Bowen v Stott
[2001] WASC 219
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BOWEN -v- STOTT [2001] WASC 219
CORAM: HASLUCK J
HEARD: 6 AUGUST 2001
DELIVERED : 6 AUGUST 2001
FILE NO/S: CIV 2300 of 2000
BETWEEN: SHEENA COLE BOWEN
Plaintiff
AND
PAUL STOTT
Defendant
FILE NO/S :CIV 2301 of 2000
BETWEEN :SHEENA COLE BOWEN
Plaintiff
AND
LIN VAN COPPENHAGEN
Defendant
Catchwords:
Application to set aside default judgment - Principles to be applied - Plea of qualified privilege to defamation claim - Defendant's plea sufficient to show a real prospect of success - Default judgment set aside - Turns on own facts
Legislation:
Supreme Court Rules, O 22 r 10, O 29A
Result:
Application allowed
Category: B
Representation:
CIV 2300 of 2000
Counsel:
Plaintiff: Mr K C Staffa
Defendant: Mr M D Howard
Solicitors:
Plaintiff: Kevin Staffa
Defendant: Minter Ellison
CIV 2301 of 2000
Counsel:
Plaintiff: Mr K C Staffa
Defendant: Mr M D Howard
Solicitors:
Plaintiff: Kevin Staffa
Defendant: Minter Ellison
Case(s) referred to in judgment(s):
Austin v Mirror Newspapers (1985) 3 NSWLR 354
Howe v Lees (1910) 11 CLR 361
Parker v Transfield Pty Ltd & Anor [2000] WASCA 382
Rollond & Anor v Bank of Western Australia Ltd, unreported, SCt of WA; Library 980498, 3 September 1998
Case(s) also cited:
Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc [1986] 2 Lloyds Rep 221
Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30
Bremridge v Latimer (1864) 12 WR 878
Evans v Bartlam [1937] AC 473
Henwood v Harrison (1872) LR 7 CP 606
Horrocks v Lowe [1975] AC 135
Justin v Associated Newspapers Ltd (1966) 86 WN (Pt 1) (NSW) 17
Moroney v Finlay & Ors, unreported; SCt of WA; Library No 980556; 23 September 1998
Palmer v Prince [1980] WAR 61
Reynolds v Nationwide News Pty Ltd & Ors [2001] WASC 116
Spring v Guardian Assurance [1993] 2 All ER 273
Starr v Koushappis, unreported; SCt of WA; Library No 980574; 2 October 1998
Templeton v Jones [1984] 1 NZLR 448
Toogood v Spyring (1834) 1 CM&R 181
Watt v Longsdon [1930] 1 KB 130
HASLUCK J: This is an application by the defendant in Supreme Court action CIV 2301 of 2000, to set aside an interlocutory judgment obtained by the plaintiff, Sheena Cole Bowen. It was heard in conjunction with a similar application in Supreme Court action CIV 2300 of 2000, in which the plaintiff, Sheena Cole Bowen, advances a claim in defamation against the defendant, Paul Stott. Counsel recognised that it was useful for these applications to be heard together, and for the court to draw upon the evidence and submissions placed before the court in both matters simultaneously.
The materials before me, in addition to the chamber summons and the written submissions filed on both sides, included various affidavits. The defendant, Lin Van Coppenhagen, relies upon the affidavits of himself sworn 29 March 2001 and 8 May 2001. He relies also upon the affidavits of his solicitor, Mr Gough, sworn 19 January 2001 and 30 March 2001. An affidavit has also been sworn by Mrs Van Coppenhagen.
It will be convenient to begin by looking briefly at the procedural history of this action.
The plaintiff advances a claim in defamation. The action was commenced by the issue of a writ of summons on 27 September 2000, that summons bearing an indorsement of claim. A memorandum of appearance was entered on behalf of the defendant on 9 October 2000. A short time later, on 17 October 2000, a statement of claim was brought into existence and was filed and served on 18 October 2000.
I will return to the contents of the statement of claim in a moment. It is material to note, however, that on 26 October 2000 various case management directions were made by the registrar pursuant to O 29A of the Supreme Court Rules. Amongst the programming orders one finds included the requirement that the defendant file and serve a defence by 16 November 2000. This requirement was known to the solicitors for the defendant, but in fact no statement of defence was filed within the prescribed time. Mr Gough, as the defendant's solicitor, accepts that the failure to file a defence within time was caused by his oversight.
