Guardian Media Ltd v Ashwin Creed
| Jurisdiction | Trinidad & Tobago |
| Judge | A. Mendonça J.A. |
| Judgment Date | 12 May 2021 |
| Neutral Citation | TT 2021 CA 21 |
| Docket Number | Civil Appeal No. P022 of 2017 |
| Court | Court of Appeal (Trinidad and Tobago) |
IN THE COURT OF APPEAL
A. Mendonça J.A.
P. Moosai J.A.
J. Aboud J.A.
Civil Appeal No. P022 of 2017
Claim No. CV 2013-05233
Mr. F. Gilkes instructed by Mr. A. Rudder appeared on behalf of the Appellant
Mr. P. Taylor appeared on behalf of the Respondent
Delivered by A. Mendonça J.A.
The Respondent, Ashwin Creed, commenced these proceedings claiming against the Appellant, Guardian Media Limited, damages for defamation (including exemplary damages) in respect of two articles published by the Appellant in the Trinidad Guardian, a daily newspaper of general circulation. The Trial Judge held that the articles were defamatory of the Respondent and the Appellant was liable in defamation. He awarded the Respondent general damages and exemplary damages.
The Appellant in this appeal has argued that the Trial Judge erred in coming to the conclusion that it is liable in defamation. The Appellant in its defence raised a number of defences; namely, that the words of which the Respondent complained were not defamatory, justification, fair comment on a matter of public interest, and qualified privilege as described in the case of Reynolds v Times Newspapers and Others [2001] 2 AC 127 (hereinafter referred to as “Reynolds privilege”). The defences were however all rejected by the Trial Judge.
The Appellant has only taken issue with the Trial Judge's rejection of the defence of Reynolds privilege. In short, Reynolds privilege protects the publication of defamatory material to the world at large where it was in the public interest that the material should have been published and where the publisher has acted responsibly in publishing the information. The standard of responsibility that must be achieved has been referred to as responsible journalism. The defence however is available to publications not only by the press. In the alternative, the Appellant contends that the award of general damages is too high and in any event the Trial Judge should not have awarded exemplary damages.
With that brief introduction, I will set out the relevant background to this appeal.
The Respondent at all material times was the permanent secretary and most senior accounting officer in the Ministry of Sport. The Appellant was (and is still) the owner and publisher of the Trinidad Guardian. The Trinidad Guardian enjoys a considerable circulation and readership both locally and internationally via its official online website.
The articles of which the Respondent complains in these proceedings were published on March 20 th and 21 st, 2013 in the Trinidad Guardian. They were written by Anika Gumbs-Sandiford (“Gumbs-Sandiford”) who was at the time an investigative journalist in the employ of the Appellant.
The first article, which was published on March 20, 2013, was published under the headline in large bold letters “Anil faces DPP Probe”. It contained the following words of which the Respondent complained:
“ANIL FACES DPP PROBE
Sport Minister Anil Roberts, his Permanent Secretary Ashwin Creed and special adviser to the T&T Boxing Board of Control (TTBBC) Boxu Potts, may have a case to answer as allegations of misbehaviour in public office against the trio have been referred to the Director of Public Prosecutions.
The move by the Integrity Commission comes a year after sacked board member Ricardo Phillip filed a complaint against the three alleging misconduct and misbehaviour in public office.”
The second article was published on March 21, 2013 and bore the headline again in large type “ANIL MUST STEP ASIDE”. It contained the following words of which the Respondent complained:
“ANIL MUST STEP ASIDE
The Integrity Commission last week referred Roberts, his Permanent Secretary Ashwin Creed and special adviser to the T&T Boxing Board of Control (TTBBC) Boxu Potts to DPP Roger Gaspard, in relation to a complaint of alleged misappropriation of funds at the TTBBC relating to several events; in particular a $1.9 million boxing card put on by Potts' son Giovanni”.
On March 21, 2013 after the publication of the articles the Integrity Commission (IC) 1 issued a statement in which it denied that any allegation of misbehaviour against Minister Roberts, the Respondent or Boxu Potts had been referred to the DPP. The statement was in the following terms:
“The Integrity Commission of T&T has noted an article in the Trinidad Guardian of March 20, 2013 that states that the Integrity Commission has referred a matter concerning a minister of government and two other persons to the Director of Public Prosecutions (DPP).
