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Are too
By Steven | November 4, 2009
Remember Erin Leigh? She was working on contract on a climate change communications strategy for the Ministry for the Environment when Clare Curren, another communications adviser, was appointed to oversee her work. Ms Leigh left. A political shitstorm blew up the following year. Was Ms Curren’s appointment politically motivated? Was it really about ideological disagreements with Ms Leigh?
The Minister (at that time, Trevor Mallard) called for a briefing paper from the Ministry about the circumstances of her departure. The briefing paper was fairly circumspect. It recounted the circumstances in a factual and dry manner. It noted that her work had been through “a series of six drafts in late April to early May 2006” and said:
Around about mid May 2006, the work Erin did apparently received consistent adverse comment from government departments, from senior officials and also from the Minister responsible for climate change (Hon David Parker). Clare Current was employed from 22 May 2006.
Erin Leigh has sued over these comments, alleging that they are defamatory.
Justice Robert Dobson has held that they were not. More precisely, he has held that they are not capable of bearing a defamatory meaning.
How did he reach this conclusion? It is, after all, an elementary principle of defamation law that you are liable if you pass on someone else’s criticism, even if you didn’t make it yourself. The judge didn’t disagree with that. But in the context of the circumstances in which Ms Leigh quit, he said, “the more natural inference is that her approach to the content was at odds with those others who commented adversely on it.” In other words, anyone would assume that the differences were ideological and wouldn’t think less of her.
Really? But doesn’t it at least suggest that she was unable to temper her own views so that her work – communications, after all – reflected the views of those of the senior officials who had employed her, and the other government departments, and the Minister? No, said the judge. She’s been rehired several times, and only left because of the “vote of no confidence implicit in another person being imposed to oversee the wording of her work”.
Um. Doesn’t that really make things worse? Can it really be said that no properly instructed juror could find that ordinary reasonable people would think less of Ms Leigh after reading this?
What about those six drafts? No-one could think the less of her for that, says the judge. Jury members with experience in a diverse array of situations might easily be satisfied “that anything from the wording of an advertising jingle to a politician’s speech, a commercial contract or a clergyman’s sermon might undergo six or more drafts without rendering the draftsperson unfit for that particular task.”
I’m not at all sure about that. And I’m even less sure about that when you put it together with the allegations of widespread criticism in the briefing paper.
The judge draws heavily on likely understanding of those who saw that paper against the background of the clash of principles that was being widely reported. In that context, he says, people wouldn’t immediately think less of her from the paper.
I can see where he’s coming from. And I’d like to think that judges and most lawyers wouldn’t draw adverse inferences against that background. But it’s a far cry from that to saying that those words are not capable of being construed by a juror as giving rise to a defamatory inference. I think this should have been left to the jury to make up its own mind.
I understand the ruling is going to the Court of Appeal. I’d expect it to be successful on that point. Which doesn’t mean Ms Leigh will win the case. Quite apart from what view a jury will take of the language in the briefing paper (and in a later oral briefing, which is also part of the defamation claim), it strikes me that there is a very strong case that a qualified privilege (if not absolute privilege) defence is available.
I should note that there are other issues in the decision that I haven’t addressed here. For one thing, he strikes out the parallel claim in negligence, and I rather suspect that aspect of the decision will survive appeal.
Topics: Defamation | Comments Off on Are too