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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 | 4 Comments »

4 Responses to “Are too”

  1. Andrew Geddis Says:
    November 5th, 2009 at 8:32 am

    “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?”

    I know this is the relevant legal test, but it strikes me as a particularly silly one for a situation like this where a document is circulated to a restricted group of people who have their own particular understandings of “how things work” in their specialised field. And so, as the judge obviously believes, such persons in this situation will know that “adverse comment” probably has nothing at all to do with the skills or competence of the PR flunky in question. But a jury, even if given appropriate instruction, simply won’t be au fait with “how things work” in the realm of political communications … hence are likely to draw conclusions that simply are not warranted from the material at hand.

    I guess my point is, all communication takes place in particular “interpretative communities” (to steal Stanley Fish’s term). And the idea that a “properly instructed” jury can stand in for any interpretative community and see what is “defamatory” or not in that context strikes me as plain wrong. So good on the judge for showing some common sense here, and knocking the case out.

  2. Steven Says:
    November 5th, 2009 at 10:53 am

    Well, he hasn’t quite knocked the case out. It wasn’t all struck out.

    In addition, this finding is almost certain to be overturned on appeal, making the case longer and more expensive for all concerned.

    I agree with you about the law here. It leads to dumb results when you can’t look at the specific people to whom the message was received and evaluate how they would interpret it. As you know, there’s a difference here between the British and the US approaches. [PS the likely characteristics of the limited audience certainly does seem relevant to qualified privilege, which is one reason that defence looks strong to me].

    Still, common sense isn’t allowed to trump legal doctrine. (If the judge had purported to review and change the approach of the law, that would be another thing. Maybe the CA will do that…)

    In any event, I’m not completely convinced that the community of interest here would be incapable of regarding this as defamatory. The fact that the Ministry’s Chief Executive issued a public apology for it, while not strictly relevant to the determination of the meaning, does rather reinforce the plaintiff’s argument, I think.

  3. IainB Says:
    November 5th, 2009 at 1:48 pm

    Of course, if a jury DID find that mentioning the six drafts of a communications plan meant the author of said plan was painted as incompentant, it might still not be defamation if it was true.

    If Erin Leigh got the same sort of adverse comment on all six drafts of the plan, there seems to a reasonable case for questioning her competence – Einstein’s definition of insanity and all that.

    ‘Course, we’ll probably never know…

  4. Steven Says:
    November 5th, 2009 at 2:07 pm

    The judgment says the drafts were made in late April to early May 2006, and the adverse comments were made in mid May 2006, so it doesn’t seem that there were adverse comments on all six drafts. It’s not clear from the decision whether truth is being pleaded as a defence.


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