republic of trinidad and tobago in the high...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CLAIM NO. CV2015-02457

BETWEEN

BRENT ZEPHYRINE

Claimant

AND

RONALD F. JONES

First Defendant

SANDRA MATTHEWS-NOEL

Second Defendant

Before the Honourable Madame Justice Quinlan-Williams

Appearances: Mr. Farid Scoon instructed by Mr. Walede Michael

Coppin for the Claimant

Mr. Faarees F. Hosein instructed by Mr. Romney

Thomas for the First and Second Defendants.

Date of Delivery: 13th January 2020

JUDGMENT

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The Claim and Defence

1. The subject of this defamatory action revolves around a letter dated

10th October 2014 (“the Letter”) wherein it is alleged that the first

defendant and the second defendant, purporting to speak on behalf of

the Board of TECU Credit Union Co-Operative Society Limited (“TECU”),

defamed the character of and conspired against the claimant causing

damage to his reputation and economic loss.

2. The defendants deny that the character of the claimant was defamed

or that either of them was a party to any alleged conspiracy. In any

event, the first defendant and second defendant assert that because

there was a conflict of interest in the positions held by the claimant,

they wrote and published the words contained in the Letter in the

reasonable and/or necessary protection of the interest of TECU and its

Board. The Letter was sent to the Commissioner of Co-Operative

Development (“the Commissioner”) and copied to the Minister of

Labour (“the Minister”), under whose direct supervision and portfolio

the Commissioner fell. As a result, the defendant raises the defence of

qualified privilege as both parties had a corresponding and legitimate

interest in reading and receiving the contents of the Letter.

The Evidence

3. At all material times the first defendant was the President and member

of the Board of Directors of TECU and the second defendant was the

Honorary Secretary and member of the Board of Directors of TECU. The

claimant was a Communications Specialist employed at the Ministry of

Labour, Small and Micro Enterprise Development (“the Ministry”). At

the Annual General Meeting of TECU in or about the 10th May 2013, the

claimant was elected a member of the TECU Board of Directors. At the

commencement of this claim in 2015 the claimant was a Director of

TECU.

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4. In or around July-August 2013, concerns arose that Board matters were

being discussed by persons external to the Board of TECU. In the

interest of maintaining confidentiality, the Board adopted a new

practice with effect from the 28th August 2013, where members were

required to return Board Minutes at the end of meetings pending the

review and direction of the Governance Committee.

5. The Governance Committee is made up of five Directors approved by

the Board after each Annual General Meeting. At the material time, the

Governance Committee comprised Gemma Warner-Convenor, Caron

Pilgrim-Bristol, Leroy Fermin, the first defendant and the second

defendant.

6. This new practice was troubling to the claimant, consequently he wrote

to the Commissioner on the 16th August 2013. The Commissioner’s

response of the 26th August 2013 was given to the second defendant at

the Board meeting on the 28th August 2013.

7. At the start of the Board meeting dated the 28th August, 2013 the first

defendant informed the Directors that the Board Minutes in the Board

packages were under review, and would not be distributed. However,

the Directors were allowed to peruse the Board Minutes on the day of

the meeting. On the basis of the Commissioner’s response dated the

26th August, 2013, the claimant retained his copy of the Minutes at the

end of the Board meeting, despite the first defendant’s insistence that

the claimant leave his copy of the Minutes in the Boardroom.

8. At the Board meeting of the 25th September 2013, the second

defendant advised that the retention of the Board Minutes was done

as a trial into a new process. In the interest of implementing strong

governance concepts, the current procedures pertaining to the

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Minutes and the Confidentiality Statement, were viewed by the

Governance Committee to be weak and would be revised.

9. On or about the 9th October 2013 the Board at its regular meeting

decided that as a matter of good corporate governance, the affairs and

deliberations of the Board ought not to be disclosed and/or discussed,

and that all Directors of TECU would be required to sign a

Confidentiality Statement. The claimant notwithstanding the Board’s

approval for the implementation of the signing of the Confidentiality

Statement by Directors, refused to sign because he felt that the

Statement was linked to the issue of the treatment of the Board

Minutes, which in his opinion had not been resolved.

10. Therefore, on the 28th January 2014 the claimant wrote to the

Commissioner seeking guidance on the Board of TECU’s refusal to

adopt the guidance provided on the 26th August 2013 as the revised

Confidentiality Statement still required Board members to surrender

confidential information concerning TECU at any time during the

course of the term of office. At the Board meeting on the 29th January

2014, the first defendant after becoming aware of the claimant’s

correspondence to the Commissioner, suggested that the Board join

the claimant by having the matter referred to the Commissioner for

advice and guidance in an effort to resolve the dispute arising from the

claimant’s refusal to sign the Confidentiality Statement.

11. The defendant’s evidence was that the matter of the Minutes being

returned or retained by members soon became a non-issue when the

Board went to a paperless mode with the introduction of tablets in

January 2015. No decision was ever taken with respect to the returning

of the Minutes of Board meetings because the process evolved where

matters related to Minutes were captured in the Confidentiality

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Statement which was approved at the Board meeting on the 9th

October 2013. The Board saw this as a resolution to the matter.

12. On the 25th September, 2014 at another TECU Board of Directors’

meeting, the claimant raised the issue of the presence of the

Supervisory Committee at the meeting. The first defendant indicated

that the monthly meetings were primarily for the Board and not for

other Committees as they were not directly related to decision making

in TECU.

13. The claimant then stated to the Board that in his substantive capacity

of Acting Communications Manager at the Ministry of Labour that co-

operative files (which was understood to mean TECU’s files) would pass

through his desk. In addition, the claimant drew the defendants’

attention to certain correspondences dated the 19th August 2013 from

the Office of the Commissioner to TECU requesting permission to

attend the Board meeting on the 28th August 2013. The claimant then

referred to the response dated the 26th August 2013 sent by the second

defendant to the Office of the Commissioner advising that the presence

of a representative of the Commissioner could not be accommodated

at that meeting. The claimant questioned why the items of

correspondence were not tabled at the Board meeting.

14. On the 1st October 2014, there was a meeting of the Governance

Committee who felt that the claimant’s statement in the Board

meeting of the 25th September 2014 required a response and that TECU

ought to write to the Commissioner seeking his advice on the issue.

15. Thereafter, the defendants unaware of the claimant’s contractual

relationship with the Ministry of Labour and in the best interest of

TECU, caused the letter of the 10th October, 2014 to be published to

the Commissioner and copied to the Minister of Labour as follows:

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“Subject: Conflict of Interest

Dear Mr. Adams,

With reference to the subject matter the Board of Directors of TECU feels somewhat compelled to report on the conduct of our Director Brent Zephyrine which in our view may be construed hitherto as a conflict of interest. At our Board of Directors meeting held on September 25th 2014, Director Zephyrine stated that in his current capacity as acting Communications Manager where he works, Co-operative files would pass through his desk. He indicated that it was brought to his attention that on August 19th 2013 a letter was issued by the Commissioner’s Office requesting permission to attend the Board meeting on August 29th 2013. Mr. Zephyrine further stated that the Honorary Secretary responded to the Commissioner's Office via letter dated August 26th 2013 advising that their presence could not be accommodated on the 29th but would be at another mutually agreed meeting. He further stated that TECU was viewed in a bad light by your office. This statement raised concerns by the other Directors present as to whether Director Zephyrine by virtue of his office held at the Ministry of Labour is privy to correspondence between TECU and your office and whether by virtue of his position he is entitled to speak for and on behalf of the Office of the Commissioner.

Please note however that while we do not deny the existence of the correspondence, TECU is not aware that your good office has had issue with the positions taken at that time nor have we had any communication from you or any of your representatives to the effect that TECU is considered in any negative light by your Office. Indeed, since the dates mentioned, representatives from your office have attended our Board meetings and ironically on the said 25th of September 2014 Ms. Aazida Mohammed, Co-operative Officer, was in attendance at our Board meeting, and at no time was TECU or the Board advised of any negative fallout or negative relations between our respective organizations. This was even re-enforced by the attendance and support afforded TECU by your representatives at our recently held Special Meeting on the 18th September, 2014.

