Yew, Gary Chan Kok --- "Never Say 'Never' for the Truth Can Hurt: Defamatory but True Statements in the Tort of Simple Conspiracy" [2007] MelbULawRw 14; (2007) 31(2) Melbourne University Law Review 321
[∗] BA (Hons) (London), MA, LLB (Hons) (NUS), LLM (London); Assistant Professor, School of Law, Singapore Management University. The author would like to thank the organisers and participants at the Obligations III Conference, ‘Justifying Remedies in the Law of Obligations’, T C Beirne School of Law, The University of Queensland, 13–14 July 2006, for the opportunity to present an earlier version of this article. The conference funding by Singapore Management University is also gratefully acknowledged. The author would like especially to thank the following persons for their tremendous assistance on earlier drafts: Low Kee Yang, George Wei and Michael Furmston. The usual caveat applies.
[2] Ibid 192 (Dillon LJ). It was also alleged that the defendants financed an action brought against the plaintiffs by a third party.
[3] Ibid 200 (Stuart‑Smith LJ). These alleged acts of conspiracy by the defendants were a ‘counter‑attack’ against the plaintiffs’ prior ‘extensive public denunciation’ of the defendants: at 192 (Dillon LJ).
[4] Ibid 194 (Dillon LJ).
[5] Ibid 195–6 (Dillon LJ), 202–3 (Stuart‑Smith LJ), 210–11 (Evans LJ).
[6] Ibid 203 (Stuart‑Smith LJ), 210 (Evans LJ).
[7] Ibid 195–6 (Dillon LJ), 202 (Stuart‑Smith LJ), 211 (Evans LJ).
[8] See Foaminol Laboratories Ltd v British Artid Plastics Ltd [1941] 2 All ER 393, 399 (Hallett J).
[9] Lonrho [1994] 1 All ER 188, 195 (Dillon LJ), 202 (Stuart‑Smith LJ), 211 (Evans LJ).
[10] Ibid 195 (emphasis added). On the point concerning the defence of justification in defamation: see also at 202–3 (Stuart‑Smith LJ).
[11] Ibid 202 (emphasis added).
[12] [1989] NZCA 9; [1989] 3 NZLR 148, 156.
[13] Lonrho [1994] 1 All ER 188, 211.
[14] Ibid 198 (Dillon LJ), 205–8 (Stuart‑Smith LJ), 212 (Evans LJ). The Court of Appeal was of the view that the pleadings on the issue of damages were inadequate and allowed the plaintiffs to amend the statement of claim to allege particulars of the actual pecuniary loss: at 194 (Dillon LJ), 201 (Stuart‑Smith LJ), 210 (Evans LJ).
[15] Ibid 201 (Stuart‑Smith LJ).
[16] Ibid 196 (Dillon LJ).
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Ibid 210.
[21] Ibid 211.
[22] Ibid 192 (Dillon LJ).
[23] See, eg, Teodoro Obiang Nguema Mbasogo v Logo Ltd [2005] EWHC 2034 (Unreported, Davis J, 21 September 2005) [50]; Stergiou v Citibank Savings Ltd [1999] FCA 1321 (Unreported, Higgins, Madgwick and Dowsett JJ, 24 September 1999) [29] (Higgins, Madgwick and Dowsett JJ), concerning a claim for ‘damage to credit and social rating’ which, to the Court, ‘appear[ed] to be an alternative way of prescribing damage to reputation’; Gregory v Portsmouth City Council [2000] UKHL 3; [2000] 1 AC 419, 432 (Lord Steyn).
[24] See, eg, Peter Cane, Tort Law and Economic Interests (2nd ed, 1996) 103, describing Lonrho [1994] 1 All ER 188 as ‘sound because it rests on a specification of the interests which the different torts are designed to protect’; Harvey McGregor, McGregor on Damages (17th ed, 2003) 55, 1255.
[25] See, eg, Hazel Carty, An Analysis of the Economic Torts (2001) 33: ‘The tort [of simple conspiracy] could place the courts in a dilemma if it allowed plaintiffs too easily to circumvent the requirements of a defamation action and gain damages for injury to reputation where the basis of the action was that the defendants had conspired to tell the truth’; McGregor, above n 24, 1255.
[26] Andrew Burrows, Remedies for Torts and Breach of Contract (3rd ed, 2004) 317.
[27] Ibid 317–19.
