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Present: Kertram C.J. and Shaw J.
FERNANDO v. PERIS et al.
232— D. C. Colombo, 43,550.
Defamation—Privilegedcommunication—-Proofof expressmalice—Costs —
Withdrawing allegation at the trial.
In an action for defamation, when it is shown that the occasionon which the words were uttered or written was privileged it liesupon the other – side to displace that privilege by positive proof ofexpress malice.
fj1 HE facts appear from, the 'judgment.
Bawa, K.G. (with him Samarawickrema), for the plaintiff,appellant.
Hayley (with him Tisseverasinghe), for respondents.
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January 31, 1919. Bertram G.J.—
This is an appeal from the decision of the District Judge ofColombo. The action was brought by one U. J. Fernando, layreader of an Anglican church in the neighbourhood of Colombo, forthe purpose of the vindication of his character. It is an action forlibel against the three defendants, who are church wardens of thechurch, and who wrote a letter to the incumbent of the churchimputing immorality to Mr. Fernando, expressing the belief of thewardens in the charge made against Mr. Fernando, and calling uponthe incumbent to take action in (the matter. The learned DistrictJudge has found the charge against Mr. Fernando was false, butthat the occasion on which the charge was made was a privilegedoccasion; and he has further held that the plaintiff has not satisfiedhim that the defendants made the charge otherwise than in goodfaith. He has, therefore dismissed the plaintiff’s action, with costs.
[His Lordship set out the facts, and continued]: —
Now it must be taken for the purpose of this case that the chargeagainst U. J. Fernando was a false charge. But it was not until theactual trial of this action that the defendants accepted this position.Mr. Fernando, on June 30, 1916, instituted this action to defend hischaracter. The defendants in their answer expressly pleaded thatthe charge was true, and, as I say, it was not until they came intoCourt that, on the advice of counsel, they disclaimed any- attemptto justify the charge. In spite of this fact, however, the firstwitness called on behalf of the defence was the woman, Maria Gomes,whose evidence was • not confined merely to saying that she hadma.de communications to the defendants, which would explain the.action they took, but made specific charges of the most seriousnature: charged the plaintiff with being the father of her child,with having attempted to procure abortion, and with having bribedher witnesses in the maintenance proceedings. ,A11 these state-ments were made in examination-in-chief.
The learned District Judge, most properly, and in spite of thefact that the defendants at that stage withdrew the charge ofadultery, thought it right that an issue should be framed on thatpoint, and he has expressly exonerated the plaintiff from the chargeagainst him-. All that we have to ask ourselves, therefore, is notwhether the charge is true, because it is expressly found to be false,but whether the defendants are entitled to claim privilege on theoccasion on which they made it.
Mr. Bawa has brought before us a variety of circumstances whichhe contends, preclude them from the right of claiming privilege.Those circumstances partly consist of certain antecedent facts inthe relationship between the parties, and partly in the manner inwhich they made and pressed their charge. He draws attention tothe fact that the charge was accompanied, as I have said, by an
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attempt to get the woman churched, and the attempt to get thechild baptized, and by the institution of the maintenance proceed-ings. There is no question that this combined and concerted actionshows a certain animus and determination on the part of the defend-ants, which, as I say, is open to comment. Mr. Bawa further asksus to say that the manner in which, many months after the actualoccurrence, they concerted together in this persistent manner couldonly be explained by personal malice, and he explained the origin ofthat personal malice in the circumstances to which I have previouslyreferred. There was, undoubtedly, considerable friction in thechurch. Mr. Fernando, who was church warden, had lost thatposition. It is said that his parishioners had not re-elected himto the general treasurership in 1915, one of the defendants havingtaken his place. There was certain friction with regard to one ofthe defendants arising out of one of these when Mr. Fernando’s pewhad been occupied. There was also a Police Court charge made byMr. Fernando against the brother of one of the defendants two orthree days before the writing of the letter. All these circumstances,no doubt, point to a state of rivalry and friction, and to a certainamount of personal feeling. Mr. Bawa asks us to say it was becauseof that state of feeling that this charge was pressed upon the incum-bent of the parish, and that we ought not to impute the action ofthese defendants to a bona fide desire to discharge a public duty.At any rate, he says it is for them to make out the fact that theywere actuated by consideration of public spirit, and that such aclaim made by persons who are open to the criticisms I havesummarized above ought not to be accepted by the Court. Henlaimg that the learned District Judge has misdirected himself inthe manner in which he has approached the question. The learnedDistrict Judge -says: “It is no<- for the defendants, however, toestablish that they bona fide fc . od in the truth of the statementreferred to in this plaint in the circumstances of this case, for theoccasion on which the – ■* element was made was clearly privileged inmy opinion, as I shall presently show, and the onus was accordinglyon the plaintiff to show u_n»t the defendants acted from somethingother than a sense of duty in jj ’.king the statement referred to, thatthey used the occasion -for some reason or motive other than thatwhich makes it privileged, and the plaintiff has, in my opinion,jailed to do that in this case.”
