CJ: $100 for Ken Gordon

CHIEF JUSTICE Sat Sharma, in a minority judgment of the Court of Appeal yesterday, awarded former CCN chairman Ken Gordon $100 as nominal damages against former Prime Minister Basdeo Panday for alleged libel.

The Chief Justice allowed the appeal brought by Panday, who had been ordered by Justice Peter Jamadar on October 11, 2000, to pay $600,000 in damages along with costs for referring to Gordon as a “pseudo-racist” at an Indian Arrival ceremony in 1997. In his judgment, the Chief Justice disagreed with Justice Jamadar. CJ Sharma pointed out that under cross-examination at the trial, Gordon said he brought the libel action “to teach the Prime Minister a lesson” and that was why he refused to take action against other media houses who published the alleged libel. The Chief Justice added, “it could be said that this reflects a touch of arrogance which is contrary to the public policy behind compensation for defamation. The public policy underlying awards of damages is premised on the bona fides of the plaintiff and the legitimate need for self-vindication. “The courts are very cautious of using damages as a punitive deterrent because of the potential ‘chilling effect’ on free speech,” he added.

CJ Sharma said Gordon’s case bordered on an abuse of the process of the court. “Moreover, it does nothing to enhance his widely acclaimed title ‘Champion of free speech, and freedom of the press.’” However, in a majority judgment, Appeal Court Judges Roger Hamel-Smith and Margot Warner slashed the $600,000 award to $300,000 and ordered Panday to pay 75 percent of Gordon’s costs. Dr Fenton Ramsahoye SC and Anand Ramlogan appeared for Panday, while Douglas Mendes and Vanessa Gopaul represented Gordon. Dr Ramsahoye informed the court that he intends filing an appeal to the Judicial Committee of the Privy Council on Panday’s behalf. That application was expected to be filed late yesterday. Following the court’s decision, Panday confirmed that he will be going to the Privy Council. “Thank God for the Privy Council,” the UNC political leader added. Questioned about the judgment and the planned appeal to the Privy Council, Panday said “these are matters for the lawyers.” Panday was accompanied in court by Fyzabad MP Chandresh Sharma and Senator Robin Montano. Gordon, who was also in court, said he was disappointed by what he heard in the dissenting judgment. “I really have no comment, the process is there. If you have confidence in the courts, then you will rely on their judgment. But that is my personal view.” Gordon filed a writ following Panday’s speech in his capacity as Prime Minister at an Indian Arrival Day celebration in Candernagore on May 30, 1997. On that occasion, Panday spoke passionately of the need for national unity in TT that was a highly divided society. He pinpointed several “dividers” of the society, one class of dividers being persons whom he called “pseudo-racists.” He also spoke of Ken Gordon in the following manner: “The Ken Gordons who want to maintain his monopolistic advantage over his competitors in the media.”

On October 11, 2000, while Panday was still Prime Minister, Justice Jamadar found that Panday had wilfully and maliciously defamed Gordon in the worst possible way. Panday was held liable for libel and slander and ordered to pay $600,000 and costs. Panday appealed. The Chief Justice said he was convinced that the award of $600,000 in damages was excessive in all the circumstances of the case. He disagreed with the judge’s award of aggravated damages. He said an award of nominal damages was more suitable and therefore awarded Gordon $100. Justice Hamel-Smith, in his judgment, said while the allegation made against Gordon was considered to be very serious, the loss to reputation could not be considered as severe and irreparable. He considered an award of $300,000 to be more appropriate and fair to compensate Gordon and re-establish his reputation. He also ordered that Gordon be paid interest at the rate of 12 percent per annum from the date of the judgment. In a separate judgment, Justice Warner agreed with Justice Hamel-Smith on the $300,000 figure. She said she was satisfied that the ordinary reasonable listener or reader would have concluded that Panday used race to his personal and commercial advantage. “He reasoned that pseudo-racists were not real racists because the latter category of persons looked after their race. The clear implication was that pseudo-racists were even more despicable than racists.” Justice Warner said there was no doubt that Panday was describing Gordon.