White et Al v Hall
| Jurisdiction | Bermuda |
| Judge | Henry, P.,Georges, J.A.,Huggins, J. A. |
| Judgment Date | 21 July 1993 |
| Neutral Citation | BM 1993 CA 24 |
| Docket Number | Civil Appeal No. 8 of 1993 |
| Court | Court of Appeal (Bermuda) |
| Date | 21 July 1993 |
Court of Appeal
Henry, P. (Acting), Huggins, J.A.; Georges, J.A.
Civil Appeal No. 8 of 1993
Practice and procedure - Documents — Privilege — Transcripts of tape recordings used — Qualified privilege — At retrial notice given of additional evidence — 2 tape recordings of conversations in which accused confessed — Plea of guilty — Trial judge read transcripts of tapes before sentencing — Transcripts not tendered in evidence — Tapes and transcripts remained with Registrar — Appellant obtained certified copies which contained material defamatory of respondent — A transcript published in Royal Gazette — Respondent filed claim — Ex parte interim injunction restrain republication of one transcript and publication of the other — Application to set aside injunction refused — Appeal. Held: Qualified privilege attaches to publication of a true copy of extract from a register required by statute to be kept and may be inspected by the public — No distinction between register and records of Supreme Court — Injunction set aside — Appeal allowed — Appellant awarded costs of appeal.
Henry, P. (Ag.): In February 1992 the conviction of one Dillas for conspiracy to import drugs was set aside on appeal and a new trial ordered. At the new trial the prosecution served notice of additional evidence in respect of two tapes allegedly made of conversations between Dillas and a cell mate in the course of which Dillas made admissions in respect of the offence with which he was charged. In the face of this proposed evidence he pleaded guilty and the trial judge before passing sentence read overnight transcripts of the tapes. The appellant pursuant to section 3 of the Supreme Court (Records) Act, 1955 (“the Act”) obtained certified copies of the two transcripts. That section provides as follows:
“3. (1) Subject to any Rules of Court made under this Act, the Registrar, upon the application of any person and upon the payment of the appropriate fee prescribed under the Court Fees and Expenses Act 1971 [title 8 item 7] –
(a) shall allow that person to inspect and examine any of the records of the Supreme Court;
and
(b) shall allow that person to copy or make extracts from any of the records of the Supreme Court; and
(c) shall cause to be prepared and furnished to that person a certified copy of any of the records of the Supreme Court.
(2) Nothing in the foregoing provisions of this section shall be construed so as to require or authorize the Registrar, on the application of any, person not entitled by any provision of law, and not duly authorized in that behalf, to allow the inspection or examination, or to prepare and furnish copies, of any of the following documents, that is to say –
(a) any pleadings or other documents relating to any civil proceedings then pending in the Supreme Court; or
(b) any depositions or other documents relating to any part of any proceedings taken under the Indictable Offences Act 1929 [title 8 item 32], from which the public has, in pursuance of that Act, been excluded; or
(c) any discretion statement or report of a medical examiner in a matrimonial cause; or
(d) any notes of evidence taken by a judge in any proceedings; or
(e) any documents relating to any part of a trial from which all or any portion of the public has, in pursuance of section 9 (4) of the Act of the Parliament of the United Kingdom entitled the Official Secrets Act 1920, been excluded.
(3) Without prejudice to any other remedy which may be available to him, any person aggrieved by a refusal of the Registrar to allow him to inspect or examine any of the records of the Supreme Court, or to prepare and furnish copies of any such records, may appeal against such decision of the Registrar to a Judge.”
‘Both tapes contained material defamatory of the respondent. On February 20, 1993 a transcript of the first tape was published in the Royal Gazette and on February 22, 1993 the Respondent filed a writ and statement of claim seeking damages as well as an ‘injunction restraining the appellant from republishing the first transcript and publishing the second transcript. The Respondent also obtained an ex parte interim injunction to that effect. The appellant applied to set aside the interim injunction and in a written decision dated April 2, 1993 Ward J. refused the application on the ground that “privilege does not extend to publications made to the public generally but only to a limited class of the public which has a legitimate interest in receiving the information” and the Act does not alter the ambit of the common law defence. This is an appeal against that decision.
