Invective, Irrelevant or Defamatory material and Freedom ...



32099259525Extract:71: “Qualified privilege implies two principles of public policy: (1) That the welfare of society demands that an advocate or attorney who pleads the cause of his client should have a large degree of freedom in laying his client's case before the Court, even though in so doing he defames the other party or even a third party. The decided cases show that he has this privilege when opening a case in open Court, when examining and cross-examining witnesses, and when addressing the Court. For the same reasons the pleader must enjoy this qualified privilege when he files formal pleadings and other documents necessary to place his client's case before the Court. To hamper his freedom in this respect would be to hamper the administration of justice; this would be contrary to public policy, and therefore our courts accord to attorneys-and advocates a large measure of freedom in drawing pleadings and in pleading causes. (2) The other principle of public policy which underlies qualified privilege is that the process of the courts shall not be wantonly used for the purpose of defaming either litigants or third parties. The courts cannot allow advocates or attorneys to use the process of the courts for an illegitimate purpose: “for manifestly the law cannot countenance an abuse of the privilege. And where the privilege is abused, malice is inferred” …72: … An advocate “may only do that which the case requires and not indulge in scandalous or libelous language beyond the necessity of the case.”00Extract:71: “Qualified privilege implies two principles of public policy: (1) That the welfare of society demands that an advocate or attorney who pleads the cause of his client should have a large degree of freedom in laying his client's case before the Court, even though in so doing he defames the other party or even a third party. The decided cases show that he has this privilege when opening a case in open Court, when examining and cross-examining witnesses, and when addressing the Court. For the same reasons the pleader must enjoy this qualified privilege when he files formal pleadings and other documents necessary to place his client's case before the Court. To hamper his freedom in this respect would be to hamper the administration of justice; this would be contrary to public policy, and therefore our courts accord to attorneys-and advocates a large measure of freedom in drawing pleadings and in pleading causes. (2) The other principle of public policy which underlies qualified privilege is that the process of the courts shall not be wantonly used for the purpose of defaming either litigants or third parties. The courts cannot allow advocates or attorneys to use the process of the courts for an illegitimate purpose: “for manifestly the law cannot countenance an abuse of the privilege. And where the privilege is abused, malice is inferred” …72: … An advocate “may only do that which the case requires and not indulge in scandalous or libelous language beyond the necessity of the case.”Findlay v Knight 1935 AD 58 at 71-73FACTS:An attorney filed a plea containing defamatory allegations regarding the plaintiff, despite knowing that no evidence existed to support the allegations. The Court noted that advocates and attorneys conducting cases in open court enjoy qualified privilege to utter defamatory statements unless they are spoken animo iniuriandi. This qualified privilege embraces two principles of public policy. (See principles in extract alongside).The Court held that irrelevancy and improper personal motive (e.g. spite or malice) are usually facts from which animus iniuriandi can be inferred. But even if these facts don’t exist, there will be animus iniuriandi if the advocate: - (i) knows charges are false (or does not care whether charges are true or false); or - (ii) knows, or ought reasonably to know, there is no evidence of the charge In every case, it is for the court to consider whether, in the circumstances of the particular case, the license accorded to a pleader has been transgressed or not. The purpose of the defamatory allegations is important: has it been made for the legitimate and honest purpose of laying the claim or charge before the court? In this case the attorney did not know whether the charges were true or false and whether there was or was not evidence to support them. He made them recklessly, careless of the consequences.?The Court considered the difference between advocates and attorneys being that an advocate does not get information from client, but from an attorney; accordingly, an advocate is entitled to presume that evidence for attorney’s allegations will be forthcoming. In contrast, an attorney must confirm evidence for client’s allegations. PRINCIPLE:Defamatory statements may be permissible if they are relevant and pleaded for a legitimate and honest purpose of laying a claim or defence before the court.Preston v Luyt 1911 EDL 2982826385172085Extract:310: “"... if a witness, in the course of ajudicial inquiry makes statements injurious to the character