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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No: CV2015-01184

BETWEEN

GEETA RAGOONATH

Claimant

AND

ANCEL ROGET

Defendant

Before the Honourable Mr. Justice V. Kokaram

Date of Delivery: Friday 6th May 2016

Appearances:

Mr. Kelvin Ramkissoon, Mr. Kent Samlal and Mr. Douglas C. Bayley led by Mr. Anand

Ramlogan SC for the Claimant

Mr. Anthony Bullock led by Mr. Douglas Mendes SC for the Defendant

JUDGMENT

Introduction

1. Saying “I’m sorry” maybe a difficult proposition for a wrongdoer. On the one hand an

apology for conduct which has caused injury may have legal consequences and on the other

it may be perceived as a sign of weakness. For this reason the wall of silence deepens the

despair of the Claimant and the anxiety of the Defendant in litigation in defamation actions.

In such claims where words have caused hurt, embarrassment and humiliation, the simple

words “I’m sorry” may be all the more valuable to the Claimant. It is therapeutic. It

sometimes heals relationships. It gives the person wronged a sense of relief and vindication.

It indirectly reforms wrongdoers by endorsing acceptable moral and social codes of conduct

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which promotes responsible action. In defamation claims the person defamed will treasure

the words “I’m sorry” and the law already recognizes that the sooner that it is said the better

for those who are found to have defamed the characters of others.

2. The predominance of damages in the forefront of available remedies to the defamed simply

cheapens and demeans a person’s character, dignity and self-worth. Embarking upon a

monetary assessment of one’s reputation misses the mark of true vindication for the

defamed and where the wrongdoer’s words of hurt can be transformed to words of healing

“I’m sorry”. To recognize the restorative value in an apology would change a culture from

one where persons, who could afford it, simply places a price tag on the rights to reputation

and dignity of persons in exchange for an exorbitant license for free speech. For this reason

court ordered apologies may be as good as gold in defamation claims. In this undefended

defamation claim, this judgment examines the value and basis for making such court

ordered apologies in addition to an award of damages for the Claimant, Ms. Geeta

Ragoonath.

3. Ms. Ragoonath complains of several defamatory statements made by the Defendant, Mr.

Ancel Roget at a media conference on 24th November 2014 and which were widely broadcast

on the electronic and print media, over the ensuing two days. He had accused her of attacking

the independence of the Industrial Court. In the context of her status and her relationship with

him it was a very grave accusation.

4. Ms. Ragoonath was the General Manager, Human Resources of the Trinidad and Tobago

National Petroleum Marketing Company Limited (NPMC). She was involved in the

dismissal of 68 workers at NPMC which became the subject of a trade dispute before the

Industrial Court. Mr. Roget is the President General of the Oilfields Workers’ Trade Union

(OWTU) which is the trade union which pursued the matter on behalf of the dismissed

workers at the Industrial Court. It is the largest trade union in the energy sector and the

recognized majority union for certain bargaining units at the NPMC. Mr. Roget is also the

head of the Joint Trade Union Movement (JTUM) which comprises several leading trade

unions in the country. On 19th November 2014 the Industrial Court ruled that the workers

were to be reinstated at NPMC. The judgment was delivered by the President of that Court

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Her Honour Mrs. Deborah Thomas Felix. Shortly thereafter the company filed an appeal and

obtained a stay of execution of the Industrial Court’s order.

5. Mr. Roget, obviously using his position and status as President of the OWTU, convened the

media conference which attracted wide news coverage. In a sudden and startling revelation,

he accused Ms. Ragoonath of writing to His Excellency the President of Trinidad and

Tobago, complaining about the Industrial Court’s decision and calling for the contract of the

President of the Industrial Court not to be renewed. He accused her of acting in a high

handed and vindictive manner against the Industrial Court simply because she was upset

about the court’s judgment. It was an allegation which impugned her professionalism and

brought her Company into disrepute. However nothing could be further from the truth.

6. The words uttered by Mr. Roget hurt her. It embarrassed her. It caused her to be shunned,

ridiculed and talked about by her co-workers. Her children were affected. She felt compelled

to leave her job at NPMC. She found it difficult to find other jobs and eventually retired

settling for a less paying job at ANSA McAl but also in the human resources area. At the

trial, two years after the words were said about her, she still carries the emotional hurt and

she still saw the need for and value in a public apology from Mr. Roget.

7. At the trial there was no contest that the words published by Mr. Roget were defamatory of

her and there was no defence to her claim for defamation. I therefore begin this judgment by

making a declaration that the statements made by Mr. Roget were wholly without merit and

without any supporting evidence. I have formulated the declaration in the following terms:

That Mrs. Ragoonath never wrote nor petitioned His Excellency the President of

the Republic of Trinidad and Tobago nor made any complaint whatsoever

against the President of the Industrial Court or of its judicial process in relation

to the trade dispute 717 of 2013 and IRO 23 of 2013 by seeking to have her

contract not renewed. Mrs. Ragoonath had at all times accepted and respected

the ruling of the Industrial Court delivered by its President Her Honour Mrs.

Deborah Thomas Felix. The statements made by Mr. Roget impugning improper

motives to Mrs. Ragoonath is wholly unsupported and untrue.

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8. Such a declaration is made with the intention of clearing the clouds which have hung over

Ms. Ragoonath on this issue and to address an element of her need for vindication of her

reputation and professional standing as is explained later in this judgment.

9. The task of the Court now is to determine the most appropriate form of compensation for Ms.

Ragoonath for those defamatory remarks, to find the appropriate vindication of her reputation

and good name and solace through an award of damages or the exercise of the Court’s

equitable jurisdiction in granting injunctive relief. Although common law damages is

accepted as the traditional remedy, in understanding the purpose of an award of damages and

the principles that underpin it demonstrates that other remedies are effective in achieving

those goals.

10. Insofar as an award of damages is concerned, the tests are well settled. Its purpose is

threefold; to compensate the Claimant for damage to her reputation, vindicate her good name

and take account of the distress hurt and humiliation which the publication has caused. See

John v MGM [1997] QB 586 and Kayam Mohammed CA Civ. 118 of 2008. I have

examined both objective and subjective elements of the publication and matters that may

tend to mitigate or aggravate the injury in arriving at a suitable award. Consideration was

given to other awards for damages for defamation that create a framework for determining

the appropriate award for compensation. Consideration was also given to Panday v Gordon

[2005] UKPC 36 which sought to raise the bar in the level of damages from previously

conservative awards. In this Court’s view, a fair award of damages which is not too high as

to have a chilling effect on freedom of speech but not too low as to render meaningless the

right to reputations is within the range of $180,000.00 to $250,000.00 together with

aggravated damages. It is also a suitable case for an award of exemplary damages which I

have assessed in the sum of $160,000.00.

11. However, in addition to damages this Court has also examined the role court ordered

apologies or corrections can play as appropriate equitable relief in Ms. Ragoonath’s claim.

Whether the Defendant in defamation claims have apologized before the commencement of

the trial is already relevant in the assessment of damages. However, apologies as a Court

ordered remedy is often ignored, seen perhaps as a misnomer in the law of remedies being

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left for private negotiations or other suitable ADR mechanisms. This is not to say that court

ordered apologies or corrections fall outside the Court’s jurisdiction. It is simply that

precedent has not unearthed any such exercise in the English common law. However the

ability of the Court to order the Defendant to apologise in defamation claims is recognized in

other jurisdictions as a natural extension of the courts equitable jurisdiction in the grant of

injunctive relief. See TV3 Network Ltd v Eveready New Zealand Ltd [1993] 3 NZLR 335

and Cooke v Plauen Holdings Pty [2001] FMCA 91. It can serve to vindicate her name in

public. It can equally teach rather than punish. It can reinforce the community’s norms and

ensure a rebalance in the original hurt and sting of the defamatory remarks. There is therefore

an intrinsic moral and restorative value in an apology which the Court should promote in the

law of remedies if only as a matter of public policy. Its value has been acknowledged and

recognized by Ms. Ragoonath in her own testimony.

