Dr. Richard Van West-Charles has been awarded damages to the tune of $10 million against the Kaieteur News which had published libelous statements concerning his fuel company—Atlantic Fuels Inc.
The ruling was handed down last week by High Court Judge Navindra Singh who found that allegations of fuel-smuggling and under-invoicing levelled against the fuel company by Kaieteur News were unsubstantiated.
Van West-Charles had instituted legal proceedings against the Kaieteur News back in August of 2019 over a series of articles published between January 6th and March 27th, 2019 which he said were false and defamed both him and his business.
Van West-Charles’ claim was that the publications meant and were understood to mean that he was unfit to hold public office; and that his business was involved in criminal conduct, including under-invoicing fuel purchases for the purposes of evading taxes and smuggling of fuel, and that his Company corruptly secured a fuel import license.
Van West-Charles (the Claimant), contended that the publications were false and caused significant harm and injury to his reputation and lowered his standing in Guyana and the international community and has brought him into public odium.
In his statement of defence, owner and publisher of the Kaieteur News, Glenn Lall (the Defendant), admitted that the articles complained of were published by his newspaper, but through his attorney Shaunella Glen pleaded the defences of justification and fair comment.
The facts deposed in the claim, two days after the initial publication, stated that Van West-Charles informed the publisher that the article was libelous to which Kaieteur News pleaded no admission.
According to court documents seen by this newspaper, Van West-Charles had testified that he did not have any direct knowledge with respect to the purchase of the fuel which was the subject of the article.
Lear Goring—a Director of Atlantic Fuels—had testified that the Claimant Company did in fact pay Century Maritime LLC the sum US$0.25¢ per liter for the fuel.
He went on to testify that an invoice so reflecting was provided to Atlan-tic Fuels by Henry Rambarran, but because of issues discovered between Rambarran and Century Maritime LLC, the arrangement with Rambarran was “scrapped” and a new deal was struck with Century Maritime LLC.
Lall, according to court documents, testified that having examined the documents presented to the Kaieteur News “and conducting the necessary investigation as responsible journalism dictates,” the articles in question were published.
Lall had told the Court that the “story was investigated by one of his reporters, Leonard Gildarie” and edited by his then Editor-in-Chief, Adam Harris.”
Asked specifically under cross-examination, however, whether the Guyana Revenue Authority (GRA) had been contacted in a bid to ascertain the veracity of the articles intended for publication, Lall said they only contacted the revenue authority after.
While he said that the story had been investigated by Gildarie, attorney Rexford Jackson who represented the Claimants asked Lall whether it was an “intensive investigation” which was conducted.
“I hope so and I believe he [Gildarie] did,” Lall said in response.
Pressed further as to whether he had been told that “the documents were fake,” Lall said “I can‘t answer that,” but went on to add; “I guess my journalist would have checked with GRA about the invoices and came up with the story.”
Meanwhile, regarding the reference in one of the articles to the “smuggling” of fuel, Lall told the court he could not say “why the smuggling excerpt was part of the article.”
Jackson then asked him whether the fact he had mentioned that Dr. Van West-Charles was the son-in-law of the former president implied that he used political influence to obtain licences. Lall answered in the affirmative, stating, “We contacted the agencies and they said that the applications were fast tracked.”
According to the court documents, Rambarran testified that he purchased 170,000 gallons of fuel from Century Maritime LLC and utilized Atlantic Fuels’ import license “at a cost” and for that purchase he was provided a commercial invoice from Century Maritime which showed he purchased the fuel for US$0.59¢ per litre when converted from gallons which is the unit used on the invoice to litres.
He testified that Goring then forwarded another invoice to him to insert his name and that that invoice was produced to the GRA; but accepted under cross-examination that that very invoice did not bear the stamp or seal of the GRA.
“I can’t say for a fact that this document [invoice] was submitted to GRA,” Rambarran told the court when asked.
Citing a plethora of case law authorities in his analysis of whether the articles complained of were defamatory, Justice Singh said that each publication must be construed as a whole and the context in which the words were used considered.
