the republic of trinidad and tobago in the high court...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2013-04726

BETWEEN

FAAIQ MOHAMMED

Claimant

AND

JACK AUSTIN WARNER

Defendant

Before the Honourable Mr. Justice V. Kokaram

Date of Delivery: 5th

May 2014

Appearances:

Mr. Kelvin Ramkissoon led by Mr. Avory Sinanan S.C. for the Claimant

Mr. William Mc Cormick Q.C. leads Mr. Om Lalla instructed by Mr. Dereck Balliram for

the Defendant

JUDGMENT

1. This is a defamation claim which has come on for further case management at a pre trial

review and is scheduled for a trial a few weeks away. The Claimant Mr. Faaiq Mohammed

complains of two defamatory statements made by the Defendant, Mr. Jack Warner. The first

alleged defamatory statement was made at a press conference hosted by him on November 6,

2013 held at the Chaguanas Borough Corporation and the second at another press conference

hosted by Mr. Warner on November 7, 2013 at his Independent Liberal Party’s (ILP)

headquarters.

2. These statements were made in the context of a politically tense environment where the local

government elections resulted in deadlock in the Chaguanas Borough Corporation.

3. Essentially the statements amount to an allegation that Mr. Mohammed accepted a bribe from

the United National Congress (UNC) in exchange for his vote for the presiding officer of the

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Chaguanas Borough Corporation for a nominee of the UNC and not the ILP of which he was

a member and whose political leader was Mr. Jack Warner.

4. The parties are now at an advanced stage in the litigation where pleadings are closed,

disclosure is completed and witness statements have been exchanged. The trial is fixed for

May 26-29, 2014. For the Claimant, he intends to call three witnesses at the trial, himself,

Mr. Shiraz Mohammed and Mr. Ameer Bacchus. The Defendant intends to call three

witnesses as well, himself, Mr. Simeon Mahabir and Mr. Inshan Ishmael, host of the

television programme “Breaking Barriers”. Save for the witness statement of Mr. Bacchus

both parties have filed their respective notices of evidential objections to the evidence

contained in those witness statements, which now fall for the Court’s determination.

5. Before I do so, I make three observations. This matter first came on for hearing on December

4, 2013 on an application for an interlocutory injunction to restrain the Defendant from

reporting or publishing any further alleged defamatory remarks of the Claimant until trial.

The parties sensibly agreed to adopt the approach of focusing their energies and resources on

preparation for a trial in the shortest possible time rather than engage in a contest over any

interim relief. There was liberty to the Claimant to restore the hearing of the injunction if it

were necessary to do so. Good sense has prevailed as there has been a significant cooling of

the anxieties of both parties since December 2013 and no further action was necessary to

invoke the Court’s injunctive powers. I commend both parties for their co-operation in this

regard.

6. Second, the parties have in short time quickly progressed this matter to this stage of trial and

their efforts are to be commended for keeping within the Court’s deadlines and timetables.

7. Third, it is clear that matters such as these are usually prompted by the heat of the “political

gayelle” and when the political dust has settled, mature reflection by either party should be

brought to bear on the future and necessity of litigation and in this regard I encourage the

parties to consider the real option that the matter can be settled. This especially so in light of

the application made before me and the resulting ruling to which I shall come to in a

moment. Parties should choose their litigation battles well and where necessary save the cost

and expense by encouraging a settlement in defamation matters. In these types of matters

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where reputations are at stake and it is being counter balanced by the constitutional right of

the freedom of expression, at times parties should effect a mature balance of these competing

rights in soberly reassessing their original impulses.

8. Returning to the parties’ evidential objections, it is the duty of the Court in the management

of this claim to examine the evidence that is being adduced by either party and to exclude

such evidence that is either irrelevant to the issues which the Court requires evidence or

which are otherwise inadmissible. It is a robust exercise now routinely done in advance of a

trial for a number of purposes:

to determine the admissible evidence that will be subject to cross examination at the

trial;

to determine the necessity for any Part 35 application or supplemental witness

statements;

to make an assessment of whether from the admissible evidence there is any claim or

defence with a probability of success and either curtail the litigation by appropriate

pre-emptive orders such as summary judgment or striking out, making an eventual

trial unnecessary; and

to conduct a reality check on the admissible evidence of the respective parties’

positions encouraging parties to engage in negotiation or other means of dispute

resolution having regard to the probable outcomes.

9. In a court driven system of case management this is an effective way of determining what

cases are fit for trial and what resources are needed to properly dispose of the case. In this

way the Court seeks to give effect to the overriding objective in its management of cases.

10. For the purpose of this application it is necessary to reflect very briefly on the pleaded case.

By way of a brief overview, the two defamatory statements complained of are:

a. “I spoke to the guy (Faaiq Mohammed) this morning, I showed him all the facts I

heard and so on, he swore on the Qur’an that is not true.”