and reputation of others, he will be presumed to have done so innocently, in the discharge of his duty, for he is under legal compulsion to give evidence, and to reply to questions put to him. The onus will be on the plaintiff, complaining of what has been said by the witness, to allege and prove that the answer or statement by the witness was false and malicious, not pertinent to the question put to him, and made without reasonable and probable cause."00Extract:310: “"... if a witness, in the course of ajudicial inquiry makes statements injurious to the character and reputation of others, he will be presumed to have done so innocently, in the discharge of his duty, for he is under legal compulsion to give evidence, and to reply to questions put to him. The onus will be on the plaintiff, complaining of what has been said by the witness, to allege and prove that the answer or statement by the witness was false and malicious, not pertinent to the question put to him, and made without reasonable and probable cause."FACTS:An attorney cross-examined a witness in forgery case. The witness was a magistrate who had been called to produce the record of the civil case. The aim of the cross-examination was to show that the prosecution maliciously instituted the proceedings and to dent the magistrate’s credibility. In doing so, the attorney asserted that witness had committed adultery, which was false, malicious and irrelevant to proceedings. The Court held that an advocate is protected when he makes a defamatory statement in the interests of his client, pertinent to the matter in issue, even though it be false, provided he has some reasonable cause for his conduct, i.e. reasonable grounds for believing it to be true, even though it is in fact false. But if he acts maliciously and says something altogether unjustifiable and not pertinent to the cause in any respect, even on instructions of attorney, he exceeds the privilege. No protection is afforded when he goes out of his way to slander an individual.Malicious defamatory statements in cross-examination do not serve objectives of cross examination nor in interests of justice. Witnesses must be protected from this; otherwise they will be reluctant to come forward. The Court further noted that an advocate should refrain from unnecessary defamation and insult, however an advocate may comment severely on conduct and character of witnesses if there are reasonable grounds to do so. The Court assumed that if the statement was construed pertinent to the case, there was no intent to injure. Repetition of defamatory statement may amount to separate cause of action - e.g. repeating a defamation outside court. In the present case, evidence of malice found in lack of reasonable grounds; history between attorney and magistrate (who, on occasion, reprimanded attorney); vindictive attitude of attorney; effort attorney made to have a reporter present, promising him a “good copy”.PRINCIPLE:Counsel should refrain from unnecessary defamation and insult; acting maliciously or saying something unjustifiable and not pertinent to the case. Counsel may however make defamatory statements in the interests of his/her client, pertinent to the issue with reasonable cause.Basner v Trigger 1946 AD 83 at 106-7FACTS:right55245Extract:105: “There is no doubt that in the great majority of cases a person who on a privileged occasion publishes defamatory matter which he knows to be untrue?or in the truth of which he does not believe will be held to have acted from some improper motive. For, generally, a man can have no legitimate motive for saying what he knows to be false or does not believe to be true. The only well-established exception to the general rule that malice is inferred in such cases is where the defendant was under a duty to pass on to the publishee information that he had received, whether it was true or false. In such a case?the defendant is not guilty of malice merely because he has no belief in the truth of the matter reported. It seems to me ... that another kind of case in which disbelief in the truth of the matter published is in no way decisive or even of prime importance arises where the defendant is not professing to state facts but is arguing a case, on a privileged occasion, before some sort of tribunal."00Extract:105: “There is no doubt that in the great majority of cases a person who on a privileged occasion publishes defamatory matter which he knows to be untrue?or in the truth of which he does not believe will be held to have acted from some improper motive. For, generally, a man can have no legitimate motive for saying what he knows to be false or does not believe to be true. The only well-established exception to the general rule that malice is inferred in such cases is where the defendant was under a duty to pass on to the publishee information that he had received, whether it was true or false. In such a case?the defendant is not guilty of malice merely because he has no belief in the truth of the matter reported. It seems to me ... that another kind of case in which disbelief in the truth of the matter published is