The essential complaint in the appeal is that the learned judge failed to apply the common law principles relating to qualified privilege by virtue of which that privilege attached to a publication of extracts from registers kept pursuant to an Act of Parliament and which by law the public are entitled to inspect. Those principles, counsel submitted, applied equally to records as to registers, particularly since in this case the relevant statute defines “records” to include registers, and in as much as the Supreme Court (Records) Act, 1955 requires the Registrar of the Supreme Court to keep the records of the Supreme Court and authorises the inspection and copying of those records by “any person”, any subsequent publication of extracts from those records would be an occasion of qualified privilege.
Counsel for the Respondent submitted that at common law publication of defamatory matter to the general public cannot, subject to certain exceptions, be the subject of qualified privilege unless it can be shown not only that the published material is a matter of legitimate public interest but that there existed a social, legal or moral duty to publish it. One of the exceptions, he submitted, was the reporting of judicial proceedings, but in this case it was not suggested that the publication constituted a reporting of judicial proceedings. There was, he submitted, no duty to publish, nor was the published material a matter of legitimate public interest, therefore, the defence of qualified privilege could not arise and the judge was justified in ordering the injunction.
It seems clear from paragraphs 441 and 442 of Gatley's Libel and Slander (8th Edition), which are set out below, that statements made in the discharge of a duty and statements made in pursuance of an interest are but two of a number of cases in which qualified privilege can arise. It also seems clear that another of those cases is one in which an extract from a public register is published, and that is separate and distinct from one which is a report of judicial proceedings. If, therefore it is correct to “categorise the reporting of judicial proceedings as an exception to a qeneral rule requiring both community of interest and the existence of a duty to publish, then the publication or extracts from a public record ought to be similarly categorised.
441. “Introductory. There are occasions upon which, on grounds of public policy and convenience, a person may, without incurring legal liability, make statements about another which are defamatory and in fact untrue. On such occasions a man, stating what he believes to be the truth about another, is protected in so doing, provided he makes the statement honestly and without any indirect or improper motive. These occasions are called occasions of qualified privilege, for the protection which the law, on grounds of public policy, affords is not absolute but depends on the honesty of purpose with which the defamatory statement is made. The rule being founded on the general welfare of society, new occasions for its application will necessarily arise with continually changing conditions.
442. The main classes. The following classes of statement (some of which owe their protection to statute) illustrate but do not exhaust the general principle; for we may not “substitute a catalogue for a principle”:
(1) Statements made in the discharge of a public or private duty.
(2) Statements made on a subject-matter in which the defendant has a legitimate interest.
(3) Statements made by the defendant to obtain redress for a grievance.
(4) Reports of parliamentary proceedings.
(5) Extracts from, or abstracts of, parliamentary reports, papers, votes, or proceedings published by the authority of Parliament.
(6) Extracts from registers kept pursuant to Act of Parliament and which by law the public are entitled to inspect.
(7) Reports and broadcasts of judicial proceedings
(i) Qualified privilege at common law.
(ii) Absolute privilege by statute.
(8) Other reports in a newspaper or broadcast having qualified privilege:
(i) Statements privileged without explanation or contradiction.
(ii) Statements privileged subject to explanation or contradiction.
(9) Agenda of local authority meetings.”
It is true the following dictum by Lord Cottenham in Fleming v. Newton (1848) 1 H.L.C. 363 at 379 may be construed as suggesting that community of interest must exist:
“From those references it appears to me clear that the legislature has thought that the public at large ought to be able to have recourse to this Register, and of all the public the appellants have the highest interests in the knowledge of its contents. They are engaged in mercantile affairs, in which their security and success must greatly depend upon knowledge of the pecuniary transactions and credit of others. That each of them might go or send to the office and search the Register is not disputed, and that they might communicate to each other what they had found there is equally certain. What they have done is only doing this by a common agent, and giving the information by means of printing.” ever in Annaly v. Trade Auxiliary Co. (1890) 26 L.R. IR. 374 at Lord Ashbourne stated:
“Under the statute I...
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