Seaga v Harper

JurisdictionUK Non-devolved
JudgeLord Carswell
Judgment Date30 January 2008
Neutral Citation[2008] UKPC 9
CourtPrivy Council
Docket NumberAppeal No 90 of 2006
Date30 January 2008
Edward Seaga
Appellant
and
Leslie Harper
Respondent

[2008] UKPC 9

Present at the hearing:-

Lord Scott of Foscote

Lord Walker of Gestingthorpe

Lord Carswell

Lord Neuberger of Abbotsbury

Sir Henry Brooke

Appeal No 90 of 2006

Privy Council

[Delivered by Lord Carswell]
1

The appellant Edward Seaga is an experienced Jamaican politician, who at the material time was Leader of the Jamaica Labour Party ("JLP") and Leader of the Opposition. As such he was well acquainted with making statements for public consumption and using the media for obtaining the necessary publicity to give such statements wide circulation. On 2 October 1996 he made a statement at a meeting about the respondent Leslie Harper, one of the Deputy Commissioners of Police, which was widely reported by representatives of the media who were present at the meeting. The respondent issued these proceedings for slander. The trial judge Brooks J, who heard the action without a jury, held (Record, p 145) that the words complained of were defamatory of the respondent in his office of Deputy Commissioner of Police, and this finding has not been in issue before the Board. The words spoken have not been justified nor is there a plea of fair comment. The sole defence put forward is that they were spoken on an occasion of qualified privilege. There is no plea of malice. The judge held that the appellant was not protected by qualified privilege and made an award of damages of $3,500,000. On appeal the Court of Appeal (Harrison P, Smith JA and McCalla JA(Ag)) dismissed the appellant's appeal on the issue of privilege but reduced the award of damages to $1,500,000. The appellant has appealed to the Privy Council, with the leave of the Court of Appeal, on the issue of liability.

2

The JLP organised a meeting, open to the public, to be held on 6 March 1996 at the Wyndham Hotel, Kingston. Representatives of the press and broadcasting media were present. They regularly attended such meetings and the appellant accepted in cross-examination that his party would have alerted them to the holding of this meeting. One of the topics on which the appellant spoke was the impending appointment of a Commissioner of Police in succession to the retiring Commissioner, which appointment would be made by the party in government, the People's National Party ("PNP"). In the course of his speech he said:

"Part of the strategy is to get rid of the present Commissioner of Police, and to put in place someone whose credentials as a PNP activist are impeccable, reliable, solidly supported - a distinguished supporter of the PNP. The only difference being that he is in uniform.

Mr. Harper who is considered to be the person to replace Trevor McMillan is someone who we cannot and never will be able to support, because it is re-creating the conditions of 1993 when a similar type of Commissioner was in the post who did everything to turn a blind eye in that election."

The speech was published widely throughout Jamaica in the press and on television and radio. As the appellant accepted in his answer to the 13th interrogatory administered to him, he knew when he made the speech that the media representatives were present. In his answer to the 11th interrogatory he said that it was his duty as Leader of the Parliamentary Opposition "to communicate directly with the people of this island" his party's objection to the respondent becoming Commissioner of Police. In the course of his evidence the appellant said (Record, p 115) that his intention was to perform his duty as Leader of the Opposition and "to inform the country of the danger of appointing Mr Harper as Commissioner of Police."

3

The appellant gave the following particulars in support of the plea of qualified privilege in his defence:

"The integrity, impartiality and independence from political influence of the police force, particularly its leadership and the conduct of the Plaintiff, a senior police officer and one of its leaders as also the importance to the holding of free and fair elections under the Constitution of vigilant and impartial enforcement of the law by the leadership of the police force including the Plaintiff, are matters of general public interest upon which the Defendant, as a Member of Parliament, Leader of the Opposition and Leader of the Jamaica Labour Party, had an interest or duty in making communication to the general public and on which members of the public had a corresponding interest in receiving communication."

In addition to his answer to the eleventh interrogatory, the appellant said in paragraph 9 of his written witness statement:

"As Leader of the Opposition I considered it my duty to tell the people of Jamaica of my fears in that regard [viz that the respondent was a strong supporter of the PNP], and I had every reason to believe that the people of this country were interested in receiving that information."

He repeated this averment in his oral evidence, when he said in cross-examination (Record, p 115):

"My intention was to perform my duty of Leader of the Opposition and to inform the country of the danger of appointing Mr Harper as Commissioner of Police…"

It is in their Lordships' view clear that the appellant knew and intended at the time of publication that his words should receive such wide publicity.

4

The appellant was cross-examined in some detail about the inquiries he had made before making the statement to ascertain the correctness of his facts. He said that he had received information from senior members of his party, and that many people had telephoned him to warn him that the respondent was biased towards the PNP. He accepted their word and did not seek to question them about the foundation of their information. He declined to name his informants, as he said that the information was given to him in confidence. He did not attempt to go beyond their findings. He did not ask the Commissioner Colonel McMillan, as that would have been inappropriate, nor did he contact the respondent himself. He did not report his concerns to the Police Services Commission, as he and his party had no faith in it.

5

The defence of qualified privilege, like so many other doctrines of the common law, developed over a period of time, commencing in the 19th century, and is still in the process of development. The history is conveniently summarised in the judgment of Dunn LJ in Blackshaw v Lord [1984] QB 1, 33-4, drawing on the argument of Sir Valentine Holmes KC in Pereira v Peiris [1949] AC 1, 9. By the time of the decision of the Court of Appeal in Purcell v Sowler (1877) 2 CPD 215 it was assuming its recognisable modern form. It is founded upon the need to permit the making of statements where there is a duty, legal, social or moral, or sufficient interest on the part of the maker to communicate them to recipients who have a corresponding interest or duty to receive them, even though they may be defamatory, so long as they are made without malice, that is to say, honestly and without any indirect or improper motive. It is the occasion on which the statement is made which carries the privilege, and under the traditional common law doctrine there must be a reciprocity of duty and interest: Adam v Ward [1917] AC 309, 334, per Lord Atkinson. The development of the law is accurately and conveniently expressed in Duncan and Neill on Defamation, 2nd ed (1983), para 14.04:

"From the broad general principle that certain communications should be protected by qualified privilege 'in the general interest of society', the courts have developed the concept that there must exist between the publisher and the publishee some duty or interest in the making of the communication."

6

The law has been slow to accept that a communication to the world at large, such as in a newspaper, is protected by qualified privilege. It has traditionally been held either that there is no duty on the part of the maker to publish it so widely or that the breadth of the class of recipients is too wide for them all to have an interest in receiving it: see, eg, Chapman v Lord Ellesmere [1932] 2 KB 431; and cf Gatley on Libel and Slander, 10th ed (2004) paras 14.6, 14.81. The submission has been advanced from time to time that the law should recognise the existence of a species of qualified privilege founded upon a duty on the part of the maker of the statement to publish it to the world at large. This received some support from Pearson J in Webb v...

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