“He (Mohammed) was offered $2.5 million, I have the documents, I have... the

document and the deed and so on and he was told that if he goes and gives them

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the Mayorship and support the Presiding Officer he will be given this money. I

am advised he was advanced half the sum and the other half today’s meeting.”

“I told him this morning “boy, you are a young man, don’t spoil your career....

under Muslim this kind of thing is wrong, son. He swore to me on the Qur’an it’s

not true... they have just spoilt a young man, his career is finished, his political

career is finished.”

“If a Muslim young man sells his soul for money, how does it affect my

constituency? I am sorry for him, not for me and I am sorry for the UNC, they

have gone down one notch further than they could ever go in the society.”

“When he refused to vote for our Presiding Officer, it was confirmed and we

shall, deal with him in the fullness of time.”

“A deal has been struck with him, not with the ILP, the UNC have that kind of

money, the ILP don’t have it. It’s wrong to bribe them for votes, it’s wrong.”

“You must not hide behind who you voting for, because at the end of the day you

have to be exposed and the public has a right to know who the traitors are on

board.”

b. “Two Chaguanas constituents came to me as eye-witnesses who saw what took

place, who live next to him where the meeting was held who saw when he came

out with a bag and they said and they gave me this information.”

The Claimant contends that those words in their natural and ordinary meanings were

understood to mean:

“a) The Claimant’s motivation for entering into politics was not to serve the people but for

his own person monetary gain.

b) The Claimant had corruptly exploited the office that he was elected to hold and had

betrayed his party, the Burgesses of Chaguanas and the people of Trinidad and Tobago

by receiving a bribe from the United National Congress in exchange for his vote at the

Council.

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c) He has corruptly solicited and received monies from the United National Congress and

he has allowed his office as a Councillor to be purchased by a political party.

d) The Claimant is unfit to hold public office and/or public position of trust and has

compromised his integrity and the dignity of the office and/or the position to which he

was elected.

e) The Claimant’s choice in voting as he did or the Presiding Officer of the Council was

motivated by the receipt of huge sums of money.

f) The Claimant is a disgrace to the Muslim community.

g) The Claimant’s motivation for voting as he did was not to serve the people but or his

own personal monetary gain.

h) In accepting a bribe in order to vote the way he did, the Claimant has committed acts

that are corrupt and/or improper and/or illegal and has thereby engaged in criminality.

i) The Claimant is dishonest and/or unethical, and thereby unfit to hold the office of

Councillor and any other public office.

j) At all material times the Claimant was motivated by pecuniary gain or reward.

k) The Claimant has committed acts that are deserving of investigation and censure.

l) The Claimant is of questionable and/or dubious character and integrity.

m) That the Claimant corruptly and immorally received monies in exchange for the vote

which he cast at the Chaguanas Borough Corporation in the election of a Presiding

Officer.”

11. The Defendant’s defence is based on three limbs. First, fair comment or honest opinion:

It has pleaded its “Lucas Box” meanings of the published words “that the Claimant has

corruptly exploited the office which he was elected to hold and has betrayed his party by

accepting a bribe by the UNC”. Secondly “that the Claimant is unfit to hold public office

or the public’s trust has been compromised.” And contended that in that meaning or any

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other substantially similar meaning the words were fair (and/or honest) comment on a

matter of public interest, namely the fitness of the Claimant to hold public office and/or

public trust and/or his conduct in elected office.

The Facts Upon Which the Comment Was Based was pleading as follows:

“1) Paragraphs 8 to 11 of the Statement of Case are repeated.

2) On 31st October, 2013 a known UNC activist Sookhai Diesel visited the home of

the Claimant and handed over to the Claimant a large plastic pouch which

contained money.

3) On 6th

November, 2013 Mr. Simeon Mahabir, the ILP Councillor elected for the

Electoral District of Munroe Road/Caroni Savannah received a call from one

Krishna who represented the interests of the UNC offering the sum of five million

dollars to vote for the UNC’s choice of Presiding Officer and Mayor. The call was

recorded on Mr. Mahabir’s mobile phone. A true copy of the said recording is

hereto attached and marked “A”.

4) On 5th

November, 2013 Mr. Inshan Ishmael, television producer and host of the

programme “Breaking Barriers” interviewed Mr. Shyam Ramlogan on corrupt

practices and illegal conduct by members of the present government and during

that interview the said Shyam Ramlogan spoke specifically of monies paid to the

Claimant for his vote at a meeting of the 6th

November, 2013. A true copy of the

interview recording is hereto attached and marked “B”.”

12. Second the plea of justification:

“In the alternative, in the meanings set out at paragraph 6, (or any other meaning alleged

by the Claimant) the words were substantially true.

Particulars of Justification

1) The Defendant repeats the matters set out at paragraph 7 (1) to 7 (4)

above.”

13. Third a plea of qualified privilege:

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“Further or in the alternative, the words (whether as comment or fact) were spoken on a

privileged occasion.

Particulars

1) The Claimant’s conduct in and suitability for public office is a matter of

the greatest public importance.

