Panday v Gordon
| Jurisdiction | UK Non-devolved |
| Judge | Lord Nicholls of Birkenhead |
| Judgment Date | 05 October 2005 |
| Neutral Citation | [2005] UKPC 36 |
| Court | Privy Council |
| Docket Number | Appeal No. 35 of 2004 |
| Date | 05 October 2005 |
[2005] UKPC 36
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Privy Council
[Delivered by Lord Nicholls of Birkenhead]
This appeal concerns an unfortunate dispute between two leading citizens of Trinidad and Tobago. It goes back eight years. On 30 May 1997 a new national holiday was inaugurated in Trinidad and Tobago to mark the first arrival of indentured labourers from India in 1845. The Prime Minister, Mr Basdeo Panday, participated in the celebrations. He was the first Prime Minister of East Indian descent. At a public celebratory meeting held at Chandernagore Mr Panday made a speech to a large audience. In the evening the speech was carried on television. On the next day all four of the national daily newspapers carried reports.
This defamation action arises out of what Mr Panday said on that occasion. The plaintiff is Mr Kenneth Gordon. He is a well-known businessman. He was chairman of a large media house which operates several newspapers and a television station. The defendant is Mr Panday, now the Leader of the Opposition in the House of Representatives. He is the political leader of the United National Congress party.
The action was tried in July 2000. On 11 October 2000 the trial judge, Jamadar J, delivered a comprehensive judgment. He found in favour of Mr Gordon and awarded him damages, including aggravated damages, of $600,000. Mr Panday appealed to the Court of Appeal. In October 2003 the Court of Appeal by a majority upheld the judge's conclusions on liability but reduced the damages to $300,000 (about £27,000). The majority comprised Hamel-Smith and Warner JJ A. Sharma CJ dissented. Sharma CJ would have allowed the appeal and dismissed the action. Mr Panday has now appealed to their Lordships' Board.
The words complained of
Mr Panday delivered his address at Chandernagore from a prepared text. The address lasted about ten minutes. The theme of the address was the need for national unity. The material part was as follows:
"As you join me in this crusade for national unity you will meet many people who do not want national unity. They are the ones who in the past have benefited and thrived on maintaining division of our society. I call them the pseudo racists.
I call them the pseudo racists because they are not real racists. Real racists are people who look after their race. These fellas use race only to look after they self. They are pseudo racists. So I say the pseudo racists who have divided the society to maintain the political power. And even now they are doing so in the hope of political survival. The Ken Gordons who want to maintain his monopolistic advantage over his competitors in the media.
My brothers and sisters, they come in many shapes and sizes. They do not want change, they continue to resist national unity. We pass laws to deal with criminals, they condemn us. We sign an agreement with the Americans to deal with drug lords, they condemn us. … We try to change URP, they accuse us of racism. If someone gets fired from a state enterprise because … he is corrupt, they scream. They doh want change, they want to continue in their old ways."
The trial of the action
At the trial of the action Mr Gordon gave evidence along with two other witnesses. The judge found that all of them were truthful. Mr Panday gave no evidence and called no witnesses. Mr Panday did not raise a defence of justification, and he abandoned a Reynolds defence and a defence of honest comment on a matter of public interest. The judge held that the ordinary listener would have concluded that in his address the Prime Minister was calling Mr Gordon a pseudo-racist who used racism to maintain division in society and in order to maintain a commercial advantage over his competitors in the media business. The judge held this was defamatory and that these words were spoken of Mr Gordon in the conduct of his media business. So the slander was actionable without proof of special damage. The judge further held that Mr Panday intended and authorised that his slanderous remarks should be republished "throughout the length and breadth of Trinidad and Tobago and abroad". Accordingly he was liable for the damage caused by the republication of his defamatory remarks in four newspaper articles and in a television broadcast by Trinidad and Tobago Television.
