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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV NO. 2014 - 02394

BETWEEN

ANAND RAMLOGAN

Claimant

AND

KEITH CHRISTOPHER ROWLEY

Defendant

BEFORE THE HONOURABLE MADAM JUSTICE JONES

Appearances:

Mr. K. Ramkissoon instructed by Mr. R. Jagai for the Claimant.

Mr. D. Mendes S.C. and Mr. M. Quamina instructed by Mr. F. Al-Rawi for the

Defendant.

RULING

1. By this action filed on 7th

July 2014 the Claimant seeks against the

Defendant an injunction and damages for defamation. The claim alleges that during

the period April to May 2014 in the course of addressing public meetings the

Defendant made statements defamatory of the Claimant. Annexed to the Statement of

Case are four Compact Discs (CDs) identified as true copies of the live broadcasts of

the speeches made.

2. No defence has as yet been filed by the Defendant. Rather, by an

application filed on 27th

October 2014, the Defendant seeks an order extending the

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time for the filing of his defence to the 19th

December 2014 or to such time as the

Court may direct. It is this application that is now before the Court.

3. The grounds of the application are that:

1. CDs of audio recordings alleged to be speeches made by the

Defendant were inaudible and replacement copies and

transcripts requested. Some of the replacement copies provided

were also inaudible and transcripts never supplied;

2. the Claimant has relied on the CDs as documents and has opted

not to supply the transcripts as requested;

3. one of the CDs annexed to the Statement of Case was inaudible;

4. at various times over the long vacation the Defendant's

Attorneys were absent from the jurisdiction;

5. the Defendant was required to travel abroad during that period

and on his return was involved with parliamentary duties

including the Appropriation Bill and the associated Finance

Committee;

6. the replacement CDs were only received by Instructing

Attorney on 10th

October 2014;

7. time is required to transcribe the audio recordings, cross check

the transcripts against the recordings and receive instructions

from the Defendant;

8. the Defendant has just returned to jurisdiction and will require

an opportunity to review the transcripts upon receipt of same;

and

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9. Senior Counsel has only received an initial brief with the

caveat as to the transcripts aforesaid which form the heart of

the Claimant's allegations.

4. In support of the application there is filed an affidavit of the Defendant's

Instructing Attorney: Faris Al-Rawi (“Al-Rawi”). This affidavit, in the main, recites

the history of the correspondence between the parties, annexes this correspondence

and gives the reasons for seeking an extension of time. In opposition to the

application there is filed an affidavit by the Instructing Attorney for the Claimant:

Richard Jagai (“Jagai”). This affidavit does not seek to challenge the history of the

correspondence presented by the Defendant but rather addresses the reasons given by

the Defendant for the extension of time. In the circumstances I accept the facts as

contained in the correspondence as being a correct representation of the positions

taken by both parties from the issue of the first pre-action protocol letter.

The facts

5. By three pre-action protocol letters dated 30th

April 2014, 5th

May 2014

and 13th

June 2014 (“the pre-action letters”), issued by Kevin Ramkissoon

(“Ramkissoon”) as Attorney at Law for the Claimant and addressed to the Defendant,

the Claimant threatened legal action against the Defendant with respect to statements

which he alleged were made by the Defendant at public political meetings held on

28th

April 2014, 30th

April 2014 and between 28th

April 2014 and 8th

May 2014.

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6. All the pre-action letters identified the Defendant as the Member of

Parliament for the constituency of Diego Martin West, the Leader of the Opposition

and the political leader of the People’s National Movement (“PNM”). As well all

three letters identify the words the subject of the complaints.

7. The first two pre-action letters specifically allege that the words were made

by the Defendant in his capacity as political leader for the PNM and called upon the

Defendant to respond within 48 hours. The third pre-action letter complains of

statements made by the Defendant at seven public political meetings on:

(i) 28th

April at Signature Hall Longdenville;

(ii) 29th

April at Baptist Primary School Moruga;

(iii) 30th

April at Tunapuna Corporation;

(iv) 1st May at San Fernando;

(v) 4th May at St. Andrews College;

(vi) 6th May at Diego Martin South Community Centre; and

(vii) 8th May at Guaico Goverment Primary School

and all aired on i95.5 fm. The statements referred to by the Claimant cover

approximately 8 pages of the letter. According to this letter “copies of the political

meetings containing the defamatory statements uttered” were attached. The Defendant

was given 14 days to respond to this letter.

8. With respect to the meeting of 28th

April both the first and the third pre-

action letters complain of statements made at the same meeting but the words

complained of in the third pre-action letter are more extensive. With respect to the

allegations of statements made on 30th

April it is not clear whether the complaint

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contained in the second and third pre-action letter is in respect to statements made at

the same or two different meetings held on the same date since the location of the

meeting was not given in the second pre-action letter and the words complained of in

each letter are different.

9. The Defendant responded to all the pre-action letters requesting further

information. By a letter dated the 2nd

May Al-Rawi responded to the first letter

admitting that a speech was delivered by the Defendant at the time and place alleged

and advising that it was necessary to put any statements that may have been made by

the Defendant in the context of the whole speech. The letter requested the production

of an audio recording and a transcript of the entire speech made by the Defendant so

as to facilitate Attorneys giving advice to the Defendant and in order for them to settle

an appropriate response in accordance with the relevant pre-action protocols.