12. In this case, the Court cannot ignore the value of an apology in circumstances where Ms.

Ragoonath explained how real and how useful such an apology will be to her. To say then

that court ordered apologies is within the reach of the Court’s equitable jurisdiction, it ought

very well then to be within its grasp. Our Courts often order restitution along the principles

of what is conscionable and fair. In a principled way then, the law of remedies should begin

to grapple with the declared objectives of solace to the Claimant with creative court ordered

apologies.

13. I am equally mindful that there may be constitutional implications for forcing a Defendant to

apologize and also the nuance of an insincere apology. However, I consider that the right to

responsible speech diffuses any concern about court ordered apologies and it should pass

constitutional muster. Nevertheless, taking into account that the purpose of the apology is not

only to vindicate but to teach the wrongdoer to accept a moral code of responsible speech, as

well the status of the Defendant and the powerful positive message he is capable of sending

to society of the value of good human relationships and responsible speech, I would prefer to

fashion the order on a voluntary basis whereby if the Defendant apologizes in a form

acceptable to the Claimant or settled by the Court within 14 days of the date of this judgment,

the award of exemplary damages will be reduced by 50%. A rational Defendant will want to

apologize and if not, the original exemplary damages award takes into account his refusal to

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apologize. A rational Claimant will want the apology and if forthcoming should be taken into

account in reducing the award on exemplary damages.

14. I am grateful to Counsel on both sides for exploring the role of an apology as a remedy in

defamation claims and now hopefully our Court and practitioners can begin considering the

utilitarian role apologies can play in providing effective relief in defamation claims rather

than cheapen and demean a person’s reputation by the simple payment of money. It is a

remedy fashioned by the Court’s exercise of its equitable jurisdiction, which in some cases

may be appropriate in the first instance by the Court making the appropriate declaration as

made above and if applicable ordering the Defendant to apologize with creative court ordered

apologies.

15. In this case the Court assesses the Claimant’s damages in the sum of $200,000.00 together

with exemplary damages in the sum of $160,000.00. Should the Defendant publish an

apology in a form acceptable to the Claimant or settled by the Court within 28 days of this

order the sum payable as exemplary damages shall be reduced by 50%.

The claim

16. This claim arose from statements made by the Defendant calling into question the Claimant’s

conduct in her professional capacity as General Manager, Human Resources of NPMC.

These statements were made in the aftermath of a recent industrial relations dispute between

NPMC and OWTU (TD 717 of 2013 and IRO 23 of 2013) where the Industrial Court ruled

that sixty eight (68) employees of NPMC ought to be reinstated. Importantly, the decision of

the Industrial Court was the subject of an appeal and the Court of Appeal on 16th March 2016

dismissed the Company’s appeal and upheld the Industrial Court’s ruling by a majority with

a dissenting judgment of Narine JA. The order of the Court of Appeal was published a few

weeks before the trial and it was argued by Senior Counsel for the Claimant that the

libel/slander being originally linked to the dismissal would by necessity have been

resuscitated by the publication of the Court of Appeal’s decision.

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The defamatory words

17. Mr. Roget seized the opportunity of a media conference to defame Ms. Ragoonath by falsely

accusing her of attacking the Industrial Court’s decision and painting a twisted picture of her

as orchestrating a move to get rid of the President of the Court. His attack grabbed media

attention in the print and electronic media. The particulars of the defamatory statements

pleaded and proven by the Claimant in her witness statement are as follows:

“a) On the radio station I95.5 FM News Report on 26th day of November 2014:-

“Manager of Human Resource, General Manager of Human Resource, told the State

her intent of that Judgment, has written to The President of the Republic of Trinidad

and Tobago, requesting that the President of the Court be removed, that the President

of the Court, her contract not be renewed. Now that has to be one of the most

disturbing development coming out of a State enterprise simply because they did not

or they are not in agreement with what Judgment was handed down by the Court.” ...

“That action on the part of the General Manager Human Resource of NP could not

have been an action without the support of the Line Minister; Minister Ramnarine,

Minister of Energy, Board of Directors of NP, and of course Cabinet of Trinidad and

Tobago. And we want to pose the question directly to the Cabinet. Is the Cabinet of

Trinidad and Tobago in support of the actions of the General Manager? Is the Cabinet

in support of that? This is a frontal attack on the independence of the Industrial Court,

a blazon attack on the workers in this country.”

b) On the television station WIN TV News report on 26th day of November 2014:-

“The company has since filed an appeal and were able to be successful in having the

appeal court have a stay of that judgment that is to say that the judgment will be

withheld the Industrial Court’s judgment of reinstatement will be withheld until the

full appeal is held next year in March. Now that, having done that they were not

satisfied enough but she felt that she had the power to go the President of the

Republic of Trinidad and Tobago and write to him asking that he not renew the

Industrial’s Court President’s contract.” ... “As an affront to the Labour Movement

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and workers in this country and we are asking the President if it, is it true he told her

to go and get some support and come back and on the receipt of that support he will

then act. Because that too we came by that information.”

Win TV Channel 12 at 6:30pm on 26th November 2014:

“Leader of the Oilfield Workers’ Trade Union Ancil Roget calling on President

Anthony Carmona to clear the air about his involvement in attempts to remove the

President of the Industrial Court. During an emergency press conference on

Wednesday, Roget claimed that NP’s Human Resource-General Manager Geeta

Ragoonath is seeking the President’s assistance to have the Industrial Court President

sacked.”

The said broadcast contained excerpts of words uttered by the Defendant including

the following:

“The Company has since filed an appeal and were able to be successful in having the

appeal court have a stay of that judgment that is to say that the judgment will be

withheld the Industrial Court’s judgment of reinstatement will be withheld until the

full appeal is held next year in March. Now that, having done that they were not

satisfied enough but she felt that she had the power to go to the President of the

Republic of Trinidad and Tobago and write to him asking that he not renew the

Industrial’s Court President’s contract” ... “As an affront to the Labour Movement

and workers in this country and we are asking the President if it, is it true he told her

to go and get some support and come back and on the receipt of that support he will

then act. Because that too we came by that information.”

c) The following day on the radio station I95.5FM News Report dated the 27th

November 2014 at prime time 7:00am and repeated at 8:00am:-

“The Manager of Human Resource, General Manager of Human Resource so

disturbed, so incensed of that judgment has written to the President of the Republic of

Trinidad and Tobago, the President of the Republic of Trinidad and Tobago

requesting that the President of the Court be removed, that the President of the

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Court’s contract not be renewed. Now that has to be one of the most disturbing

developments coming out of a State Enterprise simply because they are not in

agreement with what judgment was handed down by the Court.” ... “We call on the

President of the Republic of Trinidad and Tobago to make public contents of that

letter that was sent to him by this General Manager of NP made public ... to confirm

or not confirm .... spoke about preserving the independence of the Industrial Court.”

