend

to lower the plaintiff in the estimation of right-thinking

members of society generally (Sim v Stretch [1936] 2 All E.R.

1237 at 1240) or would be likely to affect a person adversely in

the estimation of reasonable people generally (Duncan &

Neill on Defamation, 2nd edition, paragraph 7.07 at pg. 32).

(6) In determining the meaning of the material complained of the

court is ‘not limited by the meanings which either the claimant

or the defendant seeks to place upon the words’ (Lucas-Box v

News Group Newspapers [1986] 1WLR 147at 152H).

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(7) The defamatory meaning pleaded by a plaintiff is to be treated

as the most injurious meaning the words are capable of

bearing and the question a judge sitting alone has to ask

himself are, first, is the natural and ordinary meaning of the

words that which is alleged in the statement of claim and,

secondly, if not, what (if any) less injurious defamatory

meaning do they bear? (Slim v. Daily Telegraph Ltd. above,

at pg. 176).

(8) The Court of Appeal should be slow to differ from any

conclusion of fact reached by a trial judge. Plainly, this

principle is less compelling where his conclusion is not based

on his assessment of the reliability of witnesses or on the

substance of their oral evidence and where the material before

the appellate court is exactly the same as was before him. But

even so we should not disturb his finding unless we are quite

satisfied he was wrong.”

[26] See also the decision of the English Court of Appeal in Gillick v Brook Advisory

Centres & Jones [2001] EWCA Civ. 1263 (an interlocutory appeal in respect of Part

53 P D 4.1 of the English Civil Procedure Rules) in which it approved the following

dictum of Eady J:

“The court should give the article the natural and ordinary

meaning which it would have conveyed to the ordinary reasonable

reader reading the article once. Hypothetical reasonable readers

should not be treated as either naïve or unduly suspicious. They

should be treated as being capable of reading between the lines and

engaging in some loose thinking, but not as being avid for scandal.

The court should avoid an over-elaborate analysis of the article,

because an ordinary reader would not analyse the article as a

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lawyer or accountant would analyse documents or accounts.

Judges should have regard to the impression the article has made

upon them themselves in considering what impact it would have

made on the hypothetical reasonable reader. The court should

certainly not take a too literal approach to its task.

I also bore in mind when construing these articles that they were part of a series, each

designed to be read one after the other. The general rule is that a statement is to be

understood in the way in which a reasonable reader would understand it at the time of

its publication. Subsequent knowledge which causes the reader to look back on an

article in a different light will not make the initial publication defamatory. See Lord

Denning MR in Grappelli –v- Derek Block (Holdings) Ltd [1981] 2 All E R 272 at

page 274.

“…in defamation a cause of action arises (and a writ can be issued)

as soon as the words are published to a person then knowing all the

material facts. If there are extrinsic facts, he must know them then,

- at the time of publication. That is when a cause of action arises. It

cannot be made into a cause of action by reason of facts

subsequently coming to the knowledge of the reader or hearer.”

[27] See also the dictum of Eady J in Galloway –v- Telegraph Group Ltd [2004] EWHC

2786 (QBD) at para. 50 when he said:

“… when judging the meaning of the … articles, it is necessary to

bear in mind that many readers will have had a general impression

of their reading from the day before. It is legitimate to take that into

account when assessing the meaning of the second day’s coverage.

The reverse is not the case, since it is not permitted when attributing

a meaning or meanings to a published article to refer to subsequent

material.”

Page 22 of 96

(That latter approach has been the subject of criticism. Gatley on Libel

and Slander 11th edition at page … submits, attractively, that a series is

designed for the reader to read and view all of the material and bearing

in mind that in the case of a book published as (and treated by the law

as) one unit, the information in it can only in fact come to the readers’

attention over a period of hours, days or weeks as he reads it, common

sense would indicate that the series should be treated as one unit for the

purposes of determining the meaning of a particular part. The author

cites the Australian cases of Burrows v Knightly (1987) 10 NSWLR 651

and Bareya Pty v McKay Printing [2003] QCA 284, in support.)

[28] Similarly, where, as in the case of the seventh article, a newspaper article refers to

another report in the same issue, either party is entitled to have that read as part of the

context in which the meaning of the words complained of is to be determined. See

Gatley on Libel (supra) at para 3.32, citing, inter alia, Thorton -v- Stephen (1837) 2

M. & Rob 45 Bolton –v- O’Brien [1985] 16 L.R. Ir 483, affirming [1885] 16 L.R. Ir.

97. I turn then to my analysis of the articles themselves and my reasons for concluding

that they were defamatory.

First Article

[29] “How BWIA’s flight plan went off course”. – 7th April, 2003

The first article bears full reproduction if only because it was the first of the series and

set out a number of themes to which the author kept returning in the subsequent

articles.

“BWIA is hustling off the runway, buffeted, in part, by the

turbulence of the Gulf War, the lingering affects of 9/11, high

fuel prices and a global economic slowdown.

But in the soft underbelly of the airline, there are allegations of

greed, personal vendettas, smear tactics, secret companies in

offshore tax havens, suspicious profit from the sale and lease-

back of assets booked into the accounts as profit and a

Page 23 of 96

compensation package for the airline’s top brass to which only

the Prime Minister and a few members of the board are privy.

Conrad Aleong, the man in the eye of the storm, has also been

taking some hard knocks, over his management style, fights with

BWIA’s four unions, his private consultancy business, CA

International and accounting questions about the airline’s three

consecutive years of historic profits.

Aleong’s response was furious to questions about his private

company, CA International and specific BWIA transactions,

accusing the unions of spite and muckraking. He also dismissed

as “ridiculous” and “total rubbish” suggestions that he bolstered

BWIA’s bottom line by booking income from frequent sale and

leaseback of assets.

CA International was hired by the Lawrence Dupery BWIA board

of directors in January 1998 through a second Aleong company,

Air West Indies Limited. The performance based management

supply contract was not then, nor is it now disclosed to the full

board of directors

Aleong who was in the CEO’s chair at BWIA prior to the 1995

Acker privatization has scoffed at reports suggesting that his

private company, of which he is a director has benefitted from

any finders fees in respect of any transaction involving BWIA.

His company initially provided management supply contact for

BWIA’s top five people, including himself. He said he is not paid

anything for providing top management services to BWIA. The

CA contract, managed through an executive payroll paid out by

the company’s auditors, Price Waterhouse, Coopers (PWC) is

said to be worth well over US forty thousand dollars (US

$40,000.00) a month.

Page 24 of 96

Aleong who said CA was a Port of Spain registered name, had no

explanation for why it did not turn up in a search at the Registry

of Companies. Making clear that it was a “consulting division”

of his company, AWIL, he said he registered it as a brand name.

The records of the 1996 incorporated AWIL, however, reflect no

association to a CA International.

The name CA International turned up however, on the Cayman

registry as having been recently voluntarily struck off the register.

It was exempt from all filing requirements, including the names

of shareholders and or directors.

Aleong said the Cayman CA International was not his. He also

expressed surprise that a No. 2 company, bearing the identical

name to the wholly owned BWIA subsidiary, West Indies Aircraft

Ltd, turned up with the same registered address as the BWIA

WIAAL, as PO Box 265 GT, Georgetown, Grand Cayman.

“I have no idea who No. 2 is”, he said when asked if it was a

BWIA entity. He said he would have to check with the airline’s

corporate secretary. “I really don’t know those things. They

(company lawyers) arranged the corporate matters. They can

answer that”.

He said it could well be another BWIA company which owned

one of the BWIA-purchased Dash-8s. “I think we may have put

one aircraft on one company and another aircraft in another,” he

said explaining that it was much easier to dispose of an asset

through the sale of a special purpose company.

Told that WIAAL was listed as the financier of all three BWIA

Dash-8s 9Y-Wiz, WIL and WIP Aleong said: “I don’t know if

WIAAL has three planes.” He said he would have to check with

Page 25 of 96

the company’s lawyer. But airline sources said if the planes were

BWIA owned and held in a secret offshore company, they would

have to be properly disclosed in the accounts.

“…Coincidentally, WIAAL No. 2 is a stakeholder of Katerserv, a

company incorporated in 1998 by a piano technician and the

company holding a lucrative contact from a majority owned

BWIA subsidiary Allied Caterers Ltd. ACL has subcontracted its

entire catering facility to Katerserv of which BWIA now has a

small stake. Several BWIA officials, including Aleong, are listed

as directors. In the 2001 BWIA accounts, the catering operation

was said to be worth US three hundred and sixty million dollars

(US $360m). Aleong however, said it was cheaper to subcontract

facilities to Katerserv.

Also under scrutiny is a put option placed in a block of Equant or

SITA shares sold to an unidentified buyer for US five million

dollars (US $5m) in 2000. BWIA recorded a US two point four

million dollar (US $2.4m) profit on the transaction in its

December 2000 accounts.

Financial analyst and former Citi-banker Ved Seereeram claimed

the transaction was improperly recorded. “It should have been

recorded as a loan and not as a sale of assets for the purpose of

inflating profit and understating the liability,” he said, declaring

that “the whole transaction was a clear sign that the books were

manipulated to report a much better picture than the actual state

of affairs.”

But Aleong questioned: “Why would a chartered accountant firm

like PWC sign an audit statement if it was not acceptable

accounting practice?” he asked rhetorically. Declaring that he

did not deal with the matter, he said: “Why don’t you ask

Page 26 of 96

William Lucie Smith. He and our financial comptroller deal with

those questions and when they finish deal with those questions, it

is brought to the audit committee of the board. So I don’t

understand these questions.”

Lucie Smith, the managing partner of PWC said the questions

should be directed to BWIA. “I don’t know,” he said “you will

have to ask them direct”.

On the sale and leaseback of L1011 airplanes, Aleong said: “You

always do that when you are trying to raise some money.” Two of

the sales, however, were done in 2000, year three of BWIA’s

profits.

It is alleged BWIA broke several agreements with different

aircraft financiers prematurely to repurchase and resell L1011s.”

[30] The second paragraph of the article which begins with the qualification “but” and

which then speaks of allegations of greed, personal vendettas, smear tactics, secret

companies in offshore tax havens and suspicious profit, governs the entire tenor and

purport of the article and the series read as a whole. It suggests scheming, double

dealing, personal agendas and back-stabbing.

[31] The third paragraph then refers to the claimant as “Conrad Aleong, the man in the eye

of the storm has also (emphasis mine) been taking some hard knocks over his

management style” and refers to fights with BWIA’s four unions, his private

consultancy business and about accounting questions concerning the airline’s three

consecutive years of historic profits.

[32] The reference to the claimant being “in the eye of the storm” and that he has “also”

been taking hard knocks, leaves the reader in no doubt as to the subject of the article.

It goes on to mention the claimant’s name a total of thirteen times. Its headline refers

to the BWIA flight plan going “off course” but the substance of the article is in effect

an exposé on the business dealings of the claimant. Reference to the claimant as being

Page 27 of 96

“in the eye of the storm” suggests that the allegations were directed at him. The use of

the word “also” confirms it.

[33] After the sensationalised statement of greed and personal vendettas in paragraph 2, the

article goes on to particularize the allegations by referring to a number of business

dealings involving the claimant, to wit;

(i) suggestions as to whether he bolstered BWIA’s “bottom line

(profit)” by wrongly booking income from “frequent” sale and

leaseback of assets;

(ii) suggestions that his private company benefitted from finders

fees in respect of any BWIA transaction;

(iii) he had no explanation for why his companies did not turn up in

a search of the Companies Registry;

(iv) a ‘number 2 company’ bearing the identical name to the wholly

owned BWIA subsidiary West Indies Aircraft Ltd (WAAL)

turned up with the same registered address as that company

given as PO Box 265 G T, Georgetown, Grand Cayman;

(v) WIAAL No. 2 was a shareholder of Katerserv, a company

incorporated by a piano technician and which held a

“lucrative” contract with Allied Caterers Ltd (ACL), a

majority owned BWIA subsidiary. ACL subcontracted its

entire catering facilities to Katerserv which catering operation

was worth three hundred and sixty million United States

dollars (US $360,000,000.00) but the claimant said however,

that it was cheaper to subcontract ACL facilities to Katerserv;

(vii) the sale of the SITA shares was also under “scrutiny”, the

transaction was improperly recorded. It should have been

recorded as a loan and not as a sale of an asset and that the

Page 28 of 96

“books were manipulated to report a much better picture than

the actual state of affairs.”

(viii) the claimant’s explanations for the various transactions are

quoted but in a style which portrays his explanations in a shrill

and defensive manner which conveys, rather than dispels,

suspicion. Moreover, the tone of the articles is totally out of

keeping with the tenor of the claimant’s explanations in the

interview.

[34] The words in the article in their inferential meaning, meant and were understood by the

reasonable reader to mean that:

(i) the claimant was greedy or was motivated by greed;

(ii) the claimant engaged or had engaged in personal vendettas;

(iii) the claimant engaged or had engaged in smear tactics;

(iv) the claimant engaged or had engaged in secret and suspicious

deals;

(v) the claimant was incompetent;

(vi) the claimant was involved in or engaged in, or was reasonably

suspected of being involved in or engaged in suspicious,

questionable, shady, clandestine dealings or business practices;

(vii) the claimant was involved in and engaged in suspicious and

questionable practices;

(viii) the claimant had manipulated or participated in the

manipulation of the accounts of BWIA, a publicly listed

company for his own financial gain;

Page 29 of 96

(ix) the claimant had compromised or was reasonably suspected of

having compromised, or participated in compromising, or in

sacrificing, the interest of BWIA (of which he was president

and CEO) and the shareholders of BWIA to private

individuals;

(x) the claimant had given away, or conspired with others to give

away, assets, or income generating assets, of BWIA to benefit

private individuals;

(xi) the claimant was getting rich at the expense of BWIA and its

shareholders;

(xii) the claimant was guilty of deception;

(xiii) the claimant did not act, or, had not acted, or was reasonably

suspected of not having acted, in the interest of BWIA (of

which he is president and Chief Executive Officer) or its

shareholders, or employees but in his own self-interest.

The second article – 13th April, 2003 – “BWIA’s fighting to stay in the air”

[35] The second article, like all of the subsequent articles, is to be read in the context of

what went before it in the first article. I note that the first article ended with the

caption – “Next week – The BWIA Saga continues”. The article is set out at pages 4 &

5 of the newspaper but there is a banner headline on the front page of the newspaper

which speaks of BWIA and its financial difficulties. The reader is referred to page 6

to read the article to which that headline refers but the reader cannot but encounter the

second article set out at pages 4 & 5 on his or her way to page 6.

