[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
The Judicial Committee of the Privy Council Decisions |
||
You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Ramadhar v Ramadhar & Ors (Trinidad and Tobago) [2020] UKPC 7 (2 March 2020) URL: http://www.bailii.org/uk/cases/UKPC/2020/7.html Cite as: [2020] EMLR 16, [2020] UKPC 7 |
[New search] [Context] [View without highlighting] [Printable PDF version] [Help]
Hilary Term
[2020] UKPC 7
Privy Council Appeal No 0043 of 2018
JUDGMENT
Ramadhar (Appellant) v Ramadhar and others (Respondents) (Trinidad and Tobago)
From the Court of Appeal of the Republic of Trinidad and Tobago |
before
Lord Wilson Lady Black Lord Lloyd-Jones Lord Briggs Lady Arden
|
JUDGMENT GIVEN ON |
|
|
2 March 2020 |
|
|
Heard on 4 July 2019 |
Appellant |
|
Respondents | |
Ramesh L Maharaj SC |
|
Mervyn Campbell | |
Tom Poole |
|
Frederick A Gilkes Yuri Saunders | |
(Instructed by BDB Pitmans LLP) |
|
(Instructed by Sinclair Gibson) | |
Respondents:- (1) Kishore Ramadhar (2) Rudolph A Hanamji (3) Satu-Ann Ramcharan |
|
| |
LADY ARDEN: (with whom Lord Wilson, Lord Lloyd-Jones and Lord Briggs agree)
Main issue on this appeal is the meaning of media statements by a politician
1. This is an appeal by Mr Prakash Ramadhar, the first defendant in this above action. He is one of three defendants whom Kokaram J, sitting in the High Court of Justice of Trinidad and Tobago, found liable in damages for defamation, but he is the only defendant to have appealed. The judge’s decision was affirmed on appeal by the Court of Appeal of Trinidad and Tobago (Archie CJ and Smith JA, Moosai JA dissenting). The main issue is the meaning of the appellant’s statements, because on that turns the question whether he can rely on the defence of truth. There were three claimants in the action, and they are the respondents to this appeal.
How the media statements came to be made
8. The judge quoted the following from Mr Prakash Ramadhar’s address to the press conference:
“[1] Contrary to the many efforts by a few to destroy the party, the party stood in its resolve [that the party is greater than any individual or group of individuals. This party is the only hope in the politics of Trinidad and Tobago and I say that unreservedly.]
[2] Those who moved motions of no confidence against the leader of this party knew full well, that they grounded their ambitions in an effort to destroy this party by attacking the leader. They made it clear in other statements that their intent was to destroy this party and that their efforts had nothing to do with the lack of confidence in the leader, but everything to do with their wanting to destroy the leader and therefore the party. The party today resoundingly rejected them and they know full well they could not have succeeded [and] did not pursue their trouble making efforts in the face of the National Council.
[3] They would do so in the media, in solitary effort where they had open space to spread their poison but here where it mattered, where their voices would have been heard so the party would say whether we agree or reject you, they ran away like cowards.
[4] And then to have found that the very personalities who have been making all the mischief on the outside, that this letter has come to us and I make no pronouncements as to its authenticity, it maybe all the media they have garnered for the last several weeks or months, maybe they should go to the media and explain whether they did in fact put their signature to such a letter, betraying the party by disclosing its membership list, something we hold very dear.
[5] And let me explain why [a membership list] is important, when people join a political organisation they are much afraid by that they may be discriminated against by the mere fact that they hold membership in a party. Many may not feel that way, but many do feel that way, [and that is] why we held it in terms of a high level of confidentiality. If it is true that they did do these things, then that is the highest level of treachery that we condemn in politics generally and in the COP unreservedly.
[6] And that is why the suspension, without a finding of guilt, and that is why we ask that a proper and full investigation into the matter and if it proved true, the next step is expulsion from the party […]” (paragraph numbers added)
“[7] The party has been condemned for not being decisive, but that is to confuse process with doing what is right and what is proper, and in these circumstances where the allegations were so strong and so high, we say step aside and let the investigation be concluded, and then whatever necessary steps be taken after that, the party will engage.” (paragraph number added)
Respondents’ defamation proceedings are tried by Kokaram J
15. The judge also rejected Mr Prakash Ramadhar’s defence that he was fairly and accurately reporting on a matter of public interest (in reliance on the decision of the House of Lords in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, which was replaced in England and Wales by section 4 of the Defamation Act 2013, but only with effect from 1 January 2014) mainly because he had taken no step to verify the information in his statements before making them. That ruling is not in issue on this appeal.