[28] See, eg, James Gordley, Foundations of Private Law: Property, Tort, Contract, Unjust Enrich-ment (2006) 221: the Roman action of iniuria did not recognise a defence based on the truth of a defendant’s statement and considered that an undeserved reputation was still of value. For discussion of whether a statement’s truth should be admissible as evidence: see generally Select Committee of the House of Lords, Parliament of the United Kingdom, Law of Defamation and Libel (1843). Until recently, some Australian jurisdictions have adopted the position that the defence is available only where the publication is for the ‘public benefit’ or ‘public interest’: see, eg, Defamation Act 1974 (NSW) s 16, repealed and replaced by Defamation Act 2005 (NSW).
[29] Lonrho [1994] 1 All ER 188, 202 (Stuart‑Smith LJ).
[30] Ibid 195 (Dillon LJ).
[32] Ibid 333 (Parker LJ).
[33] Ibid 330 (Parker LJ).
[34] Ibid.
[35] Ibid 331–2 (Parker LJ).
[36] Ibid 332–3 (Parker LJ).
[37] The injunction was limited to exhibition by airborne sign and to the duration of the particular race meeting: ibid 332, 334 (Parker LJ).
[38] Ibid 333 (Parker LJ), 334 (Ralph‑Gibson LJ).
[39] Ibid 332–4 (Parker LJ).
[40] Ibid.
[41] Ibid 333 (emphasis added).
[42] Ibid.
[43] Ibid 334.
[44] Ibid 333 (Parker LJ).
[45] Ibid 334 (Parker LJ).
[46] Ibid.
[47] Ibid.
[48] [1994] 1 All ER 188, 195 (Dillon LJ).
[49] Wainwright v Home Office [2003] UKHL 53; [2004] 2 AC 406. Cf the free‑standing tort of privacy in New Zealand: see Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, although the majority judges appeared to be of the view that the stand‑alone tort is similar to the English developments in respect of the action for breach of confidence: at 26 (Gault P and Blanchard J), 60 (Tipping J). For South African developments: see Jonathan Lewis, ‘Privacy: A Missed Opportunity’ (2005) 13 Tort Law Review 166.
[50] See, eg, Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 (‘Campbell’).
[51] See A‑G (UK) v Observer Ltd [1990] 1 AC 109.
[53] See Des Butler, ‘A Tort of Invasion of Privacy in Australia?’ [2005] MelbULawRw 11; (2005) 29 Melbourne University Law Review 339, 341, citing Lenah Game Meats (2001) 208 CLR 199, 248 (Gummow and Hayne JJ), 277 (Kirby J), 321–4, 328 (Callinan J).
[54] The majority (Callinan J dissenting) in Lenah Game Meats (2001) 208 CLR 199 held that the injunction should not be granted.
[55] [1937] HCA 45; (1937) 58 CLR 479.
[56] G H L Fridman, ‘A Scandal in Tasmania: The Tort That Never Was’ [2003] UTasLawRw 4; (2003) 22 University of Tasmania Law Review 84, 89.
[57] (2001) 208 CLR 199, 320.
[58] Ibid 328. Some commentators have taken the view that Lenah Game Meats (2001) 208 CLR 199 is still unclear insofar as the issue of a new tort of privacy is concerned: see, eg, Greg Taylor and David Wright, ‘Privacy, Injunctions and Possums: An Analysis of the High Court’s Decision’ (2002) Melbourne University Law Review 713; Daniel Stewart, ‘Protecting Privacy, Property, and Possums: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd’ [2002] FedLawRw 6; (2002) 30 Federal Law Review 177.
[59] See, eg, Bell‑Booth [1989] NZCA 9; [1989] 3 NZLR 148, 157 (Cooke P for Cooke P, McMullin, Somers and Casey JJ), albeit in a slightly different context.
[60] See George Wei, ‘Milky Way and Andromeda: Privacy, Confidentiality and Freedom of Expression’ (2006) 18 Singapore Academy of Law Journal 1, 15.
[61] See Campbell [2004] UKHL 22; [2004] 2 AC 457, 466 (Nicholls LJ). More recently, the test was applied in HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776; [2007] 2 All ER 139.
[62] Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227. See also Wei, above n 60, 41.
[63] Lenah Game Meats (2001) 208 CLR 199, 226 (Gleeson CJ): ‘The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.’ This last test appears to be less persuasive in England in light of Campbell [2004] UKHL 22; [2004] 2 AC 457, 482 (Lord Hope), 496 (Baroness Hale), 504 (Lord Carswell), and also, on the ground that it unduly pre‑empts, in the context of the HRA, the issue of the appropriate balance between the plaintiff’s right to privacy and the defendants’ countervailing interest to publish information.