.... “That action on the part of the General Manager of Human Resource of NP could

not been action without the support of the Line Minister, Minister Ramnarine, the

Minister of Energy, Board of Directors of NP and of course the Cabinet of Trinidad

and Tobago and we want to pose the question directly to the Cabinet. Is the Cabinet

of Trinidad and Tobago in support of the actions of the General Manager? Is the

Cabinet in support of that? This is frontal attack on the independence of the Industrial

Court, a brazen attack on workers in this country.”

d) Still a day later on the radio station I95.5FM News Report dated the 28th November

2014 and again at prime time 7:00am:-

“The Manager of Human Resource, General Manager of Human Resource so

disturbed, so incensed of that judgment has written to the President of the Republic of

Trinidad and Tobago, the President of the Republic of Trinidad and Tobago

requesting that the President of the Court be removed, that the President of the

Court’s contract not be renewed. Now that has to be one of the most disturbing

developments coming out of a State Enterprise simply because they are not in

agreement with what judgment was handed down by the Court.”

(e) The words were republished On the News aired on I95.5 FM dated the 26th day of

November 2014:-

“Manager of Human Resource, General Manager of Human Resource, told the State

her intent of that judgment, has written to the President of the Republic of Trinidad

and Tobago, the President of the Republic of Trinidad and Tobago requesting that the

President of the Court be removed, that the President of the Court, her contract not be

renewed. Now that has to be one of the most disturbing development coming out of a

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State enterprise simply because they did not or they are not in agreement with what

judgment was handed down by the Court.”...

“That Action on the part of the General Manager Human Resource of NP could not

have been an action without the support of Line Minister, Minister Ramnarine,

Minister of Energy, Board of Directors of NP, and of course Cabinet of Trinidad and

Tobago. And we want to pose the question directly to the Cabinet. Is the Cabinet of

Trinidad and Tobago in support of the actions of the General Manager? Is the Cabinet

in support of that? This is a frontal attack on the Independence of the Industrial Court,

a brazen attack on the workers in this country.”

A true copy of an audio recording with respect to the aforementioned words is hereto

contained in a compact disc and marked “B”. h) On the news report aired on i95.5FM

at 7:00am on 27th November 2014 and subsequently re-aired on even date at 8:00am

and 4:00pm, the following words were broadcast:

“The Manager of Human Resource, General Manager of Human Resource so

disturbed, so incensed of that judgment has written to the President of the Republic of

Trinidad and Tobago, the President of the Republic of Trinidad and Tobago

requesting that the President of the Court be removed, that the President of the

Court’s contract not be renewed. Now that has to be one of the most disturbing

developments coming out of a State Enterprise simply because they are not in

agreement with what judgment was handed down by the Court.”

“We call on the President of the Republic of Trinidad and Tobago to make public

contents of that letter that was sent to him by this General Manager of NP made

public to confirm or not to confirm ..... ... spoke about preserving the independence of

the Industrial Court.”

“That action on the part of the General Manager of Human Resource of NP could not

been action without the support of the Line Minister, Minister Ramnarine, The

Minister of Energy, Board of Directors of NP Board of Directors of NP, and of course

Cabinet of Trinidad and Tobago. And we want to pose the question directly to the

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Cabinet. Is the Cabinet of Trinidad and Tobago in support of the actions of the

General Manager? Is the Cabinet in support of that? This is a frontal attack on the

Independence of the Industrial Court, a blazon attack on the workers in this country.”

(e) The defamatory words appeared in the daily newspapers:

“Article in the Trinidad Express Newspaper on 27th November 2014 entitled “Govt

attacking independence of Industrial Court”

“The joint Trade Union Movement is calling on President Anthony Carmona to make

public the contents of a letter which it alleges was sent to him by NPs general

manager of human resources, Geeta Ragoonath, asking that he not renew the contract

of President of the Industrial Court; Deborah Thomas Felix, ....Ancil Roget JTUM

head also called on Cabinet to state publicly whether it supports his “brazen and

frontal attack on the independence of the Industrial Court”. He said line Minister

Kevin Ramnarine in particular must say whether he had knowledge of or gave

consent to the writing of this letter. He charged that the general manager of human

resources NP, could not have taken the action of writing the President without the

support of the line Minister and the Cabinet as well as the board of NP.

Roget said the JTUM was certain that a letter was written and sent to Carmona. He

said it was some of the employers whose support was being solicited to go to the

President and make a similar request that he remove the President of the Industrial

Court that informed the JTUM about the letter. “We got this information this morning

and it is a serious heart attack for us in the trade union movement” he said. He called

on President Carmona to reject any attempt to have the President of the Industrial

Court removed by “underhand, vindictive political means and motives”. Roget said

the independence of the Industrial Court must reign supreme. “And therefore we ask,

hands off against the attack against the Court.” He said, He said it was urgent and

critical that these developments be made known to the national community “Because

we can wake up tomorrow morning and hear that the contract of the President of the

Industrial Court has not been renewed and the reason for that has to do with person

wanting to get control of the Court. We are also in possession of anonymous letters

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which we verily believe to be coming from right in the Court itself, operatives in the

court who are connected to the Government, writing to President Carmona,

attempting to have the Industrial Court President removed. So there is a concerted

attempt, a broadside attack on the Industrial Court and the first casualty, if we are not

careful, is that the President of the Court will not have her contract renewed”.

18. The Claimant’s claim is that the statements made by the Defendant greatly injured and

disparaged her character and reputation and in her professional capacity as General Manager,

Human Resources, brought her into public ridicule, odium and contempt. Further she

contends that as a result of these statements she suffered great distress both personally and

professionally lowering her in the estimation of the public and more intimately in the eyes of

the workers at NPMC over whom she had charge.

19. The defence filed by the Defendant denied that the words were defamatory and relied on the

defence of qualified privilege. I had expressed to the Defendant at the first case management

conference the challenge that would be faced in convincing the Court that there was an

arguable defence of qualified privilege. Counsel for the Defendant signaled that should the

Court find the words were defamatory of the Claimant the Defendant may be advised to

adopt a certain course. Accordingly that issue was set down as a preliminary issue to be

determined and on 25th January 2016, this Court gave its ruling on the preliminary issue as to

whether the words complained of by the Claimant carried any defamatory meaning.1

20. Senior Counsel had argued at the trial that the Court was free to expand on the meanings

found at the preliminary stage. That is not however my understanding of the purpose of

delivering that decision in determining the preliminary issue on meanings. One of the main

objectives of that exercise was to properly define the meanings attributed to the words

complained of. Accordingly it would form the basis on which the Court would proceed on

the assessment of the merits of the defences (if the words were found to be defamatory) and

1 See Judgment dated 25th January 2016.

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the assessment of damages.2 To now expand on those meanings or depart from them without

any good reason would be to render that exercise one of futility.

21. The words complained of therefore carry the following meanings which were defamatory of

the Claimant:

That the Claimant as General Manager Human Resources NP abused her

power and acted vindictively, unprofessionally and contemptuously in

unfairly attacking the President of the Industrial Court by lobbying His

Excellency the President of the Republic of Trinidad and Tobago to remove

or not to renew her appointment merely on the basis that the Claimant

disagreed with a decision made by the Industrial Court in which the

President presided to reinstate certain workers at NP.

The Claimant has acted improperly in the performance of her duties as the

Human Resources Manager of NP and brought her company into disrepute

by taking such course with the President of the Industrial Court.

There was no appeal by the Claimant against the Court’s ruling on those meanings and the

appeal filed by the Defendant was dismissed. The question of course at this stage is what

impact did that have on Ms. Ragoonath and what would be the appropriate relief.

