Author Archives: phoenixlegalandconsulting

THE BASICS

Defamation is a tort.

“Wait, a tort?”

Don’t feel intimidated by my use of legal-speak.  Trust me, even the most studious and committed law student takes a while to understand this concept.  Basically, a tort accordingly to Kodilinye (2015, 1), is a “civil wrong involving a breach of a duty fixed by the law, such duty being owed to persons generally….”  Alternatively, Murphy and Witting (2012, 4) define a tort as a duty towards persons generally, it is, “that branchof the civil law relating to obligations imposed by operation of law on all natural and artificial persons.  These obligations, owed by one person to another, embody norms of conduct that arise outside contract and unjust enrichment.” 

The tort of defamation protects a person’s interest in their reputation.  There are two categories of defamation, a defamatory statement may be either libel or slander.

Slander is usually a defamatory statement which is made in speech or by gesture, it’s transient in nature.  Libel is a defamatory statement made in permanent form, usually in writing.  More on this later.

A defamatory statement is one which,

• tends to lower an individual in the estimation of right-thinking members of society generally (this does not apply to a particular section of the community .e.g. where the statement is made in the context/confines of a private club)
• causes other people to avoid an individual or shun them;
• discredits an individual in his profession, trade or ‘calling’;
• exposes an individual to comtempt, hatred, ridicule or
• damages an individual’s financial credit.

Libel is actionable per se, meaning that damage to the claimant’s reputation is assumed without the claimant having to prove same.  Slander is only actionable per se in the following circumstances: the imputation of certain diseases (e.g. AIDS, veneral diseases), imputation of unchastity or adultery concerning a female, the imputation of a crime which is punishable by imprisonment (e.g. theft, drug offences, corruption in public office), and the imputation affecting business or professional reputation (e.g. incompetence of a doctor, lawyer or engineer).

 

Have I been defamed?

If you are going to successfully claim that you have been on the receiving end of a defamation action you should know that, at the outset, a defamatory statement is presumed to be untrue.  As the claimant in a defamation action you have to prove that the words used were defamatory, that they referred to you in particular and that the defamatory statement was published to someone other than yourself. Then, you need to ask, and answer in the affirmative, whether the reasonable man, that is an ordinary sensible man, would have understood them to be so.

In order to determine whether a statement is defamatory the court uses a two step approach and asks:

1. whether the words used are capable of being defamatory; and if yes, then
2. whether the words are defamatory in the particular case.

 

I didn’t defame anybody…

In order to defeat an action in defamation one must be able to provide a defence.  There are a number of defences available in an action for defamation:

1. truth/justification, this is a complete defence, once you can prove the statement is true, the claimant’s claim will be defeated;
2. fair comment, this is tied to one’s freedom of expression.  Was the statement  made on a matter of legitimate concern to the public or one of public interest?  The statement must appear to be an opinion based on true facts, not made with malice, and must be an opinion that is honestly held;
3. absolute privilege, this is also a complete defence, this pertains to statements made in legislatures .i.e. the Houses of Parliament or in a Courts of law inclusive of tribunals and disciplinary committees of professional bodies;
4. qualified privilege applies to a wide variety of situations in which it is in the public interest that persons should be able to state what they honestly believe to be the truth;
5. innocent dissemination, this refers to persons who are not the originators of a libellous statement but are just disseminating the statement; these persons have a defence if they can show that when they disseminated the libel they did not know it contained libellous material and they were not negligenct in their non-detection of the libel;
6. triviality, this does not apply across the board in commonwealth jurisdictions, in some jurisdictions it is a statutory defence (there is no such defence in the common law) where the publication of the defamatory statement is found not likely to cause the claimant to suffer reputational harm;
7. unintentional defamation, this may be with regard to knowledge of facts or with reference to the claimant, some jurisdictions  have introduced this as a statutory defence.  Where words are published innocently a defendant may escape liability for damages if they are willing to make an offer of amends .i.e. publish an apology and a reasonable correction.

 

Some relevant cases:

Byrne v Dean [1937] 2 All ER 204

Hulton v Jones [1909] 2 KB 444

Newstead v London Express Newspaper Ltd [1940] 1 KB 377

Ramkhelawan v Motilal (1967)19 Trin LR (pt. II) 117

Sim v Stretch [1936] 2 All ER 1237

Woolford v Bishop [1940] LRBG 93

 

When I decided to start my own practice I was plagued with numerous fears and concerns and questions.

Could I do this?

Did I know enough?

Would I be able to handle the pressure?

Would I actually get clients?

I decided to ignore these voices in my head and push forward.

My thoughts then turned to what type of practice I wanted to start.  Should I specialize? Should I have a general practice?  After all, in a small country how many options do you have?

I started to do my own research into the types of local firms that existed and the types of law that they practiced. I realized that many firms and many attorneys, who had their own practices or were in chambers, did practice various types of law and had what I would call general practices.  Very few espoused to specialize in any one area of law.  Interestingly, after I looked at a number of websites and portfolios and had conversations with a few local attorneys I quickly realized that they did indeed specialize in one or two areas of law.  What was I to do?