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Our Director has now seen it fit to bring a formal complaint with our Supervisory Committee, purportedly with the intent registering, in his own capacity as a Director of the TECU Board and as an officer of your organization, related concerns. This matter is one more issue that we note is a continuation of several others that we have previously raised with your office. In this instance we view with concern the seeming abuse of office and conflict of interest. This latest imbroglio suggests a continuing degeneration of the relationship between the Director and the Board and now if we follow the position of the Director, the Office of the Commissioner. In these circumstances TECU wishes to draw on the experience and knowledge of your good office to bring some resolution to this matter regarding protocol. Your timely response would be appreciated. Respectfully Sandra Matthews-Noel Honorary Secretary x.c. The Honorable Errol Mc Leod, Minister of Labour, Small & Micro Enterprise Development”

16. The Letter was communicated to all of the Board, save for the claimant,

by email dated the 10th October 2014.

17. The defendants aver that the letter dated the 10th October, 2014 was

written to the Commissioner for the purpose of seeking clarification

and intervention of the following issue: “whether Director Zephyrine,

by virtue of his office held by the Ministry of Labour, is privy to

correspondence between TECU and your Office and whether by virtue

of his position, he is entitled to speak for an on behalf of the Office of

the Commissioner”.

18. Furthermore, the defendants note that when they made reference in

the letter to “This matter is one more issue that we note with a

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continuation of several others that we have previously raised with your

good office” the other matters alluded to were:

(i) A disagreement with the Board as to the retention of the Board

Minutes when the claimant refused to comply with a directive

to return Board Minutes whereby the claimant complained to

the Commissioner regarding the issue.

(ii) The Board at its meeting of the 9th October, 2013 after much

deliberation, approved by an overwhelming majority, a

Confidentiality Statement to be signed by the Directors. The

claimant refused to sign the same and made a complaint to the

Commissioner.

19. Hence, at a meeting of the Board on the 29th January 2014 a motion

was passed to refer these matters to the Commissioner for his advice

and guidance.

20. The claimant gave evidence that there existed well established

procedures for determining whether a Director was in a conflict of

interest. There was also a Supervisory Committee to deliberate

internally on breaches of TECU’s Bylaws and the Corporate Conduct

Guidelines. However, the defendant contended that reference to the

Supervisory Committee was not an available option for the reason that

the claimant made it clear at the Board meeting that the claims he was

making was in his capacity not as Director of TECU but as an employee

of the Ministry of Labour. Therefore the defendants were of the

opinion that the Supervisory Committee’s view would not be useful or

determinative of the issue.

21. TECU’s Corporate Conduct Guidelines state, “[a] conflict of interest

exists whenever an individual’s other interests have the potential to

adversely affect his/her judgment, privation or performance.” The

Guidelines indicate that this may arise in situations where: (a) someone

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acts for a purpose which is motivated by considerations other than the

“best interest of the Society”; and (b) someone’s outside activities, in

which and of themselves may not be conflicts of interest, are so

demanding on the person’s time that they interfere with his or her

performance.

22. The claimant states that to his knowledge there was no enactment,

Bylaws or other rules of TECU which allowed a Director or any select

group of Directors to withhold correspondences from the rest of the

Board. Likewise, there is no statutory enactment, Bylaw, policy,

guideline or ethical code either at the Ministry, TECU or the

Commissioner forbidding any public officer employed at the Ministry

as the claimant was in his role of Communications Specialist and/or

Corporate Manager (Ag) from simultaneously being a Director of TECU

or any other credit union.

23. The claimant contends that at no point in time was he ever the subject

of any internal investigations pursuant to section 36(iii) of TECU’s

Bylaws, nor was any disciplinary proceedings conducted to determine

if the claimant did in fact breach the TECU’s Bylaws and/or any other

statutory enactment relevant to his role as Director of TECU. Similarly,

legal advice in relation to same was never sought. Any alleged conflict

of interest was never raised by the defendants or any other Director at

a Board meeting before sending the Letter, neither was any resolution

passed by the Board of TECU directing the defendants to send the

Letter to the Commissioner and the Minister of Labour. TECU’s Board

Matters - Protocol in Decision Making, a governance instrument

approved on the 30th October, 2013 prescribes:

“Resolutions record the decisions taken by a Board formally at a Board Meeting. Such decisions are made upon motion moved and seconded by individual members of the Board and tabled for approval by the membership of the Board. Resolution will pass by way of a majority decision.”

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24. Under section 20 (viii) of TECU’s Bylaws officers have a duty to act in

good faith in the management of TECU’s affairs. Under section 24 the

Secretary is mandated to “keep correct records of meetings of the

members”. Under section 26 of the Bylaw impresses the need for

decisions to be reported to the Board and under section 36 the

Supervisory Committee is authorised to investigate credit union

matters.

25. As it relates to the alleged “continuing degeneration” of the

relationship between the claimant and the Board as contained in the

Letter, the claimant denies such but admits that his relationship with

the first defendant was fractious. This is on account of the claimant’s

refusal to sign a Board approved Confidentiality Statement despite the

first defendant’s ultimatum.

26. The claimant’s contract as Communication Specialist with the Ministry

was carded to expire on the 31st October 2014 in which he was

contracted for a period of three years with a basic salary of $12,500.00,

travelling allowance of $1,500.00, and the use of a corporate cellular

phone with a data plan.

27. The Guidelines for Contract Employment in Government Ministries,

Departments and Statutory Authorities subject to the Statutory

Authorities Act Chap 24:01 speaks to an extension of the period of a

subsisting contract. It allows for extension subject to the approval of

the Cabinet prior to the expiry of the contract. In line with Guidelines1,

three months prior to the end of the claimant’s contract, he wrote to

1 “three (3) months prior to the completion of a term of service, the person engaged shall give notice in writing as to whether he desires to remain in his employment and the Permanent Secretary, Head of Department or Statutory Authority shall decide whether he will be re-engaged or further employment offered to him.”

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the Permanent Secretary in the Ministry indicating his desire to be re-

engaged.

28. Within the Communications Unit of the Ministry, there was a change in

the organisational structure in 2014 whereby the post of

Communications Specialist was re-classified to that of Senior Corporate

Communications Officer. In October 2014 there were two vacancies in

this post and the re-classification resulted in an increase in the basic

salary to $16,700.00 and a travelling allowance of $1,800.00 per

month.

29. However, despite the claimant’s numerous enquiries with the Human

Resources Department at the Ministry during the month of October

2014, he was never informed that his contract would not be extended.

Instead, the claimant was the only member of the Communications

Unit whose tenure was not extended despite a more than favourable

job assessment and expressed willingness to be re-engaged.

30. At a Board meeting of TECU held the 25th February, 2015 the claimant

raised the issue relative to the sending of the Letter dated 10th October,

2014. The first defendant indicated that he was aware of the said Letter

being forwarded or copied to the Minister of Labour but

failed/neglected/refused to produce it despite repeated requests from

the claimant. The first defendant also ignored/refused/failed to

respond to an enquiry of a member of the Board, Mr. Gregory Cova,

who sought a justification for why the Letter was sent.

31. The claimant asserts that despite numerous attempts to locate the

Letter, he only became aware its contents at a Board meeting on 31st

March, 2015 when the second defendant read out the said Letter dated

the 10th October 2014. At this Board meeting the first defendant also

successfully moved a motion to bring the claimant before a Hearing

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(tribunal) pursuant to section 7(iv) of TECU’s Bylaws following which

the claimant may be suspended or expelled by the Board for

purportedly violating TECU’s Bylaws or otherwise acting in a manner

prejudicial to the interest of TECU.

32. On the 25th April 2016, all of the members of the Board with the

exclusion of the parties to this action signed a joint statement

confirming that the Letter was sent to the Commissioner after it had

been circulated to the Board for review prior to its dispatch.

Issues

33. The issues for the court’s determination are as follows:

a. Whether contents of the letter dated the 10th October 2014 was

defamatory of the claimant’s character;

b. Whether the defendants have satisfied the requirements of the

defence of qualified privilege;

c. Whether the defendants conspired against the claimant to

cause him injury; and

d. Whether the claimant is entitled to damages.

Law and Analysis

a. Whether the Letter was defamatory

34. To establish the ingredients of a cause of action in defamation the

claimant must prove that the words complained of were published of

him; the words were defamatory of him; and the words were published

by the defendant in circumstances in which the defendant is

responsible for the publication2.

35. There have been many definitions of what constitutes a defamatory

statement. One of the earliest authorities may be found in the case of

2 Duncan and Neill on Defamation Third Edition at paragraph 6.01

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Parmiter -v- Coupland and Another 6 M&W 104 where defamatory

words were defined as those which are calculated to injure the

reputation of another by exposing him to hatred, contempt or ridicule.