[36] The second article repeats the themes raised in the first article and again refers to the

claimant’s responses in the 2nd April interview in much the same way but amplifies the

details of the allegations. It is written in the same style and while the claimant’s

Page 30 of 96

opinions and comments are quoted extensively, they are usually followed by a

qualifying paragraph which undermines what the claimant earlier had said.

[37] The article begins by speaking of “cracks in the underbelly of the beleaguered

national airline which lead to a web of cross shareholdings and behind the scenes

dealing”, of the newspaper’s investigations revealing “a maze of transactions

involving offshore companies in the Cayman Islands, a supply contract with CA

International worth some thirty thousand United States dollars (US $30,000.00) a

month, significant company holdings that are not disclosed in the published accounts,

deals for a share of the catering business, third party beneficiaries in small start-up

companies and a free ride for the private stakeholders of Tobago Express”, like the

first.

[38] The article then goes on to examine these issues. Terms such as “web”, “behind the

scenes dealing” and “deals” suggest underhand and shady practices. The claimant is

then immediately quoted as “not knowing” of the existence of a second subsidiary

company of BWIA which was not disclosed in the published account. The manner in

which he is quoted suggests someone who is being evasive and defensive. It also

points to the claimant’s competence.

[39] The article was, in my judgment, defamatory of the claimant in that the words in the

article would have been understood, inferentially, by the reasonable reader to have had

the meanings set out at paragraph 35 (i) to (xiii) above. The meaning conveyed at

page 5 of the second article also suggests, at minimum, incompetence and at worst,

dishonesty. I refer in particular to the following passages:

“Industry analysts described as ‘unusual’ the several large

transactions to move the one airplane which ended up as a direct

lease from CAAL to Tobago Express.

The No. 2 company also turned up in the records of the companies’

registrar as a 55 percent stake holder in Katerserv, now occupying

Page 31 of 96

the facilities previously owned by a major BWIA subsidiary, ACL

on Golden Grove Road, Piarco.

The incorporators of what was initially a $2 company are piano

technician Lance Smith of 73 Tragarete Road and Ann Furlonge,

a legal secretary at 39 Richmond Street, Port of Spain. The

company was incorporated in September 1998 and has as its

registered address Lp 57 Golden Grove Road…

“…Why would the airline’s catering arm subcontract its entire

facilities to Katerserv? According to Aleong, it’s a cheaper way of

doing business. He admitted that BWIA and the Goddard Group

were major stakeholders in Katerserv but was unclear on the exact

numbers. “I forgot what the percentage is”, he said, declaring,

however, that the subcontracting arrangement was a win-win

situation for everybody. He said ACL effectively acts as a landlord

to Katerserv.

“It gets rent based on the profits of Katerserv, so Katerserv is

making a profit and most of it goes to Allied because Allied owns

the facilities. It is no different from the Airports Authority and our

duty-free shop. Katerserv doesn’t end up with much profit, he said,

adding, “I’ll put it this way. Allied gets the bulk because it charges

rent on its facility. It is more lucrative that way and they take the

risk. It is exactly like a franchise.”

Aleong explained the transaction this way. “You need to have the

ability to run the money back through. If you don’t do that,

somebody is going to end up with most of the money.”

But it is this BWIA’s practice of sharing money-spinning

opportunities with private individuals that is worrying observers,

who fear that some people are getting rich off the financially

Page 32 of 96

stricken public-listed company which has once more returned to

Government for a taxpayers’ bailout.

Insiders questioned the loss of another BWIA corporate

opportunity to the 51 percent privately-owned Tobago Express

which staked its claim on the lucrative domestic airbridge in June,

2001.

BWIA gave up its monopoly on the airbridge after sustaining a

reported five million Trinidad and Tobago dollars (TT

$5,000,000.00) losing five months following the demise of Leslie

Lucky-Samaroo’s Air Caribbean venture. Aleong blamed onerous

labour contracts, expensive reservation systems and delays in and

out of Caracas and Barbados for the financial hit.

Tobago Express was built-up using BWIA resources; everything

from routes and aircraft to pilot and cabin training, maintenance

and ground handling. Aleong, however, is adamant that the 51

percent stakeholders got no free ride…”

Aleong insists that Tobago Express does not get a free ride from

BWIA. “Tob Ex pays for everything,” he said. But insiders

question whether BWIA is getting value for its money and whether

the start-up cost for what essentially is a paper company was not

closer to US $5 than to US $7 million.

BWIA bought one airplane and paid the deposit on another Dash-8

for Tobago Express. According to documents seen by this

newspaper, the airline also paid fuel bills to National Petroleum to

keep the start-up in the clear. It also paid close to US four million

dollars (US $4,000,000.00) more on its three Dash-8s. And while

Aleong maintained that BWIA negotiated deep discounts on all

Page 33 of 96

four planes, there is no dispute that Tobago Express got very lucky

on its Dash-8 acquisition.”

[40] The enquiry, sceptically posed, as to why the airline would subcontract its entire

facilities to Katerserv, was to be seen in the context of the statement, to which I have

referred at paragraph [38], about “deals for a share of the catering business”, with the

implication being that the purchase by the Goddard Catering Company of one million

United States dollars worth of shares from the failed IPO, resulted in that company

being given 45% of ACL’s shares as a quid pro quo (Ms Marajh was unable to verify

any such quid pro quo during cross-examination).

[41] The writer’s concern for the airline’s practice of sharing “money spinning

opportunities with private individuals” and for some people “getting rich” off the

airline (which was financially stricken) suggests “behind the scenes” arrangements to

sell off profitable subsidiaries for the claimant’s and other persons’ secret benefit. The

questioning of “the loss of another corporate opportunity” to Tobago Express and the

untruthful allegation that it was “a paper company” built up using BWIA’s resources,

strengthens both perceptions. Indeed, both statements were wrong. Ms Marajh was

forced in cross-examination to admit that she could produce no evidence that the

catering business was “lucrative” or “money spinning” as well as to admit that with

an investment of seven hundred thousand United States dollars (US $700,000.00) by

shareholders into Tobago Express, it could hardly be described as a “paper” company.

She also could not verify that the Tobago airbridge was profitable.

The third Article – “Aleong’s Pay Deal” – “The US $30,000.00 a month executive

supply contract” – 13th April, 2003.

[42] The article states as follows -

“BWIA boss, Conrad Aleong, maintains that his pay is nobody’s

business. But, in an airline that is tottering on the edge, with a

failed initial public offering (IPO), massive lay-offs and no cash in

hand, the privately negotiated executive supply contract of CA

Page 34 of 96

International has become a major bone of contention among

shareholders, employees and BWIA’s four unions.

Aleong has thumbed his nose at critics, saying the Securities

Exchange Commission was satisfied that a “material” disclosure

relating to his stock options at US twenty-five cents a share was

included in the December 2000 IPO, which went to the market at US

$1.25 per share.

He has also said that all material provisions in his secretly

negotiated contact have been disclosed to the SEC. But, nowhere in

the document is the value of the executive supply contract to BWIA

stated. The SEC has refused to discuss the matter…”

“And while Aleong maintains that his remuneration package is

substantially less than what his predecessors made, the Sunday

Express understands that it is about thirty thousand United States

dollars (US $30,000.00) a month, plus allowances…”

Again, the article being part of a series must be read in the context of what went before

it. This article appears on page 5, the same page as the second half of the second

article. It is accompanied by a picture of the claimant and another gentleman who was

then the general manager of Tobago Express. The third article and the claimant’s

picture are juxtaposed against the second half of the second article. The spread sheet

of open pages (i.e. pages 4 & 5) shows the second and third articles and the claimant’s

picture sharing the spotlight along with the chairman and yet another gentleman named

in the second article. The effect of the juxtaposition of the 2nd and 3rd articles,

however, was to leave no doubt as to the connection of the claimant to the second

article. The third article is written in the same style, with the claimant’s opinions

being depicted as shrill, defensive and defiant. His opinions are once again

undermined by qualifying statements of what others tell the reporter, such as to

devalue their effect.

Page 35 of 96

[43] The article begins by quoting the claimant as saying that his pay is “nobody’s

business” but is then put in the context of a failed IPO by BWIA, “massive lay-offs”

and no cash in hand by the company. The claimant is described as “thumbing his nose

at his critics”. The article is to be taken in the context of the first article and the

allegation of greed raised in the first paragraph thereof. The contention that “his pay

is nobody’s business” is not developed but is left hanging and given its juxtaposition

against the second article, inextricably links the second article to the third. Moreover,

the quote (his denial of knowledge of WIAAL No. 2) appearing under the claimant’s

photograph connects the photograph and the third article to the second article which

refers to his denial of knowledge of WIAAL No. 2.

[44] The juxtaposition of the third article (which addresses his remuneration) against the

second, reinforces the allegations of greed made in the second and first articles. These

two reports are not successive articles made in separate publications on different dates

but are in effect, composite articles sharing the same day of publication and the same

page.

The fourth article – “BWIA $m bailout, but…” -20th April, 2003

[45] In my judgment, this article would otherwise have been impeccable but the fact that, in

its second half, it repeats the libels set out in the previous article and that in its final

sentence, it expressly links the payment of a bonus to the claimant, to BWIA’s making

of a profit, such as to suggest that BWIA’s accounts were manipulated by the claimant

for that purpose. The relevant parts of the article are as follows -

“…Insiders contend that BWee Express was used as the launching

pad to set up the majority held, privately-owned Tobago Express.

In last week’s Sunday Express, this newspaper reported a series of

complex transactions which saw one aircraft, 9Y-W1Z, undergo

several ownership changes between the point of purchase and the

time of delivery to the final beneficiary, Tobago Express.

Page 36 of 96

BWIA, in a public relations assault on the Sunday Express, has

published ads, declaring that “all transactions involving the three

Dash-8s for BWIA and the Dash-8 for the Tobago Express, as well

as related Cayman companies are property corporate transactions

and have been duly approved by the Board”.

The airline maintains that “these have been fully disclosed in the

company’s 2001 Statements”.

This newspaper, however, could find no reference to a West Indian

Airways Aircraft (No. 2) Ltd. BWIA also sought to shoot down a

Sunday Express report about the airline’s three years of historic

profits. A review of the airline’s financials, however, shows that

BWIA benefitted from an US eight million dollar (US $8m)

windfall in fuel prices in 1998, the year it declared its first profit of

US nine million dollars (US $9m), Favourable fuel prices

accounted for a significant percentage of the 1998 profit.

The operating profit for 1998 was almost eleven million dollars

($11m) but, by the next year, this figure dropped to US two million

dollars (US $2m) even though revenues increased by US fourteen

million dollars (US $14m). In fact, the airline declared a profit of

US three point six million dollars (US $3.6m) in 1999 but US four

million dollars (US $4m) was derived from the sale of an

investment.

“Operationally, therefore, BWIA made a loss in 1999”, according

to one insider. The operating profit in 2000 fell further to US five

hundred and seventy-one thousand dollars (US $571,000.00) and

although the airline declared a profit of US one point one million

dollars (US $1.1m), almost US five million dollars (US $5m) was

derived from the sale of fixed assets and investments.

Page 37 of 96

The management team led by Conrad Aleong increased revenues

from US two hundred and twenty-five million dollars (US $225m)

in 1998 to US two hundred and seventy million dollars (US $270m)

in 2001, an increase of US forty-five million dollars (US $45m).

And, according to the accounts, signed by Price Waterhouse

Coopers, it generated net profits of US thirteen million dollars (US

$13m) during that period. However, over ten million dollars

($10m) of the profit declared was derived from extra-ordinary, non-

operating items involving the sale and refinancing of aircraft and

investments.

In its third consecutive year of reported profits, BWIA terminated a

four-year lease with Finova Capital on two L1011 aircrafts. It

negotiated a new sale and leaseback agreement with Cabot

Aviation. A year later, in January 2001, in an agreement brokered

with another company, Fleet Capital Leasing, BWIA would

terminate the agreement with Cabot.

Aleong’s executive supply contract is performance-based. The

company makes a profit, he gets a bonus.”

[46] The article has very little reference to the claimant himself and there are more

references to BWIA and to its board of directors. There are however, five significant

factors which collectively render it libellous:

(i) There is a photograph of the claimant juxtaposed between the

columns of the article. The claimant’s photograph, because of

its juxtaposition, dominates the article even though there is a

much larger picture above it.

(ii) The article returns to the themes set out in the first article. It

repeats the earlier allegations about a series of complex

transactions involving the ownership changes of one aircraft

Page 38 of 96

9Y-W1Z, and while it refers to denials by the Board published

in a newspaper advertisement which contends that the

transactions were above board, it immediately reverts to the

style of undermining that denial but recalling that, as published

in its first article, the report could find no reference to a West

Indian Airways Aircraft No. 2 Ltd.

(iii) Having also referred, somewhat dismissively, to the Board’s

attempts to “shoot down a Sunday Express” report raising

“accounting questions about the airlines three years of historic

profits”, it again questions the soundness of that profit, albeit

referring to BWIA as opposed to the claimant. The claimant’s

photograph however, is sufficient to link him to the

publication.

(iv) The article for the first time in the series, explicitly suggests

that the BWee Express was used as a launching pad to set up

the majority held, privately owned Tobago Express.

(v) Most significant of all, the article ends with a specific reference

to the claimant and the executive supply contract (and the fact

that it is performance based) with the statement that “the

company makes a profit, he, Aleong gets a bonus”.

That final sentence painted the claimant as having manipulated the accounts in order to

obtain a bonus for himself.

The fifth Article – “BWIA Board backs Chief Executive Officer” – 27th April, 2003

[47] The relevant part of the article states as follows:

“…From all accounts, Aleong continues to have trouble

convincing Government of his turnaround plan despite his high

standing with the BWIA board as a “tough shrewd strategist”.

Page 39 of 96

Troubling questions remain about his executive supply contract

and its bonus link to profits, the sale and refinancing of aircraft

and other investments; the expensive start-up and sudden demise of

BWIA’s regional commuter service later last year –BWee Express

which left BWIA with two idle Dash-8-300s and the virtual

giveaway of revenue streams in catering and the airbridge service

to private investors.

Aleong denies the charges and insists he is doing all he can to turn

the airline around. But as reported in this series, a review of the

accounts shows that a significant chunk of the Aleong declared

profits originated from extra-ordinary, non-operating items

involving the sale of assets.