[64] Coco v A N Clark (Engineers) Ltd [1968] FSR 415, 419, 421, 425 (Megarry J).
[65] Lenah Game Meats (2001) 208 CLR 199, 231 (Gaudron J), 256 (Gummow and Hayne JJ). Cf R v British Broadcasting Standards Commission; Ex parte British Broadcasting Corporation [2000] EWCA 59; [2001] QB 885, for the different position under English law, although it is suggested that the English courts’ decision to grant corporate privacy rights may have been based on a strict interpretation of the Broadcasting Act 1996 (UK) c 55. In the context of defamation, Australia’s recently enacted uniform defamation acts provide that corporations generally cannot sue in defamation: see, eg, Defamation Act 2005 (NSW) s 9; Defamation Act 2005 (Qld) s 9; Defamation Act 2005 (SA) s 9; Defamation Act 2005 (Tas) s 9; Defamation Act 2005 (Vic) s 9; Defamation Act 2005 (WA) s 9; Civil Law (Wrongs) Act 2002 (ACT) s 121; Defamation Act 2006 (NT) s 8. Cf the English position which permits defamation actions by corporate persons in respect of their trading or governing reputation: Jameel v Wall Street Journal Europe SPRL [2006] UKHL 44; [2007] 1 AC 359. However, an exception arises where free speech may be inhibited by the defamation action and the action runs counter to the public interest: Derbyshire County Council v Times Newspapers Ltd [1992] UKHL 6; [1993] AC 534.
[66] Lenah Game Meats (2001) 208 CLR 199, 226 (Gleeson CJ), 279 (Kirby J).
[67] Ibid 326. This position is supported by Taylor and Wright, above n 58, 719–25.
[68] [1993] 2 All ER 273; revd [1995] 2 AC 296 (‘Guardian Assurance’).
[69] [1989] NZCA 9; [1989] 3 NZLR 148. See also Andrew Demopoulos, ‘Attacking the Plaintiff’s Wares’ (1990) 106 Law Quarterly Review 13, 15.
[70] See, eg, Joyce v Sengupta [1992] EWCA Civ 9; [1993] 1 All ER 897 (malicious falsehood); Dixon v Calcraft [1892] UKLawRpKQB 17; [1892] 1 QB 458.
[71] The elements of the tort of negligence are: (1) the existence of a duty of care owed by the defendant to the plaintiff; (2) the breach of duty by the defendant; and (3) damages resulting from the breach. On the other hand, in the tort of conspiracy, the plaintiff has to show: (1) the existence of an agreement between two or more persons to do acts with the intention to injure the plaintiff; and (2) that the plaintiff suffers the injury. The material differences between the two torts lie in the different mental states of the tortfeasor(s) with respect to the commission of the tort, the policy considerations underlying liability for each tort, and the need for the existence of an agreement in the case of conspiracy, unlike for negligence.
[73] Lonrho [1994] 1 All ER 188, 195 (Dillon LJ), 202–3 (Stuart‑Smith LJ), 210–11 (Evans LJ). All the learned judges were cognisant of the fact that the Court of Appeal in Spring [1993] 2 All ER 273, followed Bell‑Booth [1989] NZCA 9; [1989] 3 NZLR 148. See also A M Tettenborn, ‘Negligence v Defamation — A Little Awkwardness?’ (1987) 46 Cambridge Law Journal 390, 392.
[74] See, eg, Tony Weir, ‘The Case of the Careless Referee’ (1993) 52 Cambridge Law Journal 376.
[75] S C Smith, ‘When the Truth Hurts’ [1998] Scots Law Times 1.
[76] [1963] UKHL 4; [1964] AC 465.
[78] Ibid 4.
[79] [1995] 2 AC 296. The case was remitted to the Court of Appeal to ascertain the extent to which the damage suffered by the plaintiff was caused by the breach of the defendants: at 324–5 (Lord Goff), 339 (Lord Slynn), 354 (Lord Woolf).
[80] The House of Lords also determined that there was a breach of the implied term in the contract to take reasonable care in providing the reference: ibid 320 (Lord Goff), 340 (Lord Slynn), 354 (Lord Woolf).
[82] [1995] 2 AC 296. See also Haskett v Equifax Canada Inc (2003) 63 OR (3d) 577, 591–2 (Feldman JA); Clark v Scotiabank (2004) 25 CCLT (3d) 109, 117 (Day J), albeit by way of dicta.