36. Another was formulated by the Court of Appeal in the case of Skuse -v-

Granada Television (1996) EMLR 278 at 286 as per Sir Thomas Bingham

MR which was adopted locally by the Court of Appeal in Civil Appeal

No. 118 of 2008 Kayam Mohammed & Others -v- Trinidad Publishing

Co. at paragraph 42 to be:

“A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally.”

37. The Honourable Mendonca J.A. in the case of Kayam Mohammed

[supra] set out the proper approach the court ought to adopt in

determining whether words alleged are indeed defamatory:

“10. There was no dispute as to the proper approach of the Court in determining the meaning of words alleged to be defamatory. The principles were recounted by Lord Nicholls in Bonnick v Morris [2003] 1 A.C. 300 (at para 9):

“Before their Lordships’ Board the issues were reduced to two: meaning and qualified privilege. As to meaning, the approach to be adopted by a court is not in doubt. The principles were conveniently summarized by Sir Thomas Bingham MR in Skuse v Granada Television Ltd. [1966] EMLR 278, 285-287. In short, the court should give the article the natural and ordinary meaning it would have conveyed to the ordinary reasonable reader of the “Sunday Gleaner” reading the article once. The ordinary reasonable reader is not naïve; he can read between the lines but he is not unduly suspicious. He is not avid for scandal. He would not select one bad meaning where other, non-defamatory meanings are available. The court must read the article as a whole, and eschew over-elaborate analysis and, also too literal an approach. The intention of the publisher is not relevant. An appellate court should not disturb the trial Judge’s conclusion unless satisfied he was wrong.”

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11. The Court should therefore give the article the natural and ordinary meaning the words complained of would have conveyed to the notional ordinary reasonable reader, possessing the traits as mentioned by Lord Nicholls, and reading the article once. The natural and ordinary meaning refers not only to the literal meaning of the words but also to any implication or inference that the ordinary reasonable reader would draw from the words. Thus in Lewis v Daily Telegraph Ltd. [1964] AC 234, 258 Lord Reid stated:

“What the ordinary man would infer without special knowledge is generally called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them and that is also regarded as part of the natural and ordinary meaning.”

12. And Lord Morris in Jones v Skelton [1963] 1 W.L.R 1363, 1370-1371 stated:

“The ordinary and natural meaning of words may be either the literal meaning or it may be implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words... The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not filtered by any strict legal rules of construction would draw from the words.”

13. It is also relevant to note that the words have only one correct natural and ordinary meaning. So that for example in Charleston v News Group Newspapers Ltd. [1995] 2 AC 65 Lord Bridge, after referring to the fact that the natural and ordinary meaning of words may include any implication or inference stated (at p.71):

“The second principle, which is perhaps a corollary of the first, is that, although a combination of words may in fact convey different meanings to the minds of different readers, the jury in a libel action, applying the criterion which the first principle dictates, is required to determine the single meaning which the publication

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conveyed to the notional reasonable reader and to base its verdict and any award of damages on the assumption that this was the one sense in which all readers would have understood it.”

14. Where, as in this jurisdiction, the Judge sits without a jury, it is his function to find the one correct meaning of the words. Although when considering the defence of Reynolds privilege the Court must have regard to the range of meanings the words are capable of bearing as I will mention below, it is still the function of the Judge as regards the meaning of the words complained of to find the single meaning that they do convey. That does not mean that where an article levels a number of allegations as is the case here, that it has only one meaning. What it does mean is that where there are possible contradictory meanings of the words, the Court cannot recognize, what may be the reality, that some reasonable readers will construe the words one way and others another way. The Court must determine the one correct meaning out of all the possible conflicting or contradictory interpretations.”

38. In the Judge’s determination of the one single and correct meaning to

attach to the statements, Lord Kerr3 in the recent case of Stocker -v-

Stocker [2019] 3 All ER 647 set out the essential criteria to be

considered:

“(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]

3 Quoting Sir Anthony Clarke MR from the case of Jeynes v News Magazines Ltd

[2008] EWCA Civ 130

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EWCA Civ 1263 at para [7] and Gatley on Libel and Slander (10th edn), 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 per Lord Halsbury LC at 73.”

39. In Charleston and another -v- News Group Newspapers and another

(1995) 2 A.C. 65 Lord Bridge stated that in determining the natural and

ordinary meaning of the words, it is necessary to take into account the

context in which the words were used and the mode of publication.

Thus a claimant cannot select an isolated article and complain of that

alone if other parts of the article throw a different light on that passage.

40. The claimant claims that the said Letter contained the following

statements which were defamatory of him:

a. “Re: Conflict of Interest”

b. “With reference to the subject matter, the Board of Directors of

TECU feels somewhat compelled to report the conduct of our

Director Brent Zephyrine which in our view may be construed

hitherto as a conflict of interest.”

c. “This statement raised concern by the other Directors of TECU

as to whether Director Zephyrine, by virtue of his office held by

the Ministry of Labour, is privy to correspondence between

TECU and your Office and whether by virtue of his position, he

is entitled to speak for or on behalf of the Office of the

Commissioner”

d. “Our Director has now seen it fit to make a formal complaint

with our Supervisory Committee, purportedly with the intent

registering, in his own capacity as … an Officer of your

organisation, related concerns”

e. “This matter is one more issue that we note, with a continuation

of several others that we have previously raised with your good

office.”

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f. “In this instance, we view with concern the seeming abuse of

office and conflict of interest.”

g. “This latest imbroglio, suggest a continuing degeneration of the

relationship between the Director and the Board.”

41. The claimant avers that the statements in their natural and ordinary

meaning meant and were understood to mean, and/or alternatively in

their inferential meaning were understood to mean:

a. That it was the view of the Board of TECU that the claimant was

a dangerous and devious man;

b. That it was the view of the Board that the claimant was a

renegade and iconoclastic Director;

c. That it was the view of the Board that the claimant was a

trouble-maker who is at war with the Board;

d. That it was the view of the Board that the claimant was an

unethical employee of the ministry who fraudulently

misrepresented to third parties that he acted on behalf of the

Office of the Commissioner for Co-operative Development;

e. That it was the view of the Board of Directors of TECU that the

claimant knew that the role of Communications Specialist

and/or Corporate Communications Manager (Ag.) and the role

pf Director of TECU were at odds with each other so much so

that he could not possibly act in the best interests of the

Ministry and the Board of TECU while simultaneously occupying

both positions;

f. That as a public officer, the claimant committed the common

law offence of misconduct in a public office as he wilfully

conducted himself to such a degree as to amount to an abuse

of the public’s trust in him as an office holder, without

reasonable excuse or justification;

g. That the claimant committed the tort of misfeasance in public

office as he exercised his power as a public officer causing loss

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to the Ministry and that he intended to either injure the said

Ministry or the Republic of Trinidad and Tobago or knew that

he had no power to the some act complained of and that the

act would probably injure the Ministry;

h. That it was the view of the Board of TECU that the claimant was

an unethical employee who actively used his office at the

Ministry to personally profit from the improper use of his office

as Communications Specialist and/or Corporate

Communications Manager (Ag.);

i. That it was the view of the Board of TECU that the claimant’s

actions should be known to his employers at the Ministry and

that he should be brought up for disciplinary action and possibly

fired by the said employers for his abuse of office and/or

conflict of interest.

42. It is the claimant’s case that the statements complained of are untrue

on account of the following:

a. He was never in a position of conflict of interest in his roles as

Director of TECU, Communications Specialist and/or Corporate

Communications Manager (Ag.) at the Ministry;

b. He never made a formal complaint to TECU’s Supervisory

Committee in his capacity as an Officer of the Ministry;

c. At no time were the defendants speaking on behalf of the rest

of the Board of Directors of TECU;

d. The claimant never represented to anyone he was entitled to

speak for and on behalf of the Office of the Commissioner for

Co-operative Development;

e. At no time did he ever abuse his office as Communications

Specialist and/or Corporate Communications Manager (Ag.) at

the Ministry;

f. The Board of Directors of TECU never raised any matter of

purported conflict of interest or abuse of office or misconduct

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about the claimant with the Commissioner and as such was not

a continuation of several others that the Board previously

raised;

g. At no time were the defendants speaking with the knowledge

and/or consent of all the member of the Board of TECU and the

matter was not an imbroglio. There was neither a degeneration

of the relationship between the claimant and the entire Board

of TECU. If at all there was a degeneration in the relationship

between the claimant and the first defendant.

43. At the onset, an understanding of The Ministry of Labour ought to be

appreciated. The Ministry of Labour contains a Co-operative

Development Division. Credit unions are currently supervised by the

Commissioner for Co-operative Development in the Ministry of Labour

under the Co-operative Society Act Chapter 81:034 (“the Co-operative

Society Act”).