The Aleong management also benefitted from a US five million

United States dollar (US $5,000,000.00) Government credit placed

in the 2001 accounts, an expense that was tacked on to the 1995

accounts and year one of the Ed Acker privatization. The Acker

group recorded a five million two hundred thousand United States

dollar (US $5,200,000.00) loss in 1995 but industry analysts

question whether BWIA actually made a loss, if that amount was

properly applied in the 1995 accounts.

Page 47 of the 2001 accounts (item 22), points to a nine million,

nine hundred thousand United States dollar (US $9,900,000.00)

credit from Government, relating in part, to “settlement of the 1995

investment agreement and related issues.” Insiders report that

expenses were overstated in the 1995 accounts as a direct result of

pre-privatization bills owned to suppliers being placed in the 1995

accounts.

Tough for the long gone Acker, but a lucky reconciliation of

accounts for Aleong, who said he was on his way to reporting a

Page 40 of 96

projected nine million, two hundred thousand United States dollar

(US $9,200,000.00) profit in 2001 when 9/11 hit BWIA’s bottom

line. He still boasted of a modest loss of six hundred and ninety-

four thousand United States dollars (US $694,000.00).

The article repeats the earlier libel that “troubling questions remain about his

executive supply contract and its bonus-link to profits, the sale and refinancing of

aircraft… and the virtual giveaway of revenue streams in catering and airbridge

service to private investors.” To reinforce the allegation that the profits were not

genuine, Ms Marajh revives and repeats the allegation that “a large chunk of the

profits originated from extra-ordinary non-operating items involving the sale of

assets”, and again speaks of the Tobago Express venture, this time describing it as

raising “old suspicions”.

[48] In my judgment, the article repeated the previous libel in the following way:

(i) the claimant was greedy or was motivated by greed;

(ii) the claimant had engaged in or was engaging in secret or shady

suspicious deals;

(iii) the claimant was incompetent;

(iv) the claimant engaged in suspicious clandestine business

dealings or practices;

(v) the claimant was involved in or engaged in questionable

accounting practices.

(vi) the claimant had manipulated or participated in the

manipulation of the accounts of BWIA, a publicly listed

company in a manner calculated to mislead.

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(vii) the claimant manipulated or participated in the manipulation of

the accounts of BWIA, a publicly listed company for his own

financial gain.

The sixth Article – “BWIA Board to meet Government on Tuesday” – page 3 –4th

May, 2003.

[49] The article in question is the shortest of all the articles and the words complained of,

on the face of it, appear quite innocuous. It states:

“Despite its protestation that it had not requested a detailed written

outline of Government’s cash for concessions offer, the BWIA

board of directors is yet to undertake the State’s request for a

review of the Conrad Aleong management team.

The Government was quite clear, however at a post Cabinet news

conference on April 17, that it would not release a cent of a

promised US bailout for cash-strapped BWIA unless and until a

management review of the Aleong team is undertaken, among

other things.

See story on page 4 and letter on page 13.”

But the article at its conclusion invites the reader to page 4 of the same publication in

which the eighth article is written. The contents of that report are therefore to be taken

in the context of the eighth article and the entire series of articles. (See Gatley on

Libel & Slander (supra) citing Thorton v Stephen and Bolton v O’Brien (supra).

Having regard to all that has been written in the previous articles and in the context of

the eighth article which repeats the libels, the fact that the government “will not

release a cent of [the] promised bailout for cash-strapped BWIA unless and until a

management review of the Aleong team is undertaken”, points to the competence and

character of the claimant. It is inferential that the claimant was incompetent and unfit

to hold the office, that his performance should be reviewed and he should be dismissed

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and that the government would not act until his performance was reviewed and he was

fired.

The seventh Article – “Fat Cows can’t fly” – BWIA – from Acker to Aleong” –

page 4 – 4th May, 2003.

[50] The article was largely a history of the troubled management of BWIA from February

1995 under one “Ed Acker to May 2003, under the claimant” and is mostly

unobjectionable but for the last two columns to which the claimant took objection. It

refers to Mr. Gilles Filiatreault who was one in a chain of fired CEOs of the BWIA and

the claimant’s immediate predecessor. The words complained of begin in the third

paragraph of the passage next quoted below but in order to get the sense of the libel, I

shall begin two paragraphs earlier:

“Then finance Minister Brian Kuei Tung, seemed determined to

slug it out, upset over the shabby treatment meted out to

Government by the private sector-run board. Kuei Tung

threatened to send Filiatreault packing back to Canada over the

airline’s failure to obtain the required work permit.

He would face union resistance, frequent breakdown of old

aircraft, runaway costs and huge double digit US million dollar

losses. Filiatreault sought unsuccessfully to extricate BWIA from

Acker signed contracts forcing BWIA to take delivery of a second

A3211. But the tough negotiating ILFC forced BWIA to take

delivery of both short haul airplanes which Filiatreault

subsequently subleased.

‘Filiatreault’s days were numbered, however, when Lawrence

Duprey replaced Ken Gordon as BWIA’s Chairman. Duprey

brought in Conrad Aleong nearing the end of 1997, initially to

undertake an audit. By early 1998, he was in the CEO’s chair. It

was a good year for BWIA, maintenance costs were down, the

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A321s were gone, there was no more ferrying of engines to and

from London and fuel prices had hit the floor.

It was a better year for Aleong, who claimed credit for posting the

first ever profit in the history of BWIA. Under Aleong’s tenure,

BWIA would post three years of successive profits, totalling some

US thirteen million dollars (US $13m) but almost all of it, US ten

million dollars (US $10m) exactly, derived from extraordinary,

non-operating items involving the sale and refinancing of L1011

aircraft and investments like BWIA’s SITA shares.

Questions remain about several transactions, among them the sale

of a forty-five per cent stake of Allied Caterers, to the Goddard

Group, the Dash-8 acquisitions, Tobago Express and Katerserv.

Aleong has blamed a lot of the airline’s current troubles on the

error attacks of 9/11, the Iraq war, global economic slowdown,

SARS, downgrade to Category 2, predatory pricing by charge

operators, labour disputes and more recently, bad Press:’

The airline has weathered many storms since its wartime start-up

in 1940. It’s gone from world class to world class disaster. Now

only time will tell if BWIA will come out of this one intact.”

The words complained of, by themselves, were not libellous, even though they again

question the genuine nature of the profits and the transactions involving the sale of

Allied Caterers and the Dash-8 acquisitions. But taken in the context of the preceding

articles in which, inter alia, the profits were said to have been wrought by

manipulation of the accounts, the alleged sharing of money spinning opportunities with

private individuals, secret deals etc, it in effect repeats the previous libels.

[51] In my judgment, the seven articles published on 6th, 13th, 20th, 27th April, and 4th May,

were defamatory of Mr. Aleong. They would have lowered the claimant in the

estimation of right thinking members of society generally or in the estimation of

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reasonable people generally. The reasonable reader having read the entire series

would have held the claimant in considerably lower estimation than before the

publication of the articles. The overall impression of the claimant conveyed by

articles to the reasonable reader, was that he was a dishonest and devious man who

had manipulated the airline’s accounts to declare profits which were in fact fictitious,

so as to get an undeserved bonus, who sold the valuable assets of BWIA for his and

other persons’ private gain, who engaged in deals, smear tactics and personal

vendettas. To these articles can be ascribed several of the meanings pleaded in the

statement of claim to wit-

(i) that the claimant was greedy or was motivated by greed;

(ii) the claimant engaged or had engaged in personal vendettas;

(iii) the claimant had engaged in smear tactics;

(iv) the claimant engaged or had engaged in secret suspicious deals

or questionable and clandestine business dealings or practices;

(v) the claimant was incompetent and not fit to be employed as

CEO of BWIA;

(vi) the claimant was, or had been involved or engaged in

suspicious and questionable accounting practices;

(vii) the claimant had manipulated or participated in the

manipulation of the accounts of BWIA, a publicly listed

company, for his own financial gain.

(viii) the claimant was guilty of deception;

(ix) the claimant had compromised, or participated in

compromising, or sacrificing the interests of BWIA and

shareholders of BWIA to private individuals;

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(x) the claimant had given away, or conspired with others to give

away, assets of BWIA for the benefit of himself or private

individuals;

(xi) the claimant was getting rich at the expense of BWIA and its

shareholders;

(xii) the claimant did not act or had not acted in the interest of

BWIA or its shareholders or employees but rather in his own

self-interest;

(xiii) that his performance as president and CEO of BWIA should be

reviewed and his contract terminated.

The editorial – fair comment

[52] It is convenient for me to deal now with the editorial and the defence of fair comment

before addressing the Reynold’s privilege defence. Gatley on Libel and Slander (11th

edn, Sweet & Maxwell 2008) para 12.2 states that in order to succeed in a defence of

fair comment, the defendant must show that: (1) the words are comment and not a

statement of fact; (2) there is a basis of fact for the comment, contained or referred to

in the matter complained of and (3), that the comment is on a matter of public interest,

one which has expressly or implicitly been put before the public for judgment or is

otherwise a matter with which the public has a legitimate concern. The claimant will

defeat the plea however, if he can show that the comment was actuated by malice,

which for this purpose means that the defendant was not expressing his genuine

opinion.

[53] In my judgment this article written by Mr. Cuffie constituted fair comment on a matter

of public interest. As I have set out at paragraph 122 below, the operations of BWIA

and the compensation package of its CEO and other senior managers were matters of

public interest, given BWIA’s consistent dependence on subventions from

Government and ultimately, the taxpayer, to continue its operations.

Page 46 of 96

[54] The editorial did not impugn the claimant’s character. Rather, its comments were

founded on a matter of high principle – accountability; that is to say, that the claimant,

as leader of the BWIA management team, must accept responsibility for its financial

difficulties, irrespective of the successes he and his team may have achieved in making

the airline leaner and more efficient and despite the fact that financial difficulties were

endemic to the airline industry.

[55] The comments was well balanced giving credit to the claimant for his team’s

successes but pointing out the Government’s loss of faith in the management’s ability

to lead the airline. The article cast no aspersions on the claimant’s character or

competence.

[56] I accepted Mr. Cuffie’s denial of any knowledge of the termination of Mr. Reynald’s

contract by the claimant and of any malicious intent in writing the editorial. The

fourth article does in fact refer readers to the editorial, and while this would have

brought the editorial within the context of the entire series, the editorial did not

question the basis of the profitability of BWIA nor did Mr. Cuffie adopt any of Ms

Marajh’s allegations. The following paragraphs of the editorial speak for themselves–

“To be sure the present management team may be taking comfort not

just in the fact that the airline first experienced profitability under the

stewardship of Mr. Aleong but that BWIA is now a leaner and trimmer

organisation than at any other time in its history. The present financial

crisis is not unique to BWIA but is also being faced by the world’s

largest airline - American Airlines and major international carriers

across the world following the events of September 11, 2001 and more

recently, the terrorism fears arising from Gulf War II.

In fact the BWIA managers have consistently argued that the airline’s

on-going problems are the result of the vicissitudes of the airline

industry rather than any weakness in its senior management team…

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One of the problems being faced by BWIA is that no one is willing to

take responsibility for the predicament in which the airline finds itself,

not the workers, the unions or the management. Even the private

sector shareholders have remained mum as the airline continued to

freefall. While Mr. Aleong who originally returned home following

what was said to be bright career prospects in Canada, may consider

the calls unduly harsh, it is clear that rightly or wrongly the major

stakeholders have lost confidence in his management team.

Someone needs to accept responsibility for the problem and as leader,

Mr. Aleong must consider himself extremely lucky to be still at the

helm. Government has also indicated its intention to send a consultant

into the airline. One of his objectives must be to find a parachute for

Mr. Aleong, if he continues to refuse to jump.”

[57] Despite the final cryptic comment, I do not consider that, by any stretch of the

imagination, this can be said to be libellous. In my judgment, even though this

editorial comment was part of the series of articles and, even though Mr. Cuffie spoke

of having the previous articles in mind at the time of writing, his comments were

honest expressions of his own opinion and met the legal requirements of fair comment.

The Reynolds Privilege defence

[58] I turn then to whether the Reynolds privilege defence and the legal principles which

arise. The decision of the House of Lords in Reynolds –v- Times Newspapers Ltd

(supra) holds that the defence of qualified privilege was available where there was a

duty in the publisher to publish the material to the intended recipients and where they

(the intended recipients) had an interest in receiving it, taking into account all the

circumstances of the publication, including the nature, status and source of the

material. Lord Nicholls in his speech at page 1017, noted that “the essence of this

defence lies in the law’s recognition of the need, in the public interest, for a particular

recipient to receive frank and uninhibited communication of particular information

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from a particular source”. He added that “the protection afforded to the maker of the

statement is the means by which the law seeks to achieve that end” and “the court has

to assess whether, in the public interest, the publication should be protected in the

absence of malice”.

[59] On the other side of the coin however, he noted that “once besmirched by an

unfounded allegation in a national newspaper, a reputation can be damaged for

ever…” and “when this happens, society as well as the individual is the loser …

Protection of reputation is conducive to the public good. It is in the public interest

that the reputation of public figures should not be debased falsely”. (at page 1023 E to

G). The common law doctrine of qualified privilege thus seeks to strike a balance

between the need of the recipient to receive frank and uninhibited communication and

protection of the reputation of the individual. Lord Nicholls at page 1024 H, noted that

“the common law does not seek to set a higher standard than that of responsible

journalism”, adding at page 1027 B, that “the elasticity of the common law principle

enables interference with freedom of speech to be confined to what is necessary in the

circumstances of the case” and “enables the court to give appropriate weight, in

today’s conditions, to the importance of freedom of expression by the media on all

matters of public concern”.

[60] He then set out the following “illustrations”, as matters to be taken into account in

deciding whether the journalist in question had behaved responsibly in putting together

the article:

1. The seriousness of the allegation: The more serious the

charge, the more the public is misinformed and the individual

harmed, if the allegation is not true.

2. The nature of the information, and the extent to which the

subject matter is a matter of public concern.

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3. The source of the information. Some informants have no

direct knowledge of the events. Some have their own axes to

grind, or are being paid for their stories.

4. The steps taken to verify the information.

5. The status of the information. The allegation may have

already been the subject of an investigation which commands

respect.

6. The urgency of the matter. News is often a perishable

commodity.