22. Unfortunately that was not the end of the matter. The Defendant still wanted directions for a

trial of this matter presumably on the defence of qualified privilege although Counsel did

raise the issue that the Claimant needed to prove that the Defendant did in fact publish the

words complained of. I would have imagined that if that was a live issue, the Court would

not have embarked upon the exercise of determining the meaning of the words and in any

event with the disclosure of the audio in the possession of the Claimant, this would have been

quite an easy matter to settle by agreement between the parties. Directions were given with

sanctions on the Defendant should he fail to meet the deadlines set by the Court. Those

sanctions were necessary having regard to a history of default in compliance with the Court’s

2 See Mapp v News Group Newspapers Ltd [1998] QB 520; Skuse v Granada Television [1996] EMLR 278;

Charman v Orion Publishing Group [2005] EWHC 2187

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case management orders for the filing of its advice on quantum and agreed statement of facts

and what I had perceived to be a disposition to prolong the matter although giving the

Defendant the benefit of the doubt of testing his defence at a trial.

23. However on the day fixed for trial in this matter, the Defendant had failed to file any witness

statements in breach of the Court’s unless order and accordingly judgment was entered

against him.3 Unfortunately no indication was given to the Court prior to the trial that the

Defendant intended not to file any evidence. As a result of that order, the Defence stood

automatically dismissed and the only matter left for consideration which was accepted by

attorneys for both parties at the trial was the question of the assessment of damages. Ms.

Ragoonath’s evidence consisted of her witness statement and there was brief cross

examination. Indeed the right of the Defendant to cross examine in the absence of a defence

is limited if indeed it exists. The Court recalled the witness subsequently to give further

evidence on what she perceived to be the value to her of an apology from Mr. Roget. Both

parties had earlier filed their respective written submissions on quantum and at the trial they

provided further oral submissions on the issue of quantum. Upon the Court’s invitation they

also filed further written submissions on the issue of the Court’s jurisdiction to order an

apology.

Submissions on Quantum

24. There were two main submissions which formed the axis of the Claimant’s submissions for

damages. First that the Claimant was relatively unknown and had no public profile and

whose only claim to fame now is this distorted view painted of her by Mr. Roget. Second that

3 The material part of the Court’s case management order on 25th January 2016 was as follows:

“1. The Claimant to file an agreed transcript of the recordings from WIN TV, Channel 12 and I95.5 as

disclosed by the Claimant in her list of documents dd. 28th August 2015 on or before 18th February

2016.

2. The parties to file and exchange their witness statements on or before 29th March 2016. In default of

the Defendant filing and exchanging their witness statements in compliance with this order the

Defence shall be struck out and there will be Judgment for the Claimant.”

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the pith and substance of the defamatory remarks was contextualized in an ongoing dispute

with the dismissal of the 68 workers at NPMC. Accordingly until that matter was resolved

the remarks about Ms. Ragoonath’s conduct would be a “talking point” in the public domain.

25. These submissions are important as they form the bedrock of his assessment of Ms.

Ragoonath’s claim. Being a relative unknown, one immediately sees the disadvantage that

she is placed in being bullied in the public by a well-known public figure. Mr. Roget would

have at his disposal the ability to make public statements and attract to himself public

attention. Being a public figure he would be accustomed to the glare of the public. Not so for

Ms. Ragoonath and importantly she would not have been accustomed to or even resourced to

defend herself in the public domain. It is a fight in which she was unevenly matched. For this

reason her subjective feeling of hurt would be much greater, being such a private individual

with no recourse and unaccustomed to such public disaffection her hurt and suffering would

have been magnified. Importantly therefore when such reports are constantly repeated a

public figure accustomed to the glare of publicity and the nuances of reporting can brush it

off. A private person however faced with this for the first time would tend to remember it as

it tends to seep into the crevasses of her soul and subconscious and add to her mental distress.

Indeed such pain and agony would linger, so long as that case remained unresolved and it

would have been a bad memory for her to relive it when the Court of Appeal upheld the

Industrial Court’s decision thus reliving the sting of Mr. Roget’s attack.

26. Senior Counsel for the Claimant further submits that she is entitled to aggravated damages,

claiming that the Defendant willfully and maliciously defamed the Claimant in order to

enhance his image as a union leader from the damage to her reputation. Some of the

aggravating features of her case included her having to leave her job. There was no checks or

verification by Mr. Roget before making his statement. No evidence of credible sources of

the statement and no attempt to call the Claimant or to apologize. Her children were

subjected to taunts. The attack occurred while she was studying for her MBA examinations.

The litigation was conducted taking her to trial “dragging and screaming” when suddenly at

the trial it is declared that the defence is not being pursued.

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27. The Claimant submits that the facts of this case fall closely to that of Conrad Aleong v

Trinidad and Tobago Express Newspaper Ltd Civ App. 122 of 2009 and Ramlogan v

Warner CV2014-00134 and Rowley v Annisette CV2010-04909 Senior Counsel for the

Claimant submits that an award of in the sum of $350,000.00 – $400,000.00 for general

damages and $100,000.00 – $150,000.00 for exemplary damages be awarded to the Claimant

for the damage done to her reputation.

28. The status of Ms. Ragoonath also formed the axis of the submissions of Counsel for the

Defendant. That she is not a public figure is important as higher awards are usually awarded

to those in prominent positions. This would be so as the defamatory remarks of a public

figure will generate greater public attention, have greater influence, it is more likely to be

discussed and quite likely to be repeated. The Claimant’s reliance on those cases where high

awards were given are therefore irrelevant according to the Defendant as they dealt with the

defamed character of public figures.

29. He also criticized the Claimant’s evidence as being mere assertion without supporting

evidence. At best the evidence produced by Ms. Ragoonath alone should be treated

cautiously as it is not corroborated. Counsel insisted that the Defendant did not adopt an

adversarial approach to the claim and that an offer to settle was made on 16th March 2016

and the parties were engaged in discussion in March 2016 but there was no resolution.

30. Counsel for the Defendant submits that the Claimant not being a public figure and not

holding public office ought not to be awarded more than the claimant in the matter of

Mohammed v Warner CV2013-04726. In that case Mohammed, a newcomer to the

political field was accused of taking bribes and ‘selling his soul for money’ by his former

political leader when he voted against the political party to which he was aligned. A sum of

$220,000.00 was awarded to the claimant as damages. Counsel also submitted that this is not

a case fit for exemplary damages.

31. The Defendant further relied on cases such as Gita Sakal v Michael Caraballo CV2009-

02468 and Reuben Cato v CNMG HC 1810 of 2011, where the sum for the award of

damages was in the range of $50,000.00 – $150,000.00 respectively.

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Principles

32. A defamatory statement is one which tends to lower the claimant in the estimation of right-

thinking members of society generally, or one which is likely to discredit the claimant or

cause her to be shunned or avoided, or exposes him to hatred, contempt or ridicule Gatley on

Libel and Slander 12 Ed. (2013), para. 2.1. The primary remedy for a successful claimant in

a defamation action is the recovery of general damages which are compensatory and are “at

large” that is not subject to a precise arithmetical calculation or objective formula. The Court

is entitled to take into account a wide range of subjective and objective factors.

33. In John v MGN Ltd (1997) QB 586 at page 607 Sir Thomas Bingham in providing future

guidance on the guidelines for awarding damages stated:

“The successful Plaintiff in a defamation action is entitled to recover, as general

compensatory damages, such sum as will compensate him for the wrong he has suffered.

That sum must compensate him for the damage to his reputation; vindicate his good

name; and take account of the distress, hurt and humiliation which the defamatory

publication has caused. In assessing the appropriate damages for injury to reputation, the

most important factor is the gravity of the libel; the more closely it touches the Plaintiff’s

personal integrity, professional reputation, honour, courage, loyalty and the core

attributes of his personality, the more serious it is likely to be. The extent of the

publication is also very relevant: a libel published to millions has a greater potential to

cause damage than a libel published to a handful of people. It is well established that

compensatory damages may and should compensate for additional injury caused to the

plaintiff's feelings by the defendant's conduct of the action, as when he persists in an

unfounded assertion that the publication was true, or refuses to apologise, or cross-

examines the plaintiff in a wounding or insulting way.”