44. The Ministry of Labour and the Minister of Labour has responsibilities

for departments including the Co-operative Division. Therefore, the

Commissioner who supervises the Co-operative Societies is under the

purview of the Minister of Labour.

45. In relation to the first ingredient of the cause of action in defamation,

on the face of the Letter, which is alleged to contain defamatory

statements of the claimant, the claimant is identified and named as

“Brent Zephyrine” and he is also described as “our Director”, which

facts are not in dispute as it is the claimant’s name and he was at all

material times a Director of TECU. The claimant is also described as

working in the capacity of Communications Manager (Ag.) and he was

4 https://www.central-bank.org.tt/publications/legislations-and-guidelines/credit-union-sector-legislation-and-guidelines

https://www.central-bank.org.tt/publications/legislations-and-guidelines/credit-union-sector-legislation-and-guidelines

https://www.central-bank.org.tt/publications/legislations-and-guidelines/credit-union-sector-legislation-and-guidelines

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in fact working as Corporate Communications Manager (Ag.) at the

Ministry of Labour at the material time.

46. The evidence indicates that on the 1st October 2014 the Governance

Committee which comprises the first defendant and the second

defendant decided to write to the Commissioner seeking his advice on

the issues. The first defendant also admitted that as the President of

TECU in pursuance of the powers of the office supported the writing of

the Letter. Furthermore, the Letter was signed by the second

defendant. For these reasons, it is clear that the statements contained

in the Letter were published by the defendants or in circumstances in

which they were responsible for the publication thereby satisfying the

third ingredient of the cause of action.

47. The offending portions of the Letter selected by the claimant which

state:

“Re: Conflict of Interest”

“With reference to the subject matter, the Board of Directors of

TECU feels somewhat compelled to report the conduct of our

Director Brent Zephyrine which in our view may be construed

hitherto as a conflict of interest.”

“This statement raised concern by the other Directors of TECU

as to whether Director Zephyrine, by virtue of his office held by

the Ministry of Labour, is privy to correspondence between

TECU and your Office and whether by virtue of his position, he

is entitled to speak for an on behalf of the Office of the

Commissioner”

are not defamatory of the claimant.

48. The first portion which states “Re: Conflict of Interest”, cannot be

viewed in isolation for their ordinary meaning. In accordance with

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Charleston [supra] to determine the natural and ordinary meaning of

the words, it is necessary to take into account the context in which the

words were used. Its context comes from the Letter in its entirety.

49. The average reader is not naïve but neither is he avid for scandal. The

second portion of the Letter complained was, “With reference to the

subject matter, the Board of Directors of TECU feels somewhat

compelled to report the conduct of our Director Brent Zephyrine which

in our view may be construed hitherto as a conflict of interest.” This

introduces the purpose of the Letter and suggest that one

interpretation of the conduct that concerned them, may amount to a

conflict of interest. The defendants had not determined that it was a

conflict of interest.

50. Here they are informing the Commissioner and the copied Minister

that the conduct of the claimant may be interpreted to be a conflict of

interest and before such a position is affirmed, the opinions of the

parties to whom the Letter is addressed are required. In the

circumstances, the defendants are attempting to seek guidance on the

claimant’s actions.

51. The effect of this statement on the reader, could not in the ordinary

meaning of the words, bring doubts about the claimant’s character that

would lower their thinking of him. Up to this point, the reasonable

reader would, in the court’s opinion, continue reading the Letter to see

why the defendants alleged that there may be a conflict of interest.

52. The third alleged offending paragraph, goes on to set out the reasons

why the defendants construed the claimant’s actions as a conflict of

interest. That paragraph states, “At our Board of Directors meeting

held on September 25th 2014, Director Zephyrine stated that in his

current capacity as acting Communications Manager where he works,

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Co-operative files would pass through his desk. He indicated that it was

brought to his attention that on August 19th 2013 a letter was issued

by the Commissioner’s Office requesting permission to attend the

Board meeting on August 29th 2013.”

53. There is only one meaning to these words, the claimant disclosed to

the Board of TECU that in his substantive capacity of Acting

Communications Manager at the Ministry of Labour that Co-operative

files would pass through his desk. Those files included TECU files and

he saw in those files, a letter from the Commissioner’s Office dated the

19th August 2013 requesting attendance to the Board meeting of the

28th August 20135. The claimant also had access to a letter from the

second defendant dated the 26th August 2013, denying that request.

54. The ordinary meaning of those words suggest that the claimant was

relying information he was privy to in one capacity, at a Board meeting

in a different capacity. One of the positions held by the claimant was in

an organisation that had a legislatively directed supervisory

responsibility over the other, where the claimant was a Director. Such

an allegation, was suggestive of insider trading of information and

would clearly amount to a conflict of interest. Such allegation would be

defamatory if untrue. A publication of that alleged kind of behaviour

would amount to the lowering of the estimation of such an individual

in the minds of the ordinary person.

55. But can the claimant lodge such a complaint? The answer is no, he did

precisely what was reported by the defendants. The claimant held one

position and acted in another within the Ministry of Labour.

Concurrently, was a Director of TECU. The former position gave him

5 The Letter states that the meeting was held on the 29th August 2013 but the Board Minutes show that the meeting was held on the 28th August 2013. Trial Bundle 3 page 325.

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access to information about the later organization where he held

directorship.

56. The third offending portion of the Letter deals with the claimant’s

respective positions and the assertions made by him during the Board

meeting of the 25th September 2014. That portion of the letter stated,

“This statement raised concern by the other Directors of TECU as to

whether Director Zephyrine, by virtue of his office held by the Ministry

of Labour, is privy to correspondence between TECU and your Office

and whether by virtue of his position, he is entitled to speak for and on

behalf of the Office of the Commissioner”.

57. The claimant explained in cross-examination, about how he came by

the information. He said he became aware of it from an officer of the

Co-operatives Department. He further explained that the conversation

with the officer started on the 28th August - on Independence Day. The

person called and said there are problems at TECU. The claimant

followed up the discussions with the person on the 1st of September.

When the person told him about the situation, the claimant asked for

proof from the officer and the officer read the information over the

telephone. The claimant further stated that he never saw the

correspondence up to today.

58. That version given by the claimant was at odds with what the

defendants reported the claimant said at the Board meeting. The

defendants’ account – contained in the Letter, has not been denied by

the claimant.

59. The claimant said that he connected, in his own mind, the information

he received from the officer and the issue about the handing back of

the Board Minutes. This conclusion was drawn although the claimant’s

letter to the Commissioner of Cooperatives was dated the 16th August

2013, the information he received from the officer was on

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Independence Day 2014, and a representative from the Co-operatives

Department was present at the Board Meeting on 25th September

2014.

60. It is therefore no wonder that the defendants felt compelled to write

the Letter seeking advice and guidance about what was, in the court’s

opinion a clear conflict of interest and a bizarre conclusion reached by

the claimant. The claimant was using information which came from his

position in the supervisory agency to advance his agenda on the Board

of Directors at TECU.

61. Based on the utterances coming from the claimant at the Board

meeting, the defendants were entitled enquire whether on the specific

issue, the claimant was speaking on behalf of the Commissioner. The

claimant asserted that TECU was held in a bad light by the Office of the

Commissioner.

62. This enquiry cannot be defamatory as the defendants never asserted

that the claimant was speaking on behalf of the Office of the

Commissioner. Instead, the defendants were asking the Commissioner

and the Minister for clarity on the authority afforded to the claimant in

his position.

63. The claimant’s utterances at the Board meeting were sufficient for a

reasonable enquiry about the claimant’s access to information about

TECU in light of the hats the claimant wore within the Ministry of

Labour. It is difficult to equate a request for clarification on the

claimant’s conduct as an attack on his character since no positive and

affirmative statements were made by the defendants to the claimant’s

character.

64. Noteworthy in the fourth offending portion, “Our Director has now

seen it fit to bring a formal complaint with our Supervisory Committee,

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purportedly with the intent registering, in his own capacity as … an

officer of your organization, related concerns.”, the claimant omitted

to include the fact that the defendants stated that the complaint was

made also as a Director of the Board of TECU. This is an important

omission because the authorities of Bonnick -v- Morris [2003] 1 A.C.

300 followed by the Honourable Mendonca J.A in Kayam Mohammed

[supra] and Charleston [supra] requires the court to read the article as

a whole when determining the natural and ordinary meaning of the

words complained. The claimant cannot select an isolated portion and

complain of that alone if other parts throw a different light on that

passage.

