THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV 2010-4799
BETWEEN
PHILLIP AYOUNG-CHEE
CLAIMANT
AND
LESTER GOETZ
DEFENDANT
BEFORE THE HONOURABLE MR JUSTICE R. BOODOOSINGH
APPEARANCES:
Mr F Seepersad for the Claimant
Mr P Deonarine instructed by Mr R Jagai for the Defendant
Dated: 31 January 2012
REASONS
1. This is a claim for defamation brought by the claimant for alleged libellous statements
made against him by the defendant. The parties are both medical doctors and were
colleagues at the San Fernando General Hospital (SFGH) at the material time. The
claimant also has two other related claims before this court alleging defamatory
statements made against him by two other colleagues.
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2. By Notice of Application filed on 8 July 2011, the defendant seeks an order from the
court that based on the agreed documents, the unchallenged evidence and the fact that
no Reply was filed, the claimant’s statement of case should be struck out. The court
ordered written submissions to be filed by both parties.
3. The claimant relies on two letters and one memorandum written and signed by the
defendant in support of his claim. By letter of 13 March 2008, addressed to Dr Stephen
Ramroop, the defendant stated he was informed that the claimant was suicidal and
accused the claimant of issuing a threat to him. By a memorandum of the same date,
addressed to the Chief Executive Officer and copied to the Executive Medical Director,
the defendant also stated that the safety of the claimant and his patients was at risk and
that the claimant required professional psychiatric help urgently. The defendant also
repeated the allegation that he was threatened by the claimant. Finally, by letter dated
30 April 2008, addressed to Dr Ramroop, the defendant stated that the claimant “issued
foul language couched in a threat to the Head of Department”.
4. By his Defence, the defendant admits the statements made but contends that the
documents in question were published on an occasion of qualified privilege.
5. He says the complained correspondence were written on an occasion of privilege,
namely: they were written in the defendant’s official capacity as Head of Department of
Urology at SFGH; they concerned a subordinate staff member falling under the
defendant’s control and as such the defendant had a duty to make the statements; and
they were issued to the defendant’s superiors (who were ultimately in charge of the
claimant and who had a corresponding duty to receive the respective correspondences).
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6. The defendant submits that to defeat the qualified privilege defence, particulars of
express malice or matters from which malice can be inferred must be set out in a Reply.
He says the claimant failed to plead express malice in his statement of case and no Reply
was filed raising it. He contends further that a Reply cannot now be filed. There being
no issue of malice, the defendant submits the Defence is bound to succeed and the
claimant’s case ought to be struck out at this stage to prevent an abuse of the court’s
process.
7. The claimant submits the defendant has not established the circumstances in which the
defence of privilege will apply. He contends essentially that the statements were not
fairly warranted by the occasion; they were made with malice (in that the defendant
knew them to be untrue and were made with indirect/improper motive); and they were
not made with honesty of purpose.
8. He submits, in the circumstances, the defendant should not be allowed to rely on
privilege and the issue of malice would then not even arise. In any event, the claimant
says the statement of case raises the issue of malice and contends it is still possible to
seek the court’s permission to file a reply if necessary at this stage.
Qualified Privilege and Malice
9. A defamatory statement is generally treated as having been made on an occasion of
qualified privilege where the maker of the statement has a duty to make the statement
and the respondent has a corresponding duty to receive it - see Bereaux J., as he then
was, in Cyracius Liverpool v Matthew Alleyne HCA No. 4170/91 at pages 9 and 10
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where he quotes the classical formulation as put forward by Parke B. in Toogood v
Spyring (1834) 1 C.M & R :
In general, an action lies for the malicious publication of statements which are
false in fact, and injurious to the character of another (within the well-known
limits as to verbal slander), and the law considers such publication as malicious,
unless it is fairly made by a person in the discharge of some public or private
duty, whether legal or moral, or in the conduct of his own affairs, in matters
where his interest is concerned. In such cases, the occasion prevents the inference
of malice, which the law draws from unauthorized communications, and affords
a qualified defence depending on the absence of actual malice. If fairly
warranted by any reasonable occasion or exigency, and honestly made, such
communications are protected for the common convenience and welfare of
society.…
10. Where qualified privilege is raised, the court has to consider whether in all the
circumstances, the occasion is to be regarded as privileged. The burden is on the
defendant to specify such circumstances that would establish the occasion as privileged.
11. Having established privilege, the defendant will be protected if the statement was fairly
warranted by some reasonable exigency or occasion and so long as it is not proved that
the defendant was actuated by malice. The privilege can be defeated if the claimant
establishes that the defendant was actuated by malice - that is, he used the occasion for
an improper purpose or had no honest belief in the truth of the facts he stated (see
generally Common Law Series: The Law of Tort, Chaps 26.89, 26.90 and the cases
cited).
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12. There is a general presumption of malice (‘legal’ malice) on the publication of a
defamatory imputation and it is therefore not necessary to plead malice as part of a
claimant’s case. However, where a defendant pleads that the words were published on
an occasion of qualified privilege, it is for the claimant to prove malice in order to rebut
the defence. This is called ‘express’ or ‘actual’ malice and refers to a state of mind that,
if affirmatively proved by the claimant to have actuated the publication, will defeat the
defence of qualified privilege.
13. The decision of the House of Lords in Horrocks v Lowe [1974] 1 All ER 662 is instructive
and established the following principles regarding express malice in the context of
qualified privilege:

Express malice denotes a state of mind. The burden of establishing malice is on
the claimant.

It may be established by proving that the defendant had an improper motive for
publishing the words complained of.

Proof by the claimant that the defendant did not honestly believe in the truth of
what was published, or published it ‘recklessly’ without care for its truth or
falsity, is generally conclusive evidence of express malice.

A positive belief in the truth of what was published will be sufficient to negative
express malice unless improper motive is proved.

Where the defendant incorporates irrelevant matter in a statement made on a
privileged occasion, an inference that he was actuated by express malice may be
drawn in certain circumstances.
14. The facts or matters a claimant may rely on as evidence that the defendant was
actuated by express malice may be both intrinsic and extrinsic. It need not be
established by direct evidence but may be inferred from all the circumstances - either
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from the terms or words of the communication itself or from any facts which show that
in publishing the libel the defendant was actuated by spite or some indirect motive –
see Adam v Ward [1917] AC 309 per Lord Finlay LC at 318.
Was a Reply Necessary?
15. In England, as a rule of pleading, it is necessary to file a reply when qualified privilege is
contended, if the claimant intends to allege that the defendant acted with malice. It
must set out particulars of the facts or matters from which malice is to be inferred.
Practice Direction 53, paragraph 2.9 of the English CPR provides:
If the defendant contends that any of the words or matters…were published on a
privileged occasion, and the claimant intends to allege that the defendant acted with
malice, the claimant must serve a reply giving details of the facts or matters relied
on’ (my emphasis).
16. Gatley on Libel and Slander 11th edition states at paragraph 30.5:
… It is not sufficient merely to plead that the defendant acted maliciously. The
plea must be more consistent with the presence of malice than with its absence;
if it is not, it is liable to be struck out …The claimant must allege specific facts
from which it is alleged the inference is to be drawn…
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17. Part 73.2 (c) of our CPR states that the claimant’s “statement of case” in a defamation
claim must, where the claimant alleges that the defendant maliciously published the
words or matters, give particulars in support of the allegation.
18. While there is no rule requiring a Reply in this jurisdiction, it follows, in my view, that
once the defence of qualified privilege is raised a defendant ought to seek permission of
the court to file a reply if he intends to challenge the defence. This is more so if malice is
not alleged on the statement of case. Without a reply, and in the absence of any
particulars of malice on the statement of case, a claimant would be unable to rebut a
successfully made out defence of qualified privilege. In any event, when looking at Part
73.2 (c) this must be read with the definition of statement of case, which includes a
reply.
19. The position can be applied to this case like this. The claimant sued for defamation. The
defendant filed a defence. He admitted he made the statements but on an occasion of
qualified privilege. He then set out at paragraph 15 of the Defence details of the
particulars of qualified privilege.
These particulars comprise 17 statements or
assertions.
20. Now qualified privilege can be a complete answer to a defamation claim unless it can be
shown by the claimant that in making the statements the defendant was actuated by
malice. This assertion by the defendant, therefore, called for an answer by way of reply.
By not replying, the claimant is not asserting any contrary facts to show the defendant
was in fact actuated by malice. Thus it is like saying, “I accept he said it; it was possibly
defamatory, but I also accept he was not actuated by malice”. Otherwise, the claimant
would say the defendant was actuated by malice and here are the particulars.
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21. Support for this can be seen in Atkin’s Court Forms, Volume 15 at page 174 where a
precedent of pleadings for “Reply alleging malice in response to a defence of qualified
privilege” is set out. In the example given, the assertion is made that the defendant was
actuated by express malice. Then the example showed that at a meeting, both parties
were nominated for the same position. The claimant was elected. The defendant
walked out of the meeting. He then told someone he was going to get his revenge on
the claimant. It is then asserted that the defendant published the words knowing them
to be untrue or recklessly, indifferent to their truth or falsity or without any honest
belief in their truth. The dominant motive was to give vent to his personal spite and ill
will to the claimant or to obtain for himself some private advantage.
22. Where, as here, the defendant had set out in his Defence that:

as Head of Department he had to see about the welfare of patients and his staff;

there was a chain of command;

there was an established protocol when matters of a suicidal nature were raised
had to be reported to the chain of command;

there had been past experiences, one relating to suicide of a medical doctor at
the hospital;

the head nurse had made a report;

he had concern for the patients, staff and the claimant;

he had an honest belief in the truth of the statements;

he hand delivered the letters; and

he was acting under a duty;
it was incumbent on the claimant to reply to set out the express malice particulars.
23. Having not previously sought permission, the claimant now submits that permission
may still be granted to file a Reply.
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24. CPR Part 10.10 states that the court may only give permission at a case management
conference. Although the matter is still in the case management phase, I am not of the
view that permission should be granted at this stage of the proceedings. Pleadings have
closed, documents have already been agreed and preliminary directions have been
given. In this regard, I agree with the submission of the defendant.
Has express malice been sufficiently raised on the statement of case?
25. In any event, the claimant submits that the issue of malice is evident on the statement
of case. In response, the defendant submits that by the claimant’s submissions the
claimant is essentially asking the court to “infer malice” from the innuendo meaning of
the words in the statement of case.
26. The defendant says the court is not entitled to look to the innuendo as evidence of
malice and suggests there is no authority for this. Further, he says it would be unfair to
infer malice from the statement of case as it does not afford the defendant adequate
notice of the case it has to meet.
27. Looking at the statement of case, on its face, malice is not expressly pleaded or alleged.
This is in the sense that nowhere is it stated that the defendant “maliciously published
the words…” followed by facts or matters in support of the allegation. Instead what is
stated are particulars of the innuendo meanings of the words used by the defendant in
the various pieces of correspondence. As an illustration:
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-
in paragraph 7 of the statement of case, it is said in relation to the letter of 30 April
2008: “…This is an untrue allegation…suggests the defendant was trying to publicise
statements aimed at disgracing the name and character of the claimant.”;
-
at paragraph 2.2 of the particulars of innuendo, it is pleaded: “Notwithstanding the
seriousness of the allegations…the defendant made no attempt to contact the
claimant prior to publication…this was because the defendant suspected the
allegations were untrue, but did not want to take any steps which would turn that
suspicion into certainty…”; and
-
at paragraph 2.3 it is stated: “…the defendant published the words complained of
knowing that they were false, or recklessly, not caring whether they were true or
false.”
28. In my view, these statements do not adequately raise malice or improper motive by the
defendant and certainly not sufficiently to respond to the detailed particulars set out by
the defendant at paragraph 15 of the Defence. This does not meet the requirements of
Part 73.2 CPR.
29. This issue turns on a pleading point on a contest between parties. When qualified
privilege was raised, it was necessary for the claimant to dispute this on the basis that
the defendant was being malicious. He did not. It must be taken that he does not
dispute that it was an occasion of qualified privilege and that that the defendant was
not being malicious.
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30. The submission of the defendant therefore succeeds. This claim must be dismissed as
there is no issue now to resolve.
31. I will hear the parties on costs.
Ronnie Boodoosingh
Judge
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