34. Sir Bingham went further to comment that the legal process by which the award is obtained

should yield an award that is conservative that is “not too much nor too little… No other

result can be accepted as just.” The framework for awarding damages is thus governed by a

principle of proportionality and balance as it “serves no public purpose to encourage

plaintiffs to regard a successful libel action, risky though the process undoubtedly is, as a

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road to untaxed riches. Nor is it healthy if any legal process fails to command the respect of

lawyer and layman alike, as is regrettably true of the assessment of damages by libel juries.”

35. Lord Hailsham in Cassell & Co Ltd v Broome [1972] 1 All ER 801 HL observed that:

“Quite obviously, the award must include factors for injury to the feelings, the anxiety

and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation

of the truth of the matters complained of, or the malice of the defendant. The bad conduct

of the plaintiff himself may also enter into the matter, where he has provoked the libel, or

where perhaps he has libelled the defendant in reply. What is awarded is thus a figure

which cannot be arrived at by any purely objective computation. This is what is meant

when the damages in defamation are described as being 'at large'.”

36. The Court of Appeal in T&T News Centre Ltd v John Rahael CA Civ. 166 of 2006

referring to Cleese v Clark [2004] E.M.L.R. 3 referred to the factors the Court considers in

assessing damages:

“It is necessary always to take into account the full circumstances of the case.

Such factors have to be borne in mind as the gravity of the allegation, the scale of

publication, the extent to which any readers believed the words to be true, any

impact upon the claimant’s feelings, reputation or career. There may also be

matters of aggravation or mitigation which also need to be put in the scales. It is,

moreover, often the case that the claimant’s own conduct will have a part to play

in arriving at the appropriate figure. A fundamental point always to be

remembered is that the purpose of such damages, and indeed compensation

awarded under s. 3(5) [Defamation Act 1996 UK], is compensatory and not

punitive.”

37. Hirst LJ in Jones v Pollard [1997] EMLR 233 found the following a helpful checklist in

approaching the assessment of damages in defamation cases:

(a) The objective features of the libel itself such as its gravity, its prominence, the

circulation of the medium in which it was published and any repetition.

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(b) The subjective effect on the plaintiff’s feelings (usually categorized as aggravating

features) not only from the publication itself but also from the defendant’s conduct

thereafter both up to and including the trial in itself.

(c) Matters tending to mitigate damages such as the publication of an apology.

(d) Matters tending to reduce damages, evidence of the plaintiff’s bad reputation or

evidence given at the trial which the jury are entitled to take into account in

accordance with the decision of the court in Pamplin v Express Newspapers

Limited [1988] 1 WLR 116.

(e) Special damages.

(f) Vindication of the plaintiff’s reputation past and future.

See also Gur v Avrupa Newspapers Ltd [2008] EWCA Civ. 594; [2009] EMLR 4 and

Faaiq Mohammed.

38. It therefore goes without saying that the fact that Ms. Ragoonath is a private individual,

virtually unknown to the public at large while on the other Mr. Roget is a “public figure”, a

trade unionist much accustomed to ‘the spotlight’ utilizing public platforms to air his views

and opinions is but one factor to be taken into account in the overall assessment of the

circumstances of the publication and the conduct of the parties. I agree with the submission

of Senior Counsel that it is painfully obvious that Mr. Roget took advantage of his status to

give credence and publicity to his remarks. His accusations were not in the form of a letter

but a media briefing broadcast to many. The balance of power could not have been more

uneven.

39. While there has been no clear demarcation made by the courts in awarding damages to a

defamed ‘private person’ as opposed to a defamed ‘public person’, the distinction between

the privacy rights of a “private person” and that of a public person may be two sides of the

same coin in defamation claims. Whereas an assumption can be made that public figures by

virtue of their status in society have essentially thrust themselves into ‘the limelight’ with a

perceived ‘open invitation’ for comments and attention on their actions, no such assumption

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can be attributed to private citizens. On one end of the scale, the defamation of the public

figure might gather more publicity and discussion. On the other, the private figure defamed

in the public arena cannot lightly shrug off such an attack. It would be perceived by her more

dramatically and sensationally not being accustomed to such a sudden plunge into the

negative consciousness of the public. It is likely to seep into the intimate circle of family and

friends who will perceive it as a stain and shame rather than be softened by such allowances

given to the public figure of the normal “cut and thrust” of public life. It would in my view

be wrong to place an undue weight on the anonymity of a person’s character as any valid

reason to attribute less damage as a result of a public and sustained attack on her character. A

plaintiff who is rich and famous should not simply by reason of status be entitled to obtain a

larger award than one who is not. See: Esther Louise Rantzen v (1) Mirror Group

Newspapers (1986) Ltd (2) Brian Radford (3) Richard Stott (4) Mirror Group

Newspapers PLC 1993 WL 964291. To do otherwise would allow for a creeping elitism in

the award of damages, a matter discussed in Faaiq Mohammed. Ms. Ragoonath clearly has

placed value on her reputation in industrial relations, a dynamic arena where the employer

and employee relationship is sensitive and precious. I see no reason to discount her damage

simply because she is a person of relative anonymity in public life. Nor do I see the awards

given to persons in public life distinguishable solely on the basis that they are public figures.

All the circumstances must be considered in the round and the exercise calls for a special

assessment of and sensitivity to the value of reputations and a good name in small societies

such as ours given the social and political history and development uniquely Caribbean. See

Faaiq Mohammed.

40. The defamatory remarks were particularly grave and, without any factual base, simply

outlandish. It imputed that she abused her power and acted vindictively, unprofessionally and

contemptuously in unfairly attacking the President of the Industrial Court. The remarks went

even further to suggest that she was petitioning for the removal of the President of the

Industrial Court in light of the ruling handed down by the Industrial Court reinstating sixty

eight (68) NP employees. These statements coming from the President General of the OWTU

can be reasonably assumed to carry sufficient weight. As a union leader representing the

workers’ interests in the employment relationship the Defendant should know that such

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statements are inflammatory and would stir up a rift between the employees and

management.

41. This is an important context for appreciating the extent of hurt caused by these words. Ms.

Ragoonath had become a pawn to muddy the waters in an ongoing industrial dispute.

Reading the judgments of the Courts in that matter it is clear that that dispute between

employer and employee was emotionally charged and concerned not only the lives of several

workers and by extension their families but a major company in this country which business

affects the daily lives of our citizens. It is important for such companies to have a stable

industrial relations climate and to that extent the Industrial Court provides the stable platform

for the orderly resolution of disputes. To therefore allege that the hand of the employer has

surreptitiously interfered with such an institution or that it contemptuously disregards its

edicts is in fact no less than a battle cry for workers against employers.

42. Further the fact that the Defendant took no steps to ascertain the veracity of the allegations he

was making showed that he had little regard for the effect such statements would cause. The

ruling of the Industrial Court was handed down on 19th November 2014. The news

conference wherein the defamatory statements were uttered was held one week after the

Industrial Court’s ruling on 26th November 2014. The Defendant had more than enough time

to verify his sources and determine if there was any truth to the allegations. This unsolicited

attack on the Claimant which the Defendant characterized as ‘one of the most disturbing

developments coming out of a State enterprise’ condemned Ms. Ragoonath in no uncertain

terms with the impact of course of neutralizing her legitimacy in the industrial relations

environment.

