Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Ali v Thompson [2010] FJHC 405; HBC159.2004L (3 August 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 159 of 2004L

BETWEEN:

ABBAS ALI
Plaintiff

AND:

EDWARD HENRY THOMPSON
1st Defendant

AND:

RICHARD JAMES URWIN
2nd Defendant

AND:

JAI PRASAD
3rd Defendant

AND:

MOSESE SENIWAKULA
4th Defendant

FINAL JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr S Maharaj for the Plaintiff
Mr J Sharma for the 1st, 2nd and 4th Defendants
Mr R Singh for the 3rd Defendant

Solicitors: Suresh Maharaj & Assocs for the Plaintiff
Janend Sharma Lawyers for the 1st, 2nd and 4th Defendants
Patel & Sharma for the 3rd Defendant

Date of Hearing: 15 October 2009, 7 April 2010
Date of Judgment: 3 August 2010

INTRODUCTION

[1] This is an action for defamation. The Plaintiff claims that the Defendants defamed his good character when they wrote a letter of complaint about him to the Police. He says the letter went outside the scope of a normal complaint. The Defendants deny that the letter was defamatory and say that in any event the Defendants say the subject matter was fair comment, privileged and/or qualified privilege.

[2] The Plaintiff was the founding member and managing director of the Fantasy Company Fiji Limited (the "Fantasy Company"). The 1st, 2nd and 3rd Defendants were shareholders and directors of the company. The 4th Defendant who is now deceased was an acquaintance of the 1st Defendant and had no connection with the Fantasy Company. The parties had a falling out in their business relationship which led to other lengthy court proceedings and the writing of the letter that is the result of these defamation proceedings. Central to their dispute was the allegation that the Plaintiff used his position in the Fantasy Company for the benefit of his other company Juxta Beach (Fiji) Limited ("Juxta Beach").

CASE HISTORY

[3] The Writ of Summons and Statement of Claim was filed on 1 June 2004. Pleadings closed on 7 April 2005 when the Plaintiff filed his Reply to the Defences. In August 2004, the Plaintiff applied to have the 1st, 2nd and 4th Defendants' solicitor restrained from continuing to act for them on the basis that the alleged defamatory letter was copied to the firm that he was working for and consequently he was being subpoenaed to give evidence at the trial for the Plaintiff. Finnigan J dismissed the application to restrain the solicitor on 7 March 2005. The Order on the Summons for Directions was made on 4 May 2005 and the lists of documents were filed about a year later. The action was first set down for hearing on 19 and 20 March 2007. On 21 February 2007, in preparation for the trial, the Plaintiff had issued out of this Court a subpoena requiring the solicitor for the 1st, 2nd and 4th Defendants to appear at the hearing and give evidence. The Defendants' solicitor filed an application to set aside the subpoena which was heard and allowed on 17 April 2007 by Phillips J. The hearing did not proceed on 19 and 20 March 2007 because the Plaintiff's witnesses were not available and the hearing was adjourned by consent. The Pre-Trial Conference Minutes were not filed until 11 June2007. On 13 July 2007, the action was set down for hearing on 22 October 2007. The hearing did not proceed on that day because there was a continuing trial so it was rescheduled for 23 November 2007 callover to fix another date. It was further adjourned for mention on 26 February 2008 before the Master for further directions. The Master adjourned it to 14 March 2008 on which date he gave directions for the filing of the trial documents and copy pleadings. He had the matter called on 27 June 2008 and set it down for hearing on 1st and 2nd October 2008. On the day of the trial counsel informed the trial Judge that an offer for settlement had been made so the hearing was further adjourned for mention on 24 October 2008. On that day, counsel for the 1st, 2nd and 4th Defendants informed the judge that his clients did not want to settle. Counsel for the Plaintiff wanted the matter set down for hearing and the judge set it down once again for hearing on 23 February 2009. Subsequently, possible because of the cyclone in January 2009, the registry sent the parties a notice of adjournment of the hearing informing the parties that the case would be called on 2 March 2009. On 2 March 2009, the matter was set down for hearing on 1 May 2009. The matter eventually came before me on 3 July 2009 and I adjourned it to 10 July to fix another hearing date. I set it down for hearing on 15 and 16 October 2009.

[4] On the morning of the hearing again the possibility of settlement was raised so I stood the matter down for counsel to explore it further. That came to nothing because once again counsel for 3 of the defendants said that he could not get instructions because his clients lived overseas and he was not able to contact them in the short time available. Also counsel for the other defendant raised an objection to the statement of claim paragraphs 7 and 8 in that he said they were not particularised enough. I rejected the submission. The paragraphs clearly stated the offending passages in the letter and the imputations which they made of the Plaintiff's character. In any event the defendants have had the letter since it was written by them on 30 January 2003 and the Statement of Claim since June 2004 without a request for particulars. After hearing evidence I adjourned the matter for the parties to file written submissions and oral submissions to be heard on 15 December 2009. Because of the cyclone the hearing of oral submissions was delayed until 7 April 2010. Judgment was to be delivered on notice.

THE STATEMENT OF CLAIM

[5] The Plaintiff said in his Statement of Claim that he was the founding member, a shareholder and the managing director of the Fantasy Company. The 1st, 2nd and 3rd Defendants are the minority shareholders of the company. He was also the managing director of another company, Juxta Beach. The companies carried on land development at Wailoaloa in Nadi.

[6] He said on 30 January 2003, the Defendants falsely and maliciously wrote and published to the Acting Commissioner of Police in Suva a letter concerning him which contained several libelous, slanderous and defamatory statements of him. He relies on the full text of the letter and particularised some of the actual words written and published[1]:

• (i) The subject matter of the letter is headed "Re Felonious Actions of Abbas Ali";
  

(ii) "Abbas Ali and a number of his fellow conspirators continue to rob and defraud the company and each of us individually unabated – until this day";

(iii) "Abbas Ali's multiple criminal activities against us are seemly stifled ...";

(iv) "Abbas Ali pays substantial graft to whoever will entertain his bribery overtures, whether a Government Minister, Civil Servant, Accountant or a High ranging Policeman to gain his devilish advantages";

(v) "Abbas Ali the perpetrator of the crime and his thug/body guard, Poate, the organizer of the event, have not been charged or even investigated to our knowledge."

