Urban Development Corporation of Trinidad and Tobago Ltd et Al v Uff et all

• Jurisdiction: Trinidad & Tobago
• Judge: Pemberton, J.,Gillard, J.
• Judgment Date: 13 May 2009
• Neutral Citation: TT 2009 HC 100
• Docket Number: CV 1632 of 2009
• Court: High Court (Trinidad and Tobago)
• Date: 13 May 2009

High Court

Pemberton, J.

CV 1632 of 2009

Urban Development Corporation of Trinidad and Tobago Ltd. et al

and

Uff et all

Appearances:

For the applicants: Mr. F Solomon S.C. and Mr. A Goddard S.C. leading Mr. D Maharaj and Mr. S Young.

For the Intended respondents: Mr. S Jairam S.C. leading Mr. G Simonette and Mr. K Garcia instructed by Mrs. M Harper.

For the Attorney General: Mr. D Mendes S.C. leading Mr. M Quamina and Mr. C Kangaloo instructed by Mrs. N Kangaloo.

For the Housing Development Corporation: Mr. L Barnett Q.C.

Judicial review - Privilege of counsel — Application to apply — Commission of enquiry to enquire into construction sector — Commission has attributes similar to a court of law — Attorney or counsel appealing before Commissions of Enquiry established under the Commissions of Enquiry Act, Chap. 19:01 protected by absolute privilege in respect of content of submissions.

INTRODUCTION

Pemberton, J.

1 At a sitting of the House of Representatives, the Honourable Prime Minister informed the nation of a decision to approach the President of the Republic of Trinidad and Tobago to appoint a Commission of Enquiry into the Construction Sector in this country, more importantly into the procurement practices and performance of public sector projects. In keeping with this, His Excellency, the President of the Republic of Trinidad and Tobago, Prof. George Maxwell Richards, appointed Professor John Uff QC, (“The Chairman”), Messrs Desmond Thornhill, Kenneth Sirju and Israel Khan QC as Commissioners (“the Commissioners”). The mandate of the Commission of Enquiry was established by its terms of reference, which are contained in part in the Procedural Orders attached as “A”.

2 On May 12 2009, the Claimants, the Urban Development Corporation of Trinidad and Tobago (“UDeCOTT') and the Executive Director Calder Hart filed an application for leave to apply for Judicial Review. They sought both interim relief, which was granted and substantive relief. Of relevance to this decision is the prayer for a declaration:

• (a) That any attorney making submissions to the Commission of Enquiry whether written or oral, is protected by absolute privilege in respect of the content of those submissions;

• (b) Alternatively, that any attorney making submissions to the Commission of Enquiry whether written or oral, is protected by qualified privilege in respect of the content of those submissions.

3 The application for leave was supported by the affidavit of Ms. Neelanda Rampaul, Chief Operating Officer of UDeCOTT. She stated that on April 03 2009, Counsel for UDeCOTT stated that he wished to make an application in open session relating to the exclusion of certain documents. The Chairman stated:

…We however, have some concerns about a number of paragraphs in the written submission that we have seen and I should say that the advice we have received is that Mr. Goddard proceeds on the basis that he is not protected by privilege.

4 Ms. Rampaul merely appended a “copy of the relevant extract of the transcript of the hearing”, without informing the court of the substance of the case. From the extract, I was able to glean that there was a flurry of discussion on the issue, which culminated in the Chairman's statements as set out above.

5 I received written submissions on the issue from Mr. Mendes, on behalf of the Attorney General. Mr. Solomon supplied the court with authorities and joined with the sentiments and conclusions expressed by Mr. Mendes on this issue. At the time of writing Mr. Jairam, Counsel for the Commission had not as yet filed submissions, but passed to me a number of authorities for my consideration.

6 Mr. Mendes examined the authorities of TRAPP v. MACKIE [1979] 1 W.L.R. 377, MUNSTER v. LAMB (1883) 11 Q.B.D. 588 and BRETHERTON v. KAYE [1971] VR 111. Mr. Mendes utilised the approach set out in TRAPP v. MACKIE and opined as follows:

• (1) Considerations of public policy compel the conclusion that Counsel appearing at the Commission hearings should enjoy absolute privilege. The enjoyment of absolute privilege is for the benefit of the public. Dicta in MUNSTER v. LAMB support this contention. (“If upon the grounds of public policy and free administration of the law the privilege be extended to Judges and Witnesses, although they speak maliciously and without reasonable and probable cause, is it not for the benefit of the administration of the law that Counsel also should have an entirely free mind? Of the three classes - judge, witness, and counsel - it seems to me that a counsel has a special need to have his mind clear of all anxiety … what he has to do, is to argue as best he can, without degrading himself, in order to maintain the proposition which will carry with it either the protection or the remedy which he desires for his client… For, more than a judge, infinitely more than a witness, he wants protection on the ground of benefit to the public… per Brett M.R. at pp 603 - 604.)