65. Therefore, the defendants stating that the claimant made a formal

complaint to the Supervisory Committee about the defendants’

conduct in his capacity of an officer of the Ministry of Labour and as a

Director of TECU is not defamatory. The reasonable reader would not

interpret this statement to mean that the claimant was a troublemaker

because he made a complaint to the Supervisory Committee as

construed by the claimant. This is a strained interpretation. Instead, the

reasonable meaning that ought to be attached to the statement is that

the claimant was dissatisfied with the manner in which the defendants

were dealing with the affairs of the Board by not permitting officers

from the Commissioner’s Office from attending Board meetings of

TECU. As such he thought it fit to make a formal complaint to the

Supervisory Committee reporting their conduct.

66. In relation to the fifth offending portion, “This matter is one more issue

that we note is a continuation of several others that we have previously

raised with your office.”, the court finds that this statement is not

defamatory of the claimant’s character. The claimant’s evidence is that

he accepted that the relationship between himself and the defendants

was less than a happy one. The claimant also formed the view that the

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first defendant was not properly discharging his duties as President of

TECU. As such he sought the intervention of the Commissioner and he

agreed that the reference in the Letter to a continuation of several

issues referred to the Commissioner included the defendants’ letter to

the Commissioner in January 2014.

67. The sentence is vague and did not specifically reference the issues

previously raised with the Office of the Commissioner. An ordinary

reader must interpret this to mean that the other issues would be

within the Commissioner’s knowledge as he was the recipient of the

other issues reference in the letter.

68. One could assume that the issues concerned the claimant, however,

when taken in context with the body of the Letter, the reasonable

reader is led to believe, correctly, that the claimant and the defendants

had a history of discord and disagreement and that the officer of the

Commissioner had been engaged previously in an effort to resolve the

disputes and the Letter was another attempt to seek guidance from the

Commissioner.

69. The sixth offending portion “In this instance we view with concern the

seeming abuse of office and conflict of interest.” is not defamatory

because here the defendants are reiterating the reason for sending the

Letter. Also the statement is not affirmative as to the claimant’s

behaviour but sets out the opinion and concern of the defendants.

70. The seventh offending portion “This latest imbroglio suggests a

continuing degeneration of the relationship between the Director and

the Board and now if we follow the position of the Director, the Office

of the Commissioner.” does not contain defamatory connotations of

the claimant’s character. The defendants had already set the stage why

they were seeking the Commissioner’s intervention. The use of the

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word “imbroglio” suggests that this is the most recent unwanted,

difficult, and confusing situation, full of trouble and problems6 that the

claimant had been a part of. The claimant admitted that he understood

that was the effect and purport of the letter and he also admitted that

at the time that letter was written that was in fact the situation.

71. One must be allowed to address situations and disagreements and

lodge complainants in a reasonable manner and the court is of the view

that the Letter did just that. The Letter raised the relevant issues

without saying or implying that the claimant’s esteem should be

lowered in the eyes of reasonable onlookers.

72. The defendants further emphasize that because of the claimant’s

conduct and unwarranted behaviour, his relationship with not just the

defendants but the entire Board of TECU, is coming to its demise and

this latest event now has the potential to interfere with the relationship

of the Board of TECU and the Office of the Commissioner.

73. Such remarks made by the defendants in the Letter goes directly to

important relationships between the parties and other related entities

and not to the claimant’s character. The reasonable reader who is not

avid for scandal, would not conclude, from that paragraph that the

claimant is a devious person who continuously exhibits disreputable

behaviour.

74. For these reasons the court finds that the Letter does not statements

that are defamatory of the claimant’s character.

b. Qualified Privilege

75. In the event that the court made a finding of fact that the Letter

contained defamatory statements, the defendant relied on the classic

duty/interest defence of qualified privilege. The defence was expanded

6 https://dictionary.cambridge.org/dictionary/english/imbroglio

https://dictionary.cambridge.org/dictionary/english/imbroglio

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on in the case of Clift -v- Slough Borough Council and another [2011] 3

All ER 118 as follows:

“[24] To answer that puzzling question one must begin with the reason for the defence. It is rooted in public policy. 'The most valuable judgment of Willes J' in Henwood v Harrison (1872) LR 7 CP 606 at 662, cited with approval by Lord Shaw of Dunfermline in Adam v Ward [1917] AC 309 at 349, [1916–17] All ER Rep 157 at 175, gathered the earlier decisions together, including, especially, Toogood v Spyring (1834) 1 Cr M & R 181, 149 ER 1044 and summed them up in these terms:

'The principle upon which these cases are founded is a universal one, that the public convenience is to be preferred to private interests, and that communications which the interests of society require to be unfettered may freely be made by persons acting honestly without actual malice, notwithstanding that they involve relevant comments condemnatory of individuals.'

In similar vein, Bankes LJ held in Gerhold v Baker [1918] WN 368 at 369:

'It was in the public interest that the rules of our law relating to privileged occasions and privileged communications were introduced, because it is in the public interest that persons should be allowed to speak freely on occasions when it is their duty to speak, and to tell all they know or believe, or on occasions when it is necessary to speak in protection of some [self or] common interest.'

We are beginning to see how notions of duty and interest spring from the application of this policy. [25] This has led to the well-established dual classification that qualified privilege depends upon showing either a duty situation or an interest situation, the former where the maker of the communication was under some legal or social or moral duty to speak out and the recipient had an interest in receiving the information or in the latter case where the maker of the statement was acting in furtherance of some interest of his which the recipient has a reciprocal interest in receiving or was acting under a common interest in the subject matter shared with the recipient. As Gatley on Libel and Slander (11th edn, 2008) says at para 14.6, '[t]wo formulations have become almost canonical in this area.' The first is in Toogood v Spyring where Parke B stated the law in the following terms ((1834) 1 Cr M & R 181 at 193, 149 ER 1044 at 1049–1050):

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'In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another … and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society …'

The second passage is taken from the speech of Lord Atkinson in Adam v Ward [1917] AC 309 at 334, [1916–17] All ER Rep 157 at 170:

'a privileged occasion is … an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.'

76. In the case of Kearns and others -v- General Council of the Bar7 Simon

Brown LJ distinguished two occasions in which communication would

be privileged: common interest communications and duty-interest

communications.

77. In that case a member of the Bar sought the guidance from the Bar

Council’s Professional Standards and Legal Services Department (“the

Bar Council”) in relation to the way in which the appellants were

instructing fellow members of the Bar. In addressing the issues, the

head of the Bar Council, Mr. Stobbs wrote to all heads of chambers and

senior clerks/practice managers. This correspondence was found to be

untrue and the Bar later apologized.

7 [2003] EWCA Civ 331; [2003] 2 All ER

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78. In assessing whether the defence of qualified privilege applied, the

appellants/claimants submitted that there was no distinction between

common interest and duty interest cases - one category shades into the

other and the question whether qualified privilege attaches to any

particular occasion or communication always depended on the facts.

79. In dismissing the appeal against the appellants/claimants, Keene LJ

agreed with Simon Brown LJ that the defence of qualified privilege

applied where there was an established relationship between the

parties irrespective and independent of owing a duty, or sharing a

common interest:

'[45] I agree. The question of whether the existing relationship in any particular case gives rise to a common interest or to a duty-interest situation will often produce a somewhat sterile dispute, and certainly in the present appeal it is not the crucial issue. Whichever of those two categories is said to apply, the fact remains that each of them normally presupposes an existing relationship between the person who made the statement sued on and the recipient of it. In such a case, so long as the statement is fairly warranted by the occasion, and is made in the absence of malice, it will be protected by qualified privilege, irrespective of the degree of investigation or verification carried out by the maker of the statement and irrespective of whether one categorises the situation as one of common interest or of duty and corresponding interest …'

80. Eady J has expressed this view of Kearns's case in his judgment in Howe

& Co -v- Burden [2004] EWHC 196 (QB):

“[15] … Sometimes it is possible from the surrounding circumstances to come to a definitive conclusion without the need to resolve factual disputes: see eg [Kearns's case]. That was a case of what one might call “off the peg” privilege, where the issue can be resolved simply by looking at the relationship between the parties and the subject-matter of the relevant communication …”

81. Where a social or moral duty exist, as in the case of Reynolds privilege,

the law requires evaluation and verification of the quality of the

information published since the communication is between strangers,

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made to the world at large. Where a common and corresponding

interest exists, so long as the statement is fairly warranted, the policy

of the law provides protection to encourage free and frank

communications in both directions because the very nature of the

relationship involves reciprocal interests and/or duties. It is only where

the occasion of communication was abused - in the sense that malice

could be established, would the protection be lost. Nothing short of

malice would undermine the law’s protection8.