(vi) "We understand not even all the directors ... and the case involves fraud and potential Larceny by Abbas Ali as acting Managing Director of the Fantasy Company ...;"

(vii) "Consequently, we are compiling and ... a number of outstanding criminal cases. Abbas Ali and in some instances ...;"

(viii) "6488/01 August 27th, 2001, Ali, without a doubt pays someone to stone Thompson's home around 8.00pm ...;"

(ix) "... Abbas Ali illicit activities – stealing Fantasy company property (soil materials) and depositing the same on Juxta Beach Company Lots;"

(x) "Abbas Ali was at the round about by the sea with a car load of his little girlfriends;"

(xi) "Abbas Ali is still "at large" after many years of crime – big gangster land stuff;"

[7] These words were said to mean that he was[2]:

• (i) A dishonest person.
  

(ii) A person who has abused the trust placed on him as the Managing Director of 2 Companies.

(iii) A criminal who stole monies belonging to the Fantasy Company of Fiji.

(iv) (An) absolute swindler.

(v) A thief who stole soil and material belonging to the Fantasy Company of Fiji and dumping on Juxta Beach Property.

(vi) A corrupt person and engaged in corrupt practices of giving graft.

[8] The letter was copied and published to the Officer in Charge of the Nadi Police Station, the Western Division Police Chief, the solicitor G P Shankar, the solicitor Hari Ram and Reverend Akuila Yabaki, the director of the Citizens Constitutional Forum.

THE DEFENCE

[9] The 1st and 4th Defendants admitted that the letter was written by them and the 3rd Defendants to the Acting Commissioner of Police but denied that the letter was defamatory and further stated that the publication was privileged and fair comment. They said the reason they sent the letter was for the Police to carry out an independent investigation and the letter was sent to persons with whom they had a common interest. The 2nd Defendant filed a separate Defence in which he admitted that the 1st, 3rd and 4th Defendants wrote the letter but denied that the letter was defamatory and also claimed privilege and fair comment. The 3rd Defendant in a separate Defence denies that he wrote the letter but said that it was written by the 1st and 2nd Defendants and he admits the publication of the letter to the Police in Suva and the West. He relied on the defences of privilege, qualified privilege and fair comment.

THE REPLY

[10] In Reply, the Plaintiff denied that the letter was written to obtain redress but purposely to defame him. He was never questioned by the Police on the letter and denied that the persons to whom the letters were published had a common interest with the Defendants. The 3rd Defendant signed the letter so he must be taken to have authored it.

THE HEARING & THE EVIDENCE

[11] The following facts were agreed[3]. The Plaintiff was a shareholder and managing director of the Fantasy Company Fiji Limited and Juxta Beach Fiji Limited. The 1st, 2nd and 3rd Defendants were shareholders in the Fantasy Company. The 4th Defendant was an acquaintance of the 1st Defendant. The 1st, 2nd and 4th Defendants wrote and published to the Acting Commissioner of Police a letter dated 30 January 2003 concerning the Plaintiff. The 3rd Defendant also published the said letter.

PW1:

[12] The first witness for the Plaintiff was Reverend Akuila Yabaki. He is the CEO of the Citizens Constitution Forum. He He remembered receiving the letter of 30 January 2003[4]. It was copied to him. He read the letter. His organisation did not have investigating powers but they do receive letters of this kind. He did not know the Plaintiff then but do know him now. He said the letter did not portray the Plaintiff as a person of good character. If all that was said in the letter was true then the Plaintiff was a dishonest person. It was character assassination. He had not heard anything adverse from anyone about the Plaintiff.

[13] The letter was addressed to the Acting Commissioner of Police/Crime in Suva and "cc" to OC Nadi Police Station, Western Divisional Police Chief, GP Shankar Solicitor, Hari Ram Solicitor and CCF – Rev Akuila Yabaki. It consisted of 8 pages and signed by all four Defendants. The letter itemised 32 instances of alleged criminal activity by the Plaintiff over a two year period to the week before the letter was written. The letter concluded:

Although the above felonious incidents were reported in a trusting manner to see justice realised and we have attended Nadi Police Station numerous times to inquire as to the progress of the investigations, we are concerned that it appears that very little action has been initiated in laying charges against Abbas Ali. Abbas Ali is still, "at large" after many years of crime – big gangster land stuff.

[14] In cross examination Rev Yabaki said it was not uncommon for them to receive such letters. They do not receive many but do receive some. It is usually from people who want assistance and have issues with the authorities. His organisation was not political and not aligned with anyone. They provide advice by directing them to the right people but do not provide assistance or advice for court cases. He said the 32 allegations were "wild", "unknown" and "unfounded" allegations. The Defendants did not come to meet with him.

PW2:

[15] The second witness for the Plaintiff was Sgt Kumar. He was posted in the Nadi Police Station in 2003. He was assigned to investigate the Plaintiff. He investigated the incident of alleged theft of soil. He found no merit in the complaint. The other complaints were investigated by another police officer who now resides in New Zealand.

[16] The Defendants objected to the tender of Police Statements by the 1st and 3rd Defendants and the chairman of the board of directors of the Fantasy Company, Umendra Chaudhary, taken in June 2002. I overruled their objections on the grounds that the documents were relevant and part of Police records or "business records" and were not objectionable on the grounds that the investigating officer was not being called to give evidence or were not originals. I admitted the Police Statements into evidence[5] and allowed the witness to refer to them.

[17] The 1st Defendant gave a statement to Police on 10 June 2002 that the Plaintiff had used the Fantasy Company workers, monies and assets for his Juxta Beach Company. The 3rd Defendant also gave a statement to Police on 11 June 2002 that the Plaintiff stole soil from Fantasy Company land and Umendra Chaudhary made a complaint in his statement to Police on 15 June 2002 that the Plaintiff stole soil from the company and "recommend(ed) that Mr E Thompson report be accepted". All three were later interviewed by Police on 18 February 2003, 21 February 2003 and 26 February 2003, respectively, for giving a false statement in his June 2002 statement and on Umendra Chaudhary was also interviewed by Police for giving false information. In cross examination, PW2 did not know what came of the interviews or whether charges were laid.

PW 3:

[18] The third witness for the Plaintiff was Sgt Vasoroi. He was the OC in Nadi from 1998 to 2003. He knew the Plaintiff. He recognised the Defendants' letter of 30 January 2003. He said the letter made "serious allegations" and was a "very dangerous letter". After he received it, they investigated all the complaints in the letter then he wrote a Memorandum to the Director of Police Standards on 2 December 2003 which read:

I refer to your memorandum referenced B/9/4 (WN) 33/3 dated 17 October 2003.