10. By a letter dated 8th

May, Al-Rawi acknowledges receipt by his client of

the second pre-action letter; advises that in accordance with the relevant pre-action

protocol the Claimant was required to provide full details and particulars of what was

said, where and when it was said and to whom; advises that the Claimant has failed to

do so and once again makes a request for the relevant audio recordings and

transcripts.

11. By letter dated 30th

June in response to the letter of 13th

June Al-Rawi

acknowledged the receipt of several CDs of voice recordings in satisfaction of part of

his request. The letter further advised that two of the CDs could not be accessed for

playback. He therefore requested replacement of those CDs; verbatim transcripts of

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all the CDs together with letters from the persons making the recording certifying the

accuracy of the recordings.

12. Thereafter, without any further exchange of correspondence, the claim

form and statement of case in this action was filed on 7th

July 2014 and served on the

Defendant on 24th

July 2014. The documents filed indicated that Ramkissoon was no

longer the Instructing Attorney but rather Junior Counsel. An appearance was entered

by Al-Rawi on behalf of the Defendant on the same day.

13. With respect to the meeting of 28th

April complained of in the pre-action

letters the words or statements objected to in the Statement of Case are far more

extensive than those contained in either of the pre-action letters relating to that

meeting. A similar position applies to the words or statements complained of with

respect to the meetings of 29th

and 30th

April. The only complaint that is in respect to

the exact words complained of in any of the pre-action letters is the complaint made

with respect to the meeting of 1st May 2014

1. The words complained of in this

paragraph correspond exactly with the complaint made in the third pre-action letter.

No action is brought with respect to the complaints contained in the third pre-action

letter with respect to any of the other meetings held in May.

14. By a letter dated 31st July 2014 Al-Rawi wrote to Ramkissoon advising that

an appearance had been entered on behalf of the Defendant; that the four CDs

annexed to the Statement of Case were at times muffled and generally inaudible;

reminded of his previous requests and requested replacement copies of the CDs;

1 Paragraph 18 of the Statement of Case

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verbatim transcripts of all of the CDs in the entirety of the speeches allegedly made

and letters from the makers certifying the accuracy of the recordings. The letter also

makes comments about the inadequacy of the pre-action letters and draws attention to

the failure in the Statement of Case to acknowledge the outstanding requests made by

the Defendant in this regard. Finally the letter advises that they were awaiting the

requested information so as to advise the Defendant and settle the defence.


August a copy of the letter of 31st July was forwarded to

Jagai as Instructing Attorney on record for the Defendant in these proceedings. The

letter requested a response by 11th

August. Thereafter, by way of email, Jagai was

advised of the absence from the jurisdiction of the Defendant’s Attorneys until 19th

August. The emails annexed to the affidavit suggest some agreement with respect to

both parties doing nothing in the interim.

16. By letter dated 22nd

August Jagai acknowledged receipt of the letters of

31st July and 4

th August and advised that: (i) with respect to the CDs he did not accept

that they were muffled or inaudible but enclosed a copy of the CDs so as to obviate

any reason to cause delay to the progress of the matter; (ii) in his opinion the

Defendant would be well aware of the contents of his speech and would have a

written and subsequent audio version of same and that he was reliably informed that

videographic and audiographic recordings of the Defendant's speeches were done by a

contracted advertising agency on behalf of his political party; (iii) with respect to the

request for the verbatim transcripts that this was not a requirement under the CPR;

and (iv) the failure to include a reference to the Defendant's response to the pre-action

protocol letter was of no moment and could adequately be addressed in the defence.

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17. By letter dated 23rd

September the Defendant sought an extension of time

for the filing of the defence from 6th

October, when it was due, to 19th

December. The

reasons for the request given were:

(i) the failure to provide transcripts of the speeches and the fact

that some of the replacement copies of the CDs provided were

inaudible;

(ii) one of the CDs annexed to the Statement of Case was

inaudible;

(iii) the absence of Counsel for the Defendant and the Defendant

from the jurisdiction during the Court’s long vacation;

(iv) the responsibilities of the Defendant with respect to his

parliamentary duties, including the budget debate; and

(v) the fact that they were themselves in the process of transcribing

the recordings and would not be in a position to obtain the

Defendant’s instructions until that exercise was completed and

the transcripts checked against the audio recordings.


September the Claimant granted an extension for the

filing of the defence until 27th

October. By letter of 2nd

October Al-Rawi reminded of

the outstanding request for a replacement copy of one of the CDs annexed to the

Statement of Case; advised that his request for an extension of time to 19th

December

had factored in not only the time needed for the replacement of this CD but the time

to have it transcribed and to obtain the Defendant’s instructions and renewed the

request for an extension until 19th

December.

