By Francis Joseph
Government Senator Phillip Edward Alexander lost a defamation lawsuit in the Privy Council this morning. The case has been remitted to the High Court for a reassessment of damages to be paid to businessman Andrew Gabriel.
In a 24-page judgment, the British judges found that the Court of Appeal was wrong to interfere with the award of damages by the High Court. The High Court awarded Gabriel a total of $775,000 in damages. But the Court of Appeal reduced it to $10,000. Today’s judgment was handed down by Lord Reed, Lord Sales, Lord Leggatt, Lady Rose, and Lord Richards.
In the judgment delivered by Lord Leggatt, the Privy Council said, “For the reasons given, the Board will allow the appeal and set aside the award of damages made by the Court of Appeal.
The case will be remitted to the High Court for a fresh assessment of damages for the injury to Mr Gabriel’s reputation and feelings caused by the first and second statements and aggravated by Mr Alexander’s malicious motives and subsequent conduct.
“The assessment should be made by a judge other than the trial judge but on the basis of the evidence given at the trial and the findings made by the trial judge where these have not been overruled on appeal.
Businessman Andrew Gabriel
“As already mentioned, not only was justification not even raised as a defence by Mr Alexander in this case, but the trial judge made findings that Mr Alexander did not honestly believe his own statements defaming Mr Gabriel to be true and acted from malicious motives. Those findings were one reason why the defence of honest comment failed.”
The Case
The question on this appeal was whether the Court of Appeal was justified in interfering with a judgment awarding damages for defamation.
Gabriel is a businessman and a member of the Syrian/Lebanese community in Trinidad and Tobago. He is the managing director of an insurance brokerage company. He was briefly a Senator in the Upper House of Parliament in 1995, having been appointed by the United National Congress Government. He later became a supporter of the People’s National Movement.
Alexander, now the Minister in the Ministry of Housing, is the political leader of the Progressive Empowerment Party. He was a frequent guest and host of radio programmes and the host or administrator of various blogs and Facebook pages which were open to the public and have a significant number of followers and friends in Trinidad and Tobago and abroad.
Former Appeal Court Judge Ronnie Boodoosingh
In the proceedings, Gabriel claimed that a series of statements published by Alexander defamed him. The first statement was made on the morning of the 8th of February 2017, during a radio programme known as the Ground Report broadcast on More 104.7 FM.
The broadcast was also streamed, with video, on Alexander’s personal Facebook page where it could be watched live or viewed later. The second statement was posted on Alexander’s Facebook page later that day.
Gabriel claimed that both statements accused him and his family of corrupt and criminal conduct. The next day, lawyers instructed by Gabriel sent a letter to Alexander under the pre-action protocol, calling on him to desist from further attacks, and to apologize and offer compensation.
Alexander responded on his Facebook page making it clear that he intended to continue attacking Gabriel in public. This lawsuit was commenced on that day. Gabriel’s statement of case was later amended to add complaints that Alexander had published some ten further defamatory statements on various dates in March and April 2017.
In his defence, Alexander admitted publishing the statements complained of but denied that they bore the meanings alleged or were defamatory of Gabriel. Alternatively, he relied on defences that the statements were honest comment or responsible journalism on a matter of public interest. He did not at any stage assert that the statements, if they bore the defamatory meaning alleged, were true, according to Lord Leggatt.
Justice Carol Gobin
The trial of the action took place on two days in October and November 2018 before Madame Justice Carol Gobin. Alexander was represented by counsel on the first day but appeared in person when the trial resumed. In a written judgment delivered on the 1st of May 2019, the judge found that both statements made were defamatory of Gabriel and rejected Mr Alexander’s defences.
She held that the subsequent statements, published after the action was begun, could not themselves form part of the claim but were also defamatory and could be relied on as having aggravated the harm caused to Gabriel by the first two statements.
So could Alexander’s conduct at the trial and the fact that, as the judge found, the statements were made from malicious motives and Alexander did not honestly believe them to true. She ordered Alexander to pay general damages in a sum of $525,000 and further aggravated damages of $250,000.
Alexander appealed. The Court of Appeal, comprising Justices Peter Rajkumar, Maria Wilson and Ronnie Boodoosingh, allowed his appeal in part. In summary, they held that the trial judge was plainly wrong to find that the first statement was defamatory of Gabriel; that the second statement was defamatory of him but did not defame Gabriel’s family as the judge had found; that none of the subsequent statements was defamatory of Gabriel; and that the judge’s order should be set aside and replaced by an order to pay “nominal damages” of $10,000.