For your information all matters that were listed by Umendra Jit Chaudhary and others were fully attended to and necessary actions were taken accordingly.

However, after each complaint will lead up to another as they were merely using the police to fulfil their own interest. Most of the complaints are Civil in nature and are self manufactured by either party.

The genuine criminal related cases are properly registered and investigated and proper actions were taken where necessary.

However, should your department feel otherwise then I recommend an officer from that HQ be requested to come and investigate for total impartiality and fairness as almost all my men have involved in an investigation one way or the other and all cases reported by either group from Fantasy Fiji Ltd.

[19] In cross examination he said the Memorandum was an internal document and not one for the general public. It was in response to a memorandum of 17 October 2003 which the witness no longer had.

PW4:

[20] The fourth witness was the Plaintiff himself. He is 60 years old now. He was the managing director of both companies. He was a school teacher and civil servant for 32 years before becoming a business man. He taught in primary and secondary schools in Suva and Nadi. He also taught with the 3rd Defendant and they had been good friends. He started the Fantasy Company in 1992 with his brother and later issued shares to the Defendants. Juxta Beach was started in 1998 and shares were offered to all of them but only one took up the offer with him. Juxta Beach worked a similar development on the foreshore land adjacent to Fantasy's.

[21] The letter of 30 January 2003 referred to him. The letter was circulated to various people and annexed to an affidavit filed in a separate action. That was how he became aware of it. He has read the letter many times. He said he was very saddened by friends who have labeled him a criminal and of bad character. Prior to this letter he said the Police were on his heels because of complaints by the 1st Defendant. He was interrogated by Police on the complaints and even the tax office on an allegation that he was avoiding VAT. It came to nothing because it was the company that was liable. None of the complaints resulted in charges. He denied taking any soil. He said he was humiliated and persecuted by Police. He got tired of Police coming to his office and waiting for him. He went to the Police in Suva to address the issues raised in the letter and was told to get out. He had no faith in the Police. He said people still trusted him. He handled large sums of their money in deposits for his development. He denied being the person depicted in the letter.

[22] In cross examination he said Police did not come to him after 30 January 2003. The letter was annexed to two of his affidavit sworn in 2003 and 2004[6]. He denied that the letter was written to complain about him. He did not know the reason they wrote the letter but he saw it as to defame and destroy him.

[23] The Defendants did not call any witnesses.

THE COURT'S FINDINGS ON THE EVIDENCE

[24] I find that the letter was signed and therefore written by all the Defendants. The letter referred to and spoke of the Plaintiff. It was published by the Defendants to the Police in Suva and Nadi and to Reverend Akuila Yabaki. There was no evidence that the letter was actually sent to the two solicitors and, in any event, one is now deceased and the other was not called as a witness.

[25] I also find that the letter was sent principally for the purpose of getting the Police to investigate and or charge the Plaintiff with criminal offences.

[26] The issues are therefore whether the letter was defamatory and if so whether it was protected by the defences of fair comment and qualified privilege.

IS THE LETTER DEFAMATORY?

[27] In Lewis v Daily Telegraph Ltd [1964] AC 234, two national newspapers published in their front pages articles headed "Inquiry on Firm by City Police" and "Fraud Squad Probe Firm". The "firm" and its managing director sued the newspapers for libel. The statements of claim alleged that the words were defamatory in their natural and ordinary meaning. The alleged defamatory meanings were that the plaintiffs had been guilty of fraud or were suspected of being guilty of fraud or dishonesty. The appeal to the House of Lords was on the basis that the articles were capable of meaning that the plaintiffs were guilty of fraud. Lord Reid explained the law in this way (p 258-60):

... There is not doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in his general knowledge and experience of worldly affairs. I leave aside the questions of innuendo where the reader has some special knowledge which might lead him to attribute a meaning to the words not apparent to those who do not have that knowledge...

What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning. Here there would be nothing libelous in saying that an inquiry into the appellants' affairs was proceeding: the inquiry might be by a statistician or other expert. The sting is in inferences drawn from the fact that it is the fraud squad which is making the inquiry. What those inferences should be is ultimately a question for the jury, but the trial judge has an important duty to perform.

Generally, the controversy is whether the words are capable of having a libelous meaning at all, and undoubtedly it is the judge's duty to rule on that. I shall have to deal later with the test which he must apply...

In this case it is, I think, sufficient to put the test in this way. Ordinary men and women have different temperaments and outlooks. Some are naturally suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question...

What the ordinary man, not avid for scandal, would read into the words complained of must be a matter of impression. I can only say that I do not think that he would infer guilt of fraud merely because an inquiry is on foot.

See also: Mataka v National Union of Hospitality Catering & Tourism Industries Employees [2010] FJHC 238; HBC180.2007L (7 July 2010)

[27] Applying this test, I find that the words particularised in the Statement of Claim and in the letter as a whole, in their natural and ordinary meaning, are capable of having the meanings complained of and are therefore defamatory of the Plaintiff.

[28] Are the Defendants liable for defaming the Plaintiff? The Defendants say that the letter contained matters of fair comment and was published on an occasion of qualified privilege.

FAIR COMMENT

[29] The defence of fair comment was recently considered by the Court of Appeal[7] in Fiji Times Limited v Vayeshnoi [2010] FJCA 35; ABU 2 of 2008 (16 July 2010):

18.0 In Albert Cheng and Another v. Tsey Wai Chun Paul (Court of Final Appeal, Hong Kong)[[8]] Lord Nicholls of Birkenhead, NPJ[[9]] said at page 5 of the Court's Judgment on the defence of fair comment:

The title of this defence is misleading. Comment, or honest (comment), would be a more satisfactory name". He then stated the five ingredients of this defence as follows:

First, the comment must be on a matter of public interest. Public interest is not to be confined within narrow limits today; See Lord Denning in London Artists Ltd v. Littler (1969) 2QB 375, 391.

Second, the comment must be recognisable as comment as distinct, from an imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege.

Third, the comment must be based on facts which are true or protected by privilege. If the facts on which the comments purports to be founded are not proved to be true or published on a privileged occasion, the defence of fair comment is not available.

Next, the comment must explicitly or implicitly indicate at least in general terms, what are the facts of which the comments are being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded.

Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views. It must be germane to the subject matter criticized. Dislike of an artist's style would not justify an attack upon his morals or manners. But a critic need not be mealy-mounted in denouncing what he disagrees with. He is entitled to dip his pen in gall for the purposes of legitimate criticism; See Jordan, CJ Gardiner v. Fairfax [1942] NSWStRp 16; (1942) 42 S.R.(NSW) 171, 174." As Lord Nicholls said, "These are the outer limits of the defence. The burden of establishing that a comment falls within these limits, and hence within the scope of the defence lies upon the defendant who wishes to rely upon the defence".

[30] And later on at paragraph 36 of Vayeshnoi citing the classical summing up to the jury by Diplock, J in Silkin v. Beaverbrook Newspapers Limited (1958) 2 ALL.E.R 516, 518:

People are entitled to hold and to express freely on matters of public interest strong views, views which some of you, or indeed all of you, may think are exaggerated, obstinate, or prejudiced, provided – and this is the important thing – that they are views which they honestly hold. The basis of our public life is that the crank, the enthusiast, may say what he honestly thinks just as much as the reasonable man or woman who sits on a jury, and it would be a sad day for freedom of speech in this country if a jury were to apply the test of whether it agrees with the comment instead of applying the true test: was this an opinion, however exaggerated, obstinate or prejudiced, which was honestly held by the writer?

[31] As to what is comment and what is statement of fact, Ferguson J gave a simple example in the New South Wales case of Myerson v Smith's Weekly [1923] NSWStRp 71; (1923) 24 SR (NSW) 20, 26:

To say that a man's conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.

[32] I start from the second of the ingredients: Was the letter of 30 January 2003 comment as distinct from imputations of fact? That question is not easily answered in this case because of the nature of the letter and circumstances under which it was written. The letter contained statements of fact: paragraphs 1, 3, 4, 6(2) - 6(32); comment: paragraph 5 and the last; and a mixture of both: paragraphs 2, 6(1). These comments were on matters of public interest in its wide meaning, in this case the need to stop crime and specifically to stop the other shareholders being defrauded. The facts on which the allegations were based have not been proven to be true. They have not been proven to be false either. The fact that the Plaintiff has not been charged with any offence does not necessarily mean that the facts were not true. However, their publication may be protected by privilege. I will deal with the question of privilege in detail later in this judgment. All I need to say for now is that I am of the view that the publication here was on an occasion of privilege.

[33] However, that is not the end of the matter as explained by the Hong Kong Court of Final Appeal in Albert Cheng v Tsey Wai Chun Paul [2000] HKCFA 35; [2000] 3 HKLRD 418; [2001] 57 per Lord Nicholls of Birkenhead NPJ:

Malice

22. That is not the end of the matter. Even when a defendant has brought his case within these limits, he will not necessarily succeed. The plaintiff may still defeat ('rebut') the defence by proving that when he made his comment the defendant was, in the time-hallowed expression, 'actuated by malice'.

23. It is here that the storm clouds begin to appear. In ordinary usage malice carries connotations of spite and ill-will. This is not always so in legal usage. In legal usage malice sometimes bears its popular meaning, sometimes not. It is an imprecise term. Historically, even within the bounds of the law of defamation, malice has borne more than one meaning. Historically, defamation lay in publishing the words complained of 'falsely and maliciously'. In this context malice meant merely that publication had been a wrongful act, done intentionally and without lawful excuse: see Bayley J in Bromage v. Prosser [1825] EngR 42; (1825) 4 B&C 247, 255. This was sometimes called malice in law, as distinct from malice in fact. But even malice 'in fact', otherwise known as express malice or actual malice, may cover states of mind which are not malicious in the ordinary sense of the word. This is so in the context of the defence of qualified privilege. It is no wonder that Lord Bramwell described malice as 'that unfortunate word': see Abrath v. North Eastern Railway Co [1886] UKLawRpAC 15; (1886) 11 App Cas 247, 253.

24. The question raised by this appeal concerns the meaning of malice in the context of the defence of fair comment. On this, two matters are clear. First, unlike the outer limits (as I have called them) of the defence of fair comment, which are objective, malice is subjective. It looks to the defendant's state of mind. Second, malice covers the case of the defendant who does not genuinely hold the view he expressed. In other words, when making the defamatory comment the defendant acted dishonestly. He put forward as his view something which, in truth, was not his view. It was a pretence. The law does not protect such statements. Within the objective limits mentioned above, the law protects the freedom to express opinions, not vituperative make-believe.

The legal issue on this appeal

25. The point of principle raised by this appeal, crucial to the outcome of the action, is whether, in contemplation of law, malice may exist in this context even when the defendant positively believed in the soundness of his comment. More specifically, the issue is whether the purpose for which a defendant stated an honestly held opinion may deprive him of the protection of the defence of fair comment; for instance, if his purpose was to inflict injury, as when a politician seeks to damage his political opponent, or if he was simply acting out of spite.

26. One would have expected that this basic issue in respect of the much-used defence of fair comment would have been settled long ago. This is not so. The meaning of malice has been comprehensively analysed in relation to the defence of qualified privilege, most notably in the speech of Lord Diplock in Horrocks v. Lowe [1975] AC 135. But no similar exposition has been undertaken regarding fair comment. Indeed, there has been surprisingly little judicial discussion of this subject over the last 150 years. Most textbooks incline to the view that, as with qualified privilege, so with fair comment, the defence of an honest defendant may be vitiated by the motive with which the words were published. The (English) Report of the Committee on Defamation, published in 1975, stated that under the present state of the law a person was acting maliciously where he was dishonest or reckless 'or actuated by spite, ill-will, or any other indirect or improper motive': see para. 153. On this appeal the defendants challenged this view of the law.

[34] After stating the facts of the case, Lord Nicholls continued:

39. ... Honesty required that the defendants genuinely believed the comments they made. Anything less would not do. If they knew their comments were untrue, or were recklessly indifferent to the truth or falsity of their comments, they were acting dishonestly.

40. ... Before turning to the authorities I shall go back to first principles. Proof of malice is the means whereby a plaintiff can defeat a defence of fair comment where a defendant is abusing the defence. Abuse consists of using the defence for a purpose other than that for which it exists. The purpose for which the defence of fair comment exists is to facilitate freedom of expression by commenting on matters of public interest. This accords with the constitutional guarantee of freedom of expression. And it is in the public interest that everyone should be free to express his own, honestly held views on such matters, subject always to the safeguards provided by the objective limits mentioned above. These safeguards ensure that defamatory comments can be seen for what they are, namely, comments as distinct from statements of fact. They also ensure that those reading the comments have the material enabling them to make up their own minds on whether they agree or disagree.