“56. The words [ie the statements made at the press conference] carried the same meaning as outlined in para 41 above [which the Court of Appeal considered was an erroneous cross-reference to para 45 of the judgment of the judge, as to which see para 13 of this judgment]. The speech went well beyond the boundaries of responsible speech and was commentary based on facts which were simply not true. Far from a legitimate reply to an attack on his leadership it was a collateral and unrelated attack on the claimants with the intention of bolstering his position as leader of the party and the direction of the party at the expense of the claimants’ reputation. The latitude granted by the law to defend one’s character to an attack is limited to a proper and proportional response to the charge and not to ‘[segue way]’ into separate charges or counterattacks which are unnecessary and unrelated to the substance of the initial attack on his character.
57. His further embellishment of the report of the Chairman gave the allegations even more credibility and currency. His attempt to couch his speech in the terms of not accepting the truth of the letters was diluted by the force that he gave to the actual substance of the charges. Obviously upset about the claimants challenge it was an opportunity to silence the detractors and even if there was an ultimate finding of innocence the damage would have already been done.
58. There is little doubt that a reasonable viewer would have placed more weight upon the political leader’s invective and criticism of the conduct of the claimant. Taking the speech in its entirety and in its proper context, the claimants were simply hung out to dry and tried in public even before they knew of the charges levelled against them.
59. This cannot qualify as responsible speech or a measured and responsible response to an attack by the claimants. I have given deference to a person under such an attack as not being guided by any fine principles of propriety, but even so this attack can be characterised as designed to destroy his opponent with a disproportionate response. Using a nuclear weapon of the press conference, so to speak, to nuke a fly.
60. The defence of both qualified privilege and fair comment fails. There will be judgment for the claimants against Mr P Ramadhar with costs.”
The Court of Appeal by a majority dismisses Mr Prakash Ramadhar’s appeal
18. In a judgment of Smith JA, with which Archie CJ agreed, the majority considered and approved the judge’s analysis of the Reynolds defence. The majority took the view that the judge was entitled to hold that Mr Prakash Ramadhar’s statements had been disproportionate and retaliatory (Judgment of the majority, para 48).
“50. In libel, express malice can be proved, inter alia, by proof of improper motive in making a statement. One form of improper motive is a decision to injure a claimant. Such proof of malice negatives the defence of qualified privilege. In this case the trial judge’s findings clearly show that the dominant motive of the press conference was to injure the [respondents] and hence there was proof of malice such as would negative a defence of qualified privilege based on reply to attack. These findings were as stated at para 49 above, especially so the findings that:
The appellant used the press conference
(i) as an opportunity to silence his detractors and even if there was an ultimate finding of innocence the damage would have been done;
(ii) to hang the respondents out to dry and be tried in public even before they knew of the charges levelled against them; and
(iii) as an opportunity to destroy his opponent with a disproportionate response ie to nuke a fly.”
“56. Even though the appellant purported to put caveats on his commentary by the choice of words like ‘if it is true that they (the respondents) did these things’, as I have already indicated, the trial judge, after hearing and seeing the appellant and the other witnesses and considering the rest of the evidence and the totality of the speech, formed the impression that those caveats ‘were diluted by the force that he (the appellant) gave to the actual substance of the charges’. The commentary was squarely an assertion against or attack on the respondents based on a substratum of fact that was simply not true.”
