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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

SAN FERNANDO

Claim No CV 2016 - 02776

Between

RICARDO CADOGAN

Claimant

And

CCN TELEVISION LIMITED

First Defendant

ROGER ALEXANDER

Second Defendant

MARLAN HOPKINSON

Third Defendant

Before Her Hon Eleanor Joye Donaldson-Honeywell

Appearances:

Mr. Douglas Bayley instructed by Ms. Alvia Mootoo for the Claimant

Mr. Faarees Hosein instructed by Ms. Carolyn Ramjohn-Hosein for the Defendants

Delivered on: 22nd September 2017

RULING

I. Background

1. The Claimant commenced proceedings against the First, Second and Third Defendants

(“the Defendants”) by way of an Amended Claim Form and Amended Statement of Case

filed 4 November, 2016. The Defendants filed a joint Defence on 6 December, 2016.

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2. At the first Case Management Conference the Honourable Madam Justice Donaldson-

Honeywell directed that Evidential Objections would be heard at the Pre Trial Review. At

the Pre Trial Review on 25 April, 2017, upon hearing the attorneys for the Claimant and

Defendants, the following orders were made with regard to the Evidential Objections:

i. The following lines and paragraphs of the Witness Statement of Ricardo Cadogan

are not struck out:

a. Paragraphs 9, 12, 20, 28 and 29 in their entirety

b. Paragraph 16, line 3.

ii. A Decision is reserved as to whether the following lines and paragraphs in the

Witness Statement of Ricardo Cadogan are struck out as not being pleaded:

a. Paragraph 7, line 4, the sentence commencing “My” to page 3, line 1, the

word “to” and Paragraph 7, page 3, line 3 commencing with the word

“she” and ending with the word “crying”

b. Paragraph 8, line 5 commencing with the word “Members” ending in Line

6 the word “Worried”

c. Paragraph 11, 14, 21, 22, 23, 24 and 25 in its entirety.

d. Paragraph 30, line 3-5 with the word “I” and ending line 5 with the word

“unemployed”.

iii. A Decision is reserved as to whether the following lines and paragraphs in the

Witness Statement of Roger Alexander are struck out as merely stating a conclusion

that should be determined by the court:

a. Paragraph 12 in its entirety.

b. Paragraph 13, line 1-2, the words “it was wholly justifiable”

iv. With regard to the Defendants’ Hearsay notice dated and filed on 7 April, 2017 the

documents are admitted into evidence with regard to fact of their existence only.

v. Paragraph 12, line 4 of the Witness Statement of Leslie Corbie the words “charged

with the responsibility for the crime detection and prevention” are not struck out.

3. The Defendants’ objections were made in three main parts, outlined as follows:

i. For Paragraph 7, line 4, the sentence commencing “My” to page 3, line 1, the word

“to” and Paragraph 7, page 3, line 3 commencing with the word “she” and ending

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with the word “crying”: this evidence is evidence of another’s state of mind/distress

and therefore hearsay, and further, it is not in support of any pleaded issue

ii. For Paragraph 8, line 5 commencing with the word “Members” ending in Line 6

the word “Worried” and Paragraphs 11, 14, 21, 22, 23, 24 and 25 in their entirety:

This evidence does not support any pleaded issue/allegation and is therefore

prejudicial.

iii. For Paragraph 30, line 3-5 with the word “I” and ending line 5 with the word

“unemployed”: This evidence, as evidence of special damage, has not been pleaded

and is therefore prejudicial.

4. The Claimant’s main objections to the statement of Roger Alexander were that the parts

outlined contained statements of opinion which are conclusions of law to be made by the

Court. Further that these statements are made without foundation.

II. Issues

5. The main issues therefore are as follows:

i. Whether the descriptions of the Claimant’s mental distress during the period when

the alleged publications were broadcast have been made in support of the pleaded

case;

ii. Whether the statements of the Claimant concerning the mental state of his mother

was in support of any pleaded issue;

iii. Whether the averments by the Claimant of his employability have been made in

support of any pleaded issue; and

iv. Whether the statements of Roger Alexander stating that the matter was of serious

public concern and that his actions were wholly justifiable were statements of

opinion and amount to conclusions of law that should be left to the Court.

