Foster allowed to introduce ‘evidence’ in defamation claim against UNC senator

Youth Development and National Service Minister Foster Cummings has scored a minor victory in his defamation claim against Opposition Senator Jayanti Lutchmedial for publishing confidential financial documents in 2022.

On February 19, Justices of Appeal Peter Rajkumar and Maria Wilson ruled that Cummings would be allowed to reply to Lutchmedial’s defence by introducing evidence to rebut some of her contentions.

Cummings filed the procedural appeal after the trial judge hearing his defamation claim did not allow portions of his reply to Lutchmedial’s defence.

In an oral ruling, delivered by Rajkumar at the Hall of Justice, Port of Spain, the Appeal Court held that the minister was entitled to proffer a reply.

Rajkumar said since Justice Nadia Kangaloo did not give reasons for now allowing Cummings to proceed with his rebuttal evidence, the Appeal Court had to look at the matter afresh and consider all the facts.

He also said the judge, at trial, could determine if the evidence is relevant or not.

It was for this reason that Cummings’s appeal was allowed and Kangaloo’s order varied to allow him to include certain paragraphs contained in his draft reply in answer to the senator’s defence.

Earlier, Cummings’s lawyer, Senior Counsel Ramesh Lawrence Maharaj, argued that his client was entitled to provide evidence in his defence.

“If you publish defamatory statements about me, I am entitled to provide evidence in my defence.”

He argued the judge was wrong not to allow Cummings to respond in the way he wanted in reply to Lutchmedial’s defence.

However, Lutchmedial’s lawyer, Senior Counsel Anand Ramlogan, argued the judge was correct to disallow new statements in Cummings’s reply, which were not pleaded in his claim.

“It is not fair to now introduce new evidence in a reply after a defence is filed. There was nothing in the defence to trigger the introduction of new evidence.”

He also argued that a reply was not an opportunity for a claimant to revisit their case or regurgitate what was already contented in their statement of case which, he said, Cummings had already amended after Lutchmedial’s defence had been filed.

Cummings filed the defamation lawsuit maintaining Lutchmedial defamed his name when she, on May 5, 2022, while at a UNC public meeting, revealed the contents of a Special Branch report, which she said she received in her mailbox from a whistleblower.

She then posted confidential documents she introduced at another public meeting.

She subsequently posted a statement on her Facebook account relative to the allegations, calling for the allegations to be thoroughly investigated by police.

Cummings contended the report was “private and confidential” and should not have been revealed to the public. On May 16, 2022, at another UNC public meeting, Lutchmedial presented several documents, including a source of funds declaration form, two letters of awards and a cheque, which all referenced Cummings, which she again posted on her Facebook page.

He subsequently sought an injunction to restrain Lutchmedial from reposting corruption allegations against him on her social media accounts.

On June 10, 2022, Kangaloo dismissed his injunction application, ruling that the information Cummings sought to classify as confidential could be in the public domain as he is a politically exposed person.

His lawyers then filed an initial procedural appeal complaining why they felt Kangaloo got it wrong but later withdrew the appeal and the matter proceeded to the case management stage before the judge until she ruled he could not advance his reply in the way he proposed.

Lutchmedial was ordered to pay Cummings’s costs of the procedural appeal quantified by the judges at $30,000.

Both Cummings and Lutchmedial were in court for the hearing of the procedural appeal.

Cummings was also represented by attorneys Ronnie Bissessar, SC, Kingsley Walesby and Varun Gopaul-Gosine. Also representing Lutchmedial were Jared Jagroo, Ganesh Saroop and Natasha Bisram.