Julien v Marajh and Trinidad Express Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Rampersad, J. |
| Judgment Date | 02 April 2014 |
| Neutral Citation | TT 2014 HC 151 |
| Docket Number | CV 348 of 2007 |
| Court | High Court (Trinidad and Tobago) |
| Date | 02 April 2014 |
High Court
Rampersad, J.
CV 348 of 2007
Claimant: Reginald T. A. Armour SC and Stuart R. Young instructed by Anthony Bullock
Defendant: Christopher Hamel-Smith SC and Faares Hosein instructed by Carolyn Ramjohn-Hosein
Defamation - Libel and Slander — Whether newspaper articles complained of were defamatory of the claimant as viewed objectively by the Courts as defined in Skuse v. Granada Television Limited [1996] E.M.L.R 278 — Public Interest Test — Reynolds defence — Responsible journalism — Whether the defendants were entitled to the defence of Reynolds privilege as construed by Reynolds v. Times Newspapers Ltd [2001] 2 AC 127, [1999] 4 All ER 6 09, [1999] 3 WLR 1010 — Damages — Whether the claimant was entitled to the damages — Reputation of the claimant — Aggravated Damages — Quantum
Between 26 November 2006 and 17 December 2006, the second named defendant republished a series of articles written by the first named defendant about the University of Trinidad and Tobago (the UTT) focusing on the claimant in these proceedings. This series was described as a series of investigative articles into the affairs of the UTT in relation to its accountability. The claimant has brought these proceedings complaining that it brought him into disrepute as portions of the various articles were defamatory of his character. In response, the defendants have sought to rely upon Reynolds privilege or the defence of responsible journalism.
The issues for determination, therefore, are whether or not the articles complained off are in fact defamatory of the claimant, whether the defendants are entitled to the defence of Reynolds privilege and whether the claimant is entitled to damages and, if so, to what extent.
The development of the law in relation to the defence raised - Reynolds privilege - has taken a dramatic turn since the House of Lords decided Reynolds v. Times Newspapers Ltd. [2001] 2 A.C. 127, [1999] 4 All E.R. 609, [1999] 3 W.L.R. 1010. Described by the Master of the Rolls Lord Justice Simon Brown as “… a different jurisprudential creature from the traditional form of privilege from which it sprang ….”, the essence of the defence is one based on the responsible journalist. Simon Brown, L.J. went on to say:
“The interest is that of the public in a modern democracy in free expression and, more particularly, in the promotion of a free and vigorous press to keep the public informed. The vital importance of this interest has been identified and emphasised time and again in recent cases and needs no restatement here. The corresponding duty on the journalist (and equally his editor) is to play his proper role in discharging that function. His task is to behave as a responsible journalist. He can have no duty to publish unless he is acting responsibly any more than the public has an interest in reading whatever may be published irresponsibly. That is why in this class of case the question whether the publisher has behaved responsibly is necessarily and intimately bound up with the question whether the defence of qualified privilege arises. Unless the publisher is acting responsibly privilege cannot arise……”
Lord Hoffman, in Jameel (Mohammed) v. Wall Street Journal Europe Sprl [2006] U.K.H.L. 44, [2007] 1 A.C. 359, [2006] 4 All E.R. 1279, set out a procedural checklist in defamation matters which this court intends to adopt. That checklist, following Lord Hoffmann's words, is comprised of the following elements:
4.1. Firstly, it must be determined whether the subject matter of the article, considered as a whole and not isolated to the defamatory statement, is a matter of public interest. That is a question to be decided by the judge applying the test of public interest;
4.2. Secondly, “…the next question is whether the inclusion of the defamatory statement was justifiable.” The defamatory statement must be part of the story and “the more serious the allegation, the more important it is that it should make a real contribution to the public interest element in the article.” With respect to this aspect, “allowance must be made for editorial judgment.”
4.3. Once the first two hurdles have been crossed, “the inquiry then shift to whether the steps taken to gather and publish the information were responsible and fair”. In this regard, the court's mind would be brought to bear on the ten matters to be considered by a court in determining this issue as set out by Lord Nichols in Reynolds. Those ten matters are not hurdles to cross or conditions to be fulfilled. They are all factors to be taken into account in greater or lesser measure depending on the circumstances of the case. However, as was seen in Flood, those ten matters do not form an exhaustive list and the court is free to consider other factors which may be relevant.
The last step described in the preceding paragraph is referred to in the authorities as “responsible journalism”. Lord Nicholls described the concept of responsible journalism in Bonnick v. Morris [2002] U.K.P.C. 31, [2003] 1 A.C. 300, [2002] 3 W.L.R. 820 as follows
“…Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege. If they are to have the benefit of the privilege journalists must exercise due professional skill and care.
To be meaningful this standard of conduct must be applied in a practical and flexible manner. The court must have regard to practical realities. Their Lordships consider it would be to introduce unnecessary and undesirable legalism and rigidity if this objective standard, of responsible journalism, had to be applied in all cases exclusively by reference to the “single meaning” of the words. Rather, 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. Their Lordship note that in the present case the selfsame question has resulted in a division of view between members of the Court of Appeal. If the words are ambiguous to such an extent that they may readily convey a different meaning to an 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.
Lord Hope, in Jameel, opined
“Any test which seeks to set a general standard which must be achieved by all journalists is bound to involve a degree of uncertainty, as Lord Nicholls recognised in Reynolds, at p. 202d-e. But, like him, I think that the extent of this uncertainty ought not to be exaggerated. “Responsible journalism” is a standard which everyone in the media and elsewhere can recognise. The duty-interest test based on the public's right to know, which lies at the heart of the matter, maintains the essential element of objectivity. Was there an interest or duty to publish the information and a corresponding interest or duty to receive it, having regard its particular subject matter? This provides the context within which, in any given case, the issue will be assessed. Context is important too when the standard is applied to each piece of information that the journalist wishes to publish. The question whether it has been satisfied will be assessed by looking to the story as a whole, not to each piece of information separated from its context “
In Flood v. Times Newspapers Ltd. [2011] U.K.S.C. 11 , Lord Phillips, in considering the decision in Jameel, described the public interest test as follows:
“[42] As to the formulation of the test of public interest, different opinions were expressed. Lord Bingham at para 30 referred, with approval, to the adoption by Lord Nicholls in Reynolds of the “duty-interest test” or the simpler test of “whether the public was entitled to know the particular information”. Lord Hoffmann at para 50 said that he did not find it helpful to apply the classic test of whether there was a duty to communicate the information and an interest in receiving it. These requirements should be taken as read where the publication was “in the public interest”. Lord Hope at para 107 commented that the “duty-interest test, based on the public's right to know, which lies at the heart of the matter, maintains the essential element of objectivity”. Lord Scott at pares 130 and 135, like Lord Bingham, endorsed Lord Nicholls' adoption of the duty/interest test. Lady Hale at para 146 observed that the Reynolds defence sprang from “the general obligation of the press, media and other publishers to communicate important information upon matters of general public interest and the general right of the public to receive such information”. She added at para 147 that “there must be some real public interest in having this information in the public domain”. I doubt if this formulation could be bettered.”
To my mind, this issue is not in doubt between the parties. The UTT is a university owned by the Government of Trinidad and Tobago and is primarily funded by the government. Substantial sums of public money have been used towards the development of this university. According to the first named defendant's unchallenged evidence in her witness statement, that figure stood at $500 Million TT as at October 2006 - a figure which...
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