7. Whether comment was sought from the plaintiff. He may

have information others do not possess to have not disclosed.

An approach to the plaintiff will not always be necessary.

8. Whether the article contained the gist of the plaintiff’s side of

the story.

9. The tone of the article. A newspaper can raise queries or call

for an investigation. It need not adopt allegations as

statements of fact.

10. The circumstances of the publication, including the timing.

[61] He went on to say as follows:

“The weight to be given to these and any other relevant factors will

vary from case to case. Any disputes of primary fact will be a matter

for the jury, if there is one. The decision on whether, having regard

to the admitted or proved facts, the publication was subject to

qualified privilege is a matter for the judge. This is the established

practice and seems sound. A balancing operation is better carried

out by a judge in a reasoned judgment than by a jury. Over time, a

valuable corpus of case law will be built up.

Page 50 of 96

In general, a newspaper’s unwillingness to disclose the identity of its

sources should not weigh against it. Further, it should always be

remembered that journalists act without the benefit of the clear light

of hindsight. Matters which are obvious in retrospect may have been

far from clear in the heat of the moment. Above all, the court

should have particular regard to the importance of freedom of

expression. The press discharges vital functions as a bloodhound as

well as a watchdog. The court should be slow to conclude that a

publication was not in the public interest and, therefore, the public

had no right to know, especially when the information is in the field

of political discussion. Any lingering doubts should be resolved in

favour of publication.”

[62] The questions which thus arise are as follows: Were the articles in the public interest

and, if yes, were they the products of responsible journalism which attracted the

defence of qualified privilege? There arose certain issues of fact which determined

whether Ms Marajh, as the writer of the articles, acted responsibly, as well as issues of

fact which went to damages, including exemplary damages. It is therefore necessary

to examine the evidence.

The evidence`

[63] Six persons, including the claimant, deposed to witness statements on the claimant’s

behalf. The other five persons were, Clint Williams, Allan Clovis, Michael Dolsingh,

Esther Maharaj and Julia Maharaj. None of the evidence of the five supporting

witnesses was challenged. Only the claimant was cross-examined by Mr. FitzPatrick.

The second to fourth defendants all deposed to witness statements, along with Maxie

Cuffie, writer of the editorial. All four deponents were cross-examined by Mr.

Martineau.

Evidence on behalf of the claimant

[64] The documentary evidence was quite bulky. It consisted of agreed bundles of

documents filed by both sides which were admitted into evidence by consent, as well

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as seven exhibits admitted into evidence during the cross-examination of the claimant

(four exhibits) and Ms Marajh (three exhibits).

[65] The claimant’s documentary evidence consisted of two bundles, the first comprising

ninety-seven documents including the articles, the second, a supplemental bundle,

comprising nineteen documents including BWIA’s annual reports for 2000, 2001 and

2002. The defendants’ bundle of documents comprised a total of seventy-four

documents including the prospectus issued in 2000. Additionally, the newspaper

articles were helpfully reproduced in a full tabloid size bundle. The volume of the

documentary evidence however made long and tedious reading.

Conrad Aleong

[66] The claimant’s witness statement supported the allegations set out in the statement of

claim. It is not necessary that I set out all that he said. The claimant deposed that

since September 2003, he was the chairman of Albrosco Holdings Limited, a family

owned company. Prior thereto (from 1970 to 1974), he had been articled to and

practiced as a chartered accountant at Price Waterhouse & Company in Winnipeg,

Manitoba, Canada. He then held a series of managerial positions with Air Canada

over the period 1974 to 1993. From 1993 to 1994, he was appointed the president and

CEO of BWIA International on secondment from Air Canada, to lead the privatization

of BWIA, which was accomplished in 1995. From 1995 to 1997, he was the president

of ALM Antillean Airlines until he was approached to take over BWIA to

“turnaround this failing airline”.

[67] During his first stint at BWIA it was wholly owned by the government of Trinidad and

Tobago. By 1995, it had been privatized and was publicly listed in December 2000.

Even after privatization, the Minister of Finance was the largest shareholder. Between

1995 and 1997, BWIA had lost fifty million United States dollars (US

$50,000,000.00). Following his return as president, the airline produced profits from

1998 until the terrorist attacks on the World Trade Centre in New York on September

11, 2001. According to the claimant, “after that fateful day, the global airline

industry suffered record losses”.

Page 52 of 96

[68] The claimant alleged that he was tricked by Ms Marajh into giving an interview. He

said:

“On March 13, 2003, at 10.00 am, Camini Marajh called me on my

cell and she asked for an interview on certain allegations that were

being made and as a follow-up to an earlier Express newspaper

story on the shareholders’ lawsuit, which was reported by Orion

Ganase, another Express reporter – HCA 4030 of 2002 Romero –v-

BWIA (P1 D55(vi)) (“the shareholders’ lawsuit”). I told her that

this was now history and I was vindicated since these supposed

shareholders had dropped the case on February 17, 2003. Ms

Marajh insisted that her paper wanted to complete the story and to

get my side of the allegations. She asked me blandly, ‘were you not

escorted out of Curacao? Did you not face 5 strikes in 6 months?’

I denied both allegations. Then she said, ‘this is the opportunity to

clear your name’. At the end of that call, I tentatively agreed to

meet with her. Subsequently, I had second thoughts and wrote to

Craig Reynald, the publisher of the first defendant, a letter dated

13th March, 2003 (P1 D55 (iii) and Def. B30) stating that I should

not be interviewed and I explained why, especially having regard to

the fictitious nature of the allegations in the dropped shareholders’

lawsuit.

A week later, Camini Marajh phoned me again and told me that

she was aware that Craig Reynald, the publisher of the Sunday

Express, had received a letter from me but that the article for

which she wanted to interview me was going to be one about the

state of the airline industry and how BWIA was faring and why it

was having problems. She said that the allegations in the now

discontinued shareholders’ lawsuit were not going to be the

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purpose of the article. In fact, she stated that everyone knew that

Ved Seereeram, who had given advice/evidence in support of that

shareholders’ lawsuit, was a bit of a questionable character. On

that basis, I agreed to meet with her. Had I known that she would

make these allegations the central theme of the articles, I would not

have dignified them with my comments and remarks. Ms Marajh

tricked me into giving her the interview, by giving me the

impression that the articles which she was going to publish would

deal with one thing – BWIA and the state of the airline industry –

when in fact, she intended to develop further the allegations raised

in the Orion Ganase articles –knowing full well, as my letter to the

publisher showed, that I would not have consented to the interview

if the article was to be based on those allegations.

As to the interview itself, Mr. Aleong said that it took place on 2nd April, 2003 and

lasted over four hours. They spent a considerable time on the financial losses caused

by the destruction of the twin towers in New York and the resulting drop in

commercial passenger travel. They also discussed the airline’s schedule which the

government ordered him to implement, including the operation of unprofitable routes

to Cuba, Costa Rica and the Dominican Republic; the interim draft of the business

plan being prepared for obtaining the government’s financial assistance, in which were

highlighted, certain governmental actions which caused financial damage to BWIA in

1999, 2000 and 2001.

[69] He provided Ms Marajh with a draft submission, developed for the government, which

sought to persuade the government to provide further funding for BWIA and which

contained a lot of factual data. That draft explained in great detail the reasons for

BWIA’s current financial crisis and according to the claimant, “provided material for

anyone sincerely wanting to write about the airline industry and BWIA’s situation”.

He said that “after a lengthy series of discussions and questions on matters which she

stated were her reasons for the interview, she turned to the same question on which I

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had in the previous month refused to be interviewed. At that point, I was in the

situation where I felt that had I not dealt with them it would appear as though I had

something to hide”.

[70] The claimant said that the articles were presented as an exposé and in dramatic

fashion. Despite his discussions and the information he provided to Ms Marajh, the

published articles avoided anything that showed him in good light. He complained

about a number of inaccuracies, to which I shall come, one of which was Ms Marajh’s

reference in her first article to him owning two companies, AWIL and CA

International. Indeed, during the interview, the claimant had been at pains to point out

that CA International was a brand name and a consulting division of AWIL. He said

that as a result of the articles, his position at BWIA became untenable and he had no

choice but to resign because he had lost the moral authority to continue to lead BWIA.

Clint Williams

[71] Mr. William’s evidence as to the conduct of the interview supported the claimant’s.

He confirmed that the claimant told Ms Marajh that CA International was the brand

name under which AWIL had obtained the executive supply contract. According to

Mr. Williams, Ms Marajh “appeared not to understand a ‘trading as’ relationship and

she was trying to suggest that Mr. Aleong’s answer was that they had nothing to do

with each other but were different entities when this was not what he was saying”.

Mr. Williams added that the claimant told her that the monies paid to CA International

under the executive contract were monies used to pay a number of executives. As to

the impact of the articles, Mr. Williams said:

“When I read the series of articles written by Ms Marajh on BWIA,

I thought that this is not the same interview that I was present at.

Most things that Ms Marajh raised in the articles were raised in the

interview and answered by Mr. Aleong in depth. Ms Marajh did

not ask any follow-up or clarifying questions after Mr. Aleong’s

answers and I came away with the impression that she understood

everything that was explained to her.

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The articles suggest that Conrad Aleong was running the airline

like a parlour. It was made clear to Ms Marajh in the interview

that the Board had to approve any new measures, that the Board

commissioned the annual audit which was signed off first by the

auditors and then approved by the Board. There were checks and

balances in place. There was nothing that Mr. Aleong could do on

his own.

“…The shady tone of the articles does not reflect the openness of

the interview or the detail of the answers. There are hanging

questions in the articles that were not present in the interview, such

as whether Tobago Express was getting a ‘free ride’ at the expense

of BWIA and if the purchase of B737 aircraft was a wise choice.

There were no unanswered questions in the interview.

The articles seemed to focus on the issues raised in the high court

action that was withdrawn and not on the issues raised in the

interview.

In the aftermath of the series of articles on BWIA by Ms Marajh, I

personally had to deflect comments like ‘how you could have lied for

that man so, dey couldn’t pay me to lie so’ from complete strangers

who engaged me in conversations after leaving BWIA. By

extension, I was portrayed as a liar who ‘covered’ for Mr. Aleong.

These comments were made in relation to the fact that I was

Director of Corporate Communications for BWIA when Mr. Aleong

was the Chief Executive Officer and so I was responsible for

corporate releases. The comments were quite a few; for example, on

one occasion when I was having a car tyre fixed in Central Trinidad,

a man approached me and said he recognised me from television

and while he admired how I handled myself on TV, he could not

understand how a fellow who looked as honest as I did ‘could lie for

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a man like Aleong’. Even after leaving BWIA, friends and

acquaintances often commented to me that I was lucky to leave

BWIA as I no longer had to cover up for Aleong.”

Allan Clovis

[72] Allan Clovis, in his witness statement, stated in response to the article of 13th April,

2003 (“BWIA fighting to stay in the air”) that the shareholders who owned fifty-one

percent of Tobago Express ”got no free ride”. He said that when Air Caribbean

closed, Tobago Express was given approval by government to fly the route, “it was

not a BWIA route that was handed over as part of any deal”. The contract with

BWIA included limited route sharing to select Caribbean destinations. He said of the

Tobago Express start up:

“BWIA also used its leverage to facilitate Tobago Express’

acquisition of additional Dash-8 aircraft. The aircraft was

purchased through an arrangement with BWIA and its Cayman

Island registered subsidiaries. To my knowledge, the arrangement

was known to the Government as is the usual established practice

in the airline industry.

In addition, Tobago Express was required to sub-lease the three

Dash-8 aircraft transferred from BWIA. This was very costly and

further, after we paid the leases on these Dash-8 which were

handed over even where they were not as yet able to fly the route,

we had to pay for maintenance to make them serviceable.

With regard to the purchases of the other aircraft by Tobago

Express, these were by Tobago Express, not BWIA. The first was

through a Cayman Island registered company and the other

through a lease/purchase arrangement with a Swiss finance house.

Page 57 of 96

Michael Dolsingh

[73] In his witness statement, Mr. Dolsingh stated that he first met the claimant in 1993,

when the claimant joined BWIA. Mr. Dolsingh’s company (CPA/Irish Aerospace)

was one of BWIA’s largest creditors at the time. He had been in the aviation business

since January 1980 with BWIA. He left BWIA in 1989 when he joined Irish

Aerospace.

[74] He got to know the claimant, in his capacity as executive representative of BWIA and

he had a “very good impression of him as an aviation professional who was both well

experienced and deeply knowledgeable about the airline business” and who

“understood the critical parameters and measures of the business”. He added that “in

terms of airline operations, he certainly impressed me”. As to the impact of the

articles, Mr. Dolsingh stated as follows:

“My first reaction to these articles was that they were heavy

indictments on Conrad Aleong’s character, the account of one or

more of the Dash-8 transactions in the article showed that there

was a lack of transparency, or integrity, or something of that sort.

Up to that time, I had considered Camini Marajh, the author, as

having had a good reputation as a good investigative journalist.”

In short, the articles did serve as a red flag to me about Conrad

Aleong. Later I read that one of the pre-conditions for the

Government putting more money into BWee, was a change of

management; to me that meant the departure of Conrad Aleong as

BWee’s CEO. I know that shortly after these articles were

published, Aleong and BWee parted company.”

Neil Gajadar, Esther Maharajh & Julia Maharaj

[75] Neil Gajadhar, Esther Maharajh and Julia Maharaj were all employees of BWIA at the

time of publication of the articles. Mr. Gajadhar and Julia Maharaj both spoke of the

sense of hope and transformation which Mr. Aleong’s arrival brought to the BWIA

employees and the betrayal that was felt when the articles were published.

Page 58 of 96

[76] Mr. Gajadhar, who was then employed at BWIA as the Director of Operations, spoke

of the acquisition of the Dash-8 aircraft. He said the company got the cheapest deal on

the new aircraft through BWIA’s setting up of subsidiary companies in the Cayman

Islands, adding that “it was a method of acquisition that was used by international

companies”. He felt that “the articles written by Ms Marajh were detrimental to Mr.

Aleong, they painted him as a smartman who came in to milk the airline”.

[77] Julia Maharaj said that with the publication of the articles, “everyone was speculating

and the corridor talks took a new dimension. My colleagues were constantly talking

about the contents of the articles”.