82. For the defendants to be afforded the protection of qualified privilege,

the court must consider whether there was a common interest, a duty

interest or the existing relationship between the defendants and the

Commissioner and the Minister of Labour respectively without more,

to raise the issue of qualified privilege.

83. The claimant submitted that the Co-operative Societies Act sets out the

types of issues for which the Commissioner and the Minister can

adjudicate. Section 67(1) of the Co-operative Societies Act state:

“67. (1) If any dispute touching the business of a society arises— (a) among members, past members and persons claiming through members, past members and deceased members; (b) between a member, past member, or person claiming through a member, past member or deceased member, and the society, its board, or any officer of the society; (c) between a member and the society arising out of or under any bye-law or bye-laws relating to the disposal of the produce of agriculture or animal husbandry, or under any contract, made under section 27; (d) between the society or its board and any officer of the society; (e) between the society and any other society; or (f) between the society and any of its creditors, the dispute shall be referred to the Commissioner for decision.”

84. Section 67(9) defines a “dispute”, according to the claimant, as a claim

by a society for any debt or demand due to it from a member, past

8 Per Eady J in Kearns and others -v- General Council of the Bar [2002] EWHC 1681 (QB) and affirmed by Simon Brown LJ in Kearns and others -v- General Council of the Bar [2003] EWCA Civ 331; [2003] 2 All ER

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member or the nominee, heir or legal personal representative of a

deceased member. As a result, the claimant submitted that the role of

the Commissioner is limited to financial matters.

85. Additionally, the claimant stated that the Minister had no interest in

being copied to the Letter because pursuant to section 68(1) of the Co-

operative Societies Act can only become involved in matters of disputes

if there was decision referred to him appealing any decision of the

Commissioner.

86. The court does not agree with the claimant’s interpretation of

“dispute” within the meaning of the Co-operatives Society Act. In fact

section 67 of the Act says: “In this section “dispute” includes a claim by

a society for any debt or demand due to it from a member, past

member or the nominee, heir or legal personal representative of a

deceased member”. The definition of dispute clearly includes money

matters of debts and demands, but it is not limited to such money

matters.

87. A reading of section 68 makes it clear that parliament did not intend

such a narrow interpretation of “dispute”, limited to money matters.

Section 67, for instance, refers to disputes between the society or its

board and any officer of the society and between the society and any

other society. It is clear that disputes in those two examples here the

Commissioner can settle disputes, cannot be limited to financial

matters.

88. This was a dispute that involved the Board and an officers of the

society. The court finds and is satisfied that the Commissioner could

have been engaged, as he was, to resolve such a dispute. The

relationship between the claimant and the defendants was so

factitious, as the claimant himself admits, it was no wonder that the

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defendants’ went to the authorities with overarching authority to

settle such disputes.

89. The claimant himself, believed and relied on the Commissioner’s

specific powers to settle disputes. He first wrote to the Commissioner

on the 16th August 2013 seeking guidance on the treatment of

Board/Committee minutes. In his letter, the claimant acknowledges

that the Commissioner is positioned to provide clarity on such issues

based on his expertise. The Commissioner responded on the 26th

August, 2013. Again on the 28th January 2014, the claimant wrote to

the Commissioner in respect of a request by the first defendant to sign

a confidentiality statement which also makes reference to the

abovementioned issue as to the treatment of Board minutes.

90. Such an existing and established relationship, in and of itself, according

the law set out in Kearns [supra], is one that will attract privilege, in the

court’s considered opinion. An established relationship existed

between the Board and the Commissioner.

91. The Minister of Labour is charged with the responsibility of governing

the entire Ministry of Labour; with the Commissioner under his

purview.

92. If the relationship is not sufficient to be determinative of qualified

privilege in the defendant’s favour, the court is satisfied that the

legislative provisions of the Co-operative Society Act, section 67 create

a duty interest sufficient to allow the defendants to succeed in raising

the defence of qualified privilege.

93. By virtue of the Minister’s governing power over the Ministry of Labour

and his role as the claimant’s employer, the court finds that there is

also a common interest that dictates that the defendants should inform

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the Minister of Labour and that the Minister of Labour would be

interested in the dispute between the parties to this action giving rise

to his interest in receiving the Letter.

94. The Minister also has a common interest in receiving the Letter because

the issues raised involved a member of his staff and two entities namely

the Co-operatives Division and the Communications Unit under his

purview.

95. As a result of the relationship, the defendants cannot be faulted for

speaking freely especially in the circumstances where guidance was

being sought. The defendants were acting in the furtherance of the

interests of TECU’s Board affairs. Therefore, the Commissioner and the

Minister both had a corresponding and reciprocal interest in receiving

the Letter because of the manner in which the parties conducted Board

affairs and the nature of the advice being sought.

96. Before a defendant can be protected by the defence of qualified

privilege it must be established that the Letter even if defamatory and

turns out to be untrue, was nevertheless published with honest

motives and on an occasion of good faith, not actuated by malice. The

term ‘malice’ was expanded on by Lord Brett in the case of Clark -v-

Molyneux [1877] 3 QBD 237:

“Malice does not mean malice in law, a term in pleading, but actual malice, that which is popularly called malice. If a man is proved to have stated that which he knew to be false, no one need inquire further. Everybody assumes thenceforth that he was malicious, that he did do a wrong thing for some wrong motive. So if it be proved that out of anger, or for some other wrong motive, the defendant has stated as true that which he does not know to be true, and he has stated it whether it is true or not, recklessly, by reason of his anger or other motive, the jury may infer that he used the occasion, not for the reason which justifies it, but for the gratification of his anger or other indirect motive.”

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97. In accordance with the House of Lords decision in Horrocks -v- Lowe

[1975] A.C. 135, the Honourable Justice Boodoosingh in Phillip Ayoung

Chee (supra) highlighted the principles regarding express malice in the

context of qualified privilege:

Express malice denotes a state of mind. The burden of

establishing malice is on the claimant.

It may be established by proving that the defendant had an

improper motive for publishing the words complained of.

Proof by the claimant that the defendant did not honestly

believe in the truth of what was published, or published it

‘recklessly’ without care for its truth or falsity, is generally

conclusive evidence of express malice9.

A positive belief in the truth of what was published will be

sufficient to negative express malice unless improper

motive is proved.

Where the defendant incorporates irrelevant matter in a

statement made on a privileged occasion, an inference that

he was actuated by express malice may be drawn in certain

circumstances.

98. Smith JA10 in Civil Appeal No P-022 of 2016 Prakash Ramadhar -v-

Kishore Ramadhar Rudolph A. Hanamji Satu-Ann Ramcharan provided

guidance on how improper motive can be proven:

“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.”

99. Before a determination of malice can be made, the defendants

contended that the claimant did not properly plead malice. In the

9 Halsbury’s Laws of England, Volume 32 (2012), paragraph 782 10 Referencing Gatley on Libel and Slander 12th ed paragraph 17.3 citing Horrocks v Lowe [1975] AC 135 HL per Lord Diplock at page 149

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instant case the claimant pleaded malice in the statement of case. The

defendants assert that such is not the Horrocks [supra] malice as it was

not pleaded by way of a response to the defendant’s plea of qualified

privilege. In so doing they relied on the case of CV2010-04799 Phillip

Ayoung Chee -v- Lester Goetz which emphasizes the need for a reply

once a defence of qualified privilege is raised:

“18. While there is no rule requiring a Reply in this jurisdiction, it follows, in my view, that once the defence of qualified privilege is raised a defendant ought to seek permission of the court to file a reply if he intends to challenge the defence. This is more so if malice is not alleged on the statement of case. Without a reply, and in the absence of any particulars of malice on the statement of case, a claimant would be unable to rebut a successfully made out defence of qualified privilege. In any event, when looking at Part 73.2 (c) this must be read with the definition of statement of case, which includes a reply.”

100. Part 73.2 of the Consolidated Civil Proceeding Rules 2016

(“CPR”) which deals with the statement of case in defamation cases

prescribes:

“The claimant’s (or in the case of a counterclaim, the defendant’s) statement of case in a defamation claim must, in addition to the matters set out in Part 8—

(a) give sufficient particulars of the publications in respect of which the claim is brought to enable them to be identified; (b) where the claimant alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, give particulars of the facts and matters relied on in support of such sense; and (c) where the claimant alleges that the defendant maliciously published the words or matters, give particulars in support of the allegation.”