The defendant's solicitor says, in par 5 of his affidavit of 19 January 2001, that in late October 2000 he was engaged almost full‑time on a matter that had been listed for trial for 13 days commencing on 4 December 2000. This occupied his attention. After the time for filing the defence in this matter had expired, he had occasion to speak to Mr Staffa, as the solicitor for the plaintiff, about the demands upon his time. He conveyed to Mr Staffa that, owing to his workload, he was having difficulty complying with the court orders that had previously been made concerning the filing of a defence.
Mr Gough recognises in his affidavit that it was not put to him by Mr Staffa that Mr Gough's difficulties might lead to some indulgence being granted which could effectively be regarded as an extension of time. Nonetheless, there is evidence before the court in the form of Mr Gough's affidavit that no specific forewarning was given by the solicitor for the plaintiff there was a risk of a default judgment being entered against the defendant.
I pause to say also, as a matter raised with me in the course of argument, that O 29A r 14 does make provision for a party to a case to give notice of a non‑compliance by another party with an interlocutory order or a case management direction. It was therefore open to the solicitor for the plaintiff, and perhaps his proper responsibility once 16 November 2000 had passed, to give notice of non‑compliance with the direction previously made.
I accept, as counsel for the plaintiff has put to me in the course of argument, that the rules allow for a plaintiff to apply for an interlocutory judgment in a claim of this kind if there has been a failure to file a defence within a prescribed time. Nonetheless, as a matter bearing upon the exercise of the Court's discretion when an application to set aside is made, it is material to take account of a convention in the legal profession that notice is usually given of an intention to enter judgment by default. The rule I have just mentioned is a reflection of that convention. Hence, without being critical of the plaintiff's solicitors, it is understandable that the solicitors for the defendant were taken by surprise when judgment by default was entered against the defendant on 11 December 2000. They had no prior warning that such an event would occur.
It is apparent from the affidavit material before me that the solicitors for the defendant acted promptly in taking steps to set aside the default judgment. The initial steps in that regard are evidenced in the affidavit of Mr Gough of 19 January 2001. It is true, of course, that the affidavit in question was not prepared until some time after the judgment had been obtained but one must take account of the time of year and the summer vacation. Since that time the parties have been filing other affidavits, obtaining programming orders and making arrangements for this application to be heard.
That is the procedural background to the matter. Let me now look briefly at the circumstances giving rise to the dispute between the parties. In that respect, I draw principally upon the statement of claim filed by the plaintiff as supplemented by the affidavit materials before me.
It seems that the plaintiff was employed by an organisation known as Jardine Life Consultants Pty Ltd. She pleads that she was employed in the capacity of an office administrator/secretary. Jardine Life Consultants, which I will henceforth call JLC, is a subsidiary of Jardine Lloyd Thompson Pty Ltd, a body which I will henceforth call JLT.
The defendant, Mr Van Coppenhagen, was the manager of JLC. It is pleaded, and I proceed accordingly, that he was the plaintiff's superior at JLC. Mr Paul Stott, who is the defendant in the related action, was at all material times a senior consultant with JLC. It does not seem to be in controversy that the plaintiff in her capacity of office administrator/secretary was reporting to both men.
There is no need to look at the full particularity of the relationship between the plaintiff and her employer and her two immediate superiors. For present purposes, the start of the story is that on 6 April 2000 the plaintiff wrote a short letter to Mr Van Coppenhagen saying that after much consideration it was with regret that she had decided to tender her resignation. It was a brief letter, but she added to the tendering of her resignation a comment to the effect that she had enjoyed working at JLC. She wishes Mr Van Coppenhagen every success in the future.
It appears that some discussion then took place which led to the plaintiff not acting immediately upon her letter of resignation, and some further time went by. Some months later, however, a further letter dated 7 July 2000 was written to Mr Van Coppenhagen by the plaintiff. That letter is to this effect:
"Due to our discussions on Wednesday, which I found extremely distressing, I wish to tender my resignation with immediate effect, foregoing 2 weeks' pay in lieu of notice."
A letter was written accepting the plaintiff's resignation. By letter dated 7 July 2000, Mr Van Coppenhagen, on the letterhead of Jardine Lloyd Thompson, albeit with a subsidiary reference to Jardine Life Consultants, provided a form of reference commencing in the usual way, "To whom it may concern."
