Dr Keith Christopher Rowley v Dr Roodal Moonilal
| Jurisdiction | Trinidad & Tobago |
| Judge | Madame Justice Margaret Y Mohammed |
| Judgment Date | 30 August 2021 |
| Neutral Citation | TT 2021 HC 193 |
| Docket Number | Claim No. CV2019-00055 |
| Court | High Court (Trinidad and Tobago) |
IN THE HIGH COURT OF JUSTICE
the Honourable Madame Justice Margaret Y Mohammed
Claim No. CV2019-00055
Mr Douglas Mendes S.C., Mr Michael Quamina and Ms Gabrielle Gellineau instructed by Ms Alatashe Girvan Attorneys at law for the Claimant.
Mr Anand Ramlogan S.C. and Mr Ganesh Saroop instructed by Mr Jared Jagroo Attorneys at law for the Defendant.
The Claimant has applied (“the Claimant's Application”) to strike out paragraphs 10, 14, 20 and 24 (“the challenged paragraphs”) of the Defendant's Re-Amended Defence 1 (“the Re-Amended Defence”) on the basis that they disclosed no grounds for
defending the claim. In support of the Claimant's Application was the affidavit of Ms Alatashe Girvan, Instructing Attorney at law. In response to the Claimant's Application, the Defendant filed an affidavit in opposition by Mr Jared Jagroo, Instructing Attorney (“the Defendant's Affidavit”) on 22 February 2021In the substantive matter, the Claimant has claimed damages against the Defendant in defamation, for words initially spoken by the latter on 9 October 2019 during the Budget Debate in Parliament (“the Budget Debate”), which he subsequently repeated, republished, adopted and confirmed as true on several occasions outside of Parliament. The Claimant has not disputed that the words spoken in Parliament were on an occasion of absolute privilege. The Claimant's contention was that the words spoken outside of Parliament by the Defendant were not protected by absolute privilege. The occasions which the Claimant has pleaded were:
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a. The Defendant's telephone interview with Fazeer Mohammed which was broadcasted live on and recorded by the Morning Edition Programme on TV6 on 10 October 2018 (“the Fazeer Mohammed interview”);
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b. The Defendant's press conference outside Parliament on 10 October 2018, which was recorded and published by TV6, CNC3, TTT and was reported in the Trinidad and Tobago Guardian Newspaper on 11 October 2018 (“the Press Conference”);
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c. The Defendant's interview on the Morning Drive Show which was broadcasted live on and recorded by Power 102 FM on 11 October 2018 and which was reported in the Trinidad Express Newspaper on 15 October 2018 (“the Morning Drive Interview”);
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d. The Defendant's presentation at the UNC's Monday Night Forum on 15 October 2018 which was broadcasted live and recorded by the United National Congress and placed on their Facebook page (“the UNC Forum Speech”).
The Claimant asserted that as a result of the Defendant's conduct he has suffered grave damage to his character and reputation, and has also suffered considerable distress and embarrassment. As a result, he is seeking general damages, aggravated damages and injunctive relief.
In the Re-Amended Defence, the Defendant has accepted that he spoke the words complained of at the Fazeer Mohammed Interview, the Press Conference, the Morning Drive Interview and the UNC Forum Speech. For each case the Defendant has asserted that the words he spoke were protected by absolute privilege.
The Defendant set out identical particulars in paragraphs 14, 20 and 24 of the Re-Amended Defence. The particulars which the Defendant pleaded in paragraph 10 of the Re-Amended Defence were:
“10…The Defendant further avers that words complained of at Paragraph 11 are protected by absolute privilege since:
i) There is so close a nexus between the occasion of speaking in and then outside Parliament, that the prospect of the Defendant's obligation to speak on the second occasion (or the expectation that he would do so) was reasonably foreseeable at the time of the first speech in Parliament;
ii) The purpose of the Defendant's speaking on both occasions is the same or closely related; and
iii) There is a public interest in responding in respect of the Parliamentary utterance which the Defendant ought reasonably to serve.