101. In Phillip Ayoung Chee [supra] the claimant failed to plead

malice in the statement of case and when the defence of qualified

privilege was raised, a reply was not filed pleading malice to defeat the

defence. The Honourable Justice Boodoosingh distinguished the law in

England which necessitates, as a rule of pleading, a reply that must be

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served by the claimant giving details of malice when the defence of

qualified privilege is raised. On the contrary he noted that in our

jurisdiction of Trinidad and Tobago Part 73.2(c) of the CPR allows for

allegations of malice to be properly pleaded in the claimant’s

statement of case and as such there is no rule requiring a reply.

102. Therefore, in accordance with Part 73.2(c) of the CPR and the

case of Phillip Ayoung Chee [supra] the court finds that the issue of

malice was adequately pleaded by the claimant in the statement of

case. There is no need to file a reply because the rule in Part 73.2(c)

explicitly states that in defamation matters where the claimant is

alleging that the defendant published the statement maliciously, such

is to be included in the statement of case.

103. According to the learned Justice Boodoosingh there is a general

presumption of malice (‘legal’ malice) on the publication of a

defamatory imputation and it is not necessary to plead malice as part

of the claimant’s case. If not pleaded within the statement of case,

where the defendant pleads that the words were published on an

occasion of qualified privilege, then it became necessary for the

claimant to file a reply to rebut the defence. However, this is not the

facts of the instant case. The claimant pleaded malice in accordance

with Part 73.2(c) in the statement of case. Therefore there is no need

for a reply again pleading malice.

104. It ought to be remembered that the purpose of a reply is to

respond to any issues not raised in the defence which were not and

should not have been dealt with in the particulars of claim. The reply is

not an opportunity to restate the claim11.

11 CV2013-04801 Raymatie Mungroo -v- Andy Seerattan and Others at paragraph 39

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105. It is the claimant’s case that the defendants exhibited improper

motives for publishing the Letter by: 1) the defendants failed to

conduct an investigation exercise in the claimant’s purported conflict

of interest through the Supervisory Committee under section 36 of

TECU’s byelaws; 2) the defendant’s failed to consult the TECU’s Code

of Ethics (Conduct) which expressly spells out what a conflict of interest

is and how to treat with it; 3) in contravention of TECU’s byelaws to act

in good faith by reporting matters to the Board of Directors before and

for a decision is to be made, the defendants sent out the Letter without

such Board approval; and 4) in the circumstances the defendants sent

the Letter to the Commissioner carbon copying the Minister of Labour

who had no interest or duty in receiving the contents of same to cause

injury to the claimant due to the factitious relationship between the

claimant and the first defendant.

106. The evidence is illustrative that when an issue arose which

troubled members of the Board of TECU the practice adopted was to

write to the Commissioner. The Commissioner as the regulator of Co-

operative Societies was regarded by the claimant and the defendants

as having the relevant expertise and experience to deal with issues

affecting the Board.

107. On the first occasion, in relation to these proceedings, that the

Commissioner was involved in TECU’s internal affairs was by the

claimant pursuant to his letter on the 16th August 2013. In this letter

the claimant expressed his concerns about the retention of Board

Minutes by the Board at the end of meetings. The defendants explained

that the reason behind this new interim practice was as a result of

confidentiality issues which needed to be reviewed and revised.

108. On the second occasion the claimant again wrote to the

Commissioner on the 28th January 2014 in relation to his refusal to sign

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the revised confidentiality statement at the Board meeting of the 9th

October 2013. The letter details that the claimant was given until the

29th January 2014 in which to sign the document failing which the

Board will decide on how best to treat with the matter. The letter also

refers to the claimant’s first correspondence to the Commissioner and

the subsequent reply wherein it was advised that Directors were not

obligated to return individual copies of Board Minutes. It should be

noted that in the first correspondence to the Commissioner the

claimant omitted to explain to the Commissioner the reason for the

Board’s reasoning for the retention of Board Minutes which involved

concerns that persons external to the Board were discussing TECU’s

internal affairs. The claimant goes on to say that despite the

Commissioner’s guidance provided on the 26th August 2013 the Board

of TECU blatantly refuses to treat with same, as the revised

Confidentiality Statement is not reflective of the guidance since Board

members can be required to surrender confidential information

concerning TECU at any time during the course of the term of office.

109. The Board in deciding the best way to treat with the claimant’s

refusal to sign the Confidentiality Statement, decided at the Board

meeting of the 29th January 2014 to join the claimant by having the

matter referred to the Commissioner for advice and guidance after

becoming aware of the claimant’s correspondence to the

Commissioner on the 28th January 2014 in efforts of resolving the

dispute.

110. On the third occasion, the defendants wrote to the

Commissioner in relation to the information revealed by the claimant

at the Board meeting of the 25th September 2014. In that meeting the

claimant revealed that co-operatives files would pass through his desk

in the capacity of Acting Communications Manager at the Ministry of

Labour and that he was aware of the correspondence dated the 19th

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August 2013 in which the Office of the Commissioner to TECU

requested permission to attend the Board meeting on the 28th August

2013 and the second defendant’s response dated the 26th August 2013

advising that the presence of a representative of the Commissioner

could not be accommodated at that meeting. Therefore, after the

Governance Committee’s meeting held on the 1st October 2014, it was

decided that TECU ought to write to the Commissioner seeking his

advice on the issue.

111. As already discussed, based on the past conduct of the claimant

and the defendants as members of the Board of TECU, when an issue

arose that affected the affairs of the Board, the Commissioner was the

“to go to” source for guidance and assistance. Consequently, when the

issue of the claimant’s conflict of interest arose, the defendants

continued the practice by seeking clarity from the regulator of Co-

operative Societies to find out whether the claimant was in a conflicting

position.

112. The court does not find that the sending of the Letter to the

Commissioner for guidance in anyway exhibits malice toward the

claimant. The defendants were following the practice which was in fact

initiated by the claimant himself. The Letter raises concerns as to

whether the claimant by virtue of his office held at the Ministry of

Labour is privy to correspondence between TECU and the Office of the

Commissioner. The evidence reflects that since July-August 2013

concerns arose that Board matters were being discussed by external

persons which was the reason for the new practice of retaining Board

Minutes and the revision of the Confidentiality Statement. Then on the

meeting of the 25th September 2014 the claimant’s evidence reveals

that an officer of the Ministry of Labour informed him about the

correspondence between TECU and the Office of the Commissioner

dated the 19th and 26th August 2013.

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113. In fact, the court finds that the defendants were correct in their

approach by enlightening the Commissioner on the new developments

that arose so that the Commissioner would be appraised of all the facts

when resolving the issue of confidentiality.

114. The fact that there were other alternatives to seek redress on

the issue of the potential conflict of interest such as by conducting an

investigation through the Supervisory Committee or consulting TECU’s

Code of Ethics, is not evidence of malice or ill will against the claimant.

The defendants were continuing with the approach initially adopted as

it was understood by both parties that the Commissioner was best

positioned to provide guidance on the issue of confidentiality based on

his experience and expertise.

115. Furthermore, Kent Byer a member of TECU Board of Directors,

gave evidence that at the time the Letter was sent to the

Commissioner, reference to the Supervisory Committee was not an

available option as the claimant made it clear at the Board meeting of

the 25th September 2014, that the claims he made were in his capacity

of staff member of the Ministry of Labour and as such the Supervisory

Committee could express no view that would be useful and or

determinative of the issue12.

116. Additionally, the failure of the defendants to obtain Board

approval before the Letter was sent to the Commissioner and copied

to the Minister of Labour is not indicative of malice against the

claimant. At no point before correspondences were sent to the

Commissioner was Board approval sought. There is no evidence that

Board approval was required. When an issue arose the parties would

12 Witness Statement of Kent Byer filed on the 5th September 2017 at paragraphs 29 and 30

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write their letter and send the issues therein for clarification by the

Commissioner.

117. In relation to copying the Letter to the Minister of Labour and

furthermore without Board approval still does not convince the court

that the words were published to spite or cause injury to the claimant.

The nature of the issues that had to be addressed required the

attention of the Minister of Labour. As already discussed, the Minister

had an interest in receiving the Letter because of the positions held by

the claimant within the Ministry of Labour as Director of TECU and as

Acting Communications Manager. Moreover, the Minister of Labour

has the overall responsibility for the affairs of the Ministry of Labour.

