Pre-action protocol letter sent to the Trinidad Express

13 April, 2012

The Trinidad Express Newspaper Limited
c/o The Corporate Secretary     
Trinidad Express Newspaper Limited   
35-37 Independence Square      
Port of Spain        
Trinidad        

Dear Sir/Madam,
Pre-action Protocol

Re: Publication of defamatory material against the Honourable Kamla Persad-Bissessar SC, MP, Prime Minister of the Republic of Trinidad and Tobago, in the edition of the Trinidad Express Newspaper of Tuesday 27 March, 2012.
---------------------------------------------------------------------------------------------------------------------
We act along with Ms. Christlyn Moore and Mr. Alan Newman QC on behalf of the Honourable Kamla Persad-Bissessar SC, MP, Prime Minister of the Republic of Trinidad and Tobago.  

This pre-action protocol for an intended claim for defamation is issued in accordance with the Practice Direction dated 15th November 2005 issued by the Judiciary of Trinidad and Tobago and in compliance with the requirements of Appendix C to such Practice Direction.

1.0 The Intended Claimant

1.1 The Intended Claimant is the Honourable Kamla Persad-Bissessar, SC, MP, Prime Minister of the Republic of Trinidad and Tobago. She is the Political Leader of the United National Congress, a major political party in Trinidad and Tobago which currently holds twenty-one (21) seats in the Parliament.   She was appointed Prime Minister on May 28th, 2010 after an astounding victory in the General Election held on May 24th of that year.

1.2 The Honourable Kamla Persad-Bissessar SC, MP is the holder of Bachelor of Arts, (Hons.), Degree, a Diploma in Education, a Bachelor of Laws (Hons.) and a Legal Education Certificate.  She also holds an Executive Masters in Business Administration (EMBA) from the Arthur Lok Jack Graduate School of Business,

1.3 She is an attorney at law of over twenty-five years standing and has attained the prestigious rank of Senior Counsel. She has enjoyed an illustrious career in the practice of law where she has successfully advocated landmark cases in the spheres of constitutional law, public law and land law.  She is renowned for her sterling contributions in the debates of the House of Representatives where she has continuously and successfully defended the rights of citizens of this country and has upheld the highest principles of democratic government and the rule of law.

1.4 In her capacity as a Member of Parliament which she has continuously held since 1995, she has undertaken and pursued relentless social and humanitarian work to the benefit of the community and the wider citizenry. 

1.5 She was a former Alderman in the St. Patrick County Council and a former Attorney General, Minister of Legal affairs and Minister of Education in the Government of the Republic of Trinidad and Tobago during the period 1995 to 2001 where she served with competence and dignity. Indeed it was under her stewardship as Minister of Education that universal secondary education was achieved in this country.

1.6 Mrs. Persad-Bissessar, SC, MP is a person of impeccable character and reputation and is internationally respected as a world leader.  Her astute leadership qualities have no doubt contributed to her attaining the position of first female Prime Minister of the Republic of Trinidad and Tobago, the first female Commonwealth Chairperson-in-Office and the leader of the coalition of political parties forming the government. She has always maintained the highest levels of professionalism, adhered to the highest ethical standards in her professional and personal capacities and has an unblemished track record in her distinguished career.

1.7 She is a tireless and selfless servant to the public and is an exemplary philanthropist as evinced by her numerous humanitarian efforts including the advocating and development of the Children’s Life Fund and other like causes.

1.8 Under her stewardship as Prime Minister, the Government of the Republic of Trinidad and Tobago has made significant inroads into the alleviation of poverty, has reduced the abuse of national resources, curtailed the incidence of criminal activity and has successfully marketed Trinidad and Tobago in the international community of nations with the objective of increasing foreign investment and economic benefit.
 
1.9 Her relentless dedication towards the pursuit of increased access by the citizenry to tertiary education has received international accolades.  She is a shining exemplar to her peers in the developing world, which has made Trinidad and Tobago a model nation.

