Buchanan v Jennings

JurisdictionUK Non-devolved
CourtPrivy Council
JudgeLord Bingham of Cornhill
Judgment Date14 Jul 2004
Neutral Citation[2004] UKPC 36
Docket NumberAppeal No. 53 of 2003

[2004] UKPC 36

Privy Council

Present at the hearing:-

Lord Bingham of Cornhill

Lord Scott of Foscote

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Dame Sian Elias

Appeal No. 53 of 2003
Owen Robert Jennings
Appellant
and
Roger Edward Wyndham Buchanan
Respondent

[Delivered by Lord Bingham of Cornhill]

1

In a judgment delivered by Keith J, a majority of the Court of Appeal (Richardson P, Gault, Keith and Blanchard JJ, Tipping J, dissenting) (reported as Buchanan v Jennings [2002] 3 NZLR 145) succinctly defined in paragraph [1] the principal issue in the appeal before it, which is also the principal issue in this appeal to the Board:

"whether a Member of Parliament may be held liable in defamation if the Member makes a defamatory statement in the House of Representatives – a statement which is protected by absolute privilege under article 9 of the Bill of Rights 1688 – and later affirms the statement (but without repeating it) on an occasion which is not protected by privilege."

The majority concluded (paragraph [1]) that a member may be held liable and that the defendant had been rightly held liable in this case. Tipping J dissented from this conclusion. He held (paragraph [130]) that repetition to whatever extent by an MP of words spoken in the House becomes actionable only if the words spoken or written outside the House are defamatory in themselves, on a stand-alone basis, without the need for reference to any words spoken in the House.

2

Mr Buchanan, the plaintiff in the action, is a senior official of the New Zealand Wool Board. At all material times the defendant, Mr Jennings, was a Member of Parliament. In the course of a parliamentary debate in the House of Representatives on 9 December 1997, Mr Jennings made observations defamatory of the part played by a Wool Board official in procuring Board sponsorship of a rugby tour to the United Kingdom. It has not been contested that the official referred to, although not named, was identifiable as Mr Buchanan. It is unnecessary for present purposes to repeat the text of these observations. It is enough to record that they seriously impugned Mr Buchanan's personal and professional integrity. Mr Jennings' remarks attracted some public attention for a time, but interest subsided and Mr Jennings sought to revive it by a press release issued on 15 February 1998 in which he renewed, although in less specific and more impersonal terms, his attack on the Board. This press release prompted a reporter (Mr Speden) of The Independent to interview Mr Jennings. In the course of this interview Mr Speden asked Mr Jennings in detail about his parliamentary statement and, according to the report of the interview published in the newspaper on 18 February 1998,

"Jennings said he did not resile from his claim about the officials' relationship …"

3

Mr Buchanan issued proceedings. In his second amended statement of claim he pleaded Mr Jennings' words used in the House on 9 December 1997, adding that he would refer to and rely on the full wording in the Hansard report at trial to "establish as an historical fact" that the words had been spoken by Mr Jennings. He also pleaded that Mr Jennings, by saying what he had to the reporter, had "adopted, repeated and confirmed as true" what he had said in the House. Mr Buchanan based his claim on this statement to the newspaper, made by Mr Jennings with knowledge that what he said would be widely published. He also pleaded a second cause of action, which gives rise to no issue in this appeal. Mr Jennings' defence consisted, in the main, of bare denials. He denied the pleaded effect of his interview with the newspaper, and that he had then adopted, repeated or confirmed as true his parliamentary statement. But he admitted that he had used the words attributed to him in the House, pleaded that the words in question had been spoken under the protection of parliamentary privilege and pleaded that the claim against him infringed the protection given to him by article 9 of the Bill of Rights. He pleaded no defence of justification or fair comment.

