CFA Declines to Extend Defence of Absolute Privilege to "Middlemen"

In Chang Wa Shan v Esther Chan Pui Kwan [2018] HKCFA 29, the Court of Final Appeal (among other things) declined to extend the common law defence of absolute privilege in the law of defamation and malicious falsehood to a non-witness who was described in the lead judgment as "not even an informer, merely a middleman for an informer".

The ambit of the overarching defence of absolute (or judicial) privilege lay at the heart of the appeal. In summary, the principal issue for determination was whether the defence of absolute privilege in Hong Kong extended to a communication made out of court by a person to a party's legal representatives for use in civil court proceedings where that person was neither a witness nor potential witness but they provided relevant information for use in the proceedings.

The point of law raised was a difficult and novel one which is reflected in the different reasoning, in this respect, between the lead judgment (supported by three other judges) and the remaining judgment. The majority held that absolute privilege did not apply on the facts, while one judge held that it did. That said, all five judges reached the same conclusion in their overall decision on the appeal – namely, to allow the defendant's appeal on other grounds.

Absolute privilege extends to a number of situations. First, statements made in court proceedings by judges, parties, legal representatives and witnesses. Second, court documents prepared for the purpose of court proceedings. Third, a more difficult category to define which includes certain evidence obtained during the course of proceedings from (for example) a potential witness or an "informant".

The defendant had apparently provided material to a party's legal representatives to assist with certain court proceedings and, during the course of doing so, was alleged to have made an untrue statement concerning the plaintiff which was repeated in court by one of the legal representatives. The occasion of the publication in court was covered by absolute privilege (a complete defence) and it appears to have been accepted that a defence of qualified privilege might have been available to the defendant (although, not in the event that the plaintiff could show malice on her part).

At first instance, the court held that absolute privilege applied relying on the close proximity between the provision of the information by the defendant (a publication) and its actual use in court. That approach was not followed by the Court of Appeal but it did find some support from one of the judges in the CFA (provided the person who provides the information could properly be said to be "taking part in the judicial process").

What underpins the CFA's majority opinion in this regard is a reluctance to extend the ambit of absolute privilege to a person who is neither a potential witness nor an informant because to do so would result in an unjustified extension of the boundaries afforded by the defence.

While the outcome in the case turns on the facts (which were exceptional) it does give pause for thought about how legal practitioners collect evidence for use in court proceedings and the difference between witnesses, potential witnesses and informants (on the one hand) and intermediaries who merely render assistance (on the other hand). A point also arises as to who, in any meaningful sense, is a member of a party's "legal team".

Jurisdictions: 

Partner, RPC