[78] Esther Maharaj deposed to reading all the articles as they were published. The article

of 6th April, 2003 gave her the impression that Mr. Aleong was “securing himself from

all angles”. The article “was very convincing and it created serious doubts in my

mind as to the genuine interest in BWIA by Mr. Aleong”. The article of 13th April,

2003, “upset a lot of people, we thought we were being underpaid and overworked

and the executive management was overpaid”. The article of 20th April, 2003, gave

her the impression that the claimant “was a corporate raider who was manipulating

the books for his own gain”.

Evidence on behalf of the defendants

Camini Marajh

[79] Ms Marajh deposed that she had approached the claimant for an interview sometime in

early 2003, concerning certain allegations made in court proceedings brought against

BWIA by a shareholder. The request was made against a backdrop of two requests

made by BWIA to the government for financial assistance to keep the airline in

operation. The government owned forty-nine point nine percent (49.9%) of BWIA’s

shareholding. The requests for financial assistance were made in November 2002 and

March 2003 and had been given widespread coverage in the printed and electronic

media. The claimant initially agreed but subsequently changed his mind, confirming

his reasons in a letter of 13th March, 2003, to Mr. Reynald.

Page 59 of 96

[80] She renewed her efforts to obtain the interview, through the chairman of the board of

directors and spoke to the claimant by telephone. The claimant was still reticent,

stating that BWIA was already in the spotlight and “he did not wish to add to the

already negative reports” and “did not wish to be interviewed and reported in the

same article as the ‘nastiness’ put out by certain named employees of the airline and

the BWIA”. Ms Marajh said:

“I explained to him that I was doing a series of articles that would

examine all of the issues facing BWIA, including the impact of the

downturn in the aviation industry on BWIA. I made it clear to the

claimant that I could not do a series on BWIA that did not examine

the issues raised by BWIA’s representative unions and by the

shareholders of the company. The claimant repeated that he did

not want to be in the same story as the ‘nastiness’ that was making

the rounds. I told him that I would do my best to facilitate his

request, which was to report his interview as a separate story and

then report the allegations and concerns as a separate story. This

is what in fact happened with the interview appearing on page 4 of

the issue of the Sunday Express newspaper of 6th April, 2003 under

the headline “BWIA facing repossessor” and under the headline

“How BWIA’s flight plan went off course.”

[81] The claimant agreed to be interviewed on 2nd April, 2003 at his office at Sunjet House,

Edward Street, in Port of Spain. At the interview, the Director of Corporate

Communications, Mr. Clint Williams, was present (pursuant to the claimant’s request).

The claimant also asked that she not tape the interview. She objected, telling him that

“it was in both our interests to have an official record of the interview”. He

disagreed, saying that there were some things that he could not go on record as saying

and expressed concern that certain persons (who he named) might have scores to

settle with him and that they might have made every effort to exaggerate things about

him”. She tried to assure him that “it was my responsibility to find those

Page 60 of 96

exaggerations if they existed” adding that. “in the course of my work as a journalist,

that I did not follow anyone’s agenda and that I would be guided by my own

investigations.”

[82] Ms Marajh stated that prior to the interview with the claimant, she had documentary

and other information from several sources whom she declined to name. These

sources included persons working within BWIA, including serving and former

directors on the board of directors, financial analysts and persons with expertise in the

airline industry. She conducted searches of the various company files maintained at

the companies’ registry, where she obtained information about incorporation,

shareholding, status of the companies and the identity of directors. Before writing the

articles, she checked the information from the sources against the documents that she

had obtained. She sought to verify her sources’ information by seeking corroborative

information from independent sources as well as available public records from

Trinidad and abroad, omitting information she was unable to verify. She said that she

conducted an investigation into the matters reported in the articles and every effort

was made to accurately present the information in a fair and balanced fashion and to

represent the claimant’s side of the story in the articles.

[83] Ms Marajh continued:

“The interview lasted approximately four hours during which the

claimant asked me on occasions to switch off the tape recorder and I

complied. At these times the claimant would have mentioned a person

who he claimed had a grudge against him.

She confirmed that during the course of the interview, the claimant handed to her

certain documents.

(i) Pages 3013 of the Interim Draft submission by BWIA to the

Government;

(ii) BWIA’s Annual Report;

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(iii) Copies of staff communiqués issued by the claimant to BWIA

staff for the period 2001-2002;

(iv) Page 335 of the prospectus issued by BWIA in 2000;

(v) A copy of a letter dated 16thOctober, 2002 from Aegis

Business Solutions Limited relating to the value of the

executive management payroll for the stated years.

She added;

“Shortly after the recording of the interview with the claimant, I

made a verbatim transcript from the tape recording. (This was

admitted into evidence.)

At the end of the interview with the claimant on 2nd April, 2003, as

I and Clint Williams were leaving the claimant’s office, the

claimant indicated to me that he had a private question to ask me.

The claimant then led me back into his office and shut the door.

He asked me if the planned series of articles was part of a ‘Get

Aleong’ campaign. I responded by telling him that was a

ridiculous suggestion and that BWIA was a national icon which

was in serious trouble and engulfed in a swirl of allegations and

that the Sunday Express as a national newspaper had a duty to

inquire and report on the issues.

The claimant responded by complaining that the first defendant

had written negative stories about him and the airline and that a

named person had written and attempted to write damaging articles

about him. The claimant also told me that he had fired the second

defendant from his employment with BWIA. I responded by telling

the claimant that there was no conspiracy to attack him and that

there was no directive from the second defendant or anyone else to

write scathing things about him or the airline. I also told him that

Page 62 of 96

I knew nothing about his claim of having fired the second

defendant and that his questions in that regard were better directed

to the second defendant himself. I sought to assure the claimant

that a series of articles that I proposed to write would be fair and

balanced and had nothing to do with anyone’s perceived agenda.”

Ms Marajh added that given the approaches for assistance made to government by

BWIA, the latter, a mere four months after the former, “it was important for the public

to be informed of all of the matters concerning the airline and in particular, its

finances and the management of its finances about which various members of the

government had publicly expressed their dissatisfaction”.

[84] I permitted Ms Marajh the opportunity to file a supplemental witness statement. That

statement however, did not so much supplement her initial evidence as answer

statements made by Mr. Aleong in his witness statement and during oral testimony. I

say more about the circumstances at para. [89] below.

Craig Reynald

[85] Mr. Reynald denied that he bore any grudge against the claimant. It was, he said,

wholly untrue that his departure from BWIA was precipitated by any action of the

claimant. Rather, his decision to resign from BWIA was taken prior to the claimant’s

employment with BWIA and the reason had been “primarily that the opportunity for a

new challenge with the CCN group of companies had been offered to me by Mr. Ken

Gordon… and I had to consider the option of continuing at the old BWIA”.

[86] The claimant’s involvement in his departure was limited only to the signing of the

agreement which gave formal effect to the termination of his employment. He

negotiated the terms of his separation package with Mr. Joseph Esau, a member of the

old BWIA board of directors. Mr. Reynald produced extracts of the minutes of the

184th and 186th meetings of the board of directors to support his contentions. He

denied knowledge of any antagonism between Captain Goddard and the claimant and

described as “fanciful to say the least” that any such antagonism (even if true) would

have caused malice directed from him to the claimant.

Page 63 of 96

[87] Mr. Reynald said that neither in his capacity as Chief Executive Officer of the One

Caribbean Media Group nor in his capacity of publisher of the “Daily Express and

Sunday Express”, did he play any role in the writing, printing or publishing of the

series of articles and the editorial. As he put it:

“this is the function of the editor of the respective newspapers and I

did not have any role or function in choosing or directing stories

which are published by the respective newspapers.”

Mr. Reynald added that “he gave no direction as to what was to be written or how the

articles were to be presented by the fourth defendant or the writing of the editorial.

The fourth defendant is an accomplished investigative journalist with some twenty-five

(25) years experience and who has established a reputation for her reporting in

Trinidad and Tobago”.

Sunity Maharaj & Kathleen Maharaj, Maxie Cuffie

[88] Sunity Maharaj stated that she was editor in chief of the Daily Express and Sunday

Express but while she was ultimately responsible for the quality of the editorial

content of the series, including the serial, she had no input in the editing of the articles

because she had resigned as editor in chief and was in the process of handing over to

Kathleen Maharaj who was then acting editor of the Sunday Express. Ms Kathleen

Maharaj was unavailable for cross-examination and the defendants did not rely on her

evidence. Maxie Cuffie admitted to writing the editorial of 20th April, 2003, which

appeared in the Sunday Express under the caption “Passing the BWIA buck”.

Amplification of the claimant’s evidence

[89] The claimant was permitted, orally, to amplify his witness statement before cross-

examination. At the end of the claimant’s cross-examination, Mr. FitzPatrick sought

to have admitted, Ms Marajh’s supplemental witness statement, which replied to much

of what the claimant had stated in his witness statement or in oral evidence. I admitted

the supplemental witness statement but gave leave to Mr. FitzPatrick to further cross-

examine the claimant on the facts raised by Ms Marajh in that supplemental witness

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statement, directing that this be completed before Ms Marajh’s cross-examination

commenced.

[90] In respect of the matters amplified upon, the claimant said, as to Mr. Reynald’s

witness statement and the minutes of the Board meeting to which he referred, that after

the departure of his (the claimant’s) predecessor, Mr. Reynald acted as CEO of BWIA

until April 1993 when he (the claimant) assumed the post. His mandate upon

assumption was “to turn around the airline and this required a change in organisation

structure and executives. He added that “when I completed the new organisation, Mr.

Reynald was not there”. Mr. Reynald asked to play a role in the company but “he did

not have requisite airline experience” and “he appeared to me to be disappointed”.

[91] The claimant was also permitted to amplify on the question of moneys obtained from

the sale and leaseback of the Lockheed L1011 aircraft which Ms. Maharaj alleged had

been “frequent” and had been used to bolster the profits of BWIA. He explained that

the original lessor of the aircraft, Finova Capital Corporation had almost seized the

aircraft because BWIA was having problems meeting the lease payments. They

therefore sought third party financing from Cabot Aviation, in order to acquire the

aircraft from Finova and then sold it to and leased it back from, Cabot “because we

did not have our own money to buy them from Finova. It was an involuntary

transaction”. There was no lump sum windfall.

[92] Mr. Aleong also amplified the circumstances under which the government paid to

BWIA the sum of nine million, nine hundred thousand United States dollars (US

$9,900,000.00) which was the subject of a comment by Ms Marajh in the article of

27th April.

Cross-examination of Mr. Aleong

[93] Mr. FitzPatrick’s cross-examination was primarily directed at showing that the articles

were published in the public interest and that they were accurate. He was able to

extract the following concessions from the claimant, to wit-

Page 65 of 96

(1) that BWIA declared a profit even though it could not meet its

lease payments;

(2) that BWIA got financial assistance for its services on the Tobago

airbridge.

(3) that, in the interview with Ms Marajh, he did make allegations of

personal vendettas against Captains Goddard and Kelshall and

Mr. Abraham;

(4) that his contract with BWIA, including housing allowances,

health and travel benefits and share options, was worth more

than the sixteen thousand United States dollars (US $16,000.00)

per month which he initially earned;

(5) that the unions were “calling for his head” and that this had

received media coverage;

(6) that the unions had publicly criticised the annual financial

statements which they described as a “strategic engineering of

accounts” and that two other commentators (Robert Mayers and

Ved Seeteeram) had publicly criticised the accounting for the

years of profit.

[94] On the question of ownership of the aircraft registered as 9Y-W1Z, he was shown, by

Mr. FitzPatrick, a document headed “Inspection instruction” signed by one David

Ramnath which purported to state the owner of the aircraft as WIAAL. However, in

re-examination, four certificates of registration were tendered into evidence, three of

which set out the ownership of the aircraft at various months in 2001 and one of which

set out ownership of the aircraft as at 20th September, 2007. The certificates were all

certified by the Director of Civil Aviation. They showed that WIAAL No. 2 (as

opposed to WIAAL) and Caribbean Aircraft Acquisitions Ltd were respectively listed

Page 66 of 96

as owner/lessor of the aircraft in 2001 and 2007, (the addresses of both companies are

the same), while BWIA and Tobago Express are variously listed as lessee operator. It

was clear that WIAAL was never the owner of the aircraft. The claimant added that

Caribbean Aircraft Acquisitions Ltd was a company formed by Tobago Express to

own the aircraft 9Y-W1Z and was a wholly owned subsidiary.

[95] Asked, in re-examination, to explain how a company can make a profit but not meet

lease payments, the claimant said that there is a difference between cash flow and

profit, such that one can have expenses on the books without the cash going out or

conversely, there may be revenue on the books without cash coming in.

[96] He said that the financial statements produced by the Board were audited by Price

Waterhouse Coopers and all bore a certificate from the Board of Directors of BWIA,

authorising the issuing of the financial statements. Those statements were available to

the public and were published in the national newspapers from time to time.

Cross-examination of the defendants’ witness

Camini Marajh

[97] The cross examination of Ms Marajh was protracted. The trust of Mr. Martineau’s

cross-examination, consistent with Lord Nicholl’s ten considerations in Reynolds, was

to show that Ms Marajh, as a journalist, had not acted responsibly in the preparation

and writing of her articles, or in her interview with the claimant; that is to say, the

articles were not products of responsible journalism. He sought to demonstrate that Ms

Marajh had not properly verified her information and that persons who were her

“sources” had axes to grind with the claimant. He succeeded.

[98]The claimant complained about a number of inaccuracies in the articles, which were

mostly confirmed during cross-examination of Ms Marajh and which I accepted were

inaccurate. It is necessary to refer to them, in order to put into perspective the reasons

given and concessions made by Ms Marajh during cross-examination, because the

Reynolds considerations came into play.

Page 67 of 96

Factual Inaccuracies

(I) The executive supply contract

[99] Ms Marajh in her articles of 6th April 2003 and 13th April 2003, alleged that the

executive supply contract was worth forty thousand United States dollars

(US$40,000.00) per month (6th April 2003) and thirty thousand United States dollars

(US$30,000.00) per month (13th April 2003) and also referred in the latter article to

“Aleong’s pay deal” and to his remuneration package being worth “about thirty

thousand United States dollars (US$30,000.00) plus allowances.” At the interview,

the claimant had told Ms Marajh that the moneys paid under the contract were moneys

paid to three executives. Indeed that latter information (not the quantum) was

available in the 2000 Prospectus. At the time of the articles, the claimant’s package

was twelve thousand five hundred and twenty United States dollars (US$12,520.00)

per month (but in cross-examination he conceded that when travel, housing and other

benefits were taken into account, it was worth far more.).