2) The election campaign during which the Claimant was elected was itself a

matter of the highest public interest as was the election of the Presiding

Officer of the Council.

3) The words were (as more particularly set out below) based upon credible

information and reports received by the Defendant or were within the

Defendant’s own knowledge. Members of the public had a corresponding

and legitimate interest in knowing of the reputation, character and

propensity of a minister in the government in the context of the election.

4) As to the matters pleaded above within paragraph 9(2) the Defendant

received this information on the 2nd

November, 2013 (prior to the election

of the Presiding Officer at the Chaguanas Borough Corporation) from two

of his constituents namely Brian Lane and Clarence Archibald who live

next to the Claimant and had directly observed what they reported.

5) The information at 9(3) was received by the Defendant on the 6th

November, 2013 (prior to the election of the Presiding Officer at the

Chaguanas Borough Corporation) from Mr. Simeon Mahabir, who had

personal knowledge and corroborative material supporting what he said.

6) The information at 9(4) was received by the Defendant from Mr. Inshan

Ishmael, who had personal knowledge and corroborative material

supporting what he said.”

14. Commendably, the Defendant has agreed a number of matters which forms the factual

backdrop to the publications as set out in the Statement of Case.

15. The main contention by the Claimant was that the Defendant’s evidence is littered with

hearsay evidence, with unstated sources of information and belief, with exhibits which

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cannot stand on its own as direct assertions of fact and are oppressive or scandalous and

which adds no probative value to the case.

16. For the Defendant, his attack on the Claimant’s evidence was on the basis of irrelevance to

the pleaded case with some statements being made which failed to identify its sources of

information and containing irrelevant evidence of the Claimant’s opinion as to the

defamatory meaning of the alleged defamatory publications.

17. Queens Counsel for the Defendant conceded that his evidence in support of the facts alleged

in his defence is based on hearsay evidence. He also accepts that the Defendant was simply

acting on reports which he received which the Defendant believed to be true. In short, the

Defendant was repeating what was said to him. Queens Counsel for the Defendant contended

that the Defendant can rely on hearsay evidence to support his facts as once the hearsay

statement is accepted it is as if that person is making a statement of fact and such statement

will be subject to cross examination with the Court placing what weight it will on that

evidence. Hearsay was permissible, in defamation cases it was suggested so that the

Defendant be given the opportunity to say why he acted in the manner he did. No authority

was provided to the Court to allow it in a defamation case to permit the Defendant to rely on

hearsay evidence to prove a statement of fact or to offend the repetition rule or that it was not

necessary to prove the substratum of fact of the Defendant’s defence by direct evidence of

fact.

18. In reflecting on this Defendant’s approach that his defamatory statement was made based on

reports made to him, the observation of May LJ in Shah v Chartered Standard Bank

[1998] 4 All ER 155 is quite helpful. He said:

“In human terms, anyone is entitled to believe what third parties tell them. But such

belief does not establish that what is reported is objectively credible.”

19. The approach that I have taken in determining the admissibility of evidence in this

defamation proceeding is informed by the following general propositions of law.

a. CPR Part 29.5 empowers the court to order any inadmissible, scandalous,

irrelevant or otherwise oppressive matter to be struck out of a witness statement.

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b. In Chaitlal v Attorney General of Trinidad and Tobago HCA No. 2472 of

2003 Myers J stated that for evidence to be admissible:

- “Adequate foundation evidence must be adduced.

- The deponent must otherwise be an appropriate person to give the

evidence.

- It must not offend against the hearsay rule, subject to any relevant

exceptions to that rule, and perhaps any residual judicial discretion

to admit otherwise legally inadmissible evidence and,

- It must not constitute opinion evidence, subject to the exception to

the rule.”

c. In determining the admissibility of evidence it must first be relevant. The witness

statement must not include evidence that is irrelevant to an issue for

determination. Relevance is said to exist when “any two facts are so related to

each other that according to the common course of events one either taken by

itself or in connection with other facts proves or renders probable the past present

or future existence or non existence of the other.” (Stephen, Digest of the Law of

Evidence, 12th

ed, art. 1). Whether evidence is relevant is often a question of

degree and determined not by strict logic but by common sense and experience.

The sufficiency of relevance depends on the circumstances of each case. As Lord

Hoffman explains in his article Similar Facts After Boardman [1975] 91 L.Q.R

193, he said:

“The degree of relevance needed to qualify for admissibility is not a fixed

standard, like a point on some mathematical scale of persuasiveness. It is a

variable standard, the probative value of the evidence being balanced

against the disadvantages of receiving it such as taking up a lot of time or

causing confusion.”

d. Even though evidence may be relevant it may be excluded based on an

exclusionary rule such as contravening the rule against opinion or hearsay

evidence. See Gibson J in Savings and Investment Bank Ltd v Gasco

Investment (Netherlands) BV (No.1) [1984] 1 WLR 27.