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19. From the subsequent correspondence it would seem that, by a letter dated

10th

October, CDs considered audible by Al-Rawi were supplied to him. Jagai’s letter

of that date suggests however that what was in fact supplied were copies of the CDs

for the third time. By letter of 14th

October Al-Rawi acknowledged receipt of the

audible CDs and indicated the intention to have these transcribed and to apply to the

Court for an extension of time. The application was then filed on the 27th

October the

last day of the extended time granted by the Claimant.

20. Apart from placing before the Court the correspondence referred to above,

his interpretation of the correspondence and matters of record the Al-Rawi affidavit

also seeks to place before me the following facts:

(i) the statements complained of were allegedly made by the

Defendant in his capacity as Leader of the Opposition and

political leader of the Opposition at political meetings;

(ii) the replacement CD has been sent for transcription and that he

is currently awaiting the transcript which should have been

available by the second week of November;

(iii) the Defendant needed to travel out of the jurisdiction just after

the 17th

October;

(iv) the Defendant is currently engaged in responding to four other

matters brought against him by the Claimant all arising from

his duties as Leader of the Opposition and in his capacity as

Leader of the Opposition and political leader of the PNM.

These actions which involve at least two procedural appeals,

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are hotly contested and have been set tight deadlines by the

presiding Judges;

(v) he is also acting in two other matters threatened to be brought

against the Defendant by named and self-confessed financiers

of the Government; and

(vi) as a result of items (iv) and (v) above the Defendant and his

Attorneys have been seriously challenged in terms of

resources.

21. The Claimant seeks, by way of his written submissions, to strike out the

facts raised at (i),(iv), (v) and (vi) above on the grounds that Al-Rawi has failed to

state the source and grounds of belief2. He also seeks to strike out paragraph 12 of the

affidavit for the same reason.

22. Part 31.3(2) has the effect of allowing deponents to adduce evidence in

procedural and interlocutory applications that ordinarily would be inadmissible on the

grounds of hearsay where the deponent discloses the source of the information and the

ground for deponent’s belief in its truth. Traditionally this evidence is introduced by

the words ‘I am informed by and verily believe’. While there is no such statement in

Al-Rawi’s affidavit at paragraph 2 of his affidavit he states as follows:

“The facts deposed to herein are true and correct and are derived

from my personal knowledge and/or the Defendant’s files and

records to which I have access and the contents of which I verily

believe to be true and correct.”

2 Part 31.3(2) of the CPR

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23. With respect to paragraph 12 of the affidavit the paragraph merely seeks to

place before me the contents of the letter of 23rd

September written by Al-Rawi, in

which he states the reasons for his seeking the extension of time. Paragraph 12 merely

recites the contents of Al-Rawi’s letter. In the circumstances in my opinion the

paragraph does not run afoul of Part 31.3(2) of the Rules.

24. With respect to the capacity of the Defendant at the time the Claimant has

accepted that the Defendant was at the time the political leader of the PNM and the

Leader of the Opposition3 and that the words allegedly uttered by the Defendant were

made in his capacity as political leader of the PNM4 or at public political meetings

held for the PNM’s internal elections5

. It seems to me therefore in these

circumstances the statement that “The oral statements complained of by the Claimant

were allegedly made by the Defendant in this capacity as Leader of the Opposition

and Political Leader of the Opposition at political meetings” are, in the context of the

application before me, innocuous; provide no new fact relevant to the issue for my

determination and certainly are of no prejudice to the Claimant.

25. With respect to the facts contained in paragraph 20 of Al-Rawi’s affidavit

the existence of these other actions are matters of public record. Indeed in the course

of preparing this ruling a judgment in a procedural appeal in one of the matters

identified was delivered. In that judgment Al-Rawi himself was identified as the

Instructing Attorney and Advocates included persons identified in the correspondence

as representing the Defendant in this action.

3 paragraph 6 of the Statement of Case. 4 Pre-action protocol letters dated 30 April and 5 May 2014. 5 Pre-action protocol letter dated 13 June 2014

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26. In any event I am satisfied that, with respect to the contents of this

paragraph, by deposing at paragraph 2 that the facts in the affidavit are derived from

his personal knowledge and/or the Defendant's files and records to which he has

access and the contents of which he believes to be true Al-Rawi has satisfied the

requirements of the Rules with respect to the information provided with respect to the

other actions. It is also noteworthy that the Claimant has not only answered the

paragraph but has admitted the existence of the four other actions.

27. As regards the rest of the paragraph, that is the reference to the two

threatened actions, although it would seem that on the face of it this is evidence that

Al-Rawi is competent to give, there is one aspect to this evidence which causes some

concern. Al-Rawi deposes to the fact that this is litigation threatened to be brought by

named and self-confessed financiers of the Government. To my mind the fact that the

proposed claimants were named and self-confessed financiers of the Government is

irrelevant to the issues that I have to determine and inappropriate. In my opinion the

only relevance of that sentence to the application before me is that it places before me

evidence that there are two additional matters engaging the attention of Al-Rawi,

acting on behalf of the Defendant, and the Defendant and is in further support of his

statement that the Defendant and his Attorneys have been seriously challenged with

respect to resources. I therefore place no weight on the description of the persons who

are threatening the litigation.