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III. Law and Analysis

Issue One: Whether the descriptions of the Claimant’s mental distress during the period

when the alleged publications were broadcast have been made in support of the pleaded

case

6. In general, a Claimant has a duty to set out his case. This includes a short statement of all

the facts on which he relies as well as any document which the claimant considers

necessary to his case – Rule 8.6 Civil Proceedings Rules 1998, as amended (“CPR”).

7. Further, the case where defamation is alleged is specifically provided for in the CPR. Rule

73.2 provides:

“The claimant’s (or in the case of a counterclaim, the defendant’s) statement of

case in a defamation claim must, in addition to the matters set out in Part 8—

(a) give sufficient particulars of the publications in respect of which the claim is

brought to enable them to be identified;

(b) where the claimant alleges that the words or matters complained of were used

in a defamatory sense other than their ordinary meaning, give particulars of the

facts and matters relied on in support of such sense; and

(c) where the claimant alleges that the defendant maliciously published the words

or matters, give particulars in support of the allegation.”

8. As submitted by the Claimant, the exchange of witness statements prior to trial mandated

by CPR 29.4 allows parties to know well in advance of the trial the full case of the opposing

party.

9. The Claimant makes reference to the Court of Appeal decision of Charmaine Bernard

(Legal Representative of the Estate of Reagan Nicky Bernard) v Ramesh Seebalack

(2010) UKPC 15 and quotes the dicta of Lord Woolf in McPhilemy v Times Newspapers

Ltd [1999] 3 All ER 775:

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“The need for extensive pleadings including particulars should be reduced by the

requirement that witness statements are now exchanged. In the majority of proceedings

identification of the documents upon which a party relies, together with copies of that

party’s witness statements, will make the detail of the nature of the case the other side has

to meet obvious. This reduces the need for particulars in order to avoid being taken by

surprise. This does not mean that pleadings are now superfluous. Pleadings are still

required to mark out the parameters of the case that is being advanced by each party. In

particular they are still critical to identify the issues and the extent of the dispute between

the parties. What is important is that the pleadings should make clear the general nature

of the case of the pleader. This is true both under the old rules and the new rules. The

Practice Direction to r 16, para 9.3 (Practice Direction – Statements of Case CPR Pt 16)

requires, in defamation proceedings, the facts on which a defendant relies to be given. No

more than a concise statement of those facts is required.”

10. It should be noted that having approved those comments Lord Dyson then added at

paragraph 16:

“But a detailed witness statement or a list of documents cannot be used as substitute for a

short statement of all the facts relied on by the claimant. The statement must be as short as

the nature of the claim reasonably allows.”

11. The Claimant also brings to the court’s attention the St Vincentian case of Eastern Flour

Mills Ltd v Boyea CA No. 12 of 2006 wherein Barrow JA discussed the effect of Lord

Woolf’s pronouncements above:

“[43] Lord Hope’s reproduction and approval of the exposition by Lord Woolf, M.R. in

McPhilemy v. Times Newspapers Ltd. [1999] 3 All E.R. 775 on the reduced need for

extensive pleadings now that witness statements are required to be exchanged, should be

seen as a clear statement that there is no difference in their Lordships’ views on the role

and requirements of pleadings. The position, as gathered from the observations of both

their Lordships, is that the pleader makes allegations of facts in his pleadings. Those

alleged facts are the case of the party. The “pleadings (end of page 21) should make clear

the general nature of the case,” in Lord Woolf’s words, which again I emphasise. To let

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the other side know the case it has to meet and, therefore, to prevent surprise at the trial,

the pleading must contain the particulars necessary to serve that purpose. But there is no

longer a need for extensive pleadings, which I understand to mean pleadings with an

extensive amount of particulars, because witness statements are intended to serve the

requirement of providing details or particulars of the pleader’s case.