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e. The Court in exercising its discretion to exclude inadmissible evidence or

scandalous or irrelevant matter is engaged in an exercise of giving effect to the

overriding objective. In dealing with a case justly, the court must apply the

foundational principles the overriding objective (CPR Part 1) of equality,

economy and proportionality. A. Zuckerman in his text Civil Procedure-

Principles of Practice discussed the relevance of proportionality in the exercise

of the court’s discretion. In reference to the UK counterpart of Rule 32.1 which is

comparable to our Rules 29.1 and 29.5(2)1 he commented that the court must

decide admissibility with the overriding objective in mind. It must ensure that the

contribution of the proposed evidence to the issue is proportionate.

Proportionality in this context, means that the evidence makes a sufficient

probative contribution to justify its time and expense in its presentation.

Essentially the Court is engaged in a more thorough examination of the proposed

evidence by asking the question what contribution is the evidence making to the

issues that fall for determination. Hale LJ in Post Office Counters Ltd. V

Mahida [2003] EWCA Civ 1583 commented that: “the power to exclude

admissible evidence is principally a case management power designed to allow

the court to stop cases getting out of hand.”

f. Further if a party wishes to rely upon hearsay evidence it must comply with the

Evidence Act Chap 7:02 and Rules of Court. See Section 37 of the Evidence Act

and CPR rule 29.5(1)(f)2 and 29.5(2). There are no notices to admit any hearsay

129.1: “The court may control the evidence by giving directions as to –

a) The issues on which it requires evidence;

b) The nature of the evidence it requires; and

c) The way in which any matter is to be proved,

by giving appropriate directions at a case management conference or by other means.”

29.5: “(2) If –

a) A party has served a witness statement; and

b) He does not intend to call that witness at the trial, he must give notice to that effect to the other

parties not less than 21 days before the trial.” 2 29.5(1) A witness statement must – “(f) not include any matters of information or belief which are not admissible

and, where admissible, must state the source of such information or belief of any matters of information or

belief;”

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evidence filed in this proceeding and indeed the time has long passed for that. For

the Court to receive such hearsay evidence the party must issue the notices

required under the CPR. There is of course a discretion which the Court can

exercise in admitting evidence in the absence of such a hearsay notice and

curiously the Defendant did not seek to invoke that rule in support of the obvious

hearsay evidence in its witness statements. Further, even if I waive those

requirements the Claimant is deprived of the opportunity of filing its counter

notice compelling the Defendant to call those persons as witnesses. Indeed I

would be slow to adopt any such approach as in the management of this case I

have specifically and purposely restricted the evidence to witness statements and

not to have evidence in chief introduced in an oral form.

g. Further it is noted that CPR rule 29.5(1) (f) mandates that witness statements must

“(f) not include any matters of information or belief which are not admissible and,

where admissible, must state the source of such information or belief of any

matters of information or belief.” Without stating those sources, the evidence is

virtually worthless: See Alverstone CJ in J.L. Young Manufacturing Company

Ltd. v J.L. Young Manufacturing Company Ltd [1900] 2 Ch 753. He stated:

“So called evidence on ‘information and belief’ ought not to be looked at

all not only unless the Court can ascertain the source of information and

belief but also unless the deponent’s statement is corroborated by someone

who speaks from his own knowledge. If such affidavits are made in future,

it is as well that it should be understood that they are worthless and ought

not to be received as evidence in any shape whatever and as soon as

affidavits are drawn so as to avoid affidavits that are not evidence, the

better it will be for the administration of justice.”

Further in the same judgment Rigby LJ refers to excluding evidence in affidavit

form which applies equally to witness statements. His comment bears repeating

for improving the standard of care in preparing witness statements. He states:

“In the present day, in utter defiance of the order (Rules of the Supreme

Court, 1883, Order XXXVIII., r. 3) (1), solicitors have got into a practice

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of filing affidavits in which the deponent speaks not only of what he

knows but also of what he believes, without giving the slightest intimation

with regard to what his belief is founded on. Or he says, "I am informed,"

without giving the slightest intimation where he has got his information.

Now, every affidavit of that kind is utterly irregular, and, in my opinion,

the only way to bring about a change in that irregular practice is for the

judge, in every case of the kind, to give a direction that the costs of the

affidavit, so far as it relates to matters of mere information or belief, shall

be paid by the person responsible for the affidavit. At any rate, speaking

for myself, I should be ready to give such a direction in any such case. The

point is a very important one indeed. I frequently find affidavits stuffed

with irregular matter of this sort. I have protested against the practice

again and again, but no alteration takes place. The truth is that the drawer

of the affidavit thinks he can obtain some improper advantage by putting

in a statement on information and belief, and he rests his case upon that. I

never pay the slightest attention myself to affidavits of that kind, whether

they be used on interlocutory applications or on final ones, because the

rule is perfectly general - that, when a deponent makes a statement on his

information and belief, he must state the ground of that information and

belief.”

h. Sharma J as he then was in Coosals Quarry Ltd. v Team Work Trinidad Ltd.