The reference was in these terms:
"Sheena Cole Bowen has worked for me in the capacity of personal assistant for various periods extending back to 1987. Sheena is totally reliable, honest and diligent, being capable of running an office without supervision. Her integrity is without question and we are sad to see her go. I have absolutely no hesitation in recommending her for any position which she may seek."
It was common ground at the hearing before me that the parent company, Jardine Lloyd Thompson, had a process of requiring employees to complete what was known as an "exit interview form" or EIF. It was also common ground that the human relations officer with a responsibility in that area, on behalf of the parent company, was Heather Smith. It seems that the usual EIF form was provided to the plaintiff and she proceeded to complete the form and return it to Heather Smith.
I will not traverse everything covered in the form. Leaving aside the printed portions of the form, and proceeding directly to what was written by the plaintiff herself, I note the plaintiff's comment that up until approximately December 1999 she had enjoyed the responsibility and range of activities that were before her. She went on to say that there had been a change of duties without discussion and lack of communication, and it seems that this was a feature of her job that she then did not like, because her role became confused.
The plaintiff goes on to suggest that there was a lack of directions as to whom she was to take instructions from. She says further that she was disappointed about the outcome of meetings with Mr Van Coppenhagen on Wednesday, 5 July 2000. She felt the discussions moved from work‑related issues to a personal attack; for example (1) that she was an insecure person; (2) that she had severe social problems; (3) that she was just a woman.
The plaintiff also refers to an observation that was apparently present in the minds of those involved in that meeting, namely, that a good working relationship is built on trust and respect. This, unfortunately, seemed to be no longer intact.
Looked at in overview, it seems, upon a fair reading of the form, that in the period prior to the tendering of the letter of resignation the plaintiff was troubled by the relationship with her immediate supervisor, Mr Van Coppenhagen. The role of Mr Stott as another person to whom she was reporting was brought into issue by the nature of comments she made.
It was common ground at the hearing before me that this form was submitted to Heather Smith, the human relations officer. It was considered by her and eventually found its way to Mr Van Coppenhagen. He understood that he had some responsibility to make his views known to the person conducting the exit interview.
There was no affidavit before me from Heather Smith and there is therefore some degree of ambiguity as to how exactly the form found its way to Mr Van Coppenhagen. Nonetheless, it seems that it was put before him with the approval of Heather Smith. In that regard, I draw upon, in particular, pars 43 and 44 of Mr Van Coppenhagen's affidavit of 29 March 2001. He says:
"Heather Smith is the branch personnel officer for Jardine Lloyd Thompson (Perth) and I considered it was appropriate to report to her regarding matters concerning the appointment of staff.
My memorandum to Heather Smith dated 4 August 2000 is a response to the matters raised in the plaintiff's exit interview form as well as discussions that I had had with Heather Smith during which she raised with me some of the various allegations that the plaintiff had made against me. It was written primarily to address the accusations made by the plaintiff which had been raised with me by Heather Smith."
I will come to the defendant's memorandum of 4 August 2000 in a moment. For present purposes, however, it is important to note that there had apparently been some discussion with Heather Smith about the exit interview form. Matters in the nature of criticism of the defendant, and therefore, by implication, of Mr Stott also had been raised and were under consideration.
It was common ground at the hearing before me that Mr Van Coppenhagen proceeded to prepare a submission to Heather Smith and to make a copy of the exit interview form available to his colleague, Mr Stott. Both men then submitted written submissions to Heather Smith commenting upon what, in Mr Van Coppenhagen's understanding, was a line of criticism arising from the circumstances of the plaintiff's departure from the firm.
The written submissions made by Mr Van Coppenhagen are in the form of a memorandum directed to Heather Smith dated 4 August 2000. It is this document that contains the words complained of in the action commenced by the plaintiff. The memorandum in question commences by referring, in the form of a heading, to the resignation of Sheena Cole Bowen. The first two paragraphs of the memorandum are in these terms:
"As a result of the sudden resignation of Sheena Cole Bowen and some of her comments to you and others on leaving and in her exit interview statement, Prue and I feel it necessary to put the record straight.
Sheena has worked for me on and off for the last 13 years approximately and she and her husband Sean have been good friends of ours for a considerable time now. We have always found her to be highly principled and ethical and prior to her tragic stroke I found her efficient."
The balance of the memorandum, broadly described, concerns various matters of detail and various meetings that are thought, by the author of the memorandum, to bear upon the way in which the plaintiff performed her duties.