[44] It is settled law that witness statements may now be used to supply details or

particulars that, under the former practice, were required to be contained in pleadings.

The issue in the Three Rivers case was the need to give adequate particulars, not the form

or document in which they must be given. In deciding that it was only the pleadings that

she should look at to decide what were the issues between the parties the judge erred, in

my respectful view. If particulars were given, for instance, in other witness statements the

judge was obliged to look at these witness statements to see what were the issues between

the parties. It follows, in my view, that once the material in Mr. McAuley’s witness

statement and Report could properly be regarded as particulars of allegations already

made in the pleadings such material was relevant and, therefore, admissible. This

proposition applies equally to the contents of the documents identified as Tabs 31 and 33.”

12. The Defendant submissions state simply that there is nothing in the pleadings to support

the evidence presented in the witness statement concerning the Claimant’s state of mind

throughout the occurrence of the incident.

13. The Claimant, however, has pointed to Paragraph 23 of the Amended Statement of Case in

which the Claimant avers that “As a result of the defamatory statements he suffers

emotional distress and humiliation” and “continues to suffer harassment by police

officers”. Further at Paragraph 16 the Claimant stated that “by reason of the said

defamatory words which was published by the Defendants, the Claimant has been brought

into public scandal, odium, ridicule and contempt, has been severely injured in his

character, credit and reputation, has been lowered in the estimation of right-thinking

persons generally and has suffered considerable embarrassment and distress”.

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14. The Claimant submits, therefore, that these pleadings are sufficient to make the Defendants

aware of the general nature of its case and that the evidence outlined is to be regarded as

provision of details about the Claimant’s case.

15. These statements contained in the Amended Statement of Case do appear to mark out the

parameters of the case. They have made it sufficiently clear that the Claimant has suffered

mental distress and embarrassment to allow a more detailed expansion in the witness

statement. Therefore, Paragraph 8, line 5 commencing with the word “Members” ending

in Line 6 the word “Worried” and Paragraphs 11, 14, 21, 22, 23, 24 and 25 in their entirety

should be allowed to remain.

Issue Two: Whether the statements of the Claimant concerning the mental state of his

mother was in support of any pleaded issue

16. The Defendants submit that the statements concerning the emotions expressed by the

Claimant’s mother were not in support of any issue that was pleaded and, if led for the truth

of them, amount to hearsay.

17. In answer to this the Claimant submits that this evidence is led merely in an attempt by him

to expand on and provide evidence of his own emotional distress and humiliation as it

would be distressing and humiliating for one’s own mother to question them about the

allegations that are the subject of this claim.

18. This appears to be a sufficient explanation in light of the clear pleading of the Claimant of

emotional distress and humiliation suffered as a result of the Defendants’ actions – See

again Para. 23 of the Amended Statement of Case.

Issue Three: Whether the averments by the Claimant of his unemployability have been

made in support of any pleaded issue

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19. The sentence in question is “I have also found it extremely difficult now to get work and I

remain unemployed”. The Defendants’ objection is that this line does not support any

pleaded allegation/is not in support of any pleaded issue and is unfair and prejudicial to the

Defendants as they are unable to deal with the evidence by way of their own evidence.

20. With regard to the submission that they are unable to deal with this evidence by way of

their own evidence, it must be noted that there will still be opportunity for cross-

examination on this issue which does give the Defendants a chance to uncover any gaps in

the Claimant’s evidence on this point.

21. With regard to insufficient pleading, the Claimant in submissions has relied on Paragraph

16 of his Amended Statement of Case which refers to the public scandal and ridicule he

experienced as sufficient pleading to support the statement.

22. The Defendant has cited the decisions of Ratcliffe v Evans 2 QBD 524 and Salmon v

Issac (1869) 20 LT 885 as authority for the proposition that pecuniary loss and/or

unemployability as a consequence of the alleged defamation must have been specifically

pleaded.