• (2) The tribunal before which the evidence is to be given although not a court of law, is established and recognised under the COMMISSION OF ENQUIRY ACT, Chap. 19:01.

• (3) The Commission has attributes of a court of law in that, and I shall highlight the salient features:

  • a) essentially, the enquiry must be held in public;

  • b) the fact that The Chairman and one Commissioners are members of the Inner Bar;

  • c) The Commission is serviced by experienced Attorneys-at-Law led by Senior Counsel;

  • d) Each Commissioner was required to take an oath and that they are required to make a “full, faithful and impartial enquiry” into the matters specified by the Terms of Reference;

  • e) That the Commission directs the conduct of the enquiry and is empowered to make rules for the conduct and management of the proceedings;

  • f) That the Commission must report the result of the enquiry in writing and furnish a statement of the proceedings of the commission along with the reasons leading to the conclusions arrived at or reported;

  • g) The Commission is empowered to summon witnesses or call for the production of books. Plans, documents and to examine witnesses and parties on oath; parties summoned are bound to obey as if they were subpoenaed by the High Court;

  • h) Parties attending the Commission to give evidence do so under oath and are subject to cross examination. They are also entitled to be represented by Attorneys;

  • i) Witnesses summoned are entitled to absolute privilege as are those who attend court proceedings;

  • j) Commissioners enjoy absolute privilege like judges of a court.

  • k) The Commission is required to enquire into matters and to resolve certain specific accusations made against parties to the proceedings;

  • I) The nature of the subject matter of the enquiry has made it appropriate to adopt a procedure which will enable the parties to address oral argument and adduce evidence in support of their respective contributions;

  • m) The Commission is equipped to conduct the enquiry in a manner similar to that of the regular courts;

  • n) The Commission is enquiring into issues in dispute between adverse parties of a kind similar to those that fall to be considered by a court of justice.

7 Since both the Commissioners and the witnesses attending are protected by absolute privilege, Counsel taking part in the Commission's hearings should be so protected. The case of BROTHERTON v. KAYE sealed the fate on this issue.

8 ANALYSIS AND CONCLUSION

The cases cited and presented to me by the Mr. Solomon and Mr. Jairam assist in setting the stage for the dicta in BROTHERTON v. KAYE to provide me with clear assistance on this issue. The views expounded in this case apply with equal force to commissions of enquiry such as the one under consideration. I should like to associate myself with the words and conclusions arrived at by Gillard, J. on these issues (The basic principle of absolute privilege is that on certain occasions it is in the public interest and to the public benefit that the publication of words either oral, in writing of and concerning a person are not defamatory even though they should hold such person up to hatred, ridicule and contempt. … The inconvenience and injury to the victim, however grave, is sacrificed to the overriding demands of public convenience and public benefit. The privilege should, therefore be carefully applied and not unnecessarily extended. the privilege is not intended to protect libelous detractors, but rather as a matter of public policy to encourage persons on such occasions to speak in the interest of the community freely and without any inhibitions or fear of consequences. the most notorious example of this is the privilege granted to everybody participating in proceedings before any court of competent jurisdiction. it is in the public interest that a person who is taking part …. in any litigation should be independent and encouraged to speak freely so that the true facts may be ascertained, so that the credibility of witnesses may be accurately assessed and so that the evidence and the law may be frankly and candidly discussed to ensure that a correct and just result is obtained… (Emphasis mine) pages 4-5. Further at page 10:…. It is very necessary that counsel should be free to submit the testimony to a critical examination involving, as it must slanderous imputations having regard to the allegations made here. Public policy would demand that counsel should be encouraged to carry out this work fearlessly and independently and without fear of being sued for defamation…”.).

9 There is no doubt that the Commission established by His Excellency has attributes similar to a court of law and is a body established and recognised by statute. There is also no argument that the procedure and operations of the Commission are similar to those of a court of law. I think that Mr. Mendes's list referred to above adequately identifies the nature...