41. The public interest in freedom to make comments within these limits is of particular importance in the social and political fields. Professor Fleming stated the matter thus in his invaluable book on The Law of Torts, 9th edition, p 648:

".. untrammelled discussion of public affairs and of those participating in them is a basic safeguard against irresponsible political power. The unfettered preservation of the right of fair comment is, therefore, one of the foundations supporting our standards of personal liberty."

42. The purpose and importance of the defence of fair comment are inconsistent with its scope being restricted to comments made for particular reasons or particular purposes, some being regarded as proper, others not. Especially in the social and political fields, those who make public comments usually have some objective of their own in mind, even if it is only to publicise and advance themselves. They often have what may be described as an 'ulterior' object. Frequently their object is apparent, but not always so. They may hope to achieve some result, such as promoting one cause or defeating another, elevating one person or denigrating another. In making their comments they do not act dispassionately, they do not intend merely to convey information. They have other motives.

43. The presence of these motives, and this is of crucial importance for present purposes, is not a reason for excluding the defence of fair comment. The existence of motives such as these when expressing an opinion does not mean that the defence of fair comment is being misused. It would make no sense, for instance, if a motive relating to the very feature which causes the matter to be one of public interest were regarded as defeating the defence.

44. On the contrary, this defence is intended to protect and promote comments such as these. Liberty to make such comments, genuinely held, on matters of public interest lies at the heart of the defence of fair comment. That is the very object for which the defence exists. Commentators, of all shades of opinion, are entitled to 'have their own agenda'. Politicians, social reformers, busybodies, those with political or other ambitions and those with none, all can grind their axes. The defence of fair comment envisages that everyone is at liberty to conduct social and political campaigns by expressing his own views, subject always, and I repeat the refrain, to the objective safeguards which mark the limits of the defence.

45. Nor is it for the courts to choose between 'public' and 'private' purposes, or between purposes they regard as morally or socially or politically desirable and those they regard as undesirable. That would be a highly dangerous course. That way lies censorship. That would defeat the purpose for which the law accords the defence of freedom to make comments on matters of public interest. The objective safeguards, coupled with the need to have a genuine belief in what is said, are adequate to keep the ambit of permissible comment within reasonable bounds.

Spiteful comments

46. One particular motive calls for special mention: spite or ill-will. This raises a difficult point. I confess that my first, instinctive reaction was that the defence of fair comment should not be capable of being used to protect a comment made with the intent of injuring another out of spite, even if the person who made the comment genuinely believed in the truth of what he said. Personal spite, after all, is four square within the popular meaning of malice. Elsewhere the law proscribes conduct of this character; for instance, in the field of nuisance, as exemplified by the well known case of the householder who made noises on musical instruments with the intention of annoying his neighbour (Christie v. Davey [1892] UKLawRpCh 185; [1893] 1 Ch 316).

47. On reflection I do not think the law should attempt to ring-fence comments made with the sole or dominant motive of causing injury out of spite or, which may come to much the same, causing injury simply for the sake of doing so. In the first place it seems to me that the postulate on which this problem is based is a little unreal. The postulate poses a problem which is more academic than practical. The postulate is that the comment in question falls within the objective limits of the defence. Thus, the comment is one which is based on fact; it is made in circumstances where those to whom the comment is addressed can form their own view on whether or not the comment was sound; and the comment is one which can be held by an honest person. This postulate supposes, further, that the maker of the comment genuinely believes in the truth of his comment. It must be questionable whether comments, made out of spite and causing injury, are at all likely to satisfy each and every of these requirements. There must be a query over whether, in practice, there is a problem here which calls for attention.

48. Moreover, in so far as this situation is ever likely to arise, it is by no means clear that the underlying public interest does require that the person impugned should have a remedy. Take the case of a politician or a journalist who genuinely believes that a minister is untrustworthy and not fit to hold ministerial office. Facts exist from which an honest person could form that view. The politician or journalist states his view, with the intention of injuring the minister. His reason for doing so was a private grudge, derived from a past insult, actual or supposed. I am far from persuaded that the law should give the minister a remedy. The spiteful publication of a defamatory statement of fact attracts no remedy if the statement is proved to be true. Why should the position be different for the spiteful publication of a defamatory, genuinely held comment based on true fact?

49. There is a further consideration. The law of defamation is, in all conscience, sufficiently complex, even tortuous, without introducing further subtle distinctions which will be hard to explain to a jury. The concept of intent to injure is easy enough. But, as already noted, intent to injure is not inconsistent with the purpose for which the defence of fair comment exists. So, if spite and cognate states of mind are to be outlawed for the purposes of this defence, the directions to the jury would have to be elaborate and sophisticated.

50. The combination of all these factors seems to me to point convincingly away from treating spiteful comments as forming a category of their own. This is, of course, very much a question of policy. I shall turn to the authorities in a moment. But I am comforted by noting that others who have considered this problem in recent years have come to the same conclusion. In England Mr Justice Faulks' Committee on Defamation, already mentioned, recommended that the defendant's genuine opinion should replace malice as the relevant test: see paragraph 159. In New South Wales the same test has been adopted, in section 32 of the Defamation Act 1974 ('the comment did not represent the opinion of the defendant'). Likewise in New Zealand, in section 10 of the Defamation Act 1992 ('the defendant's genuine opinion'), although there the defence goes even more widely, as there is now no requirement that the opinion must be on a matter of public interest.

Horrocks v. Lowe

51. I now turn to the authorities. As already indicated, there is no decision directly on the point now under consideration. It is no doubt for this reason that textbook writers have sought to fill the gap by resorting to the decision of the House of Lords in Horrocks v. Lowe [1975] AC 135, even though that case related to a different defence, the defence of qualified privilege. In the absence of any clear guidance, it is temptingly easy to assume that malice must bear the same meaning in all respects for both defences. It is essential, therefore, to consider the reasoning which underlies Lord Diplock's authoritative analysis of malice for the purposes of the defence of qualified privilege, with a view to seeing how far it is applicable to the defence of fair comment. As will appear, I believe that misapplication of this analysis is largely responsible for the erroneous statements of the law in some of the textbooks.