23. The case of Ratcliffe v Evans involved the general loss of business of the plaintiff due to

defamatory remarks made by the defendant. The defendant’s argument was that the

plaintiff’s pleadings did not sufficiently support a claim for special damages in this regard

as it did not identify the loss of particular customers. The court held, however, that the

evidence of a general loss of business was still admissible. A salient passage is found in

the words of Bowen LJ at page 532:

“As much certainty and particularity must be insisted on, both in pleading and proof of

damage, as is reasonable, having regard to the circumstances and the nature of the acts

themselves by which the damage is done. To insist upon less would be to relax old and

intelligible principles. To insist upon more would be the vainest pedantry.”

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24. Duncan and Neill on Defamation1, discussing Practice and Procedure surrounding

defamation actions, state:

“In all defamation actions, the claim form must also specify the remedies which are sought

(usually damages and an injunction), must state that the claim must be issued in the High

Court by reason of s 15(2)(c) of the County Courts Act 1984 and must include a statement

of value. Because damages in defamation actions are at large, it is conventional for

claimants to state that they cannot say how much is likely to be recovered. However in a

claim where the damages will obviously be small, there is an advantage in identifying the

maximum sum which the claimant seeks.”

25. This statement does suggest that some parameters around the remedies sought should be

outlined in the claim form of a defamation action, though it may be difficult to ascertain.

26. Further support for the Defendant’s submission can be found in the case cited by the

Claimant of Bernard v Seebalack.

“But a detailed witness statement or a list of documents cannot be used as a substitute for

a short statement of all the facts relied on by the claimant. The statement must be as short

as the nature of the claim reasonably allows. Where general damages are claimed, the

statement of case should identify all the heads of loss that are being claimed. Under the

pre-CPR regime in England and Wales, RSC Ord 18 r 7 required that every pleading

contained a summary of the material facts and by r 12(1) that “every pleading must contain

the necessary particulars of any claim”. In Perestrello v United Paint Co Ltd [1969] 3 All

ER 479, Lord Donovan, giving the judgment of the Court of Appeal, said at p 485I:

“Accordingly, if a plaintiff has suffered damage of a kind which is not the

necessary and immediate consequence of the wrongful act, he must warn the

defendant in the pleadings that the compensation claimed will extend to this

damage, thus showing the defendant the case he has to meet...Page 8

The same principle gives rise to a plaintiff’s undoubted obligation to plead and

particularise any item of damage which represents out-of -pocket expenses or loss

of earnings, incurred prior to the trial, and which is capable of substantially exact

1 4th Ed. [32.17]

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calculation. Such damage is commonly referred to as special damage or special

damages but is no more than an example of damage which is ‘special’ in the sense

that fairness to the defendant requires that it be pleaded....

The claim which the present plaintiffs now seek to prove is one for unliquidated

damages, and no question of special damage in the sense of a calculated loss prior

to trial arises. However, if the claim is one which cannot with justice be sprung on

the defendants at the trial it requires to be pleaded so that the nature of that claim

is disclosed... ...a mere statement that the plaintiffs claim ‘damages’ is not

sufficient to let in evidence of a particular kind of loss which is not a necessary

consequence of the wrongful act and of which the defendants are entitled to fair

warning.” [Emphasis added]

27. It is clear that a claimant must outline the heads of damage being claimed in order to

sufficiently show the defendant the case to be met. The Claimant in the present case,

although claiming damages in its claim form and statement of case, has not met the

requirements in the pleadings to introduce this new head of damage into the evidence.

Therefore, Paragraph 30, line 3-5 beginning with the word “I” and ending line 5 with the

word “unemployed” should be struck out.

Issue Four: Whether the statements of Roger Alexander stating that the matter was of

serious public concern and that his actions were wholly justifiable were statements of

opinion and amount to conclusions of law that should be left to the Court

28. The Defendants on this issue have submitted on the substantive defence of their case,

highlighting their intent to rely on the defence of Reynold’s privilege2. They submit that

due to this, it is important to outline in evidence that the subject matter of the publication

was of public interest and wholly justifiable. They submit that the witness’s opinion on the

public interest in the information is a relevant consideration to the determination to be made

by the Court.