I delved further into the research and discovered the concept of a boutique firm.  A boutique firm being a practice with either a sole practitioner or a group of lawyers who have established (or plan to establish) themselves in a particular niche area of the law.

First I learned that lawyers  who are intent on starting their own boutique practice need to have the right mindset.  They then need to clearly define the practice areas for their new practice, this focus should allow the lawyer to gain experience, knowledge and expertise and allow them to become even more competent in their chosen area(s) of practice instead of being stretched too thin in a vain attempt to do all the matters that may be brought to them.

After I became comfortable with this concept, I got really nervous about identifying the right location for my practice.  After all isn’t the secret to a successful business, location, location, location?  The more I read, the more I investigated; I realized that the concept of a ‘virtual office’ was taking root and thanks to technology, such a consideration was an actual option.  I began to relax just a bit….

I then realized that I had to come up with an appropriate business model and plan, not to mention the right name.  I also needed a business model that would allow my practice to be more client-centered and cost-effective.  I really had to think this decision through.

To help me decide, I came up with the following list of pros and cons of setting up a boutique practice.

Pros

• More client centered,
• more hands-on, direct contact between attorney and client,
• more cost-effective for clients,
• lower operational costs,
• an opportunity for the attorney to gain more experience in their chosen area(s) of specialization,
• more autonomy for the attorney,
• an opportunity for the attorney to develop other business interests, and
• an opportunity for the attorney to network with other practitioners and build referral based networks.

Cons

• An attorney in private boutique practice is responsible for all aspects of his practice, from the administrative to the legal,
• all the pressure to succeed is on one individual or a small group of individuals,
• an attorney in private boutique practice has to do much of the work by himself, inclusive of filing documents and preparing bundles,
• such a practice comes with an uncertain revenue stream, and
• there is greater risk for the attorney.

After much consideration and much contemplation I finally settled on what I felt would be the best fit for me, given what I’d uncovered.  I decided to take the plunge, hold my breath and start my own boutique practice.

Here are a few links for you to look at if you’re considering starting your own boutique practice or engaging a boutique practitioner:

https://www.bcgsearch.com/article/900047872/25-Reasons-Why-Boutique-Firms-Are-the-Best-Choice-for-Many-Attorneys-and-Much-Safer-Than-Larger-Law-Firms/

https://legaltrek.com/blog/2016/08/boutique-law-firm-how-to-start-your-commercial-practice/

https://www.thebalancesmb.com/law-4161437

http://www.businessinsider.com/how-i-started-my-own-law-firm-right-after-law-school-2014-1

10 Tips For Starting Your Own Law Firm

https://practice.findlaw.com/how-to-start-a-law-firm.html

 

Best,

Simone

Let’s start this discussion by first defining a Will.  

A Will is a legal document which outlines how an individual (the Testator) wants to have his property and belongings distributed after he/she dies.  For a Will to be valid it must be in writing, and in keeping with the rules/laws as set out in the individual’s  jurisdiction.  The Testator must have the intention and the capacity (age and mental capacity) to make the will.  The Will must be signed by the Testator or by another person in his/her presence, by his/her direction.  The Testator’s signature must by made or acknowledged in the presence of two or more witnesses who are present at the same time.  These witnesses must attest and sign the Will in the presence of the Testator.  The Will should also name an Executor(s) who will be responsible for carrying out the terms of the Will.

In Trinidad and Tobago estate planning is addressed in the following pieces of legislation:

The Wills and Probate Act, Chap. 9:03

The Administration of Estates Act, Chap. 9:01

Trustee Ordinance, Chap. 8 No. 3

Why do you need one?

A Will is supposed to outline how you want your ‘stuff’ to be handled after you leave this life.  We all know and have heard of persons who died ‘intestate’ (without a Will) only to have their remaining relatives, relations, friends and sometimes strangers fight over their earthly possessions.  A properly crafted valid Will should prevent a great deal of the feuding that usually follows a death.  You can decide who gets what, and how.  You can disinherit someone you are no longer close to and ensure that a trusted companion or friend receives what you want them to regardless of how your immediate (and entitled) relatives may feel.  If you decide not to prepare a Will, your family and friends may find themselves in some confusion as to how to distribute your belongings.  I should also mention that the estates of persons who die intestate usually take a longer period of time to be administered as opposed to the estate of a Testator with a valid Will.

As you get older your possessions may increase in number and value and so a codicil would have to be done to add to or amend or partially revoke the terms of an existing Will.  A Will however, is revocable at any time during the Testator’s life.

Closing thoughts….

You are never too young to have a Will, once your’re over the age of 18, you should consider having a Will drawn up, even if it’s only to give your second cousin your treasured stash of video games, make-up, jewelry or books.  If you don’t have a Will your remaining family members would have to apply for the grant of a Letter of Administration, which may lead to more confusion than anyone would care to admit, in already strained and stressful circumstances.

Think about it, do some research and decide for yourself.

Best,

Simone