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