43. Further there was no apology by the Defendant, nor any attempt by him to contact her to

apologize or correct his statements. The Claimant’s evidence suggests that she suffered a

great deal from the statements made. However equally the Court also notes that there is no

corroborating evidence. Her evidence is largely subjective. That being said it was

unchallenged. It is not unreasonable to accept that she indeed suffered great embarrassment

and distress having been thrown into the limelight in a most negative way. The level of

scrutiny would be far more than she had been accustomed to as she was accused of involving

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the President of the Republic of Trinidad and Tobago to do her bidding. There is no doubt

significant damage was done to her reputation as a result from the statements made by the

Defendant. However I would have expected more corroborating evidence to support a higher

award of damages than simply her own assertions. The quality of the evidence is a main

distinguishing feature to those cases in which higher awards were made.

44. The evidence of the Claimant is that the Defendant’s main intention in calling a news

conference was to discredit her in the eyes of the employees and the nation at large. In the

aftermath of the news conference and subsequent publications the Claimant avers that she

was the victim of ridicule and had to endure hearing and overhearing persons commenting on

her character and integrity. Surprisingly it was suggested to her in cross examination that this

feeling of discomfort was because she was responsible for the workers dismissal and not

because of the words uttered by Mr. Roget. That was flatly denied but such a question clearly

demonstrated the unhappy relations between the union and Ms. Ragoonath making the

defamatory words all the more egregious. Feeling uncomfortable in her work environment at

NPMC, she tried applying for other jobs but was told that she had ‘too much baggage’ as a

result of the issue. She was eventually able to leave NPMC approximately ten (10) months

after the issue first came to light when she was re hired by a former employer even in the

face of the allegations which she contends was as a result of her prior track record with the

company.

45. I did take into account the facts that a settlement offer was made in March 2016 but it was at

a very late stage in the proceedings. The Defendant elected not to pursue his defence but did

not make it clear to the Court that he has admitted liability, rather that he has simply relied on

the sanction that his defence was struck out. The pre action protocol activity did not advance

the case of either party towards a resolution. Although each case on defamation is based on

its unique facts and circumstances, a reliable framework can be obtained from an analysis of

reported awards. In the case of Aleong v Express Newspaper (supra), Mr. Aleong was the

president and the chief executive officer ("CEO") of the now defunct BWIA (West Indies)

Limited (“BWIA”). He was also a chartered accountant. Over a five week period a series of

articles were published accusing Mr. Aleong of being dishonest and manipulating the

airline’s accounts among other things for private gain. The Court of Appeal found that the

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general damages awarded by the trial judge were inordinately low as it did not take into

account certain aggravating features and therefore uplifted the award granted by the trial

judge awarding the claimant the sum of $650,000.00 in general damages and $200,000.00 in

exemplary. In the case of Ramlogan v Warner CV2014-00134, the Defendant made certain

statements as to the acquisition of properties owned by the claimant and the manner in which

these properties were obtained. The Court in that matter found that the defendant’s

allegations of the claimant’s acquisition of numerous properties by corrupt means during his

tenure as Attorney General were baseless and damaging to the claimant’s reputation. The

claimant was awarded a total of $600,000.00 in general damages and $200,000.00 in

exemplary damages.

46. In the case of Robin Montano v Harry Harnarine CV2008-03039 in the face of damning

statements of him being called a racist and a hypocrite by the defendant, the Court awarded

the sum of $250,000.00 in general damages. Similarly, in the case of Nizam Mohammed v

The Trinidad Express Newspaper CV2011-00264, the claimant was accused of being

dishonest and lacking professional ethics as an attorney at law. The Court in that case

awarded him the sum of $325,000.00 inclusive of aggravated damages. The Court has also

had to assess damages in defamation cases where persons were accused of being corrupt

either by receiving bribes or in the exercise of their duties. See Faaiq Mohammed v Jack

Warner CV2013-04726 and Rowley v Annisette CV2010-04929 respectively. In those

cases the successful claimants were awarded $220,000.00 and $475,000.00 respectively. See

also Gita Sakal v Carballo CV2009-02468 and Cato v Caribbean News Media Group

CV2011-01810. In the recent awards of Kishore Ramadhar v Prakash Ramadhar the

awards made were on the low scale having regard to the context of the publications and the

dearth of evidence on the extent of damage.

47. In my view an appropriate award of damages would be in the range of $180,000.00 to

$250,000.00 inclusive of aggravated damages.

Exemplary Damages

48. The Claimant in this case is also deserving of an award for exemplary damages in light of the

allegations made against her. Exemplary damages are given in instances where a defendant

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knowingly commits the tort of defamation with the intention of gaining some advantage. This

was also the point proffered by the Claimant that the Defendant’s main aim in making these

statements was to augment his image in the eyes of those he represents. However the role of

an award of exemplary damages is one of punishment. It is intended to punish the Defendant

for the willful commission of a tort or to teach him that “tort does not pay”. See Gatley on

Libel and Slander 12th Ed. para 9.25. The guidelines for exemplary damages are contained in

Rookes v Barnard [1964] AC 1129 and are given in instances where (i) recognized by

statute (ii) government servants are the agents of the wrongdoing which involves oppressive,

arbitrary, or unconstitutional acts and (iii) the defendant’s tortious act has been done with the

intent to gain an economic advantage which has the possibility of dwarfing any

compensation that might be payable to the plaintiff4. Once these acts of oppression or

arbitrariness are evident the award goes towards deterrence and retribution.

49. However if the purpose of such an award is to deter and prohibit the occurrence of such

unacceptable conduct the Court should examine other creative ways to deter and ensure

respect and compliance for societal norms of responsible speech and respect for reputations

in our society. In this regard there is in my view, value in teaching the offender through

reformation rather than punishing. Unless the Courts are prepared to begin awarding

exemplary damages in the millions by punishment (which it obviously cannot do as it will

have the chilling effect of stifling free speech) awards of exemplary damages may simply be

seen as just another payment to the claimant. It thus creates a culture of paying for the wrong

rather than learning from it or acknowledging the need to transform one’s perspective on the

use of free speech in a democracy which also respects the rights to reputation and the dignity

of humans. It is here in my view where court ordered apologies can prove to be the most

effective foil in delivering the message that not only is the defamatory remark unacceptable

4 However these guidelines have since been expanded beyond the traditional three pillars in the Rookes case by The

United Kingdom Law Commission, in its report Aggravated, Exemplary and Restitutionary Damages with the courts

welcoming the expansion of principles stating that: “Because the kinds of case in which exemplary damages might

be awarded are so varied, it may be doubted whether a single formula adequately describes the boundaries of the

field in which they may properly be awarded.” See McHugh, Gummow and Hayne JJ in Gray v Motor Accident

Commission [2000] 1 LRC 437.

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but that there are more appropriate ways to communicate and to view our relationship with

others.

50. In this case the award of exemplary damages satisfied the traditional criteria evidenced by the

Defendant’s disregard for the truth, his failure to contact the Claimant, his failure to

apologize, the obvious intent of causing damage to the sensitive and dynamic employer

employee relationship at the expense of Ms. Ragoonath’s reputation. The platform grabbing

without any iota of truth simply to bolster one’s position as union leader can be perceived as

bullying when certainly someone of the stature of Mr. Roget ought to know the importance

of partnerships in industrial relations. While robust speech is important in the labour context

and in the fight for the rights of workers it ought not to cross the line into reckless speech that

serves to damage the continuing partnership of labour and management. In this regard, the

Court will award the Claimant exemplary damages in the sum of $160,000.00.

An apology as a remedy

51. When asked by this Court “what value do you place on an apology?” Ms. Ragoonath

answered: “A public apology. A lot because he made public statements about me that were

untrue... It will clear my name and it would also ease some of the stress that I have been

through over the past couple years with this whole NP matter.”

52. The Claimant has repeatedly stressed in her witness statement that to date the Defendant has

not contacted her to apologize or to seek amends for making the defamatory statement.