Mr Stott, in his written submission, proceeded in a similar manner. His written submission takes the form of a letter to Heather Smith dated 4 August 2000. He commences the letter by saying that Lin; that is to say, Mr Van Coppenhagen, has handed Mr Stott a copy of Sheena Cole Bowen's exit interview and he, Mr Stott, feels that as Sheena was really his personal assistant, "I need to give you my impressions of her work habits and how I interpreted her attitude to work and to other members of staff." He goes on to focus on a number of matters concerning the working relationship between himself and the plaintiff.
The matters the subject of Mr Van Coppenhagen's memorandum have been reduced in the statement of claim subsequently filed by the plaintiff in CIV 2301 of 2000 to various imputations. They are on the Court record and I will not repeat them in their entirety. The structure of the pleading is in this form: certain passages of the Van Coppenhagen memorandum are singled out and repeated in their entirety. From that foundation, as it were, it is pleaded by the plaintiff that in their ordinary and natural meaning the words pleaded in the context of the defendant's letter meant and were understood to have the meanings described in the pleading.
The first of the imputations is that the plaintiff has had a stroke and/or sustained head injuries as a result of which she has behavioural problems and acts and reacts in an abnormal manner. Variations of this are pleaded, the thrust of the imputations being that the plaintiff is an unstable and unreliable employee. This is said to give rise to the defamation complained of.
Reference is made in following paragraphs to the likelihood of the defendant's memorandum or letter being seen by other members of staff. I note in passing that in par 13 the plaintiff pleads that the defendant's statements were made maliciously with the intention of causing distress, injury, loss and damage to the plaintiff.
The particulars of malice given refer to the fact that the favourable reference concerning the plaintiff I mentioned earlier, being the letter dated 7 July 2000, had been provided. It seems that this is intended to provide a foundation for an argument that as the favourable matters mentioned in the reference are conspicuously inconsistent with what was said in the later, private communication with Heather Smith, then what was said later to Heather Smith must be malicious because it did not conform to what the defendant truly believed, as reflected in the earlier favourable reference.
It is unusual and probably unnecessary, as counsel has put to me, for a plea of malice to be expressed in this way in the body of a statement of claim. It is a matter which is usually raised in a reply if the defendant, by way of defence, has set up a plea of fair comment or qualified privilege. However, for present purposes, I take it as a foreshadowed issue that in this case the question of whether there is malice sufficient to extinguish any plea of qualified privilege is a matter which will be canvassed at trial.
I must now look briefly at the principles of law bearing upon an application to set aside a default judgment.
Order 22 of the Rules of the Supreme Court deals with entry of judgment in default of pleading. Order 22 r 10 provides:
"The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of the order."
It is apparent from Seaman's Civil Procedure, par 13.10.6 that when a judgment in default has been regularly entered, it is not to be set aside unless the Court is satisfied that there is a defence on the merits and instances of departure from the general rule are rare. The application should be supported by affidavit evidence which discloses a defence on the merits and explains the failure to comply with the rules and any delay in bringing the application. The defendant must present a credible defence demonstrating that if the default judgment was set aside and the matter was argued on its merits, the defendant would have a real prospect of success: see Parker v Transfield Pty Ltd & Anor [2000] WASCA 382.
Counsel on both sides recognised the applicability of the test just mentioned. When I refer to the judgment in Parker v Transfield, I note that his Honour the Chief Justice drew upon the earlier case of Rollond & Anor v Bank of Western Australia Ltd, unreported, SCt of WA; Library 980498, 3 September 1998 and a passage as follows:
"For an application to set aside a default judgment to be successful, the defendant must present a credible defence demonstrating that if the default judgment was set aside and the matter was argued on its merits, the defendant would have a real prospect of success. "
This is the way I will approach the application before me. Counsel for the defendant has also relied upon the affidavits previously mentioned for an explanation of the failure to provide a defence within time.
When one turns to the question of whether the defendant has a real prospect of success, counsel points to a degree of controversy concerning the meanings that are said to be found or discovered in the words complained and to the way in which the imputations are pleaded. He submits that the imputations pleaded are not to be found in the words complained of and in any event a question arises as to whether they are capable of conveying a defamatory meaning.