52. In a much-quoted passage, at page 150, Lord Diplock said this:

"Even a positive belief in the truth of what is published on a privileged occasion ... may not suffice to negative express malice if it can be proved that the defendant misused the occasion for some purpose other that that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames."

53. Lord Diplock continued by noting that there may be other improper motives which destroy the privilege. He instanced the case where a defendant's dominant motive may have been to obtain 'some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege'.

54. Lord Diplock's observations are in point to the extent that they enunciate the principle that express malice is to be equated with use of a privileged occasion for some purpose other than that for which the privilege is accorded by the law. The same approach is applicable to the defence of fair comment. Beyond that his observations do not assist in the present case, because the purposes for which the law has accorded the defence of qualified privilege and the defence of fair comment are not the same. So his examples of misuse of qualified privilege cannot be carried across to fair comment without more ado. Instances of misuse of qualified privilege may not be instances of misuse of fair comment. What amounts to misuse of fair comment depends upon the purposes for which that defence exists.

55. I must make good my statement that the purposes for which the two defences exist are not the same. The rationale of the defence of qualified privilege is the law's recognition that there are circumstances when there is a need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source: see Reynolds v. Times Newspapers Ltd [1999] UKHL 45; [1999] 3 WLR 1010, 1017. Traditionally, these occasions have been described in terms of persons having a duty to perform or an interest to protect in providing the information. If, adopting the traditional formulation for convenience, a person's dominant motive is not to perform this duty or protect this interest, he is outside the ambit of the defence. For instance, if a former employer includes defamatory statements in an employment reference with the dominant purpose of injuring the former employee, the former employer is misusing the privileged occasion and this will vitiate his defence of qualified privilege.

56. The rationale of the defence of fair comment is different, and is different in a material respect. It is not based on any notion of performance of a duty or protection of an interest. As already noted, its basis is the high importance of protecting and promoting the freedom of comment by everyone at all times on matters of public interest, irrespective of their particular motives. In the nature of things the instances of misuse of privilege highlighted by Lord Diplock (for example, 'some private advantage unconnected with the duty or interest which constitutes the reason for the privilege') are not necessarily applicable to fair comment. A failure to appreciate this has, I fear, led some textbook writers into the error of suggesting that parts of Lord Diplock's observations are equally applicable to the defence of fair comment even though they lack the rationale on which the observations were founded. Halsbury's Laws of England, (4th ed, reissue), vol. 28, para.149, page 78, has succumbed in this way. Malice is defined as ill will or spite towards the plaintiff 'or any indirect or improper motive in the defendant's mind'. The authority cited for this proposition is Horrocks v. Lowe. The authors add: 'it seems that the same principles apply to the defence of fair comment'. Gatley on Libel and Slander (9th ed), page 426, points the reader in the same direction:

"It is submitted that the authorities on malice in the different contexts of fair comment and qualified privilege are essentially interchangeable, save for the necessary limitations imposed by the nature of each defence.",

See also Carter-Ruck on Libel and Slander (5th ed), at page 116, and Winfield and Jolowicz on Tort (15th ed), at page 427.

57. A similar failure to recognise the difference in the rationale of the two defences may have influenced the language of judicial observations in the earlier cases. This would hardly be surprising, because the defence of fair comment grew from the defence of qualified privilege in the latter half of the nineteenth century. Too much weight should not be attached to the precise phrasing of observations made at a time when the defence of fair comment had not emerged fully from the shadow of its parent. These observations have to be read in their historical context, as part of the gradual evolution of a defence whose width and importance have grown considerably and whose rationale is more broadly based than perhaps was once the case.

58. As late as 1872, in Henwood v. Harrison [1872] UKLawRpCP 56; (1871-72) LR 7 CP 606, 621, the Court of Common Pleas regarded fair comment as part of the defence of qualified privilege. Willes J and the majority of the court treated the right of every man to discuss freely any subject in which the public are generally interested, so long as he does it 'honestly and without malice', as a privilege 'of the same character' as employment references. In 1887 this exposition attracted criticism from Bowen LJ in Merivale v. Carson [1887] UKLawRpKQB 202; (1888) 20 QBD 275, 282-283.

59. Despite this, uncertainty persisted. In 1906, in Thomas v. Bradbury, Agnew & Co Ltd [1906] UKLawRpKQB 98; [1906] 2 KB 627 counsel submitted to the Court of Appeal that the views of Willes J in Henwood v. Harrison were to be preferred, as resting 'upon principle.' Collins MR said, at page 640:

"Proof of malice may take a criticism prima facie fair outside the right of fair comment, just as it takes a communication prima facie privileged outside the privilege ... the two rights, whatever name they are called by, are governed by precisely the same rules".

So the parallel was still regarded as close and helpful.

The fair comment cases

60. I turn to the very few cases where the question of malice has been touched upon in relation to the defence of fair comment. Merivale v. Carson [1887] UKLawRpKQB 202; (1888) 20 QBD 275 concerned a newspaper review of a theatre production. The issue of malice was withdrawn from the jury, but Lord Esher MR, at pages 281-282, made a passing observation to the effect that a dishonest intention to injure the author would make the criticism a libel, because the comment would not then really be a criticism of the work: 'the mind of the writer would not be that of a critic'. Bowen LJ, at page 285, described a malicious motive as 'some motive other than that of a pure expression of a critic's real opinion'.

61. The case of Thomas v. Bradbury, Agnew & Co Ltd [1906] UKLawRpKQB 98; [1906] 2 KB 627 concerned a book review in the magazine 'Punch'. The defendants contended that the case should not have been left to the jury. Evidence of malice, unless it appears on the face of the criticism, is irrelevant to the question of fair comment. The Court of Appeal rejected this submission. Collins MR noted that the contention involved the assertion that fair comment must be measured by an abstract standard, as 'a thing quite apart from the opinions and motives of its author and his personal relations towards the writer of the thing criticised'.

62. In rejecting this submission, the Master of the Rolls said that the commentator was liable if the comment was malicious 'if, indeed, it can then be described as comment at all'. Comment coloured by malice cannot, from the standpoint of the writer, be deemed fair. He said, at pages 638 and 642:

"... if he, the person sued, is proved to have allowed his view to be distorted by malice, it is quite immaterial that somebody else might without malice have written an equally damnatory criticism. ... It is, of course, possible for a person to have a spite against another and yet to bring a perfectly dispassionate judgment to bear upon his literary merits; but, given the existence of malice, it must be for the jury to say whether it has warped his judgment. Comment distorted by malice cannot ... be fair on the part of the person who makes it".