[1985] 37 WIR 417 commented that “affidavits asserting fears have absolutely no

probative value unless the sources and grounds are set out”. These sentiments of

the 20th

century are equally relevant today. Excluding evidence which has very

little probative value and offers little assistance to the Court in determining the

issues that fall for determination are quite rightly to be struck out and are

inadmissible in the Court’s exercise of its overriding objective in managing the

case.

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i. Another factor that has informed my approach is the substantive law on

defamation and the use of hearsay evidence in such trials. It is important to note

that in all the defences, there is an onus on the defendant to prove essential facts.

In the defence of justification he must prove the truth of the meaning of the words

he alleges. In the defence of honest opinion he must prove the underlying

substratum of fact on which his comment is based and under qualified privilege,

he must demonstrate through admissible evidence that a duty and interest existed.

See Carter-Ruck on Libel and Privacy paras 29.35, 29.36 and 29.37 and Gatley on

Libel and Slander para 35.12, 11.6 and 29.10.

j. In referring to the Musa King v Telegraph Group Ltd [2004] EWCA Civ. 613,

at para. 11.6, the authors of Gatley on Libel and Slander referred to the extract of

Eady J’s judgment where a defendant may adduce hearsay evidence to establish a

primary fact in reliance upon the Evidence Act. This in no way undermines the

rule that the statements, still less beliefs of any individual cannot themselves serve

as primary facts.

k. Even in a plea of qualified privilege, the question is one of the neutral reporting of

allegations without adopting those allegations as one’s own. In this case, it is

important to note that the plea of qualified privilege is based on credible

information and reports and on his own knowledge. That substratum of fact of

having accepted a “large plastic bag of money” is a fundamental premise of this

plea as well.

l. Turning to the cases themselves, they are quite clear on the repetition rule. One

cannot rely on an allegation to prove the truth. It is not sufficient to say that I was

told by someone that someone is corrupt. It must be supported by direct evidence.

In Chase v News Group Newspapers Ltd [2002] EWCA Civ. 1772, serious

defamatory statements were made against Ms. Chase amounting to an allegation

that she was responsible for murdering children under her care. The Defendants

relied on accusations and reports made by other parties and they never suggested

that anything said by them was true. They sought to rely on the fact that the

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allegations were made by largely unidentified parties in broad terms about the

Claimant and regarded that as being true. Brooke LJ pointed out quite correctly

that the burden of proving justification rests on the Defendant although the

standard of proof is the balance of probabilities, the more improbable an

allegation the stronger must be the evidence that it did occur before, on the

balance of probabilities, its occurrence can be established.

m. At paragraph 39 and 40 of the judgment Brooke LJ said:

“39. I have referred to ‘admissible evidence’. To some extent the Civil

Evidence Act 1995 (the 1995 Act) has altered the landscape. It remains the

law (subject to any HRA considerations) that if a defendant repeats a libel

he/she has heard from others, a plea of justification will only succeed if

he/she can prove by admissible evidence that what they said was

substantially true. The relevant law was authoritatively restated by this court

in Shah v Standard Chartered Bank Ltd. [1999] QB 241. In Lewis v Daily

Telegraph Ltd. [1964] AC 234 Lord Delvin observed at pp 283-4 that:

‘You cannot escape liability for defamation by putting the libel

behind a prefix such as ‘I have been told that...’ or ‘it is rumoured

that...’ and then asserting that it was true that you had been told or

that it was in fact being rumoured. You have....to prove that the

subject matter of the rumour was true.’

40. In Shah Hirst LJ observed at p 263F that one most salutary advantage

of holding fast to the repetition rule was that it avoided lengthy

investigation of the reliability of the makers of hearsay statements which

might otherwise be admissible.”

n. Useful guidance on the repetition rule can also be found in the judgment of

Nelson JA in Trinidad Publishing Company Ltd. and others v Earl Brewster

CA 154 of 1999. In that case the attempt to prove the truth of a libel by relying on

the allegations made in a writ of summons and statement of claim offended the

repetition rule. Even if hearsay statements being relied upon by the Defendant are

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admitted, these statements are of no probative value as they are statements made

by unidentified persons, from unidentified sources and information and which

asks this Court to speculate on its authenticity, truth and veracity.

o. I also found considerable guidance from the case of Shah (supra) on this issue of

the substantive law of the repetition rule and the prohibition of using hearsay

statements to prove statements of fact where the Defendant bears the burden of

proving these statements. Hirst LJ said:

“I have come to the conclusion that the repetition rule applies in the

manner described by Mr. Browne for the reasons he gave. Contrary to Mr.

Rampton’s argument, I am satisfied that it is a rule of law which governs

not only meaning, but also the pleading and proof of a defence of

justification. Stern v Piper is a very good illustration, since the ultimate

decision was that the defence of justification should be struck out.

