Whittaker v Watler

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Kerr and Collett, JJ.A.)
• Judgment Date: 06 December 1996
• Date: 06 December 1996
• Court: Court of Appeal (Cayman Islands)

Court of Appeal

(Zacca, P., Kerr and Collett, JJ.A.)

WHITTAKER

and

WATLER

Ms. L. Agard, Crown Counsel, for the appellant;

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

Cases cited:

(1) -Air Canada v. Trade Secy. (No. 2), [1983] 2 A.C. 394; [1983] 1 All E.R. 910, distinguished.

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

(3) -Continental Reinsurance Corp. (UK) Ltd. v. Pine Top Ins. Ltd., [1986] 1 Lloyds Rep. 8.

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

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

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

(7) -R. v. Chief Const. (W. Midlands), ex p. Wiley, [1995] 1 A.C. 274; [1994] 3 All E.R. 420.

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

(9) -Taylor v. Anderton, [1995] 1 W.L.R. 447; [1995] 2 All E.R. 420.

Evidence-privilege-public interest immunity-court to weigh possible harm to public service against public interest in promoting administration of justice-importance of documents in litigation and lack of prejudice to producer”s defence relevant considerations

Evidence-privilege-public interest immunity-disclosure of public service personnel documents not containing high-level policy information or originating from protected source unlikely to affect candour of future reports or prevent proper functioning of public service-public officers in same position as equivalent private sector employees

The respondent applied to the Grand Court for an order for the production of documents in respect of which a public interest immunity certificate had been issued.

The appellant was the superior officer of the respondent in the public service. The respondent brought an action for defamation based on the alleged contents of a memorandum sent by the appellant to, inter alia, the Principal Secretary (Personnel) of the Government. The Chief Secretary issued a public interest immunity certificate relating to certain documents in the appellant”s list which the respondent claimed were vital to his action, stating that it was necessary in the public interest to withhold them because they belonged to a class of documents the disclosure of which might in future affect candour in personnel matters and thus impair the proper functioning of the public service.

The Grand Court (Harre, C.J.) ruled that on balance, the public interest in promoting the administration of justice outweighed the possible harm to the public service from disclosure and rejected the argument that public servants were likely to become less candid in their communications if disclosure were permitted. Production and inspection of the documents was ordered. The Grand Court proceedings are reported at 1994–95 CILR 512.

On appeal, the appellant submitted that (a) the Grand Court had failed to give a sufficient weight to the strong objections contained in the Chief Secretary”s certificate on the basis of ensuring the proper functioning of the public service, since confidentiality was essential to the unfettered performance of their duties by high-level officers such as the appellant under Government General Orders; and (b) since the documents of which disclosure was sought were of a class originating at high level, however

routine they were in substance, not even the fact that they were vital to the success of the respondent”s litigation could prevail against the public interest in withholding them.

The respondent submitted in reply that (a) the Chief Secretary”s objections to disclosing the documents in the interest of confidentiality were simply one factor to be weighed by the court against the respondent”s reliance on disclosure for the success of his defamation action, in the exercise of its discretion; (b) since these particular documents could not be described as high-level communications dealing with the formation of Government policy, and their disclosure was unlikely to prevent the future production of candid and accurate personnel reports, it was unnecessary to withhold them for the proper functioning of the public service; and moreover (c) as the appellant”s defence to the respondent”s claim relied on qualified privilege and justification, the documents themselves could not be prejudicial to his case at trial, and the Grand Court had properly ordered their production.

Held, dismissing the appeal:

(1) The court had a genuine discretion in deciding whether to order production of documents in respect of which public interest immunity had been claimed, the exercise of which required the Chief Secretary”s reasoned objections to production to be balanced against the respondent”s reliance on the documents in his defamation suit (page 392, lines 12–15).

(2) Since the documents in this case were not of a class of high-level documents dealing with sensitive policy issues and the information they contained was not obtained from sources whose identities it was in the public interest to protect to ensure their continued co-operation, it was unlikely that disclosure would result in reduced candour and honesty in the future reports of public officers. Public officers could not be distinguished in this respect from other persons recording opinions in the course of their employment. Withholding the documents was therefore unnecessary for the proper functioning of the public service (page 386, lines 26–31; page 387, lines 23–40; page 392, lines 6–11; lines 20–22; lines 32–35).

(3) Nor would the information in the documents prejudice the appellant in the conduct of his defence to the respondent”s defamation claim, since he intended to defend himself on the basis that the comments made were justified or subject to qualified privilege. Accordingly, the public interest in disclosing the documents far out-weighed that served by withholding them and the appeal against the order for their production would be dismissed (page 392, lines 15–19; lines 22–32).

ZACCA, P.: The respondent, Ladner Watler, a police officer on
secondment as a Marine Conservation Enforcement Officer, brought an
20	action for defamation against the appellant who was the Director of
Environment and as such was one of the respondent”s superior officers.
The action for defamation was based on the contents of a memorandum
alleged to have been sent by the appellant to the Principal Secretary
(Personnel) of the Cayman Islands Government. Copies were distributed
25	to other officers within the public service.
On a summons for an order for directions, the court ordered both parties
to file and serve a list of documents and also ordered that there be inspec-tion
of such documents. Objection was taken to the production of documents
and any oral evidence as to their contents. This was done in a certificate
30	from the Chief Secretary of the Cayman Islands Government dated January
31st, 1995. It is necessary to set out the contents of the certificate:
‘Certificate of the Chief Secretary of the Cayman Islands
1. I have considered the documents numbered 17, 18 and 19 in
Schedule 1, part 1(a) of the plaintiff”s list of documents filed on
35	August 25th, 1994 and documents numbered 30–38 in Schedule 1,
part 2 of the defendant”s list of documents filed on August 19th,
1994 and object to their production on the ground that it would be
injurious to the public interest to produce them.
2. The documents referred to in para. 1 above belong to a class of
40	documents which, in the public interest, it is necessary for the
proper functioning 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.
3. In my capacity as administrative head of the civil service, I
45	am concerned to maintain the confidentiality of personnel matters

within 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
5	of a public officer”s functions by his head of department.
4. I understand that oral evidence may be given in these
proceedings. If oral evidence were sought to be given of the contents
of any of the documents to the production of which I have in this
certificate objected I would wish to object to such evidence on the
10	same grounds as those set out above in relation to the documents in
question.’
The respondent filed a summons dated March 20th, 1995 requesting the
court to order production and inspection of the documents as set out in
Schedule 1, part 2 of the appellant”s list of documents.
15	After hearing submissions on behalf of the appellant and the
respondent, the learned Chief Justice made an order for production and
inspection of the documents which the appellant sought in his summons
dated March 22nd, 1995. It is from this order that the appellant now
appeals to this court. The grounds of appeal filed are as follows:
20	‘1. The learned Chief Justice was wrong in law in holding that the
public interest reflecting the requirements of the administration of
justice substantially outweighed the public interest in the with-
holding of such documents from production to ensure the proper
functioning of the civil service.
25	2. In weighing the competing public interests, the learned Chief
Justice failed to attach any or sufficient weight to the certificate and
further certificate of the Chief Secretary in that he failed to consider
the issue of confidentiality of

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