63. He distinguished Merivale v. Carson, on the ground that the comment there fell outside the objective limits, as I have described them: 'proof of bona fide belief was therefore irrelevant'.

64. The same approach was adopted by the Full Court in the New South Wales case of Gardiner v. Fairfax [1942] NSWStRp 16; (1942) 42 SR (NSW) 171, another book review case. The court equated malice with a commentator's failure to express his 'real opinion'. Jordan CJ, at page 174, stated:

"To establish malice, it is necessary to produce evidence that the comment was designed to serve some other purpose than that of expressing the commentator's real opinion, for example, that of satisfying a private grudge against the person attacked."

65. In several later cases distinguished judges emphasised the crucial importance of honesty, but these remarks were not dealing directly with the question of motivation. Turner v. Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 AER 449 is an example of this. The case concerned a letter which criticised a film critic's review of the week's films. Lord Porter, at pages 461-463, contrasted the honest expression of the commentator's 'real view' and 'mere abuse or invective under the guise of criticism'. He approved the trial judge's direction that if the defendants honestly held the opinion expressed they were not abusing the occasion. In saying this, however, he was rejecting the erroneous idea that reasonableness is required. Irrationality, stupidity, or obstinacy do not constitute malice, although in an extreme case they may be evidence of it: 'the defendant must honestly hold the opinion he expresses, but no more is required of him.'

66. The position was similar in Slim v. Daily Telegraph Ltd [1968] 2 QB 157, a decision of the Court of Appeal. The action arose from the publication in a newspaper of a letter which commented adversely on the conduct of a former town clerk. Lord Denning MR, at page 170, said that the writer must honestly express his real view: 'so long as he does this, he has nothing to fear'.

67. More in point are observations of Diplock J in Silkin v. Beaverbrook Newspapers Ltd [1958] 1 WLR 743. This case arose out of a newspaper columnist's trenchant criticisms of Lord Silkin, an active politician and former government minister. In his direction to the jury Diplock J noted that honesty is the 'cardinal test'. He said, at page 747:

"It is because honesty is the cardinal test that very often in cases of this kind you find it alleged that the person who made the comment was actuated by personal spite or by some other ulterior motive so that the comment he made did not express his honest opinion...". (Emphasis added)

Diplock J seems there to have regarded intention to injure or other ulterior motive as antithetical to honesty, on the footing that when a person is actuated by such a motive the view which he expresses will not be his genuine view. It is to be noted, however, that malice was not suggested in that case.

68. The Canadian authorities drawn to the attention of the Court seem to take the matter no further forward. The issue now being considered seems not to have been examined directly and in depth by any court. The controversial decision of the Supreme Court in Cherneskey v. Armadale Publishers Ltd (1979) 90 DLR 321 concerned the position of a newspaper which publishes a letter. In passing, Dickson J repeated the familiar mantra:

"Malice is not limited to spite or ill will, although these are its most obvious instances. Malice includes any indirect motive or ulterior purpose, and will be established if the plaintiff can prove that the defendant was not acting honestly when he published the comment."

69. In Vogel v. Canadian Broadcasting Corporation [1982] 3 WWR 97, a decision of the British Columbia Supreme Court, malice was in issue. The plaintiff was the Deputy Attorney General of British Columbia. He complained about a television programme which suggested he had abused his office by interfering with the conduct of criminal cases in order to benefit friends. One of the grounds on which the defence of fair comment failed was recklessness. In putting out the programme the defendants had no concern for the truth or falsity of the allegations. Their real motive was to enhance their own reputations by producing a sensational programme. Their concern was to give allegations of scandal the appearance of truth to the extent necessary to succeed in achieving their goal.

70. More difficult is the brief judgment of the British Columbia Court of Appeal in Christie v. Westcom Radio Group Ltd (1990) 75 DLR (4th) 546, concerning a defamatory radio broadcast. The court rejected the proposition that honesty negates malice, in reliance on a passage in the judgment of Greer LJ in Watt v. Longsdon [1930] 1 KB 130, 154-155, a case of qualified privilege.

71. In these cases judges used phrases such as bona fide belief, real view, and honest opinion. These expressions appear to be different ways of saying the same thing. They are all descriptive of a state of mind; the test is subjective. I doubt whether Collins MR intended to depart from this subjective test when he spoke of a person's judgment being 'coloured' or 'distorted' or 'warped' by malice: see Thomas v. Bradbury, Agnew & Co Ltd [1906] UKLawRpKQB 98; [1906] 2 KB 627, 638, 642.

72. This point was highlighted by Blackburn J, sitting in the Supreme Court of the Australian Capital Territory, in Renouf v. Federal Capital Press of Australia Pty Ltd (1977) ACTR 35. The plaintiff was a distinguished civil servant. He sued a newspaper in respect of a defamatory article. Blackburn J noted that, unlike with the defence of qualified privilege, malice in the context of fair comment cannot simply be characterised as the abuse of a special legal relationship. Everything must turn on the state of mind of the person making the comment. Proof that the comment was motivated by a desire to embarrass or prejudice the plaintiff is not sufficient to constitute malice. It must be shown to have distorted the judgment of the defendant before it can avail the plaintiff.

73. What, then, of the case where intention to embarrass or injure does warp the defendant's judgment but, nevertheless, the defendant sincerely believes the opinion he expresses? Blackburn J answered this question as follows, at page 54:

"If the plaintiff can show that the opinion represented by the comment was affected by personal hostility, or some such irrelevant motive in such a way that it does not represent a disinterested judgment upon the matter which is the subject of the comment, then the reply of malice succeeds notwithstanding that it is not proved that the comment was insincere - ie did not represent the defendant's real opinion. It seems to me that unless this is so, the law ignores the common human experience that personal animosity may perfectly consort with sincerity to produce a comment which is harmful and unfair".

74. Although I have some sympathy with Blackburn J's difficulty, I am unable to agree with his conclusion. The root cause of the difficulty here is that the defence of fair comment is bedevilled by its name and by the continuing use of the anachronistic and confusing term 'malice'. In layman's terms, a view which is warped by a dominant intent to injure does not rank as a fair comment. Blackburn J's solution is to curtail the scope of the subjective test of genuineness, or 'sincerity', of belief. Sincerity of belief will be efficacious only so long as it is disinterested. I can see no sufficient warrant for thus cutting down the scope of the defence of fair comment. Disinterestedness cannot always be expected in political life. Its presence should not be a pre-requisite of the freedom to make comments on matters of public interest.