28. In these circumstances I decline the Claimant's invitation to strike out the

paragraphs. Any failure to comply with Part 31.3(3) is to my mind a technicality that

does not in any way prejudice the Claimant in this application.

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29. Insofar as the affidavit of Jagai raises facts for my consideration he gives

the procedure by which he says the CDs were made; deposes to the fact that he

listened to the CDs supplied to the Defendant and offers his opinion that none of them

were inaudible or muffled. He says that to date the Defendant's Attorneys have not

returned any of the discs for verification as to the allegations of quality.

30. With respect to the other actions filed by the Claimant against the

Defendant Jagai states that he has been informed by the Claimant that the Defendant

has adopted a similar approach in seeking an extension of time in each of the matters

for the filing of his defence. After identifying the matters he concludes that this

represents a pattern of conduct on the part of the Defendant.

The applicable law

31. While there is no sanction imposed by the Rules for the failure to file a

defence within the period provided to do so6 the principles to be applied by a Judge in

the exercise of such a discretion have now been definitively stated by the Court of

Appeal in the case of Roland James v The Attorney General of Trinidad and Tobago7.

32. In treating with such an application a Judge must have regard to the

overriding objective, the factors outlined in Part 26.7(1)(3) and (4) and all other

relevant circumstances including the prejudice to both sides. Unlike an application for

relief from sanctions however an applicant is not required to first establish the

requirements of promptness, good explanation and non-default with the other

6 Part 10.3(3) of the CPR 7 Civil Appeal No 44 of 2014: judgment of Mendonca J.A.

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requirements of the Rules as a threshold to be attained before the exercise of the

Judge’s discretion. Rather the Court is required to consider all the relevant factors

attributing whatever weight is appropriate in the circumstances to each of the factors.8

All the factors are therefore to be considered ‘in the round’ as it were.

33. Although the written submissions in this matter pre-date the Court of

Appeal decision in Roland James both parties have in their submissions very helpfully

dealt with the relevant factors as established by Part 26.7. In the circumstances I am

required to examine the evidence of the Defendant in the light of the grounds of the

application and determine whether the application ought to be granted.

Promptness

34. In my opinion the application was made promptly. The Defence was

originally due on 6th

October. On 29th

September the Claimant granted an extension to

27th

October. This application was made on 27th

October before the expiration of the

extended period granted by the Claimant for filing the Defence.

35. I do not accept the Claimant's submission that in the case of the Attorney

General of Trinidad and Tobago v Universal Projects Limited a shorter period of time

was found not to have satisfied the promptitude requirement where no explanation

was provided to the Court for the failure to file the application before. In the

Universal Projects case the Judge fixed the time for the filing of the defence. The

application however was not brought until some 10 days after the expiration of the

8 Roland James: paragraphs 23 and 24.

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time fixed by the Judge. In the instant case the time for filing the Defence, fixed by

the Claimant was 27th

October. That is the relevant date. This application was brought

before the expiration of this period.

Was the breach intentional

36. There is nothing on the facts before me that indicates that the Defendant

intentionally let the time for the filing of the defence expire without filing his defence.

Indeed the correspondence suggests that all material times, even prior to the

institution of the action, the Defendant was consistently attempting to get from the

Claimant the information that his Attorneys were of the opinion was necessary for

him to properly defend the action.

37. It is however perhaps appropriate here to deal with the statement made by

Jagai in his affidavit that he is informed by the Claimant and verily believe that a

similar approach has been taken by the Defendant in the four other actions brought by

the Claimant against him and Jagai’s conclusion that this represents a pattern of

conduct on the part of the Defendant. To my mind the fact that the Defendant may

have sought extensions of time for taking steps in the other matters is not relevant to

my determination here. Each matter must be taken on its own merits. I am confident

that was or will be the position taken by each Judge before whom any of the

applications have or will come. Indeed in the recent procedural appeal judgment

referred to above the Court was of the opinion that the extension of time requested by

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the Defendant was reasonable9. At best what the evidence does is to perhaps confirm

the position taken by Al-Rawi that the Defendant and his Attorneys have found

themselves overwhelmed by the volume of litigation instituted by the Claimant

against the Defendant.

Is there a good explanation

38. What is required is a good explanation not an infallible one10

. The grounds

of the application and the affidavit in support address the explanation given by the

Defendant for his failure to file his defence within the time given. These grounds are

basically the same as contained in Al-Rawi’s letter to Jagai of 23rd

September and can

be divided into four categories: (a) the failure by the Claimant to provide audible

audio recordings and/or transcripts; (b) the absence from the jurisdiction of Attorneys

for the Defendant during the court vacation; (c) the unavailability of the Defendant to

give instructions; and (d) the need for time to transcribe the CDs, obtain instructions

and draft and file the defence.

39. In addition the affidavit raises the sheer volume of work engendered by

recent actions filed by the Claimant against the Defendant. With respect to this point

while it does not form a ground of the application to my mind it provides a

background against which the Defendant's failure must be assessed.

