Whittaker v Watler

JurisdictionCayman Islands
CourtCourt of Appeal
Judge(Zacca, P., Kerr and Collett, JJ.A.)
Judgment Date06 Dec 1996
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 producers 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 appellants 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 199495 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 Secretarys 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 respondents litigation could prevail against the public interest in withholding them.

The respondent submitted in reply that (a) the Chief Secretarys objections to disclosing the documents in the interest of confidentiality were simply one factor to be weighed by the court against the respondents 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 appellants defence to the respondents 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 Secretarys reasoned objections to production to be balanced against the respondents reliance on the documents in his defamation suit (page 392, lines 1215).

(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 2631; page 387, lines 2340; page 392, lines 611; lines 2022; lines 3235).

(3) Nor would the information in the documents prejudice the appellant in the conduct of his defence to the respondents 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 1519; lines 2232).

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 respondents 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 plaintiffs list of documents filed on
35 August 25th, 1994 and documents numbered 3038 in Schedule 1,
part 2 of the defendants 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 officers 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 appellants 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 personnel matters within the civil
service as set out in the said certificate and further certificate.
30 3. The learned Chief Justice erred in
...

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