a) the words complained of were spoken during a telephone interview which took place the day after the Defendant made his contribution in Parliament;
b) the Defendant's contribution occurred during the debate on the Appropriation (Financial Year 2019) Bill, 2018 (the budget debate);
c) during the Budget Debate the Defendant raised concerns regarding the closure of state owned oil refinery Petrotrin, the challenge to the Government's decision to close Petrotrin by the labour movement, and the relationship between A & V Oil and Gas Limited, its principal and/or owners and the Claimant, who is the Prime Minister of Trinidad and Tobago and the allegations of misconduct/theft made by former state-owned/funded oil company Petrotrin against A & V Oil and Gas limited resulting in the loss of approximately TT $100 million of public funds.
d) the Defendant further called upon the Claimant to respond and/or explain and/or investigate as to whether the matters raised were true or not.
e) during the interview referend to at Paragraph 11, the both Defendant and interviewer referred specifically to the Budget Debate and the need for the Government and/or the Claimant to respond and/or explain and/or investigate the concerns raised by the Defendant in the budget debate;
f) the Defendant is an experienced Parliamentarian, having been a Member of Parliament for over 17 years, and therefore would have also been involved in over 15 Budget debates of the years. He is also a senior member of the United National Congress, the party in opposition to the government of the day and a former Minister of Government.
g) The Budget debate, being the national debate over the allocation of public funds for expenditure over the next year, together with the closure of the state owned oil refinery Petrotrin, the challenge of the Government's decision to close the Petrotrin by the labour movement, the relationship between A & V Oil and Gas Limited, its principal and/or owners and the Claimant, who is the Prime Minister of Trinidad and Tobago and the allegations of misconduct/fraud made by former state-owned/funded oil company Petrotrin against A & V Oil and Gas limited resulting in the loss of approximately TT$100 million of public funds are obviously matters of public interest.
h) It was therefore reasonable in these circumstances that the Defendant be called upon to respond in respect of the statements made in Parliament.”
The Civil Proceedings Rules, 1998 (“CPR”) places a duty on a Defendant to set out all the facts which he relies on to dispute his claim in his defence. Rule 10.5(1) CPR states that a Defendant is required to “include in his defence a statement of all the facts on which he relies to dispute the claim against him.” Rule 10.6(1) CPR states that a Defendant “may not rely on any allegation which he did not mention in his defence, but which he should have mentioned there, unless to the court gives him permission to do so.”
The principles which the Court is to apply in determining whether to strike out a pleading or part thereof were not in dispute by the parties. Paragraph 2 of the Claimant's submissions in Reply 2 summarized the said principles which I adopt as:
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i) The power to strike out a pleading should be exercised sparingly and only in a clear case;
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ii) The power to strike out may be exercised where the defence (or part thereof) does not raise a valid defence. This may be the case where the defence is legally insufficient when either the allegations it contains do not give rise to a recognised defence or it fails to plead the necessary legal elements of an otherwise recognised defence;
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iii) A defence may be unsustainable where it is lacking a factual ingredient or it advances an unsustainable point of law, or does not raise a valid defence as a matter of law;
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iv) On an application to strike out, it is open to the court to conclude that the justice of the particular case militates against striking out and that the appropriate course is to order the Defendant to supply further details or to amend the defence;
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v) The burden of proof that the case is appropriate for striking out rests on the Applicant who must satisfy the Court that no further investigation will assist the Court in arriving at the correct outcome.
The general rule is that an absolute privilege is attached to statements made during the course of Parliamentary proceedings 3. However, this privilege is not extended if the exact words are repeated outside of Parliament. Gatley on Libel and Slander 4 explained the position at paragraph 13.30 as:
“ Extent of the privilege. […] Statements made outside Parliament are not protected by absolute privilege even if they simply repeat what has been said therein.
“The right of members of Parliament to speak their minds in Parliament without any risk of incurring liability as a result is absolute, and must be fully respected. But that right is not infringed if a member, having spoken his mind and in so doing defamed another person, thereafter chooses to repeat his statement outside Parliament.”
This is so even if the extra-Parliamentary statement does not literally repeat the words used in Parliament but merely adopts them by reference, for even though in such a case the record of Parliament must be examined to determine what the member said there and is treated as now repeating by implication, that does not amount to “questioning” the proceedings in Parliament.”
In the Privy Council decision of Buchanan v Jennings 5 the Board set out the parameters of the defence of absolute privilege. In Buchanan, Jennings made certain comments in Parliament which impugned Buchanan's personal and professional integrity. Subsequently, in an interview with a newspaper, Jennings stated that he did not...
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