40. Although for my convenience I have divided the grounds into distinct

categories they must also be considered against the background that they do not each

9 Per Rajnauth-Lee J.A. in Civil Appeal No P215 of 2014. 10 Attorney General v Regis Civil Appeal No. 79 of 2011 at paragraph 17

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apply to the whole period of time. For example it is not in dispute that by 10th

October

the Defendant had been provided with audible audio recordings of all the speeches.

Further it is clear that in the light of the receipt of CDs considered audible by his

Attorneys the Defendant is no longer relying on the Claimant to provide transcripts of

the speeches but rather has undertaken that task himself.

41. There is one other background consideration and it is that ultimately what

is really in dispute here is the period past 27th

October 2014. It is not disputed that by

a request made on 23rd

September the Defendant sought an extension to 19th

December. The Claimant considered the request and, by the extra time granted, seems

to have determined that an extension to 27th

October was reasonable. Nonetheless I

propose to examine the full period of time covered by the explanation given by the

Defendant.

(a) the failure by the Claimant to provide audible audio recordings and/or

transcripts

42. The Claimant submits that in order to determine this application I am

required to make a finding of fact with respect to the inaudibility of the CDs. I do not

agree. With respect to the facts presented and, in particular, the Defendant’s position

with respect to the audibility of the CDs there has been no direct challenge, either by

way of the correspondence or evidence, to the position taken by Al-Rawi in the

correspondence that the CDs were considered by him to be inaudible. At best the

challenge is indirect, in that, Jagai opines that he did not consider the CDs to be

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inaudible. The difference in opinion is understandable since, to a large extent, the

clarity of audio recordings is a subjective position dependent on the listener.

43. The only other evidence addressing the quality of the audio recordings is

the unchallenged evidence of Jagai that, as instructing attorney, he is aware that the

procedure followed in making the copies of the CDs provided to the Defendant was

the same. The difficulty here is that I have no evidence that would suggest that since

all the CDs sent to the Defendant were produced in the same manner the resulting

quality would necessarily be the same. For example I have no way of knowing

whether the quality of all blank CDs are the same or whether the quality of a CD has

no effect on the quality of the reproduction.

44. In the circumstances it would seem to me that there is nothing before me

to contradict the position taken by Al-Rawi that some of the CDs provided to the

Defendant, either by way of letter or by way of the Statement of Case, were inaudible

to him and that it was only by the 10th

October that CDs audible to him with respect to

all the speeches complained of had been provided.

45. The question for my determination here therefore is not whether it is true

that the some of the CDs were up to and until 10th

October inaudible but rather if, as

is alleged by the Defendant, the CDs were up to that time inaudible whether, given the

absence of transcripts of the speeches, this is a good excuse or explanation for not

filing the defence by the 27th

October. Similarly the issue here is not whether the

Claimant was mandated by law or the Rules to provide audible CDs, or transcripts for

that matter, but whether it was a reasonable request in the circumstances.

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46. It cannot be disputed that the words complained of must be construed in the

context of the whole11

. It would seem to me that, particularly in the case of allegations

of slander, where there is no written version of the words uttered a recording of the

complete speech delivered is therefore necessary. Further this was not a one off

statement allegedly made by the Defendant. From the correspondence and the

Statement of Case it is clear that the allegations were in respect to speeches made

almost nightly on a political platform. In addition the actual words complained of in

the pre-action letters and the subsequent Statement of Case were extensive and in

some cases different.

47. The correspondence shows that from 2nd

May the Defendant was

requesting audio recordings and transcripts of the speeches made. With respect to the

provision of audio recordings it is clear that the Claimant also considered the request

to be reasonable since they in fact provided copies and replacement copies and

annexed copies of audio recordings to the Statement of Case. It follows therefore that

for the copies to be of any use to the Defendant, particularly in the absence of

accompanying transcripts, they would have to be audible to the Defendant and his

representatives.

48. With respect to the provision of transcripts, applying that 20/20 vision

furnished by hindsight, had transcripts been provided to the Defendant as requested

the likelihood is that we would not be in the position that we now find ourselves with

the management of this case and the case would be well on the way to trial. The

provision of those transcripts would have avoided the issue of the quality of the audio

11 Jeynes v News Magazine Ltd.[2008] EWCA Civ. 130 at paragraph 14.

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recordings, an issue that took over three months to resolve itself, the Defendant would

have known exactly how the Claimant was construing any words that may have been

unclear as a result of the quality of the recording and would have had the full context

of the speeches. To date transcripts of the audio recordings have never been provided

by the Claimant to the Defendant.

49. By the time of filing the Statement of Case the Claimant had abandoned the

complaints with respect to the speeches of 4th

, 5th

, 6th

and 8th

May. With respect to the

speeches, for which complaints were still being pursued, the words complained of in

the Statement of Case were far more extensive than those identified in the pre-action

letters. One of the inferences that can be drawn from this is that by the month of July

the Claimant must have been in the possession of further information as to the

contents of the speeches over and above the original audio recordings used for the

issue of the pre-action letters.