[83] Young v Bella [2006] 1 SCR 108, 134 (McLachlin CJC and Binnie J). See also Wade v Victoria [1999] 1 VR 121, 139 (Harper J).
[84] The Supreme Court of Canada also stated in Young v Bella [2006] SCR 108, 134 (McLachlin CJC and Binnie J) (emphasis added):
There is no reason in principle why negligence actions should not be allowed to proceed where (a) proximity and foreseeability have been established, and (b) the damages cover more than just harm to the plaintiff’s reputation (ie where these are further damages arising from the defendants’ negligence) …
[85] The standard of care in negligence is concerned with utilitarian factors such as the risks or probability of harm, costs of avoiding harm and seriousness of the harm resulting from the allegedly negligent act or omission: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. The duty of care in negligence — in particular under the limb of ‘just, fair and reasonable’ in Caparo Industries plc v Dickman [1990] UKHL 2; [1990] 2 AC 605, 618 (Lord Bridge) or policy considerations in Anns v Merton Borough Council [1977] UKHL 4; [1978] AC 728 — would, it is submitted, be a more appropriate forum for considering issues relating to freedom of speech and privilege. Although the Anns and Caparo policy considerations are no longer relevant in Australia, Sullivan v Moody (2001) 207 CLR 562 does adopt as a salient feature ‘intersection with the law of defamation’: at 579, 581. This may be equivalent to a policy consideration militating against liability.
[86] It was assumed by the Court that the statements were defamatory of the plaintiff: Bell‑Booth [1989] NZCA 9; [1989] 3 NZLR 148, 150 (Cooke P for Cooke P, McMullin, Somers and Casey JJ).
[87] Ibid 152 (Cooke P for Cooke P, McMullin, Somers and Casey JJ).
[88] Ibid.
[89] Ibid 155 (Cooke P for Cooke P, McMullin, Somers and Casey JJ).
[90] Ibid 156. See also Balfour v A‑G (NZ) [1990] NZCA 364; [1991] 1 NZLR 519; South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 (both cases involving the defence of qualified privilege).
[91] [1989] NZCA 9; [1989] 3 NZLR 148, 157.
[93] Ibid 581 (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ).
[94] Ibid.
[95] (2004) SASR 269, 427 (Bleby, Besanko and Sulan JJ).
[96] See, eg, Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, 12 (Gleeson CJ), on the public interest of electors in receiving information about a candidate for election (in the context of qualified privilege and the requirement of malice).
[97] Gordley, above n 28, 236.
[98] J D Heydon, Economic Torts (2nd ed, 1978) 18.
[99] Ibid 18: ‘If the defendants state true but discreditable facts about the plaintiff, or seek assignments of debts due from him and demand simultaneous payment so as to bankrupt him, the unusualness of the conduct suggests that its purpose is something other than trading self‑interest.’ Heydon is, however, of the view that stating true and discreditable facts about the plaintiff may be evidence of malice: at 18.
[100] [1994] 1 All ER 188, 198 (Stuart‑Smith LJ), 208 (Evans LJ).
[101] [1991] Ch 391, 396–7 (Browne‑Wilkinson V‑C). See also National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VicRp 66; [1989] VR 747.
[102] Femis‑Bank [1991] Ch 391, 396–7.
[103] Ibid 400.
[104] Ibid 401.
[105] Ibid.
[106] [1969] 1 QB 349, 360 (Lord Denning MR).
[107] Ibid 361 (Lord Denning MR).
[108] Ibid. See Francome v Mirror Group Newspapers Ltd [1984] 2 All ER 408: limited injunction restraining the publication of information concerning breaches of racing rules obtained in breach of confidence to only police and jockey club, not to general public, notwithstanding that the defendants were prepared to justify the information; Cream Holdings Ltd v Banarjee [2004] UKHL 44; [2005] 1 AC 253: on the higher threshold for the grant of interlocutory injunctions in the context of HRA s 12(3).
[109] Fraser v Evans [1969] 1 QB 349, 362 (Lord Denning MR).
[110] [1987] Ch 327, 334 (Parker LJ), 334 (Ralph Gibson LJ), 334 (Browne‑Wilkinson V‑C).
[111] There are, however, limited exceptions to the general principle: see Defamation Act 1996 (UK) c 31, s 2 provides a procedure whereby ‘[a] person who has published a statement alleged to be defamatory of another may offer to make amends’; O’Shea v MGN Ltd [2001] EMLR 40: strict liability doctrine did not apply in a case of a photograph published by the defendants which was a ‘look‑alike’ of the plaintiff.