That is a difficult issue to decide in the absence of a complete argument, and if I were to apply the criteria as to whether the defendant has a real prospect of success, it would be difficult to reach a conclusion at this stage as to whether the defendant has a real prospect of defeating the claim upon that basis alone. However, more importantly for present purposes, the defence of qualified privilege has been foreshadowed by counsel for the defendant. It is therefore necessary to give consideration to the legal principles concerning qualified privilege in the context of the present case.
The common law recognises that there are occasions upon which on grounds of public policy and convenience a person may make statements about another which are defamatory and in fact untrue.
On such occasions of privilege a person is protected if the statement was fairly warranted by the occasion and so long as it is not shown that he made the statement with malice, that is to say, knowing it to be untrue or with some indirect or improper motive. These occasions are called occasions of qualified privilege. 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, see Gatley on Libel and Slander, 9th ed, par 14.1.
Generally speaking, privileged occasions are those where the maker of the statement has a duty to make the statement and the recipient has a corresponding interest to receive it. No privilege arises if the exigency of the situation does not warrant the protection of the common interest by the means employed. Whether the duty or interest contended for by a publisher exists must be determined upon a consideration of the surrounding circumstances and what is reasonable in those circumstances.
Occasionally there may arise cases where privilege may attach to publication in some wider form, such as a newspaper or newsletter, but in such cases it is necessary to establish that there is a community of interest between the publisher and the general body of readers.
Counsel for the defendant in the present case has referred me to passages in the text Gillooly: The Law of Defamation in Australia and New Zealand, at page 71. Reference is made there to the decision of the High Court in Howe v Lees (1910) 11 CLR 361, and in particular to a passage by O'Connor J where he said at page 377:
"The interest relied on as the foundation of privilege must be definite. It may be direct or indirect, but it must not be vague or unsubstantial. So long as the interest is of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it, it will come within the rule."
Before I leave that case, however, it is worthwhile looking at the factual situation that was before the High Court and at some further observations made by O'Connor J. The defendants in that case were a firm of stock salesmen. The rules of their association provided that stock sold to members had to be settled for within four days. It was in that context that the plaintiff, who was a stock dealer, complained of a notice sent out by the secretary of the association suggesting that the plaintiff was in default.
The High Court held, with Isaacs J dissenting, that the occasion was privileged and, there having been no misuse of the occasion, the action would not lie. It is important to realise that in the judgment of O'Connor J one finds at page 378 some comments additional to those that I have referred to earlier. These further comments suggest that the privilege is not necessarily extinguished because the statements made were not true in fact. His Honour says at page 378:
"The learned Judge in the Court below seems to have held that such a privilege, if it existed, could only protect statements that were true in fact. But such a limitation would render the privilege useless. If an agent is to be protected only in the making of statements which he can guarantee to be true the practical advantage of the association's system would be at an end. Obviously its effectiveness could be secured only by making the occasion of the communication a privileged occasion, which will protect from action or prosecution all statements relating to a business default made by agents to the secretary, provided that they are so made in the honest belief that they are true and relevant and that they are being made in fulfilment of the obligation which the terms of the association impose on each agent."
It is against a background of reasoning of that kind that it is generally understood that employers are entitled to, and thus often do in fact, speak frankly about employees and endeavour to put forward their best account of how an employee has performed. It is recognised that there may be circumstances in which an employee is not treated fairly by such a summation because the employer has made some mistake concerning the underlying factual substratum. There are many decided cases, however, that suggest that in such circumstances the employer will, nonetheless, be protected by privilege.
The Gillooly text notes also at page 172 that, more recently, in Austin v Mirror Newspapers(1985) 3 NSWLR 354, the Privy Council described the type of interest necessary to support a plea of privilege as an interest material to the affairs of the recipient of the information such as would, for instance, assist in the making of an important decision for the determining of a particular course of action.
It is clear therefore that mere idle curiosity or a desire for gossip or the fact that people may find the defamatory statement interesting will be insufficient to constitute an interest for the purposes of the defence.
The learned author goes on to say:
"It must be emphasised that the duty or interest in question must actually exist. It is generally not enough that the defendant honestly believes even on reasonable grounds in its existence. The mental state of the defendant, whilst critical in subsequently determining the issue of malice or improper motive, is irrelevant to the question of whether the matter complained of was published on a privileged occasion."
It is against the background of these principles that I now come to the circumstances of the present case.