50. I am satisfied that in the absence of transcripts of the speeches the failure

of the Claimant to provide audible audio recordings of all the speeches prior to 10th

October provides a reasonable excuse for the Defendant’s failure to file a defence

prior to the 10th

October. To file a defence on the basis of inaudible audio recordings

would in my opinion have been foolhardy given the provisions of the Rules with

respect to changes in pleadings.

51. Further I am satisfied that for the allegations as to the contents of that

speech to be properly defended it was reasonable for the Defendant to require the

audio recordings to be transcribed. This was made even more imperative to my mind

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by the fact of the substantial differences between the words complained of in the pre-

action letters and those complained of in the Statement of Case. It would seem to me

that even if the Claimant was not required to provide a transcript of the recordings

given the extent of the words complained of and the context in which the speeches

were made what was required were audio recordings which were audible to the

Defendant so that accurate transcripts could be obtained.

(b) the absence from the jurisdiction of Attorneys for the Defendant during

the court vacation

52. The Claimant submits that the fact that Senior, Junior and Instructing

Attorneys are out of the jurisdiction cannot be a good reason for extending the time

for the filing of a defence. While on the face of it this statement makes sense the fact

is that the submission fails to consider other relevant facts. The period referred to by

the Defendant was a period when the Court was on the long vacation time prescribed

by the Rules, namely the 1st August to 15

th September

12 and when it is customary for

Attorneys to take the opportunity of taking a vacation themselves. Although not raised

in the evidence I am satisfied that this latter observation is a fact of which I can take

judicial notice. Indeed this may very well be the reason for the provision in the Rules

that during this period, except where there is an order of the court specifying a date

for the service of the Statement of case, time does not run.

53. In my view the absence of the Defendant’s Attorneys from the jurisdiction

during the long vacation time is reasonable. While this does not provide an excuse for

12 Part 79.1(2)(a)

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the whole of the period it certainly is a factor for consideration.

(c) the unavailability of the Defendant to give instructions and (d ) the need

for time to transcribe the CDs, obtain instructions and draft and file the

defence.

54. The Claimant submits that the unavailability of the Defendant to give

instructions because of travel plans and obligations to the budget debate, while it may

have been a good reason under the old Rules13

, can no longer amount to good reason

under the CPR given the overriding objective to allocate to each matter an efficient

amount of the Court’s resources. With due respect to the Claimant I do not understand

or agree with the submission.

55. Under normal circumstances after being instituted a case will only come to

the Court’s attention for action where either a defence has been filed or where the

claim is liable to be automatically struck out in accordance with Part 23.7(3)(b). Since

no defence has been filed and the application for the extension of time was filed

before the expiration of the period provided for in the Rule neither of these

circumstances apply. In fact the reality is that the Court’s resources have only been

challenged as a result of the necessity to deal with this as a contested application.

56. Looking at the facts from another angle assuming that audible audio

recordings were necessary to properly defend the claim, as I have found, was the

Defendant to sit and await the delivery of audible audio recordings. The fact is that

13 Rules of the Supreme Court 1979.

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the provision of recordings of all the speeches audible to the Defendant’s legal

representative was only done on the 10th

October.

57. The Defendant’s unavailability to give instructions to his Attorneys must

be put in the context of the fact of the Court’s long vacation during the period 1st

August to 16th

September, the customary absence of Attorneys from the jurisdiction

during that period and the fact of the Defendant’s duties to the public of Trinidad and

Tobago as a result of his role of Leader of the Opposition. Although there has been no

evidence filed by the Defendant in this regard I am satisfied that I can take judicial

notice of the procedure followed in Parliament with respect to annual debates on the

contents of the budget presented by the Government for the coming financial year; the

fact that this presentation is usually in the month of September and the role of the

Leader of the Opposition in this regard.

58. The fact that Attorneys can only act on instructions from their client does

not need to be stated. This is particularly so in actions for defamation. The client’s

instructions determine which of the many available defences are appropriate. Further

a number of the available defences require detailed particulars obtainable only from

the client. Ethical requirements apart the Rules require the personal participation by a

defendant in the preparation of a defence in that they require the certification by the

defendant of the truth of the contents. I am satisfied that the Defendant’s

unavailability provides another layer of explanation as to the reason for the failure to

file the defence within the period limited for so doing.

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59. Since therefore it is necessary to put the statements complained of in the

context of the whole speech and since all the relevant audio recordings provided were

not audible to the Defendant’s Attorneys or the contents ascertainable by the

provision of transcripts of the speeches it follows therefore that before a defence

could be drafted it would be reasonable to expect Counsel’s brief to properly include

a transcript of the speeches and the full instructions of the client with respect to the

words complained of in the context of the speeches and the defences available to the

client. It would seem to me not to be unreasonable therefore in circumstances where

all the information is not available to provide Senior Counsel with only an initial or

preliminary brief.

60. I am satisfied therefore that the Defendant has provided a good explanation

for the breach.

Has the Defendant generally complied with all other relevant rules, practice

directions, orders and directions

61. The Claimant submits that the Defendant’s actions clearly demonstrate an

attitude of non-compliance in that he failed to provide a response to the pre-action

protocol letters and to file his defence within the time prescribed. Insofar as the

Claimant relies on in the failure to file the defence as evidence of lack of compliance

the submission is flawed since it is the very fact of the failure to comply with a rule

that has prompted this application. What the Rule requires is for me to consider

compliance with all other rules, practice directions etc.

