Moonilal v The Cepep Company Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Boodoosingh, J. |
| Judgment Date | 18 January 2017 |
| Neutral Citation | TT 2017 HC 6 |
| Docket Number | CV 2016-03083 |
| Court | High Court (Trinidad and Tobago) |
| Date | 18 January 2017 |
High Court
Boodoosingh, J.
CV 2016-03083
Mr. Jagdeo Singh, Mr. Larry Lalla, Mr. Kiel Taklalsingh instructed by Mr. Vivek Lakhan-Joseph for the claimant.
Mr. Elton Prescott SC leading Mr. Phillip Lamont instructed by Mr. Farai Hove Masaisai for the claimant.
Defamation - Newspaper advertisement placed by the defendant — Whether the defendant's counterclaim should be struck out — The purpose of the establishment of the limited liability company — Public interest element — Freedom of speech — Whether a limited restriction on CEPEP is justified on public policy grounds — Whether CEPEP should be placed in the same category as other government institutions — Restriction on ability to sue.
The claimant is the Member of Parliament for Oropouche East and former Minister of Housing and Urban Development. The defendant is a limited liability company wholly owned by the State. The claimant was once the Minister to whom the defendant reported.
On 14 September 2016 the claimant brought a claim for defamation against the defendant. This was in relation to a newspaper advertisement placed by the defendant on 24 August 2016.
The defendant filed a defence and counterclaim for defamation on 20 October 2016. The counterclaim was in relation to statements made by the claimant on 16 August 2016 and on 5 September 2016. The advertisement by the defendant was to refute the statements made by the claimant on 16 August 2016 and went on to make certain allegations concerning the claimant.
The claimant has asked the court to strike out the counterclaim. Front and centre of this application is the argument that the defendant is prevented from bringing a claim for defamation because it is a state entity. This is on public policy grounds as laid down by the House of Lords in the case of Derbyshire County Council v. Times Newspapers Limited and Others [1993] 1 All E.R. 1011 and other cases cited from South Africa, the United States of America, Zimbabwe and Australia.
In the Derbyshire case, a local authority, a politically elected body, was held to be unable to bring a claim in defamation. It is important to examine the rationale for this decision. In the judgment of Lord Keith of Kinkel, certain comparisons were made. A trading company was considered to be entitled to sue in respect of defamatory matters which can be seen as tending to damage it in the way of its business. A bank or lending institution, for example, may be affected in ways that impede the recruitment of the best qualified workers or may make people reluctant to deal with it. Trade unions may be affected in their ability to keep members or to maintain a convincing attitude to employers. A charitable organisation defamed may be affected in their ability to get subscribers or may be impaired in how it does its charitable activities.
The restriction on being able to sue is based on the principle that a governmental body should be open to uninhibited public criticism. The fundamental right of freedom of speech is involved. There are public interest considerations in allowing uninhibited criticism.
The first rationale comes in the following statement from the judgment at page 1018:
“Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving these facts is not available. This may prevent the publication of matters which it is very desirable to make public.”
The second rationale was extracted by their Lordships from the Privy Council case of Hector v. Attorney General of Antigua and Barbuda [1990] 2 A.C. 312. Lord Keith quoted Lord Harwich at page 318 as follows at page 1018:
“In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism.”
The third rationale comes in this passage at 1019:
“…there are rights available to private citizens which institutions of central government are not in a position to exercise unless they can show it is in the public interest to do so….”
Further, Lord Keith stated at page 1019:
“In both cases I regard it as right for this House to lay down that not only is there no public interest favouring the right of organs of government, whether central or local, to sue for libel, but that it is contrary to the public interest that they should have it.”
In Derbyshire the learned judges referred to the South African case of Die Spoorbond v. South African Railways (1946) S.A.L.R. 999 where it was held that the South African Railways and Harbours, a governmental department, was not entitled to maintain a claim for defamation. That case did not confine the restriction to railways but also included governmental departments which “indulge in some form of trading on a greater or a lesser scale”: Schreiner, J.A. at 1012-1013.
This was even where the department may have been “falsely and unfairly” criticised.