Moreover, I consider that the repetition rule reflects a fundamental canon

of legal policy in the law of defamation dating back nearly 170 years, that

words must be interpreted, and the imputations they contain justified, by

reference to the underlying allegations of fact and not merely by reliance

upon some second-hand report or assertion of them.”

Later referring to his judgment in Hinduja v Asia TV Ltd (unreported) [1996]

Hirst LJ explained that at a minimum the defendant’s justification has to address

the inherent credibility of the underlying facts alleged to link the plaintiffs with

the scandal. What others say about the facts do not advance its credibility nor do

bald assertions of credibility.

p. Finally under the substantive law, evidence as to the natural and ordinary meaning

of words is inadmissible. See Gatley para 34.25 Carter-Ruck 29.26 and the Court

of Appeal decision of Kayam Mohammed and ors v Trinidad Publishing

Company Ltd and ors CA Civ. 118 of 2008.

q. It stands to reason therefore that any exhibits attached to the witness statements

must on its own stand scrutiny on the rules of admissibility and they do not

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automatically become part of the witness statements. The documents must have

its own independent existence in terms of admissibility and cannot cure the

inadmissible character of evidence in the body of the witness statements.

r. I have considered in the context of libel cases the effect of striking out evidence

and the Defendant’s right to freedom of expression. Fair balance is struck

between these competing rights only where credible evidence is elicited to

address the issues of justification, honest opinion and fair comment. Hirst LJ

made reference to this in Shah:

“...a proper balance between freedom of speech and protection of

reputation is achieved by rejecting Mr. Rampton’s submission. Those who

publish without malice defamatory statements to the effect that there are

reasonable grounds to suspect a plaintiff of discreditable conduct are

protected if the occasion is privileged. If the occasion is not privileged,

they may justify the publication by proving objectively that there are such

reasonable grounds. Allegedly credible hearsay may not contribute to such

proof Defendants will have to call their informants or provide or other

direct evidence. If this in individual cases is difficult, that only emphasises

that reputation should not be put at risk by publication on occasions which

are not privileged of unsubstantiated hearsay. In the end, the argument

turns, not so much on the repetition rule, as on the admissibility, probative

value and relevance of hearsay evidence.”

20. In my view rejecting hearsay evidence which seeks to impugn reputations is perfectly

consistent with the constitutional right to freedom of expression. Such rights cannot overstep

the bounds of the rights of others. A court must be astute therefore to examine the evidence

of the Defendant critically against that backdrop. To strike out such evidence is not to be

construed as muzzling free speech or political views or a free press but setting the boundaries

of proportionality for the development of a democratic and progressive society. Sedley LJ’s

comments in Berezosky v Forbes Inc [2001] EWCA 1251 deserve repeating:

“To require a defendant ... to be able to justify not a diminished version of a damaging

assault on a claimant’s reputation but the essence or substance or sting of that assault is

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not in our judgment a disproportionate invasion of the right of free expression. It meets

the legitimate purpose, recognised by Article 10(2), of protecting people from the

publication of damaging and unjustified falsehoods. The important question for

Convention purposes is whether it does so by disproportionately restricting the ability of

the press, even at the cost of exaggeration or inadvertent error, to bring to light matters of

serious concern...

...it seems to us that it is not disproportionate, nor therefore unacceptable in a democratic

society, to limit justification to the essential damage done by the publication (if necessary

by disaggregation under section 5 [of the Defamation Act 1952] and to test exaggeration

and error separately by allowing defences of fair comment and qualified privilege

provided these give adequate weight and liberty to press freedom. It is here that [counsel]

is entitled to point to the increased solicitude for responsible journalism shown by the

decision on qualified privilege in Reynolds, but also to Lord Hobhouse’s reminder in that

case that a democratic society has no interest in the dissemination of untruths.”

21. With those principles in mind I turn to the applications to strike out portions of the witness

statements on both sides.

22. The relevant portions of the respective witness statements which are struck out will be tabled

and appended to this judgment.

Vasheist Kokaram

Judge

of 25

Appendix I

Decision Reason

Para

No. Witness Statement of Faaiq Mohammed

14 The objection to the second sentence is overruled. It contains relevant evidence in relation to

the factual background to the vote cast by

the Claimant.

15 Struck out the words: “I was surprised that I never went

through a screening process and that I was selected in this

manner.”

This is irrelevant to the issues to be

determined in the case.

16 Struck out the words: “I was promised monetary

assistance by the Defendant to devote to the campaign. He

even asked me what I wanted for myself and I told him I

wanted absolutely nothing except to receive funds for

expenses relating to the campaign and to make a

difference. Despite however the many promises made by

him, I was given no money by the ILP for campaigning by

spent my own monies. To date I have received no monies

from the party despite the fact that the Defendant told me

that the ILP had many big financiers. I do not know who

these persons are. The $21,800 which I spent came from

my family savings and from the small profits which I

generated from my small business.”

This is irrelevant to the issues to be

determined in the case. It contains

unnecessary narrative.