On this point the judge noted the definition of under-invoicing “as the act or practice of stating the price of a commodity on an invoice as being less than the price actually paid.”
The publications the judge said, “indisputably and unambiguously” stated that Atlantic Fuels and Van West-Charles submitted invoices to the GRA on which the stated price of fuel that it imported into Guyana was less than what was actually paid for the fuel.
Justice Singh said that in this regard the publications were clearly intended to convey that the Claimants were involved in criminal activity to defraud the State of revenue through under-invoicing and tax evasion.
The judge said that Lall in his testimony “effectively admits that that was the intended thrust and message intended to be conveyed by the articles.”
Justice Singh said that the newspaper Company failed to provide any evidence that either Van West-Charles or Atlantic Fuels submitted a falsified invoice for fuel purchased/ imported by them to the GRA and also failed to provide any evidence that either of them was under investigation by the revenue authority for under invoicing.
The judge said that in this regard, the defence of justification specific to under invoicing could not be validated by any evidence.
Regarding the issue of smuggling, Justice Singh highlighted Lall’s testimony admitting that he could not provide a reason why an excerpt on smuggling was included in the article.
Further to that, he said the defendants presented no evidence substantiating that the Claimants were involved in fuel smuggling; while noting that Lall’s testimony in fact suggested that they [Kaieteur News] “did not even harbour the belief that the Claimants were involved in fuel smuggling.”
“In any event, the particular of justification with respect to linking the Claimants to fuel smuggling…is nonsensical and does not even pretend to justify the article,” the judge stated further.
Meanwhile, with respect to the implication in the articles that Atlantic Fuels would have obtained its fuel import licence through corruption, the judge pointed to Lall’s testimony that that was what the article intended convey.
The judge said that again, Kaieteur News failed to present any evidence to the Court, showing that the fuel company obtained its fuel import license through any improper means whether facilitated by Van West-Charles or at all.
The evidence, Justice Singh said, showed that the publications by the Kaieteur News could not possibly be considered to be justified and in that regard the Court found the publications to have been defamatory in nature.
Citing legal authorities, Justice Singh then noted that with respect to the defence of fair comment, “in a case where the facts are fully set out in the alleged libel, each fact must be justified and if the defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence.”
Against this background the judge said that the defence of fair comment is not available to the defendants in this case; while further stating the Court’s finding that the publications clearly attacked Van West-Charles’ character, labelling him a dishonest person who “engages in fraudulent or criminal practices and in highlighting that he was a senior government official implied that he was not fit to be a public officer.”
“The publications are defamatory of the Claimants and would tend to lower the standing of the [fuel company] in society in the estimation of right-thinking members of society and bring the [it] into disrepute as a business entity,” the judge found.
In assessing the appropriate quantum of damages Justice Singh noted in his judgment that he took into consideration among other things that the libel attacked Van West-Charles’ personal integrity and professional reputation as a public figure who served in high public office, and was at the time serving as a senior public official.
“This indeed makes the libel very grave,” the judge said.
Also considered the judge said, was the fact that the libel “was bound to cause [him] distress, hurt and humiliation” and damage his reputation in the business world; by its publication via the World Wide Web.
Justice Singh said he also considered the fact that Kaieteur News insisted on asserting the truth of the libel by persistence in the defences advanced, despite not being in possession of “a single piece of evidence to prove the truth of any statement published.”
The judge said that the manner in which the defences were pleaded, using the pleadings to “further cast aspersions on the Claimants’ integrity knowing that they were not in possession of evidence to substantiate the pleadings” had to also be considered; while underscoring Kaieteur News’ failure to apologize or express any regret over the publications despite being written to.
Taking all the matters into account, Justice Singh assessed damages against the newspaper company in the sum of $10,000,000, which he noted included an assessment of aggravated damages.
The Court further went on to award interest at the rate of 6% per annum from August 5th 2019 when the claim was filed to November 5th 2021 and 4% per annum thereafter until fully paid.
Additionally, court costs in the sum of $1,650,000 was also awarded to the Claimants which has to be borne by the Defendants.