(II) Sale of BWIA’s catering concerns

[100] In her articles of the 6th April 2003 and 13th April 2003, Ms Marajh spoke of Katerserv

having a contract of the catering facility with Allied Caterers Ltd (6th April 2003) and

that BWIA sold a forty-five percent interest in Allied Caterers to the Goddard Catering

Group (13th April 2003). BWIA, however, retained a fifty-five percent stake in Allied

Caterers and owned fifty-five percent of Katerserv through its wholly owned

subsidiary WIAAL No. 2. In her 6th April 2003 article Ms Marajh however spoke of

the Katerserv contract being “lucrative” and described BWIA of having “only a small

stake” in Katerserv. She also wrote that, “in the 2001 BWIA accounts, the catering

operation was said to be worth three hundred and sixty million United States dollars

(US$360,000,000.00).” In fact, none of BWIA’s accounts showed any such thing.

The 2001 accounts show a figure of three hundred and sixty thousand United States

dollars (US$360,000.00) for “depreciation and amortisation” with respect to catering

operations.

Page 68 of 96

(III) Quid Pro Quo for Goddard

[101] In her article of 13th April, Ms Marajh suggested that the Goddard Catering Group got

a “sweetheart” deal when purchasing forty-five percent of the shares of Allied

Caterers Limited. She could not verify the allegation. The suggestion was that the

purchase of the forty-five percent shareholding was obtained as part of a “deal” and

was in fact a quid pro quo for subscribing to BWIA’s IPO in 2000.

(IV) Tobago Express

[102] In her article of 13th April 2003 she described Tobago Express as a “paper” company

and quoted “insiders” as questioning whether start up costs were not “closer to US $5

dollars than US $7 million as stated in the accounts” and also spoke of BWIA’s

“practice of sharing money-spinning opportunities with private individuals” and “the

loss of another BWIA corporate opportunity to the fifty-one percent privately-owned

Tobago Express.” Tobago Express in fact was far from being a “paper” company. It

was a seven hundred thousand United States dollar (US$700,000.00) investment.

(V) Suspicious Profits

[103] Ms Marajh, in her articles consistently questioned whether the profits made in the

years 1998, 1999 and 2000 were real profits, suggesting that they were in fact

procured through a “doctoring” of the accounts by booking income from the

“frequent” sale and leaseback of aircraft and by wrongly listing the disposal of a block

of Equant shares as “sale” rather than as a “loan”. She quoted one Ved Seereeram

who said of the Equant share transaction that “the whole transaction was a clear sign

that the books were manipulated to report a much better picture than the actual state

of affairs”. In fact, there were no “frequent” sale and leaseback but one such

transaction involving two aircrafts. The articles were also written as though the

accounts were prepared personally by the claimant who manipulated them in order to

obtain a bonus.

(VI) Ownership of aircraft 9Y-W1Z

[104] It was alleged that the aircraft 9Y-WIZ was owned by WIAAL. This was taken by Ms

Marajh from an inspection instruction document which wrongly listed WIAAL as the

Page 69 of 96

owner of the aircraft and which instruction was later cancelled. The document was not

even certified by any public official. However, it was owned by WIAAL No. 2 and

then leased to BWIA and then subleased by BWIA to Tobago Express. Caribbean

Aircraft Acquisitions Ltd later acquired the aircraft and leased it to Tobago Express

and subsequently to Caribbean Airlines Limited. There was no “maze of offshore

companies” nor was any of the companies “secret”. Their existence was fully

disclosed in the BWIA’s annual reports. Moreover, in the interview Mr. Aleong had

fully and clearly explained the tax implications behind the formation of the companies

in the Cayman Islands and the leasing arrangements.

(VII) Two Aleong Companies

[105] In her article of 6th April, Ms Marajh spoke of two Aleong companies, stating that

“CA International was hired by the Lawrence Duprey board of directors … through a

second Aleong company.” During the interview, Mr. Aleong had explained that CA

International was not another company but a brand name and was a division of Air

West Indies Limited.

Indeed, this is the sequence of question and answer:

Q: Where is CA International incorporated and why is its

executive supply contract done through a second company, Air

West Indies Limited?

Ans: It is not a second company. It is the same company. The

company official name is Air West Indies Limited, a consulting

division of CA International and I use it as a brand name so

that I can keep the airline name different from consulting.

At the end of the interview, on the question that CA International was not found in the

companies’ registry, he repeated that “CA International is a brand name, it is not

registered as a company, it is registered as a brand name” (more than once). He

added that CA International is a consultancy and was a division of Air West Indies

Limited.

Page 70 of 96

Concessions made by Ms Marajh

[106] During the course of cross-examination, Ms Marajh was forced to make a number of

concessions the most significant of which I shall now set out hereunder-

1. General concessions

• that “for the most part”, there were several aspects of her story

for which she could produce no documentary corroboration.

She added that, “documentary evidence was not always readily

available or forthcoming and my memory of the volume of

transactions that I reviewed in 2003 is not complete at this

time”;

(I considered the latter answer unacceptable since Ms Marajh

was aware quite early enough during the series that the claimant

was likely to take legal action and ought to have prepared for

such an eventuality. Indeed, Ms Marajh had been permitted

several opportunities during a break in proceedings or at the end

of a day’s sitting, to review her notes and report back to the

court, and in most instances could not verify her facts.)

• that nowhere in her articles did she hold the board of directors

accountable for plans which the claimant told her (during the

interview) had been approved by the BWIA board of directors.

Her response however was that “it was not a question of

holding anyone accountable but merely presenting the

information to the public”;

(That latter comment however, was not consistent with the tone,

style and direction of the serial which clearly held the claimant

accountable

Page 71 of 96

• a lot of the information she used in her article could have been

verified (but were not) by checking them against published

documents in her possession;

• that at the time of writing the articles, BWIA’s board of

directors had authorised the financial statements;

• in response to Mr. Martineau’s suggestion that she didn’t

verify her information before publication, she said that “there

were some honest errors but given the time frame, I did my

best to verify the information” (she did not detail how);

• that a lot of her sources of information (among others) were

persons who were critical of the claimant or antagonistic

towards him (Captain Kelshall, Abraham and former

employees of BWIA who had been retrenched);

• she did not tell the claimant, at any stage, that there were

allegations of greed made against him or, of him having

personal vendettas or, of him engaging in smear tactics;

• that the unions had an axe to grind with BWIA and the

claimant

• she did not check the records of the Registrar General to see

whether CA International was registered as a trade name. She

did think that it was a prudent thing to do but spoke of time

constraints:

“the airline was falling apart. It was a do or die

situation and there were deadline considerations”;

• she searched the companies’ registry for CA International but

did not search for a brand name. (CA International is

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registered under the Registration of Business Names Act,

Chap. 82:85)

II Specific Concessions

(a) Tobago Express – Free Ride – lucrative airbridge

• she conceded that in the interview the claimant was at pains to

tell her that BWIA got paid for everything it provided for

Tobago Express and he gave specifics (reservations and

maintenance). She further conceded that she never told the

claimant of Minister Valley’s concerns about Tobago Express.

She gave the following as her reason;

“It is a general strategy in conducting interviews to

the information gathering process when you go to the

person, you put the question out without letting them

know you have other information, it varies for the

subject, circumstances and issue.”

(I considered that strategy to have been flawed and

misguided. By no stretch of the imagination can it be

considered fair.)

• she conceded that she had no accounts to show that the

Tobago airbridge route was lucrative;

• she stated that she relied on “insiders” when she spoke of “loss

of money-spinning opportunities” and that the “insiders” and

“observers” were BWee employees and other sources;

• admitted to calling Tobago Express a “paper company” even

though she was aware that a number of parties had made

significant investments in it (seven hundred thousand United

States dollars) (US$700,000.00);

Page 73 of 96

(b) The “virtual giveaway of BWIA’s catering concerns’

• she could not find or verify in any BWIA’s published accounts

(or in any document for that matter) that BWIA’s catering

concern was worth three hundred and sixty million United

States dollars (US$360,000,000.00);

• she conceded that on the basis of the information she had at

the time of writing the articles, she could not say that BWIA

had a small stake in Katerserv.

(c) Fictitious profits – bolstering of the BWIA bottom line

• that contrary to her statement in the 6th April article that there

were frequent sale and lease back transactions which bolstered

BWIA’s profits, there was only one sale and lease back

transaction (involving two aircraft) during the period 1998 to

2000

• that the accounts for 1998, 1999 and 2000 were prepared and

BWIA certified by Price Waterhouse Coopers and that the

financial statements of BWIA were prepared by PWC in

accordance with international accounting standards.

(Ms Marajh appeared to be skeptical of PWC’s reputation,

referring in cross-examination, to the fact that they were

“perceived” as a respected firm of accountants and suggesting

that the firm’s American counterpart was the accounting firm

which had been held responsible for false accounting in the

‘Enron’ scandal, a suggestion she later conceded was wrong.)

• that the monthly lease payments (in respect of the sale and

lease back arrangement) of BWIA L1011 aircraft and the buy

Page 74 of 96

back price were disclosed in the 2000 prospectus and was

therefore public information;

• that the claimant told her that one could not sell assets and

place them as operating profits;

• that BWIA’s accounts separated operating profits from profits

for the sale and lease back arrangement and from the Equant

shares, the latter two of which were both declared under non-

operating expenses/income and that the separation was clear

and obvious under the appropriate heads;

• that the difference between the put option (option to re-

purchase) and the market value of the securities under the

Equant shares had been provided for in the accounts;

• when shown the BWIA accounts for 1999, she conceded that it

was not correct to say that, operationally, the airline did not

make one thousand nine hundred and eighty-seven million

United States dollars (US$1,987,000,000.00);

• she didn’t tell the claimant during the interview, that there

were suggestions that he bolstered the BWee bottom line by

booking income from frequent sale and lease back of assets;

• she said she was told by Ved Seeteeram and industry analysts

that the Equant shares were not properly recorded. Although

she could not say whether Mr. Seeteeram was an accountant

she was prepared to write the articles on the basis of what he

and others said;

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(d) Ownership of 9Y-W1Z/existence of WIAAL

• as to the ownership of the aircraft 9Y-W1Z, she acknowledged

that the document CMII (inspection instruction) which

purported to show that it was owned by WIAAL had been

cancelled. She said she had personally checked the records of

the Director of Civil Aviation to determine the ownership of the

aircraft over time. She conceded however, that before writing

the articles, she should have obtained certified copies of the

registration certificate for the Director of Civil Aviation (which

would have revealed the true ownership);

• that she was fully aware that the existence of WIAAL had been

made public by the 2000 prospectus and there was nothing

secret about its existence;

• she accepted that ownership of the aircraft 9Y-W1Z was

disclosed in the 2001 accounts (Caribbean Aircraft

Acquisitions Ltd) as was the ownership of the other three

Dash-8 aircraft.

(She added however, that her concern was that the several

transactions involving change of ownership of the aircraft were not

reflected in the accounts and that accounting procedure would not

have been the basis of her review of the transaction.)

(e) Aleong’s pay deal

• she said she never asked Mr. Aleong whether his remuneration

was thirty thousand United States dollars (US $30,000.00) plus

allowances, because he refused to discuss it;

Page 76 of 96

(f) Minority shareholders action

• she conceded that she was aware that the minority

shareholders’ action had been withdrawn but continued to

pursue the very questions raised in the action because “there

were concerns flagged by stakeholders in the industry” who

included industry analysts, shareholders (including

government) and unions;

• the unions had expressed those concerns in public

pronouncements and in interviews she had conducted with

them;

• as to the suggestion that the union members to wit; Abraham

(of ACAWU), Goddard and Kelshall (of Talpa) had “axes to

grind” with the claimant, Ms Marajh stated that they appeared

to have a “beef about his management but were not hostile to

him.” She conceded that she was aware of an incident between

Goddard and the claimant over the return of an aircraft

captained by Goddard but Goddard, while he did not express

any hostile views in her interview towards the claimant, did

admit that he didn’t have a good relationship with him. She

was aware of the relationship when she wrote the articles.

(She went on to say however, she did not believe that she

included in her articles information given to her by Goddard and

Kelshall but some of Mr. Abraham’s concerns were included).

Cross-examination of Gary Reynald, Sunity Maharaj and Maxie Cuffie

[107] Mr. Reynald denied that the statements in recital 2 of his termination agreement

reflected the reasons for his leaving BWIA. Recital 2 stated that BWIA considered it

expedient and in its best interests to terminate Mr. Reynald’s services and to require

him to resign from his position with effect from June 1993. He said the document was

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purely to facilitate the provision of a quantitative payment such as to avoid taxation.

He added that he played no role in writing, printing and publishing the articles,

although as CEO of Caribbean Media Ltd, he was the publisher. Neither was he

consulted in any way about their writing or publication. He was aware of a letter of

complaint written about the articles by Mr. Aleong’s attorneys-at-law but although he

did get involved after the letter was written, it was not with respect to the writing or

publication of the articles. He became aware of the contents of the articles only upon

reading them in the published newspaper editions. Under cross-examination, Sunity

Maharaj stated that she did not discuss the articles with Ms Marajh at any stage nor did

she check the contents.

[108] Mr. Cuffie admitted that he wrote the editorial but stated that he had nothing to do

with the writing of the articles or the investigation that preceded them. He admitted

that in writing the editorial he drew on what he had read but that he did not himself

undertake any independent investigation.

Application of Reynolds – the decided cases

[109] I turn then to the application of the Reynolds privilege. The decided cases were quite

instructive. In Jameel and Ors. v The Wall Street Journal Europe Sprl, (supra) the

judges of the House of Lords took a varied approach to how Reynolds privilege is to

be applied. But a common theme which ran through their judgments was that it is to

be applied in a practical and flexible manner having regard to practical realities. This

approach was commended by Lord Nicholls of Birkenhead in Bonnick v Morris

[2003] 1 AC 300 at paragraph 24 where he said of the application of the doctrine of

responsible journalism that;

24. “To be meaningful this standard of conduct must be applied

in a practical and flexible manner… A journalist should not

be penalised for making a wrong decision on a question of

meaning on which different people might reasonably take

different views… If the words are ambiguous to such an

extent that they may readily convey a different meaning to an

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ordinary reasonable reader, a court may properly take this

other meaning into account when considering whether

Reynolds privilege is available as a defence. In doing so the

court will attribute to this feature of the case whatever weight

it considers appropriate in all the circumstances.”