The Office of the Integrity Commission wishes to categorically state that no allegations of misbehaviour in public office against Hon. Anil Roberts, Minister of Sport, Permanent Secretary, Mr. Ashwin Creed or Special Adviser to the T&T Boxing Board of Control, Mr. Boxu Potts have been referred to the DPP by the Office of the Integrity Commission. Further the said persons were not referred to the DPP by the Office of the Integrity Commission.
It is important to emphasise that Section 38 of the Integrity in Public Life Act (Chapter 22:01) states: “No report concluding that a person to whom this act applies has failed without reasonable justification to fulfil a duty or obligation under the act shall be made until reasonable notice has been given to such person of the alleged failure and the person has been allowed full opportunity to be heard either in person or by an attorney at law.”
That statement was published in the Trinidad Guardian on March 22, 2013.
Also on March 22, 2013 there appeared in the Trinidad Guardian an article entitled “Crichlow on Phillip's complaints: Matter sent to DPP after issues came up”. That article quoted Mervyn Crichlow, who was described as the Chief Communications and Public Relations Officer at the IC, as saying that in the course of investigating complaints made by Ricardo Phillip (“Phillip”) to the IC “there were certain issues which cropped up which the Commission felt should be investigated by the DPP”. The article further stated that Crichlow “reiterated, however, that Sport Minister Anil Roberts was not being investigated by the DPP and the T&T Guardian should not have assumed that the investigation was centred on [Minister] Roberts, his permanent secretary Ashwin Creed or the TTBBC special adviser Boxu Potts”.
On December 30, 2013 the Respondent commenced these proceedings claiming damages against the Appellant and Gumbs-Sandiford for defamation in relation to the words complained of in the articles. In his statement of case the Respondent pleaded that the words complained of in both articles were completely untrue, unfair and unjustified since at no time any complaints in relation to him had been referred to the DPP. The Respondent further pleaded the defamatory meanings which, in his view, the words complained of in their natural or ordinary meaning meant or were understood to mean.
The Appellant in its defence, as I mentioned, averred that the words were not defamatory of the Respondent and alternatively raised the defences referred to above, which included the defence of Reynolds privilege.
At the trial of the claim the Respondent gave evidence on his behalf and called no other witness. For the Appellant, the author of the articles, Gumbs — Sandiford and Irving Ward, the editor of the Trinidad Guardian newspaper, gave evidence. They all provided witness statements which stood as their evidence-in-chief and were cross-examined. I will highlight what I consider for the purposes of the appeal to be the main points of the evidence-in-chief and will refer to the cross-examination if and when it may be necessary to do so to determine any issues on this appeal.
The Respondent stated that:
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(1) The words complained of were untrue and unjustified. He had never been referred to the DPP by the IC. He produced a letter from the Registrar of the IC confirming that to be so.
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(2) Gumbs-Sandiford never contacted him for comment before the articles were published. He further stated that it would have been simple for her to do so since the Appellant's office is within walking distance from the Ministry of Sport where he was located. Alternatively, Gumbs — Sandiford could have left a message with his secretary indicating that she was writing a story and wanted a comment or could have contacted him by telephone or email. She however never did.
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(3) As a result of the publications, he had been exposed to ridicule, contempt and odium from many cross-sections of society including talk-show hosts and on social media. He was referred to as being corrupt and being unfit to hold the office of accounting officer of the Ministry of Sport.
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(4) He further stated that his professional reputation and character were impugned and sullied in the electronic and social media; that he was subject to public ridicule, vilification and ridicule; that he was traumatised psychologically, mentally and emotionally as many of his friends and professional colleagues publicly disassociated themselves from him; that he became a pariah; that he and his family suffered months of sustained extreme feelings of depression and sadness; that his children were often exposed to uncomplimentary remarks from sundry persons when they were in public.
Gumbs-Sandiford stated:
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(1) At the time of the trial she was no longer employed by the Respondent but had worked there as an investigative journalist at the time the articles were published and she was their author.
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(2) On March 19, 2013 Phillip, one of her sources and who had given her information in relation to the TTBBC and was a former member of the TTBBC, came to see her at her office about a complaint that he made to the IC and the IC's letter in reply to him.
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(3) Phillip told her that the IC...
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