1.10 Our client’s husband, Dr. Gregory Bissessar is the registered owner of a parcel of land situate at Corner Moon Ridge Drive and SS Erin Road, Phillipine.  In or about the year 2010, Dr. and Mrs. Persad-Bissessar completed the construction of their family home at the said lands.  This property constitutes the private residence and family home of the Honourable Prime Minister and her family.  It is a general characteristic of the geography of the area that the lands upon which the house was constructed are undulating in nature. 

2.0 The Intended Defendant

2.1 The Intended Defendant in this matter is the Trinidad Express Newspaper Limited, a limited liability company registered in Trinidad and Tobago.  The Trinidad Express Newspaper Limited is the printer and publisher of the Trinidad Express Newspaper, a daily newspaper circulating in Trinidad and Tobago.  The Trinidad Express Newspaper boasts the widest circulation in this country, both in its printed and online edition, the latter of which is accessible on the worldwide web.  In this regard, it has published data from recent Market Facts and Opinion (“MFO”) surveys in testimony thereof. 

3.0 The Nature of the Claim

3.1 Our client, the Honourable Kamla Persad Bissessar, SC, MP, BA, LLB, LEC, EMBA intends to make a claim against you for damages, including aggravated and exemplary damages for libel contained in the publication of certain words and statements in the edition of the Trinidad Express Newspaper of March 27, 2012. The said words were published in an article appearing at the front page of the said edition.  It was authored by your reporter, Susan Mohammed and reviewed and approved by your Editor and bore the following headline caption: “NEIGHBOURS FLEE”

The said article was accompanied by a front page photographic image depicting signage entitled “HOUSE 4 SALE”, two motor vehicles and a portion of the house owned by the Honourable Prime Minister and her husband. 

3.3 The banner heading was prominently featured in bold print of the front page of the said newspaper with the text of the said article published thereafter.  A copy of the said article is enclosed.

3.4 The said words are defamatory of our client.  They were falsely and maliciously published and were calculated to damage and defame the Honourable Mrs. Persad-Bissessar in her personal and Prime Ministerial reputation and as Leader of the People’s Partnership Government.  By the said publication, you have brought our client’s good name and reputation into odium and disrepute, have sullied her personal and political reputation and have disparaged her in the eyes of the public.

3.5 This article is published in permanent form for the general readership of members of the public.   It was also the subject of several commentaries in the form of radio talk shows and broadcasts on the electronic media network.

3.6 The said words, when taken in their natural and ordinary meaning, and/or inferential meaning meant and would have been understood to mean that:

i. Mrs. Persad-Bissessar as Prime Minister of the Republic of Trinidad and Tobago and Leader of the People's Partnership Government is engaged in improper activity by the commission of acts of public and private nuisance at her private residence.  By so doing she has caused disturbance and interfered with the quiet enjoyment of subjacent landowners.

ii. There are persistent and intolerable levels of social activity at the private residence of the Honourable Prime Minister and her husband.  Such activity results in the generation of excess levels of noise, which is in derogation of the general character of the area as a middle class residential community.

iii. The Honourable Prime Minister frequently hosts late night parties and social events at her private residence and this is repugnant to her office and stature.

iv. The Honourable Prime Minister constantly disturbs the peace and contravenes the noise pollution regulations of Trinidad and Tobago.

v. The Honourable Prime Minister has interfered with the proprietary rights of the Achilleous family to the extent that it has become so intolerable, that this family has had cause to flee the neighbourhood, and consequently place their property on the market for sale.  

vi. The Honourable Prime Minister is negligent and has compromised the security of her neighbours and that of the community and has created an unsafe environment for the residents of Philippine.

vii. She has encroached and trespassed upon the lands lawfully belonging to the Achilleous family.  By so doing, she has engaged in an illegality for which she is subject to legal sanction.

viii. The Honourable Prime Minister has disturbed the view afforded from the home of the Achilleous family by the construction of a fence.  She has callously and capriciously disregarded the interests and rights of a subjacent landowner. 