Moosai JA dissents
“It was pellucidly clear that the appellant never pronounced on the merits of the allegations such as to give actual substance to the charges. Nonetheless, a finding that the sting of the publication is only that the circumstances warrant an investigation, without a statement or implication that there was actual guilt or reasonable grounds to suspect, is on the authorities, defamatory. However, such a publication may be justified by proof of grounds to investigate.” (Judgment of Moosai JA, para 31)
On justification, Moosai JA accepted that qualifications could be abused and that the source of the October letter was not shown to be the respondents, but he held that there were grounds to investigate because the October letter was before the meeting on 10 November 2013 and the signatures appeared to be those of the respondents; it referred to three named candidates for election; it enclosed a CD with the COP membership list; at least one of the respondents had access to the leaked membership list; the October letter might have been the reason for the complaint to the EBC; and an investigation was set up. Mr Prakash Ramadhar’s press conference statements had made it clear that he did not attribute the October letter to the respondents and there was no suggestion that what had prompted the investigation was their dispute with his leadership. Moosai JA added:
“Although some reference was made in the press conference to the conduct of the respondents, this was specific to issues directly related to an ongoing internal party situation that had by itself attracted significant public attention, and continued to be aired in the public domain.” (Judgment of Moosai JA, para 34)
Submissions to the Board
24. Mr Maharaj SC, for Mr Prakash Ramadhar, submits that the judge failed to give proper weight to all the elements of the context in which the statements were made. In particular, as the matters involved politicians and political matters, it was to be expected that there would be an intense debate and no reasonable outsider would consider it to have been defamatory as opposed to being a fair debate on a matter of public interest. Moreover, he submits, the courts afford greater latitude to criticism of politicians and public officials. The rationale for this approach was explained in Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, 548 where Lord Keith of Kinkel quoted from Lord Bridge of Harwich’s speech in Hector v Attorney General of Antigua and Barbuda [1990] 2 AC 312, 318:
“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. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.”
25. The Constitution of the Republic of Trinidad and Tobago protects political activities. Section 4 of the Constitution guarantees a fundamental human right and freedom to join political parties and express political views. Moreover, under the jurisprudence of the European Court of Human Rights, it is well established that the right to free expression includes the right to express views on matters of political concern, and, Mr Maharaj submits, a generous margin is given for statements in this context. Indeed, Warby J held in Barron v Vines [2016] EWHC 1226 (QB) at [86] that:
“The primary focus of this jurisprudence is on the need to avoid chilling legitimate political expression by ensuring that those who speak out in good faith on political topics are not unreasonably exposed to findings of liability for defamation.”
Analysis of the Board
29. Mr Prakash Ramadhar’s defence was that his statements at the press conference were true. The burden of proving truth rests on the defendant, as in defamation falsity is presumed in favour of the claimant. The defendant must prove not only the truth of the words in the literal sense but also their innuendo meanings (Digby v Financial News [1907] 1 KB 502, 507). Here the judge had found that the press conference statements carried an imputation of bad faith and disloyalty. On the other hand, the defendant need only prove the truth of the substance of the statements: “as much must be justified as meets the sting of the charge” Edwards v Bell (1824) 1 Bing 403, 409 per Burrough J.
30. The meaning of words alleged to be defamatory is a question of fact. The judge must decide on the basis of the totality of the facts the meaning that the words would have to an ordinary reasonable person. An appellate court therefore exercises caution in determining whether the trial judge was in error in his assessment of meaning. Thus, as Lord Kerr of Tonaghmore JSC, with whom Lord Reed DPSC, Lady Black, Lord Briggs and Lord Kitchin JJSC agreed, held in Stocker v Stocker [2019] UKSC 17; [2019] 2 WLR 1033:
“[59] … [i]f an appellate court considers that the meaning that he has given to the statement was outside the range of reasonably available alternatives, it should not be deterred from so saying by the use of epithets such as ‘plainly’ or ‘quite’ satisfied. If it was vitiated by an error of law then the appellate court will have to choose between remitting the matter or, more usually in this context, determining the meaning afresh. But if the appellate court would just prefer a different meaning within a reasonably available range, then it should not interfere.”
32. As to guidance on the method of finding meaning, Lord Kerr JSC approved in Stocker, at para 35, the following list of the “essential criteria” of meaning set out by Sir Anthony Clarke MR in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14]:
“(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve, but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking, but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any ‘bane and antidote’ taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation’: see Eady J in Gillick v Brook Advisory Centres approved by this court [2001] EWCA Civ 1263 at [7] and Gatley on Libel & Slander 10th ed, para 30.6. (8) It follows that ‘it is not enough to say that by some person or another the words might be understood in a defamatory sense’: Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68, 73, per Lord Halsbury LC.”
35. In addition, the judge appears not to have considered the full context in which the statements were made at the press conference. (The context would not include what had been said at the National Council meeting since this would not be known to the ordinary person listening to the press conference). The importance of context is illustrated by the decision in Stocker v Stocker, which concerned the meaning of statements made on a Facebook wall. The judge in that case had had regard to dictionary definitions of the words used. The Supreme Court held that the trial judge had to be “particularly conscious of the context in which the statement was made” (per Lord Kerr JSC at para 38). In that case, the meaning of the Facebook post had to take account of the fact that Facebook was a casual medium, using language in a conversational sense. In the same way, tweets on Twitter were to be understood as using an impressionistic approach: see per Eady J in Smith v ADVFN plc [2008] EWHC 1797 (QB) at [13] to [16], per Warby J in Monroe v Hopkins [2017] EWHC 433 (QB); [2017] 4 WLR 68, para 35 and per Nicklin J in Monir v Wood [2018] EWHC 3525 (QB) at [90]. Tweets were closer to a social conversation than to a carefully chosen expression. Often people gave immediate or only half-considered responses or engaged in repartee in that situation.