Conclusion on the law

75. My conclusion on the authorities is that, for the most part, the relevant judicial statements are consistent with the views which I have expressed as a matter of principle. To summarise, in my view a comment which falls within the objective limits of the defence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view he expressed. Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred. Proof of motivation may also be relevant on other issues in the action, such as damages.

76. It is said that this view of the law would have the undesirable consequence that malice would bear different meanings in the defences of fair comment and qualified privilege, and that this would inevitably cause difficulty for juries. I agree that if the term 'malice' were used, there might be a risk of confusion. The answer lies in shunning that word altogether. Juries can be instructed, regarding fair comment, that the defence is defeated by proof that the defendant did not genuinely believe the opinion he expressed. Regarding qualified privilege, juries can be directed that the defence is defeated by proof that the defendant used the occasion for some purpose other than that for which the occasion was privileged. This direction can be elaborated in a manner appropriate to the facts and issues in the case.

WAS THIS A CASE OF FAIR COMMENT?

[35] It seems to me the letter was written out of frustration to get someone to do something about the complaints against the Plaintiff. Most of the opinions and comments in it were directed at inaction of the Police rather than at the Plaintiff. Therefore, in so far as those that were defamatory of the Plaintiff, I am of the view that they were, more likely than not, honestly held by the Defendants. I find that they did not maliciously publish the letter of 30 January 2010 at law. The defence of fair comment has been made out in so far as it applies to defamatory comments about the Plaintiff.

QUALIFIED PRIVILEGE

[36] Horrocks v. Lowe [1975] AC 135 is a case where the offending words were uttered in a council meeting which was held to be an occasion of qualified privilege. Lord Diplock who delivered the majority decision at p 149 explained the law as follows:

The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kids is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue... It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit – the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.

So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely be a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. "Express malice" is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant in nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.

The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice for no sense of duty or desire to protect his own legitimate interest can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.

Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, "honest belief". If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and condition of men. In affording to them immunity from suit if they have acted in god faith in compliance with a legal or moral duty or in protection of legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition inste4ad of reasoning, leap to conclusions on inadequate evidence an fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of mental process by which the belief is arrive at it may still be "honest", that is, a positive belief that the conclusion they have reached are true. The law demands no more.

[37] Then comes the caution at p 150-151:

Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motive as to deprive him of the protection of the privilege unless hey are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that "express malice" can properly be found.

There may be evidence of the defendant's conduct upon occasion other than that protected by the privilege which justify the inference that upon the privileged occasion too his dominant motive in publishing what he did was personal spite or some other improper motive, even although he believed it to be true. But where, as in the instant case, conduct extraneous to the privileged occasion itself is not relied on, and the only evidence of improper motive is the content of the defamatory matter itself or the steps taken by the defendant to verify it accuracy, there is only one exception to the rule that in order to succeed the plaintiff must show affirmatively that the defendant did not believe it to be true or was indifferent to its truth or falsity. Juries should be instructed and judges should remind themselves that this burden of affirmative proof is not one that is lightly satisfied.

The exception is where what is published incorporates defamatory matter that is not really necessary to the fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded. Logically it might be said that such irrelevant matter falls outside the privilege altogether. But if this were so it would involve the application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them to do so. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded. As Lord Dunedin pointed out in Adam v Ward [1917] AC 309, 326-7 the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive. Here, too, judges and juries should be slow to draw this inference.

WAS THIS AN OCCASION OF QUALIFIED PRIVILEGE

[38] In this case I find that the publication of the offending letter to the Police and to Reverend Yabaki were on occasions of qualified privilege. As the last paragraph of the letter said, "although the (32) felonious incidents were reported in a trusting manner to see justice realised and we have attended Nadi Police Station numerous times to inquire as to the progress of the investigations, we are concerned that very little action has been initiated in laying charges against Abbas Ali". The Defendants had interests in the Fantasy Company to protect and the Police and Reverend Yabaki, to a limited extent, had duties to perform in keeping law and order. That was the dominant purpose and possibly the only purpose for which the letter was sent.

[39] Did the Defendants abuse the occasion of qualified privilege to write the letter to maliciously attack or spite the Plaintiff or for some other purpose? There is no doubt that the parties have had a falling out in their business and personal dealings. But that is only but one of the factors I take into account. I have said above that the fact that no charges were laid is not proof that the allegations were not true. It is not proof either that the Defendants knew that they were not true or were indifferent as to their truth or falsity.

[40] In my view, applying the Lord Diplock test in the above passage, the letter contained no irrelevant matters,. Therefore, the onus of proof lies on the Plaintiff to affirmatively prove that the Defendants did not believe the matters stated to be true or that they were indifferent to their truth or falsity. I do not think that the Plaintiff has done that in this case.

[41] Even if I were wrong in so holding that the letter did not contain any irrelevant matters, in all the circumstances of this case, I am not able to draw an inference that the Defendants either did not believe these matters to be true or, though believing them to be true, realised that it had nothing to do with getting the authorities to act, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to maliciously attack the Plaintiff or vent their personal spite, or for some other improper motive.

[42] I therefore find that the defences of fair comment and qualified privilege applied. The Plaintiff's claim fails.

COSTS

[43] Part of the early delay was caused by the Plaintiff himself but later on it was the Defendants who delayed the early trial of this matter as evident from the case history above. In the circumstances, I make no order as to costs.

ORDERS

[44] The Orders are therefore as follows:

1. The Plaintiff's claim is dismissed.
   
2. There is no order as to costs.
   

Sosefo Inoke
Judge

^[1] Para 8 of the Statement of Claim.
^[2] Paragraph 9 of the Statement of Claim
^[3] See the PTC Minutes
^[4] Exhibit P1
^[5] Plaintiff’s Exhibits P2, P3 and P4.
^[6] Defendants Exhibit D1.
^[7] Byrne AP, Inoke and Calanchini JJA
^[8] [2000] HKCFA 35; [2000] 3 HKLRD 418; [2001] 57; http://www.hklii.org/hk/jud/eng/hkcfa/2000/FACV000012_2000-21112.html
^[9] With whom the other Justices agreed.