At a very late stage in the trial counsel then appearing for Mr Panday sought to raise a defence to the effect that in his address the Prime Minister was responding to Mr Gordon's earlier attack on the government's green paper on the reform of media law "Towards a Free and Responsible Media" and that, accordingly, the occasion was one of qualified privilege. This green paper was published early in 1997, and on 7 May 1977 Mr Gordon had made a speech which was, in the judge's words, "a biting criticism both of the green paper itself and the UNC government that proposed it". The judge held that this defence was not pleaded. But he went on to reject this defence on its merits: there was no evidence to show that the Prime Minister's address was a reply as suggested, that in any event it went beyond anything necessary to refute Mr Gordon's criticism of the government's green paper, and that in his attack on Mr Gordon Mr Panday was actuated by malice. The judge said it was clear that on the evidence the Prime Minister did not honestly believe Mr Gordon was a pseudo-racist. The judge said:
"In my opinion the Prime Minister when he defamed the Plaintiff did so with express malice intending to injure the Plaintiff, in furtherance of a mind-set of the Prime Minister later revealed in his own words, that 'no one who attacked his Government would remain unscathed'."
The judge held that this malicious intention arose only after Mr Gordon had criticised the government's green paper and because of the national support that criticism had received. The Prime Minister's allegations, the judge said, were made with the oppressive intention of silencing Mr Gordon and other would-be critics of the UNC government.
The Court of Appeal
In the Court of Appeal the majority upheld the judge's conclusions on liability. Mr Panday sought to resurrect a defence based on the constitutional recognition and declaration of the right to express political views. On a generous interpretation of the pleadings this defence was pleaded but at the trial, so it seems, counsel then appearing for Mr Panday did not mention this defence at any stage in any of his submissions. Hamel-Smith JA considered that Mr Panday should not be permitted to raise this issue at such a late stage. But he and Warner JA rejected this defence in any event: the right to express political views is not an absolute right.
Sharma CJ disagreed with his colleagues and the trial judge on almost all the points on which he expressed an opinion. The Chief Justice's view was that the words of which Mr Gordon complained were not defamatory. The ordinary reader would not think Mr Gordon fell within the Prime Minister's definition of pseudo-racist. Even if he did that would not lower Mr Gordon in the eyes of right-thinking members of society in Trinidad and Tobago where "racial slurs are accepted as commonplace". Further, section 4(e) of the Constitution afforded a defence. In section 4(e) the right to express political views was identified separately from freedom of expression so as to ensure the former "were not to be subject to the same strictures as they would be if subsumed under the freedom of expression". The right is not absolute, but the bar in section 4(e) will defeat a defamation action where the published material of which complaint is made constitutes a political view relating to a public figure and that view was honestly held or not uttered with reckless disregard to its truth or falsity. Those conditions were satisfied in this case.
The appeal on liability
Before the Board Mr Panday's appeal against liability was based on three grounds: (1) no action could be brought in respect of the words complained of because of the bar provided by section 4(e) of the Constitution; (2) the words were not defamatory; and (3) the words were not spoken of Mr Gordon in relation to his profession.
It will be convenient to consider grounds (2) and (3) first. They can be dealt with in very short order. The submission made on behalf of Mr Panday was that on these points the Chief Justice's approach was to be preferred. Their Lordships are unable to agree. On ground (2) the trial judge's view of how the words would have been understood by an ordinary listener, set out above, was not challenged before their Lordships, and rightly so. Whether words bearing that meaning, and uttered in the context in which they were said, would tend to lower Mr Gordon in the estimation of right-thinking members of society is a question of fact. On that question of fact there are concurrent findings of the trial judge and the majority of the Court of Appeal in favour of Mr Gordon. Warner JA recognised that "in this society there is a tendency to exaggerate", but she held that the attack on Mr Gordon "went far beyond that which is acceptable in any contemporary society". Hamel-Smith JA said that a racist "will in the eyes of the public be condemned for his practice of racism". The Chief Justice took a more robust approach. But that is not a sufficient reason for their Lordships' Board to depart from the views of the majority and the trial judge. How words of this character would be understood, and what effect such words would have on those who heard them, are matters on which local courts are far better placed than their Lordships.
Nor is there any...
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