ix. The Honourable Prime Minister has engaged in improper and nefarious activity at her private residence to the extent where she has caused the diminution in value of the property of her neighbour and that of other subjacent landowners.   

x. Her relationship with the residents of the community in which she has built her private residence is acrimonious.  She is unreceptive to dialogue with the residents of Philippine and has behaved in an uncaring and callous manner.

xi. The Honourable Prime Minister has embarked upon a course of conduct which was deliberately calculated to cause the Achilleous family to vacate their residence.

xii. The Honourable Prime Minister has used her office of Prime Minister and the powers conferred upon her in this regard to oppress and restrict the rights and freedoms of residents in the Philippine area.

xiii. The Honourable Prime Minister has caused to be placed at her private residence unnecessary and unwarranted security measures such as to create a risk to the community.

xiv. The security measures in place at the private residence of the Honourable Prime Minister have caused danger to the children of the Achilleous family.

xv. The Honourable Prime Minister has placed her own personal security over and above that of the entire community.

xvi. The Honourable Prime Minister has acted in an improper manner in the performance of her duties and obligations to the Republic of Trinidad and Tobago and is thereby unfit to hold the office of Prime Minister.

xvii. The Honourable Prime Minister has violated the principles of integrity and the Code of Conduct expected of her in her private and public life.

These charges amount to a very serious libel against our client and have caused her considerable distress and embarrassment.  The allegations made against her are false and your attack in this regard was unjustified.

4.0 The Intended Claim

4.1 Our client intends to make a claim against you for damages, including aggravated and exemplary damages for libel contained in the said article printed and published by your newspaper and authored by your reporter Susan Mohammed.

4.2 Having regard to the scurrilous and unfounded allegations which have hurt our client’s personal, national and international reputation and which have lowered her in the estimation of reasonable persons in society, she can be expected to receive substantial damages for the publication of the said words.

Further, the said article, as published and authored by your reporter is malicious and represents a continuum of a spate of publications by your newspaper which has castigated the personal and professional conduct of the Honourable Prime Minister. 

5.0 The Particulars of intention and malice

5.1 At all material times you intended and/or were aware that the matters reported to you which would have constituted the basis for the publication of the said article would be reported and published in whole or in part by the Trinidad Express, as in fact they were, and their publication as aforesaid constitutes a grievous defamation against our client for which you are liable.

5.2 At all material times you knew or ought to have known that your newspaper is distributed throughout Trinidad and Tobago and the rest of the Caribbean and that it is published on the world wide web system of the internet at www.trinidadexpress.com and that the said defamatory matters which you published were so published. Indeed, the story entitled “Neighbours Flee” was not only carried in your printed edition, but also in your online edition which remains accessible to date. The Trinidad Express Newspaper is one of the most widely read newspapers in Trinidad and Tobago, with its daily circulation being in excess of 75,000, and a readership several times that number in the international community.

5.3 Further, the matters contained in this publication, as you intended, were and are the subject of radio commentary and call-in programmes and are being continuously aired on radio networks to a substantial number of listeners.  It has generated a great deal of interest in the wider public and is the subject of much debate amongst persons engaged in the practice of “cyber blogging”.

5.4 Had your reporter engaged in proper and balanced journalism, consistent with the proper practice of her profession, she would have been aware that:
i. The spurious claim that “visual freedom” is a right is devoid of legal merit.

ii. If there exists in the community an intolerable level of noise emanating from musical and phonographic equipment, such is not generated from the residence of or by the users and occupiers of the private residence of the Honourable Prime Minister.

iii. The assertion of the “encroachment of one’s freedom” because of the erection of a chain link fence in the legitimate boundaries of the private residence of the Honourable Prime Minister constitutes no basis to predicate a violation of the rights of a subjacent landowner.  Property owners enjoy the freedom to identify and demarcate their legitimate boundaries by the construction of a fence, provided that such is done within the legally established boundaries of one’s property.  This cannot constitute an “encroachment of a freedom”.  