[112] See, eg, Mogul Steamship Co Ltd v McGregor Gow [1891] UKLawRpAC 50; [1892] AC 25; Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1945] AC 435.
[113] For example, removing racial discrimination: Scala Ballroom (Wolverhampton) Ltd v Ratcliffe [1958] EWCA Civ 4; [1958] 3 All ER 220.
[114] For example, protecting employees from prostitution: Brimelow v Casson [1924] 1 Ch 302.
[115] See above nn 101–6 and accompanying text.
[116] Quinn v Leathem [1901] AC 495. Heydon sets out the arguments for and against treating spiteful action as prima facie tortious: above n 98, 128–32.
[117] See, eg, Huntley v Thornton [1957] 1 All ER 234, 249 (Harman J): defendants’ conspiracy to expel the plaintiff from the union for not participating in a strike was regarded as inflicting ‘punishment for personal reasons’.
[118] See Douglas v Hello! Ltd [No 3] [2005] EWCA Civ 595; [2006] 1 QB 125, 174–5, 181–6 (Lord Phillips MR, Clarke and Neuberger LJJ); Mainstream Properties Ltd v Young [2005] EWCA Civ 861 (Unreported, Sedley, Arden LJJ and Aikens J, 13 July 2005) [218] (Arden LJ). The test of foresight by the defendants of harm to a plaintiff was insufficient to ground the intention to injure: Lonrho plc v Fayed [1990] 2 QB 479, 494 (Woolf LJ).
[120] Lonrho Ltd v Shell Petroleum Co Ltd [No 2] [1982] AC 173, 189 (Diplock LJ).
[121] See McCarey v Associated Newspapers Ltd [No 2] [1965] 2 QB 86, 105–6 (Pearson LJ) (‘McCarey’).
[122] Sim v Stretch [1936] 2 All ER 1237, 1240 (Lord Atkin). See also Consolidated Trust Co Ltd v Browne [1948] NSWStRp 71; (1948) 49 SR (NSW) 86.
[123] Parmiter v Coupland [1840] EngR 168; (1840) 6 M & W 105, 108; [1840] EngR 168; 151 ER 340, 341–2 (Parke B).
[124] Youssoupoff v Metro‑Goldwyn‑Mayer Pictures Ltd (1934) 50 TLR 581, 587 (Slesser LJ).
[125] See Civil Law (Wrongs) Act 2002 (ACT) s 119; Defamation Act 2005 (NSW) s 7; Defamation Act 2006 (NT) s 6; Defamation Act 2005 (Qld) s 7; Defamation Act 2005 (SA) s 7; Defamation Act 2005 (Tas) s 7; Defamation Act 2005 (Vic) s 7; Defamation Act 2005 (WA) s 7.
[126] [1965] 2 QB 86, 107. On the purposes of damages for defamation: see also Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, 60 (Mason CJ, Deane, Dawson and Gaudron JJ): consolation for the plaintiff’s personal distress and hurt, reparation for harm done to the plaintiff’s reputation and vindication of the reputation; John v MGN Ltd [1997] QB 586, 607 (Bingham MR).
[127] McCarey [1965] 2 QB 86, 108 (emphasis added).
[128] See Burrows, above n 26, 312.
[129] See John Murphy, Street on Torts (2007) 534–6.
[130] See Slipper v British Broadcasting Corporation [1991] 1 QB 283, 296 (Stocker LJ), relating this to the issue of ‘natural and probable consequences or foreseeability’.
[131] See above n 125 and accompanying text.
[132] See, eg, Davies v Solomon (1871) LR 7 QB 112, where actual damage included loss of hospitality of friends; Lynch v Knight [1861] EngR 822; (1861) 9 HL Cas 577, where actual damage included loss of consortium. On the facts in Lynch v Knight [1861] EngR 822; (1861) 9 HL Cas 577, Lord Brougham found that the special damage was not ‘the natural and probable’ effect of the slander: at 591. Similarly, Lord Cranworth found that the special damage was not the ‘natural result’ of the slander: at 595. On the other hand, Lord Wensleydale took the view that there is no remedy for loss of consortium in defamation as it is non‑pecuniary: at 598–9.
[133] [1901] AC 495.
[134] [1994] 1 All ER 188, 193.
[135] Ibid 203 (Stuart‑Smith LJ), 210 (Evans LJ).
[136] [1919] 1 KB 244. This is a case on the tort of inducement of a breach of contract.
[137] Ibid 281 (McCardie J).
[138] Ibid 282.
[141] Lonrho [1994] 1 All ER 188, 208 (Evans LJ).