D.R Lange v J.B. Atkinson and Another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Nicholls of Birkenhead |
| Judgment Date | 28 October 1999 |
| Judgment citation (vLex) | [1999] UKPC J1028-1 |
| Date | 28 October 1999 |
| Court | Privy Council |
| Docket Number | Appeal No. 71 of 1998 |
[1999] UKPC J1028-1
Privy Council
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Steyn
Lord Cooke of Thorndon
Lord Hope of Craighead
Lord Hobhouse of Woodborough
[Delivered by Lord Nicholls of Birkenhead]
This appeal concerns a defence of "political expression" pleaded in a libel action. The plaintiff applied, in advance of the trial, to strike out this plea as disclosing no defence known to the law. Elias J. dismissed the application. The Court of Appeal, comprising Richardson P., Henry, Keith, Blanchard and Tipping JJ., dismissed the plaintiff's appeal. The judgments of Elias J. and the Court of Appeal are reported at [1997] 2 N.Z.L.R. 22 and [1998] 3 N.Z.L.R. 424. The Court of Appeal granted the plaintiff leave to appeal to their Lordships' Board. The trial of the action is yet to take place.
The plaintiff in the action is Mr. David Lange, a former Prime Minister of New Zealand and former leader of the New Zealand Labour Party. In October 1995 the magazine North and South, which circulates throughout New Zealand, published an article by the first defendant, Mr. Joe Atkinson. The publisher of North and South is the second defendant, Australian Consolidated Press NZ Ltd. At the time the article was published Mr. Lange was a senior member of the opposition in Parliament.
As conveniently summarised by the Court of Appeal, the article is generally critical of Mr. Lange's performance as a politician and as Prime Minister, and casts doubt on his recollection of certain events in which he was involved. Its flavour can be gauged from the accompanying cartoon, also said to be defamatory, which depicts Mr. Lange at breakfast being served a packet labelled "Selective Memory Regression for Advanced Practitioners". There are also some mildly adverse observations on his time as a student and as a practising lawyer, but they are incidental to the main theme. The sixteen passages complained of are set out in the judgment of Elias J. They are said to mean that Mr. Lange is irresponsible, dishonest, insincere, manipulative and lazy.
In addition to defences of truth, honest opinion and failure to mitigate damage, the defendants pleaded a defence of "political expression" (paragraph 41) and qualified privilege (paragraph 43). The former plea was novel. It was based on the majority judgments of the High Court of Australia in Theophanous v. The Herald & Weekly Times Ltd. (1994) 182 C.L.R. 104 and Stephens v. West Australian Newspapers Ltd. (1994) 182 C.L.R. 211. In short, the plea was that the article and the offending words related to matters which had previously been the subject of public comment by Mr. Lange himself made as a member of Parliament and as a political commentator and columnist. They concerned Mr. Lange in his capacities as a member of the New Zealand House of Representatives, the leader of the parliamentary Labour Party and the official opposition and the Prime Minister of New Zealand. They dealt with his performance in those capacities, and they were written and published for the purpose of bringing readers' attention to matters relevant to an informed consideration of that performance. Further, the article was written without malice, was not published recklessly, and was reasonable in the circumstances, having regard to the first defendant's belief in the truth of the articles, the steps taken beforehand to check and research, and the absence of malice and recklessness.
Paragraph 43 of the defence was a more conventional plea of qualified privilege. This paragraph alleged that the article was published in the circumstances and for the purpose set out in paragraph 41, and that the first defendant had a duty to write and publish the article and the New Zealand public had an interest in receiving the information in the article.
As noted by Elias J., the issue raised by the application was whether, in the context of political speech, the common law currently strikes an appropriate balance between the two principles of reputation and free speech. In a wide-ranging judgment, Elias J. considered the various factors bearing on this issue. A summary would not do justice to the judgment, nor is a summary necessary having regard to the conclusion their Lordships have reached in this important matter. However, some salient points in the judgment must be mentioned. The judge observed that the balance ultimately must be a value judgment informed by local circumstances and guided by principle. In the defence of qualified privilege the common law has made the judgment that it is for the common convenience of society that speech which cannot be proved to be true is protected. Any "adjustment to the common law" should be by application of the existing defences of honest belief or qualified privilege, as suggested by the Court of Appeal in Hyams v. Peterson [1991] 3 N.Z.L.R. 648, 657. The contemporary legislative and social background needs to be considered if the common law is to keep abreast with the expectations of modern society. Political debate is at the core of representative democracy. Comment upon the official conduct and suitability for office of those exercising the powers of government is essential to the proper operation of a representative democracy. The transcendent public interest in the development and encouragement of political discussion extends to every member of the community. It would be wrong for such communications, if made to the general public, to have a lesser protection than is available to sections of the community able to point to a common interest which may be of no direct public value. Political discussion inevitably on occasion will entail the making of statements likely to injure the reputations of others. The common law defence of qualified privilege should apply to claims for damages for defamation arising out of political discussion. Political discussion is discussion which bears upon the function of electors in a representative democracy by developing and encouraging views upon government.
The judge's conclusion was that the defence of political expression should be re-pleaded as part of the defence of qualified privilege. The plea of absence of malice should not be carried over into the amended pleading. Re-introduction of concepts of malice wider than those identified and restated in the Defamation Act 1992 is inconsistent with the Act and should not be permitted. Similarly with the plea of reasonableness: a requirement of reasonableness would introduce a wide factual inquiry inconsistent with the statutory restatement of the defence of honest opinion. There are good reasons why the two defences of honest opinion and qualified privilege should conform on the question of fault. Once the circumstances of legitimate political discussion have been established, the only appropriate condition for raising qualified privilege should be honest belief. The defendants had a tenable defence.
Elias J. delivered her reserved judgment on 24th February 1997. A few months later, and before an appeal from this decision was heard by the Court of Appeal, there was a development in the Australian jurisprudence. On 8th July 1997 the High Court of Australia, in Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520, decided unanimously that qualified privilege applied to communications to the public of information, opinions and arguments concerning government and political matters, subject to the publisher proving reasonableness of conduct.
In the Court of Appeal [1998] 3 N.Z.L.R. 424 Richardson P., Henry, Keith and Blanchard JJ. dismissed Mr. Lange's appeal, for substantially the same reasons as Elias J. They said at page 428:-
"We hold that the defence of qualified privilege applies to generally-published statements made about the actions and qualities of those currently or formerly elected to Parliament and those with immediate aspirations to be members, so far as those actions and qualities directly affect or affected their capacity (including their personal ability and willingness) to meet their public...
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