in no way decisive or even of prime importance arises where the defendant is not professing to state facts but is arguing a case, on a privileged occasion, before some sort of tribunal."An advocate made a statement in argument that was defamatory of the respondent. The Court held that Gluckman and Preston must not be interpreted to support the proposition that absence of reasonable grounds for belief in truth of statements in itself constitutes animus iniuriandi. Absence of such grounds merely provides cogent evidence that there was no such belief, which, in turn, will generally lead to inference of animus and so defeat the privilege. Further, while approach to privilege is along the same lines in context of argument as it is in contexts of pleadings and of cross-examination, it stands on a somewhat different footing. The court said that malice is not confined to spite or ill-will but means any improper or indirect motive. Privileged occasions are recognised, it is said therein, in order to enable persons to achieve certain purposes and when they use the occasion not for those purposes they are actuated by improper or indirect motives. The state of mind of pleader or cross-examiner can be tested by material to substantiate what he alleges. But argument takes place after evidence has been led and, with regard to facts, simply consists in placing that evidence in the most favourable light. Considerable latitude must be allowed to party who is thus presenting his case. Malice must not be attributed merely because counsel does not think his submissions are well founded or are pitched too high for reasonable acceptance. Even far-fetched and fantastic contentions cannot, in themselves, provide evidence that they were advance from improper motive. Regarding matters stated in argument, their relevancy is mostly decisive as to whether there is intrinsic evidence of malice. Gluckman v Schneider 1936 AD 151 at 161-162FACTS:right7620Extract:602: “The point that I desire to emphasise is that the justification for making the defamatory statement must be reasonable, and the question of reasonableness must be determined by the Court on a consideration of the evidence in all its aspects. In the final stage it is the belief in the truth of the charge that has to be determined, and if the evidence, properly regarded, is more consistent with an absence of belief than the contrary, then animus injuriandi is properly inferred. We are compelled to decide whether the belief ought or ought not to have been entertained on an examination of the evidence suggested as its justification. "00Extract:602: “The point that I desire to emphasise is that the justification for making the defamatory statement must be reasonable, and the question of reasonableness must be determined by the Court on a consideration of the evidence in all its aspects. In the final stage it is the belief in the truth of the charge that has to be determined, and if the evidence, properly regarded, is more consistent with an absence of belief than the contrary, then animus injuriandi is properly inferred. We are compelled to decide whether the belief ought or ought not to have been entertained on an examination of the evidence suggested as its justification. "An attorney, while preparing for defence, was informed by an acquaintance that he had been informed that the plaintiff had two previous convictions. Relying on this information the defendant accused the plaintiff of the previous theft convictions, contending to the court that he was in a position to substantiate such allegations. The court adjourned the matter and upon resumption it was proved that the plaintiff had never been convicted of any offence. Counsel, then appearing for the defendant, stated that the defence unreservedly withdrew any suggestion that the plaintiff had been previously convicted and tendered an apology on behalf of the defendant.The Court held that evidence on which belief is founded is hearsay and not legally admissible should not be sufficient reason to deprive a defendant from relying upon it. An advocate, instructed by an attorney to make defamatory charges, may assume that the attorney has proof of the charge. However, the basis for making the charge must be reasonable on consideration of evidence in all its aspects. The sufficiency or insufficiency of the evidence of animus must be examined. If the evidence is more consistent with absence of belief than the contrary, then animus may be inferred. In the present case, it was held that the defendant had made the accusations recklessly without caring whether they were true or false and without reasonable grounds for believing them to be true and that though the occasion was privileged, animus iniuriandi had been correctly inferred by the court a quo. PRINCIPLE:Justification in making a defamatory statement must be reasonable on a determination of the evidence. Evidence must be consistent to support a belief in the truth of the allegation. If the evidence supports an absence of belief, then animus may be inferred. ................
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