That summary of the legal position is challenged by Mr. Bawa.But, in my opinion, the learned District Judge has expressed thelegal position with perfect accuracy. The principle which governsthe question of privilege in actions for libel has befen summarized inthe case of Harrison v. Bush 1: “A communication made bona fideupon any subject-matter in which the party communicating hasan interest, or in reference to which he has a duty, is privileged if
»* P. & B. 348.
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made to a person having a corresponding interest or duty, althoughit contained criminatory matter which without the privilege wouldbe slanderous and actionable.” Mr. Bawa, as I understand, acceptsthat definition, that it is an essential condition that the communi-cation should be made in good faith, but contends that it is for theperson who sets up the privilege to prove that it was made in goodfaith. That contention is contrary to the law as I understand it.It is, I think, clear in regard to the law of defamation that the lawdistinguishes between two sorts of malice. One may be calledimplied malice, or as it is expressed in Boman-Dutch law, animusinjuriandi, and the other is express malice. Animus injuriandimay be presumed, but express malice must be proved, and the onusof proof of express malice lies upon the person alleging it. Whenonce the circumstances are shown which prima facie indicate thatthe occasion on which words were uttered or written was privileged,it lies lipon the other side to displace that privilege by positive proofof express malice.
My Brother Shaw has quite recently discussed and summarizedthe law on the position in the case .of Gulick v. Green.1 I need notdo anything more than refer to his remarks and to the cases therecited. The Judges in the case of Harrison v. Bush,2 and a case towhich he there refers, concurred in their judgments in saying that,if the occasion is privileged, it lies upon the plaintiff to give evidenceof express malice. The law is similarly expressed by Lopes L.J. inNeviU. v. Fine Arts and General Insurance Company 2 another casecited in the same connection. His' words are as follows: “ Theeffect of occasion being privileged is to render it incumbent uponthe plaintiff to prove malice, that is, to show some indirect motivenot connected with the privilege, so as to take the statement madeby the defendant out of the protection afforded by the privilegedoccasion. ’ ’
The learned District Judge was, therefore, quite right in sayingthat it was for the plaintiff to satisfy him that the charge was notmade by the defendants out of a sense of public duty, but for someindirect motive. I confess that, if the onus of proving that thischarge was made by the defendants in good faith solely or princi-pally for the purpose of discharging a public duty lay upon thedefendants, it is quite possiblethey mighthavebeen ina different
position. As it is, what arethe facts?Thewomanhadmade
a definite charge against Mr.Fernando.Thatchargewasfreely
repeated by her family. It had been made thesubjectof apolice
inquiry, and though it had 'been disbelieved by the police, thatopinion would not necessarly influence the defendants. We knowvery well how charges of this nature are far too readily believed,though the belief which is extended to them is very often in completegood faith
• (1918) 20 N. L: R. 176.2 5 F. <b B. 348-3 (1895) 2 0. B. 156.
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I think the learned District Judge is fully justified in saying thatit was not made out to his satisfaction that the defendants, howevermuch their action may be open to criticism in certain particulars,acted otherwise than in good faith. I think, therefore, this judg-ment should be upheld. In view, however, of the fact that thecharge against Mr. Fernando was pressed right up to the time whenhe came into Court, so that he had to incur expenses with a view tomeeting it and to disproving it in Court and in view of the fact thatalthough the charge was formally withdrawn, evidence was, never-theless, tendered in support of it, I think it would have been betterif the learned District Judge had dismissed the plaintiff’s actionwithout costs. I would therefore, vary the judgment in thatrespect. The substantial matter fought out, however, has beenwhether the learned District Judge was right as to the view whichhe took on the question of privilege, and as I am of opinion thathis view was justified, I think that the appeal should be dismissed,with costs.
I agree. I think there can be no doubt that the circumstancesunder which the letter complained of was written rendered it aprivileged occasion. Under jthose circumstances, it lies upon theplaintiff to satisfy the Court that the defendants acted from maliciousmotives. It is pointed out in Oulick v. Green 1 that this malicewhich it is necessary for the defendants to prove is a state of mind,and we are asked in this case to say that the Judge was wrong in hisfinding that he was not satisfied that such a state of mind existedin the defendants. There are circumstances in this case from which,in my opinion, the Judge would have been justified in finding thismalicious state of mind had he thought right to do so after seeingthe witnesses and hearing the other details of the case. But he hasnot done so, and it is impossible, in my view, for the Court of Appeal,not having had the advantage of the Judge in seeing the witnessesand hearing them give their evidence, to say that he was wrongwith his finding. I, therefore, think that the appeal should be dis-missed. In view of the conduct of the defendants in maintainingright up to the date of trial that they still believed the guilt of theplaintiff, it was proper for the Judge to have directed the issue ofjustification to be tried before him, in order to enable the plaintiffto clear his character from the aspersions which had been put uponhim. The defendants having failed to make out justification whichthey up to the date of trial alleged, and having compelled the plaintiffto take legal steps to clear his character, I agree with the orderthat my Lord proposes with regard' to costs.
(191S) 20 N. L. R. 176.
FERNANDO v. PERIS et al