Page 3 of 12
Carter-Ruck on Libel and Slander, Sixth Edition, a leading text on the subject, at paragraph 8.14 states:
“Although the Crown can be sued for defamation, it cannot, following Derbyshire CC v. Times Newspaper sue for defamation (1). Identifying the ‘Crown’ for these purposes is not entirely easy. Clearly it includes government departments (2) as well as servants and agents of the Crown. Whether it includes agencies (3) or companies (4) to which formerly government-run functions were transferred or companies that were previously in the private sector but are now wholly or partially owned by the government (5) is more difficult. None of these entities of course have been, or indeed are capable of being, democratically elected and this was a factor considered of importance by Lord Keith in the Derbyshire case. Yet, that cannot be decisive and it is submitted that the crucial question remains whether the entity in question should be treated as a governmental body in the light of the functions it undertakes and its legal nature. The legal form taken by the entity, though relevant, is not decisive.” (Emphasis supplied)
Of interest, footnote 4 has as examples British Gas and British Telecom. An example of footnote 5 is “the complete or partial state ownership of companies like Northern Rock, Royal Bank of Scotland and HBOS”.
Finally, but by no means least, there was the local case of Trinidad and Tobago National Petroleum Marketing Company Limited v. Trinidad Express Newspapers Limited HCA No. S-862 of 1999, unreported, delivered 11 March 2002, per Rajnauth-Lee, J. In that case, the learned Judge held that National Petroleum could bring a claim for defamation where the plaintiff was: a limited liability company; a trading company carrying on the business in the sale and distribution of petroleum and petroleum products; wholly owned by the State; a company where the Board was appointed by a government Minister and removable at will; a company where the Board was subject to the policy directions of the government of the day through a Minister; a company which was run by staff who were not public servants. These were the “undisputed facts”. The learned judge cited Buckley, J. in Goldsmith v. Bhoyrul [1998] Q.B. 459 at p. 462 C:
“To use what the court may regard as the public interest to prevent a legal person, individual or corporate, from suing for libel if it might otherwise have that right is an undertaking that requires great caution”.
It is in light of these cases and principles that it is now necessary to identify the facts about the defendant company.
The defendant is a limited liability company. It was established by the government pursuant to Cabinet Minute No. 1927 of 3 August 2006. Previously a programme for community based environmental protection and enhancement was established by Cabinet Minute No. 1003 of 28 February 2002. The defendant manages this programme called CEPEP. The claimant reports to a government Minister (the line Minister). It is wholly owned by the State. It is managed on a day to day basis by persons who are employees of the company and not public servants. The shares are vested in the Minister of Finance as corporation sole. All property is held in trust for the State. The board of directors is appointed by the relevant Minister of State. The Minister can remove the Board members at will. So far so good.
According to its General Manager, Mr. Keith Eddy, one of its functions is to manage the CEPEP programme. To do so it hires contractors. He says the company also enters into contracts with private companies and state entities providing revenue for the company and creating business development opportunities for “our contractors and their employees” (paragraph 3 of affidavit filed 29 November 2016).
In the affidavit in support of the application to strike out the counterclaim filed 16 November 2016 by Mr. Vivek Lakhan-Joseph, he referred to certain documents in support. One was allocations of expenditure by the government to the Social Sector Investment Programme 2017. In respect of CEPEP, the following approximate sums were spent by CEPEP since 2011:
2011 - 366,114,000.00
2012 - 494,419,288.00
2013 - 584,039,642.00
2014 - 532,557,459.00
2015 - 606,200,000.00
2016 - 531,000,000.00 (Revised Estimate).
Thus, in a 6 year period, CEPEP has spent over $3.1 billion in State revenue.
Of importance, in this document CEPEP was listed among other government programmes such as Disability Assistance Grant, Government Assistance for Tertiary Expenses (GATE), National Schools Dietary Services Limited (formerly Schools' Nutrition Programme), On the Job Training (OJT), Public Assistance Grant, Senior Citizens' Pension, Target Conditional Cash Transfer Programme (Food Support Programme) and...
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