2 Reynolds v Times Newspapers Ltd and others - [1999] 4 All ER 609

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29. The Claimant submits that opinion evidence is not admissible in the present circumstances

(Chaitlal v AG HCA No. 2472 of 2003). He further cites an excerpt from the case of

Sherrard v Jacob [1965] NI 151 which states:

“I find in the judgment of Kingsmill Moore J. a statement of the principles which I have

found expressed in the leading text-books and in judgments. The passage n4 is as follows:

“It is a long standing rule of our law of evidence that, with certain exceptions, a witness

may not express an opinion as to a fact in issue. Ideally, in the theory of our law, a witness

may testify only to the existence of facts which he has observed with one or more of his own

five senses. It is for the tribunal of fact – judge or jury as the case may be – to draw

inferences of fact, form opinions and come to conclusions. The witness, as far as possible,

puts the judge and jury in the position of having been present at the place and time when

the fact deposed to occurred, and having been able to make the observations. The witness

may be lying, his powers of observation may be deficient, his ability to express clearly what

he observed may be inadequate, his memory may be faulty. These are inescapable hazards.

But it is possible to avoid the further hazards of prejudice, faulty reasoning and inadequate

knowledge, which would be introduced if a witness were allowed to give his opinion, and

the tribunal of fact were allowed to act upon it. To this ideal rule exceptions have been

introduced for reasons of necessity and practical convenience. The nature of the issue may

be such that even if the tribunal of fact had been able to make the observations in person

he or they would not have been possessed of the experience or the specialised knowledge

necessary to observe the significant facts, or to evaluate the matters observed and to draw

the correct inferences of fact. Questions of this nature are usually compendiously referred

to as 'matters of science and art', and in such matters the tribunal may be assisted by the

evidence of persons qualified by experience, training and knowledge, to guide the tribunal

to the correct conclusions. Such persons, generally described as experts, may express their

opinions and conclusions, and such opinions and conclusions may be based not only on

their own observations but on the observations of other witnesses who have given evidence.

No question of expert evidence arises in the present case.” [Emphasis added]

30. It is apparent that the witness is stating his opinion that the publication was a matter of

serious public concern and interest and it was justifiable for him to include the Claimant in

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the broadcasted segment. This is, in fact a conclusion of law which in itself, falls for the

Court’s adjudication. That question of whether it was justifiable for the Defendants to

publish the said photograph ought rightfully to be determined by the Court. Therefore,

Paragraph 12 in its entirety and Paragraph 13, line 1-2, the words “it was wholly justifiable”

of the Witness Statement of Roger Alexander should be struck out as merely stating a

conclusion that should be determined by the court.

IV. Conclusion

31. It is hereby ordered that:

a. The following lines and paragraphs in the Witness Statement of Ricardo Cadogan

are not struck out:

i. Paragraph 7, line 4, the sentence commencing “My” to page 3, line 1, the

word “to” and Paragraph 7, page 3, line 3 commencing with the word “she”

and ending with the word “crying”

ii. Paragraph 8, line 5 commencing with the word “Members” ending in Line

6 the word “Worried”

iii. Paragraph 11, 14, 21, 22, 23, 24 and 25 in its entirety.

b. The following lines and paragraphs in the Witness Statement of Ricardo Cadogan

are struck out as not being pleaded:

i. Paragraph 30, line 3-5 beginning with the word “I” and ending line 5 with

the word “unemployed”

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c. The following lines and paragraphs in the Witness Statement of Roger Alexander

are struck out as stating an opinion/conclusion that is to be determined by the court:

i. Paragraph 12 in its entirety.

ii. Paragraph 13, line 1-2, the words “it was wholly justifiable”

…………………………………….

Eleanor Joye Donaldson-Honeywell

Judge.

Assisted by: Christie Borely, JRC I