Watler v Whittaker

• Jurisdiction: Cayman Islands
• Judge: (Harre, C.J.)
• Judgment Date: 20 October 1995
• Court: Grand Court (Cayman Islands)
• Date: 20 October 1995

Grand Court

(Harre, C.J.)

WATLER

and

WHITTAKER

P. Lamontagne, Q.C. and G.W. Hampson for the plaintiff;

Ms. L. Agard, Crown Counsel, for the defendant.

Cases cited:

(1) Bookbinder v. Tebbit (No. 2), [1992] 1 W.L.R. 217, distinguished.

(2) Burmah Oil Co. Ltd. v. Governor & Company of the Bank of England, [1980] A.C. 1090; [1979] 3 All E.R. 700.

(3) Conway v. Rimmer, [1968] A.C. 910; [1968] 1 All E.R. 874, applied.

(4) Hasselblad (G.B.) Ltd. v. Orbinson, [1985] Q.B. 475; [1985] 1 All E.R. 173, distinguished.

(5) Pohiva v. Prime Minister & Kingdom of Tonga, [1988] L.R.C. (Const.) 949.

(6) R. v. Chief Constable of W. Midlands, ex p. Wiley, [1994] 1 W.L.R. 114; [1994] 3 All E.R. 420, considered.

(7) Rogers v. Home Secy., [1973] A.C. 388; [1972] 2 All E.R. 1057, distinguished.

Evidence-privilege-public interest immunity-court to balance harm to public service of disclosure with public interest in promoting administration of justice by not withholding documents-importance of documents in litigation relevant consideration-internal memorandum concerning public service personnel matters may be disclosed in proceedings for defamation if future candour in public service not affected by possible disclosure

Evidence-privilege-public interest immunity-class or content-court need not inspect documents to decide whether to order disclosure if immunity claim relates only to class of documents and not to specific content

The plaintiff applied for an order for production of documents in respect of which a public interest immunity certificate had been issued.

The plaintiff was an officer in the public service and the defendant was one of his superior officers. The plaintiff brought an action for defamation based on the alleged contents of a memorandum sent by the defendant to, inter alia, the Principal Secretary (Personnel) of the Government. The plaintiff sought disclosure of certain documents, including the memorandum, for use in his action for defamation, but the Chief Secretary issued a public interest immunity certificate relating to the documents. It stated that the documents belonged to a class of documents which it was necessary, in the public interest, to withhold because the possibility of disclosure would affect candour in personnel matters and thus impair the proper functioning of the public service.

The plaintiff applied in the present proceedings for an order for production of the documents, submitting that he should be entitled to disclosure because they were vital to his action for defamation and because it was not the case that candour in the public service would be adversely affected by the possibility of disclosure.

Held, granting the plaintiff”s application:

In deciding whether to order production of the documents, the court had to balance the possible harm that disclosure would cause to the public service with the public interest in promoting the administration of justice by not withholding documents. In this case, the documents were important to the plaintiff to maintain his action, and it could not be said that the candour of those in the public service would be adversely affected by the knowledge that such documents might be used in legal proceedings, since

the law afforded ample protection to those who honestly recorded opinions which they were under a duty to express. Further, there was no need for the court to examine the documents in order to decide whether to order production, since the claim for public interest immunity was not related to the specific contents of the documents but merely the class to which they belonged. It followed that the application would be granted and production of the documents would be ordered (page 514, lines 5–14;page 514, line 36 – page 515, line 13; page 516, lines 3–19;page 518, lines 6–15; lines 21–25).

HARRE, C.J.: This application arose in an action for defamation based
on the contents of a memorandum alleged to have been sent by the
defendant to the Principal Secretary (Personnel) of the Cayman Islands
30	Government with copies distributed to others within the public service.
The plaintiff was at the material time a Marine Conservation
Enforcement Officer and the defendant was Director of Environment and
as such one of the plaintiff”s superior officers. Thus both parties were
officers in the public service and the objection to the production of
35	documents, and indeed to any oral evidence as to their contents, is set out
in a certificate of the Chief Secretary dated January 31st, 1995, the
material part of which reads as follows:
‘The documents referred to . . . belong to a class of documents
which in the public interest it is necessary for the proper functioning
40	of the public service to withhold from production as they relate to the
assessment of the performance of duties of a public officer in a
Government Department.
In my capacity as administrative head of the civil service, I am
concerned to maintain the confidentiality of personnel matters within
45	the service. It certainly is in the public interest that the service is

staffed with competent and productive employees and it would
certainly impair the proper and efficient functioning of the service if
frank and honest assessments could not be made of the performance
of a public officer”s functions by his head of department.’
5	This application is of considerable importance to the plaintiff. If it fails, it
is unlikely that he will be able to maintain his action. That is an important
consideration. Lord Pearce, in Conway v. Rimmer (3) ([1968] 1 All E.R. at
911) said that a judge must consider-
‘whether the documents in question are of much or little weight in

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