25 Struck out in its entirety. This is irrelevant to the issues to be

determined in the case and contains

unnecessary narrative.

of 25

Decision Reason

29 The objection to the entire paragraph is overruled. As there is no objection by the Defendant

to the narrative of the facts in relation to

the presentation of a petition against Ms.

Isahak this evidence in paragraph 29 bears

a close nexus to that matter.

37 Struck out in its entirety. The Claimant’s evidence of what the

words meant is irrelevant – it is for the

Court to decide what they meant. See

paragraph 17 (p) of this judgment.

39 Struck out the words: “Based on what they have said to

me,”

Hearsay. No probative value.

41-

43

The objection to these paragraphs are overruled This evidence is relevant to the reason

why the Claimant cast his vote and forms

the backdrop to his complaint.

44 Struck out the words: “suggest that I had committed a

crime punishable with imprisonment.”

The Claimant’s evidence of what he

believed the words meant, is irrelevant – it

is for the Court to decide what they meant.

See paragraph 17 (p) of this judgment.

45 Objection to the final 13 words is overruled. It is relevant to the Claimant’s state of

mind to and to the question of damages.

46-

7

The objection is overruled. This is relevant to the issue of damages.

48 The objection is overruled. The Claimant’s belief on each of these

matters is relevant to indicate his state of

mind it does not affect what the Court will

determine on this issue.

49 Struck out in its entirety. This is not a pleaded allegation.

of 25

Decision Reason

61 The objection is overruled. This will be a matter for submissions on

the issue of damages.

62 Struck out in its entirety. This was not pleaded and is irrelevant.

Para

No. Witness statement of Shiraz Mohammed

5, 6

and

7

These objections are overruled. As there is no objection to the narrative in

relation to the “run up” to the Claimant

casting his vote I will allow this evidence

as necessary background.

9 Struck out the words: “who detailed to me their personal

complaints regarding Ms. Ishahak’s performance as the

Councillor of these areas.”

Hearsay.

10

and

12

Overruled The court will ascribe the necessary

weight to this evidence as part of the

background narrative.

Para

No. Witness Statement of Simeon Mahabir

5 Struck out the words: “who told me that I should accept

the offer of payment being presented to me to vote in

favour of the UNC’s choice of candidate and Mayor and

requested my telephone number and informed me that the

UNC have an offer for me.”

Inadmissible hearsay; no probative value,

no source of information disclosed.

6 Struck out in its entirety. Inadmissible hearsay; no probative value,

no weight can be given to this evidence at

all.

7 Struck out in its entirety. Inadmissible hearsay no probative value.

Amounts to uncorroborated rumours.

8 Struck out the words: “He spoke to my father and asked Inadmissible hearsay; irrelevant and no

of 25

Decision Reason

him to ask me to call him as he did not have my number”,

“He gave my father the number 714-1054 and told him

that I should call him on that number” and the words,

“Krishna made me a momentary offer to support the

Government.”

scandalous probative value.

9 Struck out the words: “and told him of the offer that

Krishna had made to me and that I recorded it. I also

informed the Defendant about the offers which were made

to me.” and the words, ”I declined the offers that were

made to me. A true copy of the recording is hereto

attached and marked “SM1.”

Both statement and exhibit constitute

inadmissible hearsay; no probative value;

exhibit has no independent existence

evidentially and has no bearing on the

case at all.

11 Objection overruled. Harmless statement, does not prejudice

Claimant as it does not impact on the

issues to be determined and fresh evidence

is a matter for the exercise of the Court’s

discretion in any event.

Para

No. Witness Statement of Inshan Ishmael

4, 5 Paragraph 4 struck out the words, “and informed me inter

alia that he has strong ties with senior members of the

United National Congress (UNC) which is part of and the

dominant party in the People’s Partnership Government

(PP) coalition government. In that interview Mr.

Ramlogan further informed me that he has been involved

in several financial transactions involving members of the

current cabinet and government of Trinidad and Tobago.

He provided me details of accounts, banks, sums of

moneys, transfer of monies and instructions received on

behalf of several persons from the UNC.”

Inadmissible hearsay; irrelevant; no

probative value; scandalous. I am

surprised that this found its way in a

witness statement at all.

of 25

Decision Reason

Paragraph 5 struck out in its entirety

6 Struck out the words: “that touched upon financial

transactions that appeared to me to be corrupt practices

and illegal conduct by persons in public life who are also

senior members of the UNC. I recorded a part of the

interview with his consent. He was very particular and did

not want to call any names during the recording for fear

that if it was released in the public domain he would be

the subject of physical harm by members of the

government. A true copy of the recording is hereto

attached and marked I.I.1.”

Hearsay, information cannot be relied on,

no sources of information disclosed, no

probative value. Exhibit of no relevance

makes no reference to the Claimant.

7 Struck out in its entirety inclusive of exhibit. Inadmissible hearsay; irrelevant; no

probative value; scandalous. Exhibit of no

value, offends the repetition rule.