118. There is evidence that there was a strained relationship

between the first defendant and the claimant. The first defendant

stated in the Board Minutes of the 29th January 2014 that he wanted

the claimant off the Board of Directors because he was not in tune with

how things ran with the Credit Union; at trial the first defendant called

the claimant an irritant mere weeks before sending the Letter; and at

trial the first defendant admitted to the emails which demonstrate a

fractious relationship between the claimant and the first defendant

who pleaded for an internal solution to the issues. Nevertheless, the

court does not believe that evidence suggest improper motives by the

defendants for sending the Letter.

119. The defendants gave evidence that at the time the Letter was

sent, they were unaware of the claimant’s contractual relationship with

the Ministry of Labour and/or that the same was subject to renewal.

Therefore, the Letter could not have been sent with the motive to

cause injury to the claimant.

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120. The claimant submitted that the timing in which the Letter was

sent on the 10th October 2014 ought to be taken in tandem with the

close dates of the claimant’s email requests on the 6th and 10th October

respectively, to the defendants for the full disclosure of the withheld

correspondences as it is indicative of the defendants’ ill-intention and

retaliation. However, the court does not share this view. The claimant

revealed certain details to the Board on the 25th September 2014 which

troubled the defendants. As a result, a Governance Meeting was held

six days later to discuss how this issue should be dealt with. The issue

involved the claimant. This was the overarching issue troubling the

Board since July-August 2013. Again in September 2014 the issue of

confidentiality arises by virtue of the claimant’s confessions. Following

the Governance Meeting, the Letter was sent shortly after on the 10th

October 2014 raising the concerns of the defendants which the court

believes is indicative of the Board’s position despite no evidence being

led as to any Board approvals or minutes reflecting their stance.

121. While the claimant gave evidence that one Director Gregory

Cova denied that he had knowledge of the Letter being sent to the

Ministry of Labour, as already discussed the Minister had interest in

receiving the Letter and the said Director never expressed any

disagreement with the contents of the Letter when he did become

aware.

122. Therefore, the defendants by sending the Letter even in close

proximity to the defendant’s request for disclosure of the

correspondences between the Office of the Commissioner and TECU

dated the 19th and 26th August 2013 does not indicate malice. The

Letter was sent not long after the claimant revealed his awareness the

correspondences and after the Governance Committee meeting was

held deciding that the Commissioner’s guidance was required on same.

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123. In relation to the claimant discharging its burden of proving the

defendants’ state of mind in that they did not believe in the truth of

the matters being communicated, the claimant submitted that this was

evidenced by: 1) the defendants lack of authority from the Board of

Directors to send the Letter; 2) the defendants failed to provide any

evidence of deliberations among the Board of Directors in relation to

the claimant’s purported conduct and when the decision to send the

Letter was made. Instead the evidence shows serious inconsistencies

from their responses on this question in the ; 3) there was no evidential

basis cited for coming to any conclusion that the claimant was in a

conflict of interest especially in light of the defendant’s

acknowledgment at trial of the Code of Conduct that would have led

them to a conclusion on the questions they purportedly sought

clarification on; and 4) there was no evidence of any series of conflicts

between the claimant and the Board but rather the claimant and the

first defendant.

124. The court is not convinced based on the claimant’s arguments

that the defendants’ state of mind was one of disbelief in the

statements contained in the Letter for the reasons already discussed.

The Board including the claimant was involved in back and forth

communication with the Commissioner on issues of confidentiality. The

claimant’s various positions placed him in a situation where he was told

of TECU’s internal correspondences from a member not belonging to

the Board. This would have raised concerns for anyone in these

circumstances. The court does not find that it was unreasonable for the

defendants to suspect that there was a conflict of interest and to write

to the Commissioner copying the Minister seeking clarity.

125. For these reasons the court’s view is that the Letter was

published on an occasion of qualified privilege without malice or ill-will

against the claimant.

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c. Conspiracy

126. A tortious conspiracy is an unlawful combination of two or more

people, intended to cause and in fact causing injury to the claimant.

The tort takes two forms: conspiracy to cause loss by the use of

independently unlawful means, and conspiracy to injure by lawful

means. The latter constitutes an exception to the normal requirement

in the economic torts of independently unlawful means, and for that

reason liability is restricted by a requirement of a predominant purpose

to injure which is not a requirement of conspiracy to use unlawful

means: Halsbury’s Laws of England Fifth Edition Vol 97 at paragraph

712.

127. In CV 2016-02608 Thema Yakaena Williams -v- Trinidad and

Tobago Gymnastics Federation and Others the learned Justice

Seepersad set out the law and principles that ought to be established

for the claimant to be successful in its claim under the tort of conspiracy

as follows:

“137. The tort of lawful means conspiracy involves liability for an agreement to do acts which are lawful by themselves, but which acts are undertaken for the purpose of causing injury to the Claimant. 138. The tort of unlawful means conspiracy has developed and is still expanding to protect victims of conspiracy. From the decisions of the UK Court of Appeal in Kuwait Oil Tanker Co v Al Bader [2000] 2 All ER (Comm) 271, at paragraphs 106 to 121, and confirmed by the House of Lords in HMRC v Total Network v [2008] 2 All ER 413 at paragraphs 40 to 45, 56, 89-95 and 115 to 122 and 221 and the U.K. Supreme Court in JSC BTA Bank v Khrapunov [2018] UKSC 19 paragraphs 8 to 12, it is well established as follows:

(1) It is necessary to establish an intention to injure the claimant but not a predominant purpose to or intention to do so. (2) The intention to injure can be inferred from the facts. (3) It is not necessary to show that there is anything in the nature of an express agreement whether formal or informal.

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(4) It is sufficient if two or more persons combine with a common intention; or, in other words that they deliberately combine, albeit tacitly, to achieve a common end. (5) Participation in a conspiracy is infinitely variable: it can be active or passive. Adherence to an agreement can be inferred by proving that a person knew what was going on. (6) An intention to participate in a conspiracy can be established by failure to stop an unlawful activity. (7) The tort of unlawful means conspiracy is not confined to a class of case where the claimant is injured in his or her trade or business. (8) Consent, that is agreement or adherence to the agreement can be inferred if it is proved that a conspirator knew what was going on and the intention to participate can be established by failure to stop the unlawful act. (9) Unlawful means can include, amongst other wrongs, tort, breach of fiduciary duty, breach of contract. (10) Unlawful means can also include means not independently actionable as a suit of the claimant and therefore may include criminal conduct as in HMRC v Total Network (supra) and a contempt of Court as in JSC BTA Bank v Khrapunov (2018) (supra). In Total Network at paragraph 40, Lord Hope in discussing whether in an unlawful means conspiracy, the unlawful needs need not be independently actionable, and referring to the conspiracy to cheat Her Majesty’s Revenue and Customs Commissioners (HMRC) in the case before the Court, agreed “that an allegation of conspiracy to cheat the Commissioners was sufficient, provided there was an intention to injure the Claimant, albeit not a predominant intention.” (11) The cause of action becomes complete when the conspiracy is acted upon and loss is caused.”

128. The claimant made allegations suggestive of the fact that the

defendants’ actions caused the claimant’s contract not to be renewed

by the Minister of Labour. However he adduced no evidence to

establish from which the court could infer such, or to establish that fact

from direct evidence. In fact, there is no evidence from which the court

could find that the Minister of Labour ever became aware of the

contents of the Letter copied to him.

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129. Instead, the evidence establishes, as noted earlier in this

judgment that the claimant and the defendants had resorted to the

relevant supervisory authority for assistance with resolving their

disputes. Further, the claimant’s evidence is that rather than having

sustained a loss, he is in a better position since his contract of

employment at the Ministry of Labour was not renewed. None of the

evidence adduced by the claimant has satisfied the court that the

defendants had an intention to injure the claimant.

130. Based on the findings of the court, the claimant is not entitled

to any damages for the tort of conspiracy. There was no finding of

malice or intention to injure the claimant when the defendants sent the

Letter to the Commissioner and copied the Minister of Labour. It was a

genuine request for guidance as to whether the claimant’s interest

were conflicting and was not actuated out of spite or ill-will against the

claimant as already discussed.

Disposition

131. It is HEREBY ORDERED that:

a. The claimant’s claim against the first and second defendants is

dismissed; and

b. The claimant shall pay the first and second defendant’s costs as

prescribed.

……………………………………………………….

Justice Avason Quinlan-Williams

JRC: Romela Ramberran

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