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62. The Defendant filed his appearance promptly the same day of the service of

the Claim and Statement of Case on him. At this stage the only relevant requirement

of the Rules is the Protocol with respect to pre-action letters for actions in

defamation14

. Both parties allege that the other has not complied with the relevant

protocol. The Claimant’s position is that there has been no response by the Defendant

on the allegations contained in the three pre-action letters. It cannot be disputed that

the Defendant has not provided a response that gives details as to his specific

positions on each of the allegations made by the Claimant. The Defendant alleges

however that in accordance with the Protocol the Claimant ought to have provided

him with transcripts of the speeches. The absence of such transcripts made it

impossible for him to comply with his obligations under the Protocol.

63. To my mind the issue here is not so much whether the words: “Where

possible, the newspaper clipping or a copy of the transcript of the words complained”

made it mandatory for the Claimant to provide transcripts of the whole of the

speeches but rather whether it was proper to file the action where there were requests

for further information outstanding. Information that, according to the Defendant, was

required before he could comply with the Protocol.

64. In accordance with the Protocol the Defendant replied to each pre-action

letter written by the Claimant identifying what he considered to be the further

information required by him to answer each claim. This request included a request

made after the issue of the second pre-action letter for details as to where and to

14 Practice Direction on Pre-Action Protocols dated 15th November 2005 Appendix C

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whom the words were uttered15

in accordance with the requirement of the Protocol.

The Claimant gave no response to any of the letters, not even by way of an

acknowledgment of receipt or denial of the requests, prior to the instituting of the

action. That said, without acknowledging the Defendant’s requests, the Claimant

does, by way of the third pre-action letter, enclose audio recordings in the form of

CDs. By letter dated 30th

June however the Defendant acknowledges the receipt of the

CDs and the partial satisfaction of the requests made in his previous letters; indicates

the inaudibility of two of the CDs and requests replacement copies, verbatim

transcripts and certification of the accuracy of the recordings.

65. It is clear therefore that even if the provision of the CDs could be

considered an acknowledgement of one of the requests made by the Defendant it

certainly did not answer all of the requests made by the Defendant. The Claimant’s

only answer to the letter of the 30th

June was to file the Claim.

66. To my mind the Claimant’s actions were not within the spirit and intent of

the Protocol. The intention of which is, among other things, to provide a format for

the parties to fully ventilate the issues and facts prior to the commencement of the

action. The Protocol envisages a situation where a defendant is unable to do so

because she or he is of the opinion that more information is required to properly

answer the claim and suggests that in those circumstances a defendant is entitled to

seek further information.

15 Appendix C paragraph 2.2 of the said Practice Direction

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67. It would seem to me that, even if the Claimant was of the view that the

positions taken by the Defendant were not valid, at the very least where a request is

made the Claimant ought to have responded. Even if only to say that he does not

accept the position taken by the Defendant and in the circumstances intends to

proceed to litigation. The provision to the Defendant of the audio recordings of all the

speeches by the letter of 13th

June suggests to me however that the Claimant accepted

that there was some validity in at least one of the Defendant’s requests. Why then

rush to file the proceedings without answering the further request made in the letter of

30th

June for replacement CDs. There is no suggestion that there was any urgent need

to file the proceedings that would have justified the Claimant’s refusal to reply to the

Defendant’s request.

68. On the facts placed before me therefore I am satisfied that the failure of the

Defendant to provide a full and detailed response to the pre-action letters issued by

the Claimant is as a direct result of the Claimant’s refusal to reply to any of his letters

requesting further information. In the circumstances I am satisfied that as far as it was

possible the Defendant has generally complied with all other relevant rules, practice

directions, orders and directions.

Other factors

69. I am also required to have regard to the considerations identified in Part

26.7(4), the prejudice to both parties and the overriding objective.

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70. With respect to the considerations contained in Part 26.7 (4) at (b), (c) and

(d) in the particular circumstances of this case they ought not to engage much of my

attention. Put as neutrally as possible the Defendant's present position is as a result of

his inability to put the allegations contained in the Statement at Case in the context of

whole of the speeches made him. In my opinion if any fault were to be attributed to

any person on the Defendant’s side it would be attributable to both the Defendant and

his Attorneys equally. This however is not the case. Similarly given the stage of this

matter there is no question of the trial date not being met. We simply have not reached

that stage. The only other factor to be dealt with here is the Administration of Justice.

I propose to deal with this consideration a little later in this ruling.

71. I am satisfied that the failure to comply is one that can be remedied within

a reasonable time. Indeed we are now long past the period originally requested by the

Defendant. The evidence is that the transcripts ought to have been ready by the

second week in November and thereafter what was necessary was for instructions to

have been obtained from the Defendant and a full brief sent to Counsel to settle the

defence. It would seem to me that bearing in mind the time limits given in the Rules

28 days thereafter would have been a reasonable period from the obtaining of the

transcripts for this to have been done. Time has however overtaken this position.