When one looks at the defendant's memorandum of 4 August, at the background that brought it into existence, and at the tone of the communication between the defendant and Heather Smith (the human relations officer), it seems to me that the communication is consistent with an honest belief on the defendant's part that he should report to that person in the company structure who was under an obligation to inquire into employment matters.
It is true that the submissions made by the defendant were not directed to any question as to whether the particular employee's employment should be terminated, but it is quite clear from the documentation that the purpose of the exit interview was to enable the parent company, and thus its related company, to obtain some understanding as to whether the systems they had in place were functioning efficiently and whether there were any difficulties in the way in which supervision was being conducted.
I consider, having read the memorandum of 4 August, that Mr Van Coppenhagen's remarks were arguably directed to that end. This is a matter which will have to be dealt with fully at trial, when the full range of evidence is before the Court, including the evidence of Heather Smith. I consider, however, as the matter stands before me, that with regard to this line of defence the defendant does have a real prospect of success. His remarks were made in the context of a situation where he felt obliged to report to the person in the corporate structure with a jurisdiction in these matters. The tone in which the report was conveyed does seem to be confined to that purpose and cannot be characterised as simply a matter of gossip or something lying beyond the necessity of the occasion.
When I go on to consider the question as to whether there was any improper purpose which might possibly have extinguished the defence, I take account of such matters in regard to that issue also. I am not persuaded, on the basis of the materials before me, that the foreshadowed defence of malice will be sufficient to extinguish the real prospect of success that I touched upon earlier.
I do not necessarily see it as being inconsistent with such a view that the favourable reference sits inconsistently with the memorandum containing some adverse comments. They are serving different functions. It is well‑known in the commercial world that in putting up a reference, as a matter of humanity and to avoid any possibility of error, it is better to stress the positive and constructive features of an employee's work rather than to labour matters which might simply be referable to the peculiarities of the particular workplace, bearing in mind that the reference is to go outwards to potential employers. Hence, I am not persuaded that the plea of malice is likely to defeat the privilege.
Another element of the defence of malice which was raised was the notion that the defendant submitted an edited version of his memorandum to the plaintiff. Again, I characterise that as simply a matter of discretion and diplomacy. I cannot see that such a line of argument, of itself, is sufficient to extinguish the foreshadowed defence of qualified privilege.
Accordingly, for all of those reasons, I consider that the matters raised in support of the application are persuasive and that in the exercise of my discretion, pursuant to the principles I mentioned earlier, and having regard to the criteria I have described, the interlocutory judgment previously obtained should be set aside.
I now turn to the action CIV 2300 of 2000 concerning Mr Stott.
This application falls to be considered within the framework of the factual and legal matters I have already traversed and I will not go over them again. There are of course some points of difference between the two cases. Firstly, as I have noted, one takes account of the fact in the Stott case, Mr Stott only came into the matter for the purpose of preparing his written submission commenting upon the plaintiff's work performance as a consequence of having received the exit interview form, not from Heather Smith direct, but as something given to him by Mr Van Coppenhagen.
I have to say, however, that I do not see that as a point of real distinction. The other facts I have mentioned clearly show that Mr Stott had an active interest in the matter because he was someone the plaintiff was reporting to in the course of her duties. Thus, if his colleague conveyed to him that an issue seemed to have arisen as to whether the plaintiff had been fairly dealt with and as to whether systems were working fairly and equitably, it was reasonable for Mr Stott to put up submissions directed to the point.
It may turn out upon a fuller examination of the evidence at the trial that both Mr Van Coppenhagen and Mr Stott had overstated or were in error to some extent in what they had said. It follows, however, from the reasoning of O'Connor J in Howe v Lees (supra) that the mere existence of overstatement or error does not necessarily of itself defeat the plea of qualified privilege.
A further point is made concerning Mr Stott, that the case against him depends upon and flows from the premise that there was a repetition of what was being put up by Mr Van Coppenhagen. Counsel draws my attention to paragraph 12 of the statement of claim in which it is said Mr Stott's letter was sent to Smith contemporaneously with Van Coppenhagen's letter.
It is true that this may open a line of defence for Mr Stott which is not necessarily of the same order as that concerning Mr Van Coppenhagen, but I find for present purposes that there is no need to explore the intricacies of that issue. The plea of qualified privilege will be relied upon by the defendants in both cases. It follows from what I have said that, in my view, the defendants have real prospects of success by reliance upon that line of defence. For that reason, there is a basis for the judgments to be set aside, in both cases, and I will make orders accordingly.
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