02 July 2014

Defamation: Rafiq v. Meredith Connell

The legal profession is placed in a special position when it comes to defamation: anything said in court and everything said or written when preparing for a court hearing enjoys an absolute protection from actions for defamation.  Mr Razdan Rafiq faced a high hurdle in a claim for five million dollars against Auckland law firm, Meredith Connell, for alleged defamation.
As Crown Solicitor for Auckland, Meredith Connell appears in court on behalf of many government departments.  Like all good legal firms, its job is to represent its clients’ position without fear or favour.  The High Court was told Meredith Connell acted for the Immigration Service in 2013 defending a defamation action brought by Mr Rafiq against the Service.  Mr Rafiq subsequently sued Meredith Connell alleging he was defamed by unnecessary and damaging statements made about him in the written and oral submissions made by the law firm while acting for the Immigration Service.  
Judge Bell struck out the claim against Meredith Connell.  The Defamation Act grants an absolute privilege to lawyers in respect of what is done in the course of preparing for trial and conducting a trial.  Even if Meredith Connell had made defamatory comments during the trial, or in the course of discussions with their client about the trial, the firm could not be sued for defamation.  The policy behind the rule is that lawyers and judges should not be hindered in their work by the threat of defamation actions being used as a tactic to silence them.
Mr Rafiq also alleged he had been defamed in a December 2013 email sent by Meredith Connell’s IT manager to the Police.  Absolute privilege under the Defamation Act did not apply to this email.  It was an administrative response to a request for information.  Attached to the email was a string of prior emails containing comments which reflected badly on Mr Rafiq.  Judge Bell was moved to say this was a case of self-inflicted defamation in that many of the comments in the email string presenting Mr Rafiq in an unflattering light were made by Mr Rafiq himself.  Judge Bell said the IT manager’s publication of the emails was protected at common law by a qualified privilege.  This privilege factored in the identity of the publisher (a law firm), the readership (the NZ Police and not the wider public), the context (ongoing concern by both Meredith Connell and the Police about Mr Rafiq’s behaviour) and the subject matter (the element of harassment in some of Mr Rafiq’s emails).
Mr Rafiq also sought to have Meredith Connell held liable for an allegedly defamatory news report published on a commercial website: lawfuel.co.nz.  This report summarised his 2013 defamation action brought against the Immigration Service.  Meredith Connell denied that any of its staff wrote the report.  Judge Bell said this claim would be struck out also.  The Defamation Act gives a qualified privilege to any fair and accurate report of court proceedings.  Mr Rafiq criticised the report as not being fair or accurate, but Judge Bell disagreed.  There was comment in the lawfuel report on the fact that the High Court judge had referred to Mr Rafiq’s use of insulting and contentious language and to Mr Rafiq’s attacks on the integrity of the court and his scurrilous allegations against judicial officers but these references were not highlighted or unfairly reported, Judge Bell said.
Rafiq v. Meredith Connell – High Court (02.07.14)
14.028