Incapable of proving the substratum of

fact of the Defendant’s case.

8 Struck out the words: “He also stated to me that if the

source of the information which he has passed to me was

disclosed he would have to leave the country as his life

would be in jeopardy.”

Inadmissible hearsay; irrelevant; no

probative value; scandalous.

9,

10

Struck out in its entirety. Inadmissible hearsay; irrelevant; no

probative value; scandalous and

oppressive; exhibit is useless.

11 Struck out the words: “who have told me that it was

public knowledge that the Claimant was offered money to

cross the floor to the UNC at the meeting of the

Brazen inadmissible hearsay, irrelevant,

scandalous and oppressive. No probative

value and valueless, offending the

of 25

Decision Reason

Chaguanas Borough Corporation on 6th

November, 2013

and that members of the UNC boast of their ability to buy

any member they wish to control. This view was formed

by persons who I have interviewed is as a result of the

course of conduct by members of the UNC. I cannot

reveal the names of those persons I have interviewed as I

do not have their permission to reveal their names as they

fear for their job security.”

repetition rule is discussed in the

judgment above. See Chase v News

Group Newspapers Ltd. Valueless

evidence in this defamation defence of

justification, qualified privilege or fair

comment.

13 Objection overruled. Does not prejudice the Claimant’s case.

Para

No. Witness Statement of Jack Warner

9 Struck out the words: “I was informed and I verily

believed same to be true that several members inclusive of

candidates of the ILP were approached by members of the

UNC and/or their servants and/or agents inducing the ILP

members to join the UNC in return for jobs and in some

cases financial reward.”

Inadmissible hearsay, irrelevant; no source

of information and belief, no probative

value, scandalous and oppressive

10 Struck out the words: “informed me and I verily believe

the same to be true that they were offered job security and

financial reward by senior government ministers to stay

with the UNC. They did not accede to the requests and

they contested the local government elections.”

Inadmissible hearsay, irrelevant; of no


oppressive, offends repetition rule,

valueless evidence in support of the

Defence. See Shah.

11 Struck out the words: “reported to me and I verily believe

same to be true that on 31st October, 2013 he saw a known

UNC activist whom they know as Sookhai Diesel but

whose proper name is Richie Sookhai (the manager of

Sookhai Diesel Services Limited) visit the home of the



oppressive, offends repetition rule,

valueless evidence in support of the

Defendant. See Shah.

of 25

Decision Reason

Claimant and hand over to the Claimant a large plastic

bag which they believed contained money.”

12 Overruled. Admissible evidence of background

events and the Claimant’s state of mind.

13 Struck out the words: “who told me and I verily believe

same to be true that he received a call from an individual

who is known to him as Krishna offering the sum of five

million dollars to vote in favour of the UNC’s choice for

presiding officer and Mayor. Mr. Mahabir informed me

that he had recorded the conversation which he has since

forwarded to me. A true copy of the recording is produced

and hereto attached and marked J.W.1.”

Inadmissible hearsay, irrelevant,

no probative value;

scandalous and the exhibit has no

independent evidential basis.

14 Overruled Admissible evidence of the Defendant’s

alleged connection with the Claimant.

15 Struck out the words: “further reinforced my belief in the

reports made to me that the Claimant received substantial

sums of money for his vote which I believe to be true

having heard the recording submitted to me by Mr.

Mahabir and report made to me by Mr. Lane and Mr.

Archibald.”


probative value and scandalous, offends

the repetition rule and irrelevant to the

issues pleaded in the defence.

16 Struck out the words: “informed me and I verily believe

same to be true that the Claimant had received the alleged

payments with several senior members of the UNC

boasting that they could do the same with any member of

Inadmissible hearsay, irrelevant; no


oppressive.

of 25

Decision Reason

the ILP as the UNC as part of the People’s Partnership

Government (“PP”) controlled the state’s purse.”

17 Struck out in its entirety inclusive of exhibit. Irrelevant; opinion evidence.

18 Struck out in its entirety inclusive of exhibit. Inadmissible hearsay; irrelevant; no

probative value; no source of information.

The exhibit has no independent existence

evidentially.

19 Struck out in its entirety. Irrelevant. No link at all between the

conversation and Claimant.

20 Struck out the words, “information passed to me.” Partly inadmissible hearsay; partly

opinion evidence

21 Struck out the words: “that they were bribes to provide

ILP’s strategies and even to withdraw their candidacy in

the Local Government Elections which was held on 21st

October, 2013.”

Partly inadmissible hearsay; partly

opinion evidence

22 Objection overruled. Admissible opinion of the Defendant.

23 Struck out in its entirety. Irrelevancy; of no probative value;

scandalous.

Exhibit has no independent evidential

existence evidentially.

25 Objection overruled. No prejudice to the Claimant in any event.

It is matter for the Court’s discretion as to

what further evidence will be allowed.

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