See also the comments of Lord Carswell in Seaga v Harper [2008] 1 All ER 965

page 971 para. 12 where, speaking of the Reynolds privilege as explained by House of

Lords in Jameel he said:

“The third matter debated since Reynold’s case, and now specifically dealt

with by the House of Lords in Jameel’s case, is how the factors set out by

Lord Nicholls in describing responsible journalism in Reynold’s case are

to be handled. They are not like a statute, nor are they a series of

conditions each of which has to be satisfied or tests which the publication

has to pass. As Lord Hoffmann said in Jameel’s case (at [56]), in the

hands of a judge hostile to the spirit of Reynold’s case, they can become

ten hurdles at any of which the defence may fail. That is not the proper

approach. The standard of conduct required of the publisher of the

material must be applied in a practical manner and have regard to

practical realities (see [56]). The material should, as Lord Hope of

Criaghead said (at [107]-[108]), be looked at as a whole, not dissected or

assessed piece by piece, without regard to the whole context.”

[110] As to how I should have approached the matter, Lord Hoffman in Jameel provided

helpful guidance. He posed three questions to be answered sequentially (see page 381

para. 48):

(1) was the subject matter of the article of public interest?

(2) if yes, was the inclusion of the defamatory statement justifiable?

(3) if yes, were the steps taken to gather and publish the information

responsible and fair.

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[111] Lord Hoffman added that in considering whether the subject matter of the material was

in the public interest, one must consider the article as a whole and not isolate the

defamatory statement. It is not necessary in considering the contents of each

publication to find a separate public interest justification for each item of information

within the publication. At page 382 para. 49, he said:

“The question of whether the material concerned a matter of public

interest is decided by the judge. As has often been said, the public

tends to be interested in many things which are not of the slightest

public interest and the newspapers are not often the best judges of

where the line should drawn. It is for the judge to apply the test of

public interest.”

At paragraph 50 he added:

“In answering the question of public interest, I do not think it

helpful to apply the classic test for the existence of a privileged

occasion and ask whether there was a duty to communicate the

information and an interest in receiving it. The Reynolds defence

was developed from the traditional form of privilege by a

generalisation that in matters of public interest, there can be said to

be a professional duty on the part of journalists to impart the

information and an interest in the public in receiving it. The House

having made this generalisation, it should in my opinion be regarded

as a proposition of law and not decided each time as a question of

fact. If the publication is in the public interest, the duty and interest

are taken to exist…”

He then went on to say at paragraph 51that:

“…The fact that the material was of public interest does not allow

the newspaper to drag in damaging allegations which serve no

public purpose. They must be part of the story. And the more

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serious the allegation, the more important it is that it should make a

real contribution to the public interest element in the article. But

whereas the question of whether the story as a whole was a matter of

public interest must be decided by the judge without regard to what

the editor’s view may have been, the question of whether the

defamatory statement should have been included is often a matter of

how the story should have been presented. And on that question,

allowance must be made for editorial judgment. If the article as a

whole is in the public interest, opinions may reasonably differ over

which details are needed to convey the general message. The fact

that the judge, with the advantage of leisure and hindsight, might

have made a different editorial decision should not destroy the

defence. That would make the publication of articles which are, ex

hypothesi, in the public interest, too risky and would discourage

investigative reporting.”

[112] As to whether the journalist behaved responsibly, Lord Hoffman opined that:

“The question in each case is whether the defendant behaved fairly

and responsibly in gathering and publishing the information. But I

shall for convenience continue to describe this as ‘responsible

journalism’.

…But the standard of responsible journalism is as objective and no

more vague than standards such as ‘reasonable care’ which are

regularly used in other branches of law. Greater certainty in its

application is attained in two ways. First, as Lord Nicholls said, a

body of illustrative case law builds up. Secondly, just as the

standard of reasonable care in particular areas, such as driving a

vehicle, is made more concrete by extra-statutory codes of behaviour

like the Highway Code, so the standard of responsible journalism is

made more specific by the Code of Practice which has been adopted

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by the newspapers and ratified by the Press Complaints Commission.

This too, while not binding upon the courts, can provide valuable

guidance.

[113] The decision of the Privy Council in Bonnick v Morris (supra) was a case in which

the journalist was held to have behaved responsibly. In that case the claimant sued

over an article which he contended was defamatory of him in that it conveyed a

meaning that his services as managing director of the Jamaica Commodity Trading

Company had been terminated because of impropriety. The defendant journalist had

written an article which was published in the national newspaper. The article related

to litigation between a government-owned Jamaican company and a foreign supplier

with regard to two contracts executed while the claimant was the company’s managing

director. It referred to unusual aspects of the contracts and allegations of irregularities

made by an unnamed authoritative source. After giving the claimant’s response, the

article stated that “his services as managing director were terminated shortly after the

second contract was agreed”.

[114] Despite being told by the claimant that there had been no connection between the

termination of his employment and the contracts, the journalist had made no inquiries

about the reason for the claimant’s dismissal and made no reference in the article to his

explanation for it.

[115] The Judicial Committee of the Privy Council held that the natural and ordinary

meaning of the words in question, as would be understood by the ordinary reader, was

that the plaintiff had been dismissed because the company was dissatisfied with his

handling of the contracts in one or more of the respects referred to by the anonymous

source. The Board went on to hold however, that the article was the product of

responsible journalism.

[116] Lord Nicholls at page 310 paragraph 26, rationalised the Board’s decision thus:

“JCTC was a government owned company whose management was

appointed by the government. Its import business affected the cost

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of living of everyone. The activities of this company and the

competence of its management, were matters of considerable public

concern. Members of the public were entitled to be informed of the

Prolacto court proceedings. If the newspaper had seemingly reliable

information of incompetence or irregular conduct by the

management of JCTC, that also was a matter of legitimate public

interest, provided the information was reported in a balanced and

responsible fashion. Here, the general tone of the article was

restrained. Mr. Bonnick was approached, and his comments were

printed even-handedly beside those of the anonymous source. The

article did not associate itself with one or other of the two divergent

versions of events.

The fact that Mr. Bonnick was no longer the managing director was

itself a matter of legitimate public interest. The defamatory

imputation, while a matter of importance, cannot be regarded as

approaching anywhere near the top end of a scale of gravity. The

public is well aware that from time to time senior managers are

made scapegoats. Downer JA noted that the departure of high

profile executives from their companies is not an uncommon feature

of commercial life in Jamaica. The defamatory meaning of the

words used was not so glaringly obvious that any responsible

journalist would be bound to realise this was how the words would

be understood by ordinary, reasonable readers. The failure to make

further inquiry, and the omission of Mr. Bonnick’s explanation of

his dismissal, although unfortunate, have to be evaluated, and their

compatibility with responsible journalism considered, against this

background.

Taking all these matters into account, their Lordships consider that,

although near the borderline, overall this article was a piece of

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responsible journalism to which the defence of qualified privilege is

available.”

[117] In Seaga v Harper [2008] 1 All ER 965, the Board held that the defendant’s

publication of the words was not protected by qualified privilege because the

defendant had failed to take sufficient care to check the reliability of the information

he had disseminated.

Findings of fact

[118] The Reynold’s privilege applies where the defence of qualified privilege is raised in

the absence of malice. However, having regard to the pleadings and allegations of the

claimant, there remains the question whether the articles were maliciously intended to

injure the claimant. It was thus first necessary to decide on the facts, whether there

was any malice proven in which case the defence would have been defeated. The

claimant had, in effect, alleged malice on the part of the defendants, by contending that

he was targeted by the defendants because of his termination of Mr. Reynald’s

appointment at BWIA. He contended that Mr. Reynald’s departure was a direct result

of his decision to separate Mr. Reynald from BWIA and that Mr. Reynald was a close

friend of Captain Goddard who was also antagonistic towards the claimant. Mr.

Reynald’s answer was that his decision to leave BWIA had already been made by the

time of the claimant’s arrival at BWIA. Mr. Reynald testified that he had been enticed

by Mr. Ken Gordon to take over stewardship of the CCN group and the claimant

merely signed the separation agreement which had been formalised to permit him to

avoid tax. Mr. Reynald also denied any knowledge of hostility towards the claimant

coming from Captain Goddards.

[119] Having regard to the entire evidence in this case, I found the claimant’s contention

more credible and I accepted that he did in fact terminate Mr. Reynald’s appointment.

I did not accept however that the claimant was “targeted” by the defendants. In my

judgment, the claimant as president and CEO, was being held accountable for the

financial circumstances of the airline. It was a question of accountability. Indeed, I

considered that the claimant had a heavy burden to discharge in proving malice against

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Mr. Reynald in this case. The fact of his termination of Mr. Reynald’s appointment,

without more, was not sufficient to infer malice. Moreover, I accepted Mr. Reynald’s

evidence that he did not take part in the crafting or editing of the articles and that he

was not aware of any antagonism towards the claimant emanating from Captain

Goddard.

[120] I also rejected the claimant’s contention that he was tricked by Ms Marajh into doing

the interview. In any event, given the nature of the job he held, the claimant should

have come to expect that difficult questions would be put to him. It was entirely his

choice whether to answer them (as he chose to) and how. Nor should he have

expected that he could dictate the terms under which the interview would be conducted

or the questions to be asked. What was ultimately important was that his answers

should have been fairly portrayed in the articles.

Public Interest & Responsible Journalism

[121] I turn now to the final two questions in this case, to wit- were the articles in the public

interest and were they the products of responsible journalism to which the defence of

qualified privilege is available?

(i) Public Interest

[122] In my judgment, the answer to the first question was in the affirmative. The articles

were concerned with a subject matter of public interest. Questions about the

operations of BWIA, the quality of its management, its profitability and even the

remuneration package of its senior management including the chief executive officer,

were matters of public interest. BWIA had been consistently dependent on

subventions from the central government and ultimately the taxpayer. The

remuneration packages of the CEO and other senior managers at a time when the

airline was struggling to stave off its creditors and was approaching the government

for further financial assistance, were matters of public interest and more so if they

should be shown to be excessive or extravagant. Indeed, the fact that the airline could

have declared three years of profit but yet return, cap in hand, to the government for

financial assistance within twelve months was a matter worthy of coverage. Certainly

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these were all matters which were amenable to journalistic investigation and to

discussion in the public domain. Moreover, none of its minority shareholders was

willing to inject additional money into the company and it fell to the government as

majority shareholder to do so. Ms Marajh was well within her prerogative to pursue

the story.

(ii) Responsible Journalism

[123] Under this head, I shall also consider the second and third questions posed by Lord

Hoffman in Jameel, i.e. was the inclusion of the defamatory statement justified and

were the steps taken to gather and publish the information responsible and fair.

Freedom of the press is an express fundamental right under our constitution. The

press plays a pivotal role in our democratic process and the role of an independent

investigative journalist, in a bureaucratic culture not always given to transparency, is

especially important. I was thus mindful that any decision of the court must have been

careful not to set standards which are unduly restrictive and stifling of what is still a

fledgling profession in Trinidad and Tobago. But that, of course, had to be balanced

against the claimant’s right to his reputation which is an integral part of his right to

security of the person. In order for the defence of qualified privilege to be available,

any report which was defamatory of the claimant must have been responsibly

researched, neutral in tone, fair and balanced. His side of the story must have been

given prominence and have been fairly put.

[124] As to the ten Reynolds considerations, I was especially mindful of the necessity to

apply them with flexibility and practicability and that they were not hurdles which the

defendants had to surmount. Nor did I consider that, in this case, it was necessary to

set them out individually on separate heads and to individually apply them to the facts

of this case.

[125] As Lord Hoffman stated in Jameel, the question whether the defamatory statement

should have been included is often a matter of how the story should be presented, and

on that question, allowance must be made for editorial judgment. In this case a lot

turned on how the story was presented. The difficulty for the defendants was that the

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fourth defendant was not assisted by any other senior member of staff including the

second or third defendant in the decision of what material should have been included

in the story or how it should have been presented. There was no editorial judgment

exercised by anyone other than she.

[126] The evidence of both Mr. Reynald and Ms. Sunity Maharaj was that Ms Marajh was

allowed considerable journalistic latitude in what she wrote and what was published. I

accept that editorial curbs on the content of any article can be a source of tension

between journalist and editor and even publisher and is reflective of the journalistic

philosophy of the newspaper concerned. I also accept that the greater the latitude

given to the journalist the more likely it is that freedom of expression is truly

manifested but there will be occasions in which editorial participation and that of the

publisher are required. Good sense and good judgment are sometimes better exercised

with the participation of members of the editorial and publishing staff who are

themselves detached from the story. It also makes for responsible journalism.

Unfortunately, it appeared that in this case, Ms Marajh was a virtual one-woman show

and while Ms. Marajh’s independence may have assisted the defendants in rebuffing

the allegations of malice as regard to Mr. Reynald, it did not enhance their defence on

the question of responsible journalism.

[127] In my judgment, while the claimant’s management of the airline, his remuneration

package, the acquisition of the four Dash-8s, the start up of Tobago Express, the sale

and leaseback of airplanes and their inclusion as non-operating profits were matters of

legitimate public interest and merited inclusion in the article. The manner of their

presentation, the failure in many instances to accurately report the facts, moreso, facts

which could have been verified from available documentation, left a lot to be desired.

The tone and style of the articles in the series was sensationalized. There was no

restraint or detachment. Despite claims of urgency by Ms Marajh (the airline was

falling apart), I did not consider that there was any urgency with respect to the

publication of these articles such as to have required quick judgment calls under

pressure. It was April 2003, the articles concerned the financial years 1999 to 2001

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which were long gone. Even if a decision had to be taken with respect to the bailout

of the airline, the government appeared to be in no hurry. There was no undue

pressure to go to print expeditiously. In my judgment, the facts could have been

checked and verified with a lot more care and the articles presented with far more

detachment. Moreover, the inaccuracies in some of the articles gave an even more

distorted picture which put the claimant in an even less favourable light.

[128] The claimant’s side of the story was never put in a neutral or restrained manner but

presented in a shrill and aggressive style. The effectiveness of his account, when

given, was often attenuated by immediate rebuttals of the author herself or by

comments from unnamed sources. Some of these sources by her own admissions had

axes to grind with the claimant, a consideration she seemed not to consider.

