swarb.co.uk - law index
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Defamation - From: 1990 To: 1990
This page lists 4 cases, and was prepared on 27 May 2018.
Wright and Advertiser Newspapers Limited v Lewis (1990) 53 SASR 416; [1990] Aust Torts Reports 81-026
1990
King CJ
Commonwealth, Constitutional, Defamation
(Supreme Court of South Australia) L, a member of the South Australia House of Assembly, alleged in the House that W had obtained an advantage from his close association with a former Government. W wrote to the newspaper, which published it, accusing L of abusing parliamentary privilege and of cheap political opportunism. L said the letter was libelous. W pleaded justification, qualified privilege and fair comment. L's integrity in making statements in the House was determinative of the action: the letter was plainly defamatory and unless the defendants could challenge the truthfulness of what the plaintiff had said in Parliament, they had no defence. Held. King CJ set out the result of allowing the action without such evidence: "It must be observed at the outset that if the view argued for by counsel for the Attorney-General and the plaintiff is correct, the result is remarkable. A Member of Parliament could sue for defamation in respect of criticism of his statements or conduct in the Parliament. The defendant would be precluded, however, from alleging and proving that what was said by way of criticism was true. This would amount to a gross distortion of the law of defamation in its application to such a situation. Defamation in law is by definition an untrue imputation against the reputation of another. . . If the defendant were precluded from proving the truth of what is alleged, the Member of Parliament would be enabled to recover damages, if no other defence applied, for an imputation which was perfectly true. Moreover the defence of fair comment would often be unavailable, as in the present case, because it would not be permissible to prove the factual foundation for the expression of opinion. The defence of qualified privilege might be seriously inhibited because the defendant would be prevented from answering an allegation of express malice by proving the facts as known to him. If this is the true legal position, it is difficult to envisage how a court could apply the law of defamation in a rational way to an action by a Member of Parliament in respect of an imputation relating to his statements or conduct in the House, or could try such an action fairly or adjudicate upon it justly.
If on the other hand such an action is not justiciable, other difficulties and injustices arise.
. . A Member of Parliament would be deprived of the ordinary right of a citizen to obtain damages for defamation in such circumstances notwithstanding , the privilege being that of the Parliament not of the member, that he might be quite willing to have all the ordinary defences put forward and adjudicated upon by the court."
The Court held limited parliamentary privilege does to exclude challenges to the truth or bona fides of statements made in Parliament where the maker of the statements himself initiates the proceedings. Such a limitation on normal parliamentary privilege would not inhibit the member from exercising his freedom of speech "because he would be aware that his actions and motives could not be examined in court unless he instituted the proceedings which rendered such examination necessary".
1 Citers
Beta Construction Ltd v Channel Four Television Co Ltd [1990] 1 WLR 1042; [1990] 2 All ER 1012
1990
CA
Stuart-Smith LJ, Neill LJ, Ralph Gibson LJ
Defamation, Litigation Practice
When considering the number of documents to be considered when deciding whether a defamation case should proceed before a judge or judge and jury, the court was entitled to look also at any specialised technical content of the documents and also amongst the factors to be considered are the additional length and cost of a jury trial compared with trial by judge alone. Stuart-Smith LJ identified four areas in which the efficient administration of justice might be made less than convenient if trial takes place with jury: The physical problem of handling large numbers of documents in the jury box; The prolongation of the trial because of the number and complexity of the documents; The increased expense, both by the added length of the [jury] trial and copying; and The risk that the jury may not understand the documents.
Supreme Court Act 1961 69
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Slipper v British Broadcasting Corporation [1991] 1 QB 283; [1990] 3 WLR 967
1990
CA
Bingham LJ
Defamation, Damages
The plaintiff, a retired policeman was featured in a film about the Great Train Robbery. He sought to say that paper reviews of the film, and trailers worked to spread the libel, and should count in the assessment of damages against the defendant, who in turn sought to have that leading struck out. Held: Whether reviews and trailers should affect the damages was a matter of fact and for the jury alone. It was not appropriate to strike it out. The plaintiff would be in a position to prove at trial that the passages from the reviews repeated the defamatory sting of the film, and that the defendant could have reasonably foreseen that they would.
Bingham LJ said: "The law would part company with the realities of life if it held that the damage caused by publication of a libel began and ended with publication to the original publishee. Defamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs."
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Heath v Humphreys Unreported, May 21 1990
21 May 1990
Lord Donaldson MR
Defamation
The court considered the circumstances under which malice could be established so as to defeat a claim of qualified privilege. Malice is not to be inferred from the hypothetical untruth of a proposition derived from a misconstruction of a publication. Speaking of Horrocks -v- Lowe: "I think that this passage requires some qualification by the addition of a further exceptional case. Since, as Lord Diplock emphasised, the public interest essentially requires protection for freedom of communication honestly exercised, what matters is that the publishers shall believe in the truth of what he intends to say. If, from his viewpoint his remarks are misconstrued, he would be likely to be the first to say "I never believed in the truth of that" or "I never considered whether or not that was true". If such an answer would take him outside the protection of qualified privilege, its purpose would on occasion be wholly undermined. Putting it another way, in such circumstances the defamer cannot be said to be "telling deliberate and injurious falsehoods". At worse, he is doing so unintentionally."
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