iv. There is no regulatory prohibition in the construction of a fence on one’s property.

v. The office holder of Prime Minister is entitled to the protection of his/her person and private residence, and in so doing all reasonable and practicable steps must be employed by security forces.  Such is left to the discretion of State security personnel who are charged with this responsibility and the Honourable Prime Minister has little or no say in such detail.

vi. The undulating topography of the area in which the Honourable Prime Minister and her husband have constructed their private residence is such that those lying at a different elevation may be impeded in their view.  Further, the construction of a fence between the Honourable Prime Minister’s private residence and that of the Achilleous’ property was necessary for the protection of both properties and would have served to enhance the value and aesthetics of their respective premises.

vii. There were occurrences where the children of the Achilleous family were seen playing in an area inside the boundary line of the Honourable Prime Minister’s private residence.  The construction of a fence was necessary to protect the very same children since the private residence of the Honourable Prime Minister is protected by State security officials who may be armed.  The construction of the fence was calculated to stave off any potential mishap which could have occurred and was so done in the best interests of the Achilleous family. This cannot be inimical to their property and/or security.
 
The foregoing list is not exhaustive and our client reserves the right to expand or amplify any of the foregoing matters and the other issues which have been falsely and maliciously reported.

5.5 Had your reporter conducted the necessary research and made the relevant inquiries as was required of her in accordance with acceptable standards of journalism, she would have been aware of the foregoing facts.  Her failure to adequately do so justifies our client’s assertion that the publication was actuated by malice and bad faith.

5.6 Further, the publication did not contain any issues of national importance that were newsworthy as a lead story, or fit for the front page of any respected and impartial newspaper. Instead the said publication promoted sensationalism and was intended to provoke from your readership negativity and disparagement towards the Honourable Prime Minister.

5.7 Above all, the head of the Achilleous household has publicly denied making any statement to your newspaper which suggested or could have suggested that the Honourable Prime Minister was responsible for him placing his property for sale on the market.  Indeed it is a matter of public record that a member of this family has lodged an objection at the District Magistrate’s Court to the renewal of an operator’s license of a nearby entertainment facility which frequently engages in the playing of loud music. 

5.8 The publication of these allegations constitutes a very serious libel against our client and has caused her considerable embarrassment and distress.  This publication has damaged the Honourable Prime Minister in her personal, national and international capacities and has caused her to suffer irreparable harm. 

For the avoidance of doubt, our client reiterates her respect for the rights and freedoms of the press in a free and democratic society.  She has stood and continues to stand steadfastly behind the preservation of such rights and shall continue to defend and preserve the rights of a free press.  Where however a publication (such as the one made by you and headlined “Neighbours Flee”) degenerates to the level where it has caused serious harm to the personal, professional and public life of our client, no effort shall be spared by her to vindicate her good name and reputation, where such is unjustifiably vilified. 

6.0 Nature and details of remedies sought

6.1 In these circumstances, our client requires from you as a matter of extreme urgency a full and unequivocal retraction and apology on terms to be approved by Counsel, which are to be published in all daily newspapers circulating in Trinidad and Tobago and on the internet websites by advertisements paid for by you, and an undertaking not to repeat these allegations. Further, our client requests that the said article entitled “Neighbours Flee” be forthwith removed from your online archives.

6.2 Counsel has advised that the Honourable Prime Minister is also entitled to substantial compensation for the injury caused to her reputation and feeling, including an award for aggravated and exemplary damages.  In this regard, we are to invite your proposals.

6.3 In the circumstances, we look forward to hearing from you without delay but in any event within 21 days of the date of this letter.  If no satisfactory response is received at these offices within this period, our instructions are to issue a claim form against you and to expeditiously prosecute the claim.

Yours faithfully,

….................................
Kelvin Ramkissoon
Attorney-at-Law

cc   The Hon. Kamla Persad-Bissessar SC, MP, Prime Minister.