[129] In the interview, the claimant, by Ms Marajh’s own admission, was not confronted

with a number of matters raised in the articles. Indeed, the manner in which the

interview was conducted was quite unsatisfactory. Ms Marajh stated in cross-

examination that the style of interviewing was to obtain information from the claimant

without necessarily letting him know that she had other information relevant to the

topic. She added that it was a particular style of interviewing. Such an approach was

manifestly unfair to the party who was being interviewed. If the reporter had

information which contradicts, calls into question or even supplements what the

interviewee may say or affects him in any material way, it should be put to him so that

he can give his side of the story or voice an opinion. The public interest could never

be served by the presentation of information to the public which was not balanced or

even-handedly presented.

[130] Having read the written transcript of the interview, it was apparent that much of what

the claimant said in the interview was left hanging in the articles, such as to give a

misleading picture of what was actually said. I refer by way of example, to the third

article captioned Aleong’s Pay Deal” in which the claimant was quoted as “thumbing

his nose at critics” of his pay package and as dismissively maintaining “that his pay is

nobody’s business”. The transcript of the interview, however, shows that there were

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sober concerns expressed by the claimant for not divulging his pay package. Whether

these were persuasive or not would have been a matter for the reader, had he or she

been given the opportunity to read them. Rather, the reader was left with an

impression of the claimant that he was truculent, arrogant and dismissive about what

were legitimate issues surrounding his pay package.

[131] I refer as well to the many inaccuracies which I have set out at paragraph 99 to 105

above and to the many concessions made at paragraph 106 above. Factual

inaccuracies which are defamatory may not necessarily be fatal if the journalist took

appropriate steps to verify the accuracy of his or her story. In this case, the many

inaccuracies gave a distorted picture. Tobago Express was described as a “paper

company”, the cost of start up for which was described as “closer to US $5 than US 7

million”, when in fact, local investors had put in close to seven hundred thousand

United States dollars (US $700,000.00). The evidence of Mr. Clovis suggested that

the cost of start up was anything but cheap. BWIA was described as owning a“small”

stake in Katerserv despite owning fifty-five percent of shares through its fully owned

subsidiary WIAAL No. 2. The value of the catering concerns of BWIA was put at

three hundred and sixty million dollars ($360,000,000.00). Ms Marajh could provide

no basis upon which she arrived at that figure despite having been given ample

opportunity to justify it. When taken together, these figures and statements gave the

impression that the claimant had given away valuable income earning assets and had

allowed Tobago Express to profit from the operations and services of BWIA

[132] Tobago Express was described as having been given “a free ride” by BWIA with

respect to services provided to it by BWIA. In fact, Ms Marajh had been told in the

interview with the claimant that Tobago Express paid for every service which BWIA

had provided. This was verified by Mr. Clovis in his witness statement. No effort was

made by Ms Marajh to verify whether Tobago Express was in fact a paper company.

Indeed, in the interviews, the claimant had named some of the investors to whom she

could have spoken. Further, the accounts of BWIA were presented as if they were

prepared by Mr. Aleong himself, with no input from the Board and no certification by

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external auditors. Mr. Williams was right that the articles proceeded on the basis that

the claimant “was running the airline like a parlour”.

[133] It is not to say that one could not be critical of the accounts of BWIA for 1998, 1999

and 2000. But it was quite another thing however, to openly suggest that the accounts

were manipulated by the claimant so that he could get a bonus.

[134] Similarly, Ms Marajh took no account of the fact that some of her sources, including

the airline executives and union officials, had axes to grind with Mr. Aleong, although

she stated she was aware of those facts.

[135] There was also no neutrality in the tone of the article such as to allow the reader to

come to his or her own conclusion. The articles led inexorably to a negative

conclusion about the claimant. More significantly, the many damaging concessions

made by Ms Marajh during cross-examination and to which I have referred,

demonstrated that her researching of the articles fell short of the standard required to

cloak the articles with the protection of the Reynolds privilege. It was not so much a

question of inaccuracies but the efforts (or lack of) made to minimise them. In my

judgment, having regard to the entire evidence, the articles were not the products of

responsible journalism to which the defence of qualified privilege should apply. The

claimant was entitled to succeed.

Damages

(i) General damages

[136] I agreed with Mr. Martineau that the libels were of a serious nature. The claimant is a

professional, a chartered accountant who would be expected to display the highest

level of integrity. He was the CEO of BWIA, a job which gave him a high public

profile. The libels took place over a five week period in which the very same

allegations were repeated again and again. The effect on the claimant’s credibility was

devastating. I refer to the following three paragraphs of his witness statement;

13 “Prior to the publication of these articles, my integrity and

honesty were never questioned so much so that after I left

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BWIA, I was asked to return to BWIA for a second stint.

Such was the confidence I enjoyed in the airline industry and

in Trinidad and Tobago. I had received a letter from the

Prime Minister of Curaçao, thanking me for the job done at

ALM Antillean Airlines which I sent to Ms Marajh after the

interview. On the other hand, during and after the

publication of the articles complained of, people began

speaking to me in disparaging terms calling me a thief in

public and referring to me as a ‘smart man’ and accusing me

of doing as I wished with shareholders’ money and asset,

forming secret companies, sharing profit making enterprises

with friends, making deals for the catering company and so

on.

14. After the publication of these articles in April 2003, I

declined most social invitations and public appearances and

restricted them for example, to one or two Carnival fetes per

year, despite enjoying Carnival very much previously. I even

used to ‘play Mas’ every year since my return to Trinidad in

1993. About ten (10) months after the articles were first

published, I went to a carnival fete in CAREC in 2004. I was

standing at the bar and a lady came up to me, while I was

standing there with my partner and friends waiting for

drinks, she said to me – ‘you still in this country? You see all

you thieves, all you coming to our country – and ‘…is a good

thing we is good people because we would ah throw you out ah

this country already, I do not know why you still here’. I was

shocked. My partner and friends were shocked. I just walked

away. This spoiled my entire afternoon and evening and for

days after. Shortly after, I went to the St. Mary’s College fete

and she was there again, standing and staring at me again

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saying similar things. However, this time the music was so

loud others could not hear her. Again, my evening was spoilt

and I went home early. I am not aware of anything in the

public domain, apart from these articles, that could have

caused this woman to speak to or about me like that. When I

again ventured out a year later in 2005 to the Carnival fete in

Moka, a young Indian fellow out of the clear blue, standing

at the bar, looked at everybody and said about me ‘…but all

yuh eh know this is the smartest man in this country, boy, look

at the smart man’. Out of embarrassment I had to walk away.

At that time I thought all of this had gone by and yet this

fellow was saying those kinds of things about me in public.

So that again affected my feelings for a long time again

afterwards. As recently as August 2006, I was at the Tobago

Express counter at Piarco, with my partner waiting to check

in, when Mr. Morgan Job approached me to buy a book

which he was selling. I did not have a lot of cash on me so I

declined. He then said in a loud voice in front of a lot of

passengers, ‘how come you don’t have money. Everyone

knows that you thief BWee money, so you must have some’.

Again the only things that I know of that could have caused

them to make those remarks were the publications in the

Express of which I complain. The Express, in their sustained

effort to avoid giving me any credit or to paint a balanced

picture about me, to this day speak of BWIA as never making

profit when the Express knows full well and published in the

past that BWIA made three years of audited profits under my

stewardship.

15. At the time of the articles, based on the reactions I got from

BWIA’s middle managers when I met with them and the

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questions they were asking about these articles, I could see

the doubt in their faces as well, I had lost the moral authority

to run BWIA. There was no question in my mind but that I

had lost moral authority. People were thinking of me as a

thief. My position was untenable. The Express had

published three articles before in December 2002 and

January 2003 written by Orion Ganase, critical of BWIA’s

IPO and referring to the shareholders’ lawsuit and of

unfairly cutting jobs to please shareholders, I had accepted

these as par for the course for a CEO. However, in 2003, the

allegations went much further, attacking my character and

my integrity. The articles were part of an orchestrated

attempt to denigrate me. The articles came at a time, when,

like almost all of the airline industry (perhaps except for

Southwest Airlines) BWIA was in deep financial trouble and

I was asking the workers at BWIA to make sacrifices. Once

the articles were published the mood of the workers had

changed. Prior to the publication, I would have regular

meetings with 300 to 600 staff in attendance. After the

publication of the articles, the response to staff meetings was

very poor. If 75 to 100 came, that was plenty. I had to stop

calling meetings. The meeting mood had changed and I felt

like they doubted my every word. My executive staff relayed

to me what the general staff were thinking which was, here I

was asking for sacrifices and BWee people are saying ‘…but

you thief all this money why not put it back in!’ By the time

the fourth article appeared on 20th April, 2003, the effect of

the articles published was that I was being hounded out of

office to such an extent that the Government was calling

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upon me to resign. My position had become untenable, such

that I had to resign.”

[137] In my judgment, the claimant was entitled to substantial damages. The articles so

destroyed his credibility at BWIA, that he had to resign. The adverse effects on his

credibility are also reflected in the statement of Michael Dolsingh, Clint Williams,

Neil Gajadhar, Esther Maharaj and Julia Maharaj. The claimant’s account of the

remarks directed at him during Carnival of 2004 and of 2005 illustrates that he came

to be regarded by some members of the public as a thief and a “smart man”. Even

before those two incidents, he had become antisocial, declining most social invitations

and restricting his appearances in public.

[138] The Sunday Express enjoys a large readership. It has the largest circulation of all the

newspapers in Trinidad and Tobago. It is also available on the internet thus expanding

its leadership beyond the shores of this country. More significantly, it is a newspaper

which commands considerable respect, well known for its fierce independence and its

equally fierce defence of press freedom. What it publishes (particularly in a series

such as this) carries great credibility.

[139] Ms Marajh too, enjoys a reputation for independence and credibility (as Michael

Dolsingh and Mr. Reynald testified) and has received awards for her work. This

combination of Sunday Express/Camini Marajh reputability would have had a

devastating effect on the claimant’s reputation. While the claimant need not have

proven damage, the evidence of damage was abundant. By his own evidence, he was

unable immediately to obtain a job. He was regarded as damaged goods. He was

fortunate to have a family concern into which he could have been absorbed.

[140] Ours is a small country. Port of Spain is a small city. Persons of the profile of the

claimant cannot disappear. Those who have been the subject of negative publicity can

suffer greatly. Venturing out of their homes can be an ordeal. They are easily

recognised. Heckling and verbal abuse (of which the claimant spoke) are directed at

them. This can go on indefinitely. Self-esteem is severely affected. Many are forced

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to migrate. I consider Lord Nicholl’s dictum in Reynolds at 1023E, worthy of

repetition. I can put it no better:

“Reputation is an integral and important and part of the dignity of the

individual. It also forms the basis of many decisions in a democratic

society which are fundamental to its well being: whom to employ or

work for, whom to promote, whom to do business with or to vote for.

Once besmirched by an unfounded allegation in a national newspaper,

a reputation can be damaged for ever, especially if there is no

opportunity to vindicate one’s reputation.”

[141] I do not believe that the claimant could ever reclaim the reputation he once had. There

will be many who will continue to harbour doubts about his integrity. The claimant

deserved to be appropriately compensated for the damage. As a very senior executive

who operated at the highest level, the damage to his reputation was significant.

Moreover, I did not consider that any of the precedents to which I was referred could

quite compare in terms of damage, having regard to the period of time over which the

libel spanned. I also considered that those awards are quite low and, having regard to

the lapse of time since those awards and the fall in the value of money, my award

should be significantly higher. At the other end of the spectrum, I took into account

that the award should not be so high as to act as a disincentive to investigative

journalism. In all the circumstances, the claimant was entitled to the sum of four

hundred and fifty thousand dollars ($450,000.00).

(ii) Exemplary Damages

[142] In my judgment, the claimant was also entitled to significant exemplary damages.

Each article advertised the fact that the “SAGA” continued the following week. There

were articles which stretched over a period of five weeks. The claimant was thus

subjected to the oppression of these allegations over a protracted period of five

Sundays. He sought an apology after the first article which was ignored and the series

continued.

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[143] Much of the contents of the articles were repeated over the five week period. In many

respects, the continued publication after three weeks was unnecessary. All that could

have been said had already been said after three weeks. In my judgment, the articles

were extended as a means of boosting sales on a matter which had generated great

interest among members of the public. There was the clear intention that the series

should attract and keep the reading public’s attention thereby boosting sales. Some

articles were given prominence with banner headlines. The articles were written in a

sensational style with eye-catching headlines. I considered that the quantum of

exemplary damages should have reflected the court’s concern for what was seen as

revenue earning opportunity at the claimant’s expense. The claimant was entitled to

have his reputation vindicated as far as possible. I thus awarded exemplary damages

in the sum of two hundred thousand dollars ($200,000.00).

Costs

[144] After judgment was given, an issue arose as to whether the claimant was entitled to

costs under the 1975 Rules of the Supreme Court or the Civil Procedure Rules 1998

(CPR 1998). This matter was commenced before the CPR 1998 were instituted.

Counsel for the claimant, on a perusal of the court file, argued that the matter had been

set down for hearing before the commencement of the CPR 1998 on 16th September,

2005 and the 1975 regime should apply. My ruling then was that the parties had all

proceeded on the basis that the CPR 1998 had applied and if the action had been

wrongly brought under the new CPR 1998, it would still not have been appropriate to

award costs under the 1975 Rules because the parties had conducted themselves in

such a way as to have adopted the CPR 1998.

[145] But further consideration of the documents on the court file showed that the trial

had not been set down for hearing until after the commencement of the CPR 1998

and that the CPR 1998 was in fact the appropriate regime. Part 80.3(1) of the

CPR 1998 is relevant. It provides that the CPR shall apply to proceedings begun

before the commencement date:

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(a) Upon a request being made to have a matter set

down; or

(b) If a judge or master so orders.

and the court office issues a notice to the parties requiring

them to attend a case management conference or pre-trial.

In this case, the court file shows that the request of the claimant’s instructing attorney

to set down the matter on the trial list was made on 2nd November, 2005 (after 16th

September commencement of the CPR 1998) and the Registrar issued a notice to the

parties dated 25th July, 2006 requiring them to attend a case management conference.

In the circumstances, Part 80.3 (1)(a) applied (the notice wrongly stated that it was

Part 80.3) (1)(b)) and the CPR 1998 was in fact the appropriate regime under which to

assess costs. The appropriate order assessing prescribed costs had therefore been

made.

NOLAN P G BEREAUX Judge 30th July, 2010