72. In considering the question of prejudice I am required to consider the

prejudice to both sides in granting or refusing the application. I am satisfied that in the

context of this case there is prejudice to both sides. The prejudice to the Defendant is

obvious. If the application is not granted he will be unable to defend the case. It seems

to me that the Claimant is also prejudiced in there not being a determination on the

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merits. This is a claim arising out of serious allegations made by the Defendant of

misconduct on the part of the Claimant it would seem to me that in the circumstances

a claimant would want to have a determination on the merits. In my opinion not to be

able to have such a determination must be prejudicial to Claimant and the

maintenance of his good name and character.

73. Even if I am wrong with respect to the prejudice to the Claimant I am

satisfied that the prejudice to the Defendant in his not being able to defend the action

far outweighs any prejudice to the Claimant by the Defendant obtaining an extension

of time to file his defence and the action proceeding to trial. The fact is that except

that the Claimant would have lost the opportunity to obtain an over the counter

judgment and that the trial will be slightly delayed no real prejudice can be said to

apply to the Claimant. The Claimant points to the delay in the trial of the action the

fact is that it is still possible to have a relatively early trial of this action.

74. The Rules require that I give effect to the overriding objective when

exercising any discretion given by it16

. The requirement at the end of the day is that I

do justice or deal with the case justly17

. As confirmed by Mendonca J.A. in Roland

James the examples given by the Rule 18

are not exhaustive and a court must take

account of all the relevant circumstances.

75. To my mind, apart from the circumstances to which I have already referred,

also relevant is the importance of this litigation. This is an action in defamation

16 Part1.2(1) of the CPR 17 part 1.1(1) 18 Part 1.1(2) (a) to (e)

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brought by a person who has attained the status of Senior Counsel in his profession, is

a member of the Senate of Trinidad and Tobago and holds the office of Attorney

General against a person holding the office of the Leader of the Opposition of

Trinidad and Tobago with respect to statements which he says have been made on a

public platform and which have been broadcast to the public over at least one radio

station. By the pre-action letters issued the Claimant alleges that these statements

have had the effect of disparaging him in public office and have damaged the office of

Attorney General. To my mind therefore this is a matter of public importance. Its

litigation on the merits is in the public interest. In my opinion this factor is also

relevant to the exercise of my discretion.

76. This brings me finally to the interests of the administration of justice19

. In

the circumstances as outlined treating with the interests of the administration of

justice in the narrow sense, that is, as between the parties it would seem to me that

these interests lie in favor of a full litigation of the action on the merits unless there

are factors which would suggest an abuse of the procedures of the Court by one of the

parties. I am satisfied that on the facts before me there is none in this case that would

prevent the extension of time for the filing of the defence.

77. Looking at the interests of the administration of justice in the wider sense,

that is, in the context of its role in maintaining the rule of law and the general

credibility of the judicial system it would seem to me that, on the particular facts of

this case and its public importance, it is in the interests of the administration of justice

to have this action fully litigated.

19 Part 26.7 (4)(a) of the CPR.

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78. Bearing in mind all the circumstances as outlined herein and giving each

the appropriate weight I am of the opinion that the time for the filing of the defence

ought to be extended.

79. Finally before identifying the manner by which I will dispose of the

application before me it is perhaps it is apt for me here to deal the appropriateness of

contesting applications like this. What is of concern to me is not the fact that the

application was filed but rather that it was contested. The fact is that in seeking an

extension of time for the filing of his defence in excess of the consensual three month

period granted by the Rules20

the Defendant was required to make this application.

This however was an application that could have been dealt quickly and efficiently

without a hearing by a Judge21

applying the very same principles now being applied.

80. Like Mendonca J.A. in Roland James I am myself concerned with the time

taken to hear and determine applications of this nature. This is of particular concern to

judges to whom the task of managing cases is vested. Time for us is a precious

commodity. In the instant case however I accept that the application was contested

before there had been any definitive determination by the Court of Appeal on the

principles to be applied to application for an extension of time.

81. My comments here therefore are primarily addressed to future applications

but Attorneys will forgive me if I use these facts as an apt example. The truth is that

had the application not been contested in all likelihood a date for trial would have

already be fixed and the parties well on their way to a final determination of the

20 Part10.3 (6) of the CPR 21 Part 11.13 (d) of the CPR

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matter on the merits. Of equal importance is the fact that the time spent by me in

determining this application could have been more productively spent elsewhere in

dealing with the numerous other matters on my docket.

82. In my opinion it is simply not conducive to the interests of justice, the

overriding objectives of the Rules or simply good case management to have the

resources of the Court spent on contested applications such as this. The time spent on

this application was not an appropriate use of the Court’s resources and insofar as the

Overriding Objective requires that this factor be taken into consideration this must be

one of the factors taken into consideration by parties, including Attorneys, in the

discharge of their duty to help the Court further the Overriding Objective.

83. Accordingly the Defendant’s application for an extension of time to file his

defence is granted. The Defendant is to file and serve his defence on or before 2nd

February 2015.

Dated this 26th

day of January, 2015.

Judith Jones

Judge

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