Further she stated that she held an apology as important to her as it would clear her name.

The need for an apology is still important to Ms. Ragoonath even at this time, two years after

the statements were published and after she had removed herself from NP. It demonstrates

how the words had impacted on her but equally it demonstrates the value of an apology.

The value of an apology

53. An apology can operate as a significant mitigating tool in making amends for damage done

to one’s reputation more so in defamation cases where emotional distress and hurt are some

of the foremost elements that the aggrieved Claimant seeks to have addressed. An apology

may vindicate the Claimant’s rights but it may also be a form of redress and solace for the

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emotional harm caused and can go a long way in addressing the hurt felt by the injured.

Though far less costly and at times more comforting than any reward of money could

procure, an apology should be done voluntarily and not compelled by an order as it forces a

person to articulate a sentiment that is not genuinely held. (Eatock v Bolt [2011] FCA 1103,

[2011] 197 FCR 261.)

54. The academic literature suggests the value in an apology lies in its social role.5 Apologies can

have a healing and re-balancing function for both victim and relationship, and often for the

tortfeasor. I set out what I find to be a useful explanation of the value of an apology as

explained by R. Carroll in the Sydney Law Review:

“They may also have a moral, meaning, creating an educative function of reinforcing the

sense of the norms of right, wrong and responsibility in the community and between

victim and offender, and possibly an underlying function of reducing aggression which

has biological/evolutionary roots. Most of these functions require an apology to

acknowledge fault rather than merely to express regret if they are to be effective - that is,

in order to elicit the next stage in a reconciliation process. The communicative and

balancing dynamic between the parties needs, the acknowledgement of fault, because a

mere expression of regret does not require anything from the other party - it does not

recognise the same level of imbalance between the parties as an acknowledgement of

fault, and therefore does not begin the healing or re-balancing process. Apologies, since

they are mediated by language, are extremely complex, highly nuanced processes. There

appears to be significant risks in giving apologies which are perceived as insincere. We

know that such an apology may actually unleash further aggression, and that the

5 The Duty of Candor and Apologies as a Legal Remedy – Journal of Personal Injury Law (JPI) 2015, 1, 7-14.

Zahra Aawais – Eilal

Why is it better to be sorry than safe – Case for Apology Legislation (DULJ) 2013, 36, 127-153 Val Corbet

When sorry is the hardest word to say. How might apology legislation assist? 44 Hong Kong LJ 491 – Robin

Cara

The importance of Being Earnest: Two Notions of Internalization 65 U. Toronto LJ 37

Apologies and Civil Liability in the UK: A view from elsewhere. Edin.L.R. 2008 12(2) 200-230 Pruvines.

Csanics v Hungary App. No 12188/06

Melynychuk v Ukraine Apps. No 28851/95 and 28852/95

Cairns v Modi [2012] EWCA Civ 1382

Thomas Elliot v Philip Flangan (2016) NIQB 8

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credibility of an apology depends on many factors, one of which appears to be its cost to

the apologiser. On the other hand a forced apology may shame the apologiser in such a

way that the community’s norms are reinforced, the offender is effectively sanctioned,

and the community educated. While defamation is not the core concern of this article, the

fact that in defamation an apology is seen as a remedy or at least as a mitigator of

damages is a strong example of the use of apology in one part of the legal system.

Defamation’s roots in the ecclesiastical tradition - so that in Scots law, for example, the

Church could be used to enforce the palinode or recantation as a remedy - show the long-

term understanding of the importance of an apology including an acknowledgement of

fault.

Apologies are viewed in the civil liability arena as a form of corrective justice. One of the

effects of one person harming another is humiliation, and an effective apology transfers

this humiliation to the apologiser. This does not mean that there will not still be a need

for compensation, but it does mean that the corrective justice aspect of compensation

becomes a less important attribute, and that it becomes more meaningful to deal with

compensatory damages as a simple matter of need. Another way to put this is to suggest

that an apology may operate to reduce the desire for vindication. In practical terms this

may mean that, where injury is slight, a victim is less likely to sue; and, where an injury

is serious, that a victim is more likely to settle earlier in negotiations than might

otherwise be the case.”

55. An apology therefore provides (a) vindication: See Creek v Cairns Post Pty Ltd which is a

discrimination claim where, Kiefel J noted that a short apology would have been ordered for

this purpose had the discrimination complaint been made out. (b) Acknowledgment of

wrongdoing: Apology orders have been made in a number of cases for the express purpose of

acknowledging wrongdoing as ‘a public acknowledgment of wrongdoing rather than as an

actual statement of regret.’ (c) To educate the public about the unlawful conduct. In the

Queensland Anti-Discrimination Tribunal in Menzies v Owen, expressly referred to the

educative purpose of an apology order in such cases: that ‘the members of the public that

have been incited to hatred, serious contempt or severe ridicule should be told by the

respondent that such conduct was unlawful’. See Eatock v Bolt (No 2). In that case,

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Bromberg J ordered the publication of a corrective notice which referred to the court’s

decision and reasons and declared the conduct described in the notice to be unlawful as a

contravention of the Racial Discrimination Act 1975 (Cth) s 18C. (d) An apology can address

the psychological needs of the parties and might redress the plaintiff’s loss or damage better

than an award of damages. In Cooke v Plauen Holdings Pty Ltd, Driver FM gave the

following reason for ordering an apology:

“I have also taken into account in assessing what is an appropriate award of damages

that Ms. Cooke should receive an apology. She has received an oral expression of

regret but she is entitled to a formal apology. An apology is frequently worth more to

an applicant than money. In this case I am satisfied that a written apology would go a

long way to compensating the applicant for the distress and loss of confidence that

she suffered.”

(e) An apology order can achieve purposes beyond compensating the plaintiff: Usefully and

apology might achieve incidentally one or more of the other purposes attributed to an award

of exemplary damages, namely appeasement and deterrence.

56. The value of an apology is already recognized in the common law award of damages in

taking into account whether the defendant has apologized as mitigation. See Section 4 of the

Libel and Defamation Act. See also MGM and the value placed by the court on an apology

albeit in assessing damages. See also Cairns v Modi [2013] 1 WLR, Elliott v Flanagan

[2016] NIQB 8.

57. However some courts are of the view that more needs to be done in utilizing an apology As

alternative means of compensation. Recently Skweyiya J in Le Roux v Dey 2011 (3) SA 274

(CC) at paragraph 197 lamented:

“Had our Roman Dutch law given due recognition to the value of an apology and

retraction in restoring injured dignity, things might have turned out differently. The

applicants might have convinced Dr. Dey that their attempted apology was genuine,

which in turn would not only have given him the personal satisfaction of assuaged

feelings, but would have contributed to the restoration of mutual respect between

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them, something which the trial record showed had been grievously damaged on all

sides… the recourse to legal proceedings in these matters of feeling “deepens and

steepens” the conflict. We think it is time for our Roman Dutch common law to

recognise the value of this kind of restorative justice.”

58. The court in Le Roux further reluctantly noted:

“The present position in our Roman-Dutch common law is that the only remedy

available to a person who has suffered an infringement of a personality right is a

claim for damages. One cannot sue for an apology and courts have been unable to

order that an apology be made or published, even where it is the most effective

method of restoring dignity [or reputation]. A person who is genuinely contrite

about infringing another’s right cannot raise an immediate apology and retraction

as a defence to a claim for damages. At best it may influence the amount of

damages awarded. This is an unacceptable state of affairs illustrated by what

happened in this case.”