37. On the other hand, the respondents were themselves engaged in public life and courted the media, and therefore they could not expect to be free from scrutiny or criticism in public. Politicians cannot expect to be free from banter and ridicule, good-humoured or otherwise, or from scrutiny of their motives. If politicians were entitled to be protected by the law of defamation against mere criticism, that, as was made clear in Barron v Vines, might have a chilling effect on democratic debate. There has, moreover, been no suggestion that the National Council could not impose on the respondents an interim suspension pending an investigation if there were grounds for thinking that the respondents were involved in some underhand matter.
40. The Board does not accept that submission. The public expected to have the true position explained to them and not to have information withheld from them. There was a clear expectation that a press conference would be given about events at the meeting. That was the usual practice of the COP, and there was in fact considerable human interest in the story because of the relationship of brothers between the two principal protagonists. Representatives of the media had been waiting outside the meeting. Moreover, according to Brandeis J of the US Supreme Court, “sunlight is said to be the best of disinfectants”: there was a public interest in disclosure of important events in the internal affairs of a significant political party. Further, in an age of social media, a version of the story would have reached the public anyway and it was surely preferable for the leader to state his version. The circumstances are very different from those in Purcell v Sowler (1877) 2 CPD 215, cited by the respondents.
50. As Moosai JA pointed out, where the defendant seeks to justify his having said that the claimant’s conduct is in some way unlawful or wrongful, the court must determine the meaning of his statement. There are three recognised levels of meaning, known as the Chase levels following the decision of the Court of Appeal in England and Wales in Chase v News Group Newspapers [2002] EWCA Civ 1772; [2003] EMLR 11.
54. It was suggested in argument that the tone of political debate was different in Trinidad and Tobago and that judges in the court below were best placed to make an assessment of whether the appellant had gone beyond what was reasonable in the circumstances. The need for politicians to follow high standards in political debate and the expectation that politicians should be open to reasonable criticism are universal features of a democratic society. The Board takes account of the limits on its role as a second appellate body in these circumstances: see Stocker v Stocker above. However, in this instance the Board considers that there was an error which must lead to the setting aside of the judgments below.
Conclusion of the Board
57. For the reasons given above, the Board allows Mr Prakash Ramadhar’s appeal.
lady black:
“the claimants had stolen confidential information and betrayed their party, that they were unethical, corrupt, acted in bad faith and adverse to the interests of the party; violating the trust reposed in them by abusing their access to the COP database; and had engaged in the highest act of treachery against the party by stealing information from the party and handing it over to the Opposition party.”
(para 45 of Kokaram J’s judgment, applied in relation to the claim against Mr Prakash Ramadhar by para 56 ibid)
60. In making this finding, Kokaram J did refer to Mr Prakash Ramadhar’s having “sought to characterise” what he said as “mere allegations” (para 55 ibid, and see also para 57). However, he discounted this qualification and concluded that Mr Prakash Ramadhar’s meaning was that the claimants had, in fact, behaved in the way described. Approaching the matter with the caution that, as Lady Arden has explained in setting out the law on meaning (paras 30 to 32 above), an appellate court must always exercise in reviewing the trial judge’s finding as to meaning, I have concluded that it was not open to the judge to interpret what was said at the press conference in this way. Putting what was said into its proper context, which is set out in Lady Arden’s judgment, it is clear, as Lady Arden says at para 48 above, that Mr Prakash Ramadhar qualified what he said by saying that the authenticity of the letter was in question and that there had to be an investigation to determine what had happened. It was not open to the judge to find that he was imputing guilt to the claimants; his meaning was that there were grounds for an investigation into the claimants’ conduct (Chase level 3: see para 51 above). That was the meaning that had to be justified, as Lady Arden says at para 53 above. As she explains in that paragraph, it was justified. And from that, as I see it, follows the consequence that the appeal must be allowed and the judgment against Mr Prakash Ramadhar for damages for defamation set aside.