4

In reliance on his defence of absolute privilege, Mr Jennings applied to strike out Mr Buchanan's claim, but he failed before Master Thomson ( [1999] NZAR 289) and, on appeal, before the High Court (Randerson and Neazor JJ: [2000] NZAR 113). His defence of absolute privilege was rejected at trial by Heron J, who awarded damages of $50,000 to Mr Buchanan ( [2001] 3 NZLR 71). It is this award, upheld by the Court of Appeal majority, which is challenged before the Board ( [2002] 3 NZLR 145). The significance of the principal issue defined above is reflected in the decision of the Speaker to invite the Attorney General to seek leave to intervene in support of Mr Jennings' argument on absolute privilege. As a result, the Board has enjoyed the benefit, also enjoyed by Heron J and the Court of Appeal, of submissions made by the Solicitor General, Mr Terence Arnold QC.

5

Before turning to this principal issue, it is convenient to address another point briefly but effectively argued by Mr Gilkison for Mr Jennings. He contended, quite correctly, that it is the duty of a defamation plaintiff to plead the words said to be defamatory. This, he submitted, Mr Buchanan failed to do, since Mr Speden had not been able to vouch that the words used in his report ("Jennings said he did not resile …") were the precise words used by Mr Jennings, and in particular was unable to say whether "resile" was a word first used by him or by Mr Jennings. Having carefully considered this submission, the Board is satisfied that it cannot succeed. Where an oral statement is complained of, it is rarely possible (in the absence of a recording, a transcript or a very careful note) for a plaintiff to establish the precise words used by the defendant. But the law does not demand a level of precision which is unattainable in practice. The plaintiff must plead the words complained of, but it is enough if the tribunal of fact is satisfied that those words accurately express the substance of what was said. Mr Speden was adamant that "resile" was not a sub-editorial interpolation (unlike another expression in his report, which he identified) and insisted that he had accurately conveyed the effect of a long interview. He was not seriously challenged in cross-examination, Mr Jennings did not give evidence to put forward a different account of the interview, and the judge plainly accepted Mr Speden's evidence (see paragraphs [15], [16] and [49] of his judgment). It cannot matter whether Mr Jennings said "I do not resile …" or whether, perhaps more probably, Mr Speden asked "Do you resile …?" And Mr Jennings answered "No". The law of defamation, which already has its critics, would incur justified criticism if the outcome of actions were to turn on differences of language giving rise to no difference of meaning.

Absolute privilege

6

In New Zealand, as in other liberal democracies, a very high value is attached to freedom of speech and expression as the necessary condition of good government, intellectual progress and personal fulfilment. For many years the law has however recognised also that such freedom cannot be absolute. Thus the right to freedom of expression, now protected by section 14 of the New Zealand Bill of Rights Act 1990, is subject under section 5 to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. One such reasonable limit has long been prescribed by the law of defamation, restricting as it does the freedom of one person to publish false and defamatory statements about another. In this instance the general public interest in free expression yields to another aspect of the public interest, that which recognises the need to afford a measure of protection to the reputation and credit of individuals. The civil law of defamation is the legal means through which this protection is given.

7

The general right to redress which the law of defamation gives to those injured by false and defamatory publications is not, in its turn, absolute. In some situations the value of free and open communication is held to outweigh the interest of the individual who may be injured by a false and defamatory statement. In such situations the law gives the publisher a qualified privilege: that is, a defence to any claim made against the publisher, even though the statement is shown to be false and defamatory, so long as he is not shown to have been improperly motivated in publishing what he did (is not shown, in the technical language of the law, to have acted maliciously).

8

In other situations the value of free and open communication is held to require an even stronger measure of protection, the giving to the publisher of a false and defamatory statement a privilege which is absolute, indefeasible even if the publisher was improperly motivated (or malicious). Proceedings in court are one situation in which absolute privilege attaches to statements made: any claim based on such a statement may (subject to a possible but immaterial exception) be defeated by a defence of absolute privilege. This is not a privilege accorded for the benefit of those participating in court proceedings. It is a privilege given because the public requirement that justice should be done and seen to be done, and that those acting should do so without fear of subsequent civil suit, outweighs the interest of an individual injured by a false and defamatory statement made in the course of such proceedings. Parliamentary proceedings are the other main situation in which absolute privilege attaches to statements made, and is the situation with which this appeal is concerned.

9

The preamble to the Bill of Rights (1 Wm. & M, Sess. 2, c.2), which is agreed to be part of the law of New Zealand,...

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