Jurisdiction to order an apology

59. There are instances in which the court in other jurisdictions have considered court ordered

apologies in the context of its equitable jurisdiction to grant injunctive relief. In those cases it

considered the jurisdiction to compel the defendant to correct, retract or apologize for a

defamatory publication. In the case of Moore v Canadian Newspapers Co Ltd, 58 (1989)

69 O.R. (2d) 262 (Divisional Court) the court in that case allowed an appeal against a

decision of the Provincial Court in British Columbia ordering an apology against the

defendant as a form of equitable relief for libel. The appeal however was decided on other

grounds but the court nonetheless considered whether such an order violated the defendant‘s

freedom of expression as guaranteed by s 2(b) of the Canadian Charter of Rights and

Freedoms. On this point it was concluded that an apology order for libel was potentially a

valid form of relief.

60. Importantly in TV3 Network Ltd v Eveready New Zealand Ltd [1993] 3 NZLR 435 (New

Zealand Court of Appeal) the Court of Appeal rejected the argument that it was beyond the

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court’s power to order a mandatory injunction to broadcast corrective advertising in a case of

defamation and malicious falsehood.

61. In TV 3 Cooke P usefully observed that the mingling of law and equity demonstrates that the

remedy of the injunction should be available whenever required by justice.

“To impose jurisdiction limits as distinct from identifying factors which on practical

grounds will tell against the discretionary grant of the remedy would be a backward step.

It would be inconsistent with the past approach of this Court …where an injunction was

upheld although having the effect of requiring the performance of a long term

commercial contract entailing co-operation between the parties.”

“In my view it can equally be said that in the case of historically common law claims it is

consistent with the process of fusion of law and equity that in order best to serve the

interests of justice the Courts should have available the full range of remedies for

appropriate cases.

The action for defamation developed in the common law as attracting remedy only in

damages. That did not prevent the use of injunctions to restrain threatened repeated

publication of defamatory statements after the passing of the Judicature Acts. In principle

therefore there is no jurisdictional bar to an injunction case in mandatory form.”

62. Indeed the Court of Appeal pointed out that the fact that there is no instance found in

precedent that such an injunction was made may give the assumption that the jurisdiction

does not extend so far.6 However what the absence of precedent simply reveals is “a warning

that the Court should be slow to grant the remedy but they cannot establish the absence of

jurisdiction. There are well known instances of the discovery that justice requires an

established equitable remedy to be adapted to a new use.” Of course the development of the

6 Spry on The Principles of Equitable Remedies (Law Book Co, 6th ED, 2001) (“Spry”) states at 323:

Injunctions are granted only when to do so accords with equitable principles, but this restriction involves, not a defect of powers, but an adoption of doctrines and practices that change in their application from time to time. Unfortunately there have sometimes been made observations by judges that tend to confuse questions of jurisdiction or of powers with questions of discretions or of practice. The preferable analysis involves a recognition of the great width of equitable powers, an historical appraisal of the categories of injunctions that have been established and an acceptance that pursuant to general equitable principles injunctions may issue in new categories when this course appears appropriate.

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law of mareva injunctions speaks for itself of such creative development of the laws

equitable jurisdiction to meet the justice of new societal needs.” See also Chin Bay Ching v

Merchant Ventures Pts Lts [2005] 3 SLR 142.

63. The question therefore is not whether the Court has any jurisdiction to order an apology as

part of its equitable jurisdiction but it is a question of how that discretion should be

exercised. The Court should therefore approach court ordered apologies in a principled way

and recognize that it is a remedy that would not be frequently ordered. Having regard to the

judgment of TV 3 Network the following factors may be determinative whether such an

injunction is desirable and equitable:

(a) The practicality of ordering such an apology.

(b) The lapse of time between the publication and the order.

(c) Whether such an apology would be counterproductive to its desired objective.

(d) Whether it would unduly stifle the right to free expression of the defendant

recognizing the fact that damage has arisen in the first place as a result of the abuse of

the freedom.

(e) The usefulness of the dissemination of information contained in the apology,

retraction or correction.

(f) Whether malice has been proven.

(g) Whether the injury to the Claimant is shown to be continuing.

Of course these are guides to determine the Court’s exercise of its discretion but not to its

jurisdiction to make such an order.

64. Innovative legislative remedies aimed at repairing damaged reputations have been introduced

in comparable Commonwealth jurisdictions. Defamation legislation in jurisdictions such as

England, Ireland and South Africa have all contemplated giving the court power to make

declaratory orders which would include requesting the defendant to make and publish an

apology, correction or retraction in relation to the statement. In Mineworkers Investment

Company Limited case no 2001/20548 Willis J was satisfied that it would be just and

equitable that the defendant be given a choice between making a public apology or paying

damages. The Court was also of the view that “a public apology which will usually be far

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less expensive than an award of damages, can “set the record straight”, restore the reputation

of the victim, give the victim the necessary satisfaction, avoid serious financial harm to the

culprit and encourage rather than inhibit freedom of expression” and as such an order was

made to that effect.

65. In this case I agree with attorney for the Defendant that the Claimant did not seek in her

claim for the remedy of a mandatory injunction to make an apology. However based on the

evidence in this case the fact that the claim is undefended and the Court’s power to exercise

its equitable jurisdiction to order such remedy that is available based on the evidence, I

consider there to be value in a court ordered apology.

66. I say so for the following reasons: In this case Ms. Ragoonath still holds value for such an

apology despite the lapse of time. Ms. Ragoonath is still operating in the field of industrial

relations as a human resource manager and it is not unlikely that their paths may in the future

cross again. Mr. Roget clearly acted recklessly in making the statement. An apology as a

restorative remedy rather than punishment would be by far a greater method to disseminate to

the public the importance of free and responsible speech as well as the powerful impact

equally of apologies in the industrial relations setting so that the partners in labour can move

on harmoniously. A public statement would have a greater if not equal impact as an award of

damages. The injury and the need to clear her name deserves some public pronouncement.

This Court has tried to achieve that with its declaration set out above but certainly it would

add significantly if an apology be given by the Defendant personally and publicly.

67. I do recognize however the difficulty with insincere apologies or half apologies as well as the

perception of interfering with free speech. Although a court ordered apology is appropriate I

would prefer to couch the order in a more voluntary manner whereby the Defendant has a

time limit within which to make the apology on terms and in a form acceptable to the

Claimant or settled by the Court. In default the award for exemplary damages stands. If the

apology is forthcoming the award for exemplary damages will be reduced by 50%.

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Conclusion

68. As Sir Thomas Bingham noted, defamation claims are not a road to untaxed riches. The

Court will always encourage parties to resolve defamation matters where the context

provides recognizing that words can hurt as well as heal. I urge parties to exhaust the pre-

action procedures before commencing litigation and for defendants to make genuine efforts

to meet and discuss the complaint with the claimant. The decision on court ordered apologies

should not be a question of jurisdiction but discretion. There is still hope that in this case the

apology may auger well for the future relationship of employer and employee in the

industrial relations arena. Finally, I hope that parties to defamation actions will see the value

in offering apologies at the earliest moment or standing the consequences for failing to do so

should they be found to be liable. Even then all is not lost by saying “I’m sorry”.

69. The Defendant shall pay to the Claimant damages in the sum of $200,000.00 together with

exemplary damages in the sum of $160,000.00. The Defendant shall tender an unconditional

apology to the Claimant in a form and terms agreed or settled by this Court within 28 days. If

he does so, the award of exemplary damages shall be reduced by 50% and if not the Court’s

original order of exemplary damages in the sum of $160,000.00 shall be due and payable.

The Defendant shall pay to the Claimant the costs of this trial on the prescribed scale subject

to Counsel’s further submissions and costs on the preliminary issues in the sum of

$19,500.00.

Vasheist Kokaram

Judge