Defamation: The Court of Appeal's decision in TVNZ v Haines - A party sued for defamation in New Zealand cannot say "This is what I meant, and that meaning was true"

The Court of Appeal has ruled that the "Polly Peck" form of truth defence to a defamation claim does not exist in New Zealand.

When the March Hare told Alice: "You should say what you mean", Alice hastily replied: "I do, at least I mean what I say - that's the same thing, you know"; to which the Mad Hatter replied: "Not the same thing a bit! Why, you might just as well say that 'I see what I eat' is the same thing as 'I eat what I see'! "

Whatever it might have meant, Alice was entitled to say: "I mean what I say".

The meaning that is actually conveyed by particular words is at the very heart of defamation law. A plaintiff who claims to have been defamed must state the defamatory meaning which he or she claims the published words bear. If - as is usual in defamation - the case is tried before a jury, it is for the jury to decide whether the words in fact have that meaning, or some other meaning, and therefore whether the plaintiff has been defamed. A defendant however has a complete defence to a defamation claim if the published words were true.

Often the published words can have more than one possible meaning, and the plaintiff and defendant will usually contend for different meanings of the relevant words. In those circumstances, which meaning must be true for the defendant to be entitled to the defence of truth?

In a series of decisions which began in 1986 with Lucas-Box v Newsgroup Newspapers, the English Courts held that a defendant was entitled to say that the words published had a meaning which was different from the meaning alleged by the plaintiff, and that the different meaning was true. The leading case was Polly Peck Holdings v Trelford, and this form of truth defence, in which the defendant justifies its own meaning, is usually known as the "Polly Peck" defence. It is well established in England, and has also been adopted in Canada and in a number of the Australian states.

In a defamation case a plaintiff will often allege a series of alternative defamatory meanings of the published words, hoping that the jury will find the most serious meaning and award substantial damages, but being able to fall back on lesser defamatory meanings if necessary. It is however possible that none of those alleged meanings will be what the defendant intended to convey by the published words. In those circumstances the defendant will wish to put forward what it says the words actually meant and, if that meaning is true, prove their truth as a defence to the claim.

In one sense this is unnecessary, because if the words do not bear one of the plaintiff's alleged meanings the plaintiff should fail in its claim, and to permit the defendant to seek to justify an alternative meaning is therefore said to extend and complicate the trial unnecessarily. In other senses it is however very important to permit that, because a defendant who simply denies the plaintiff's alleged meanings and does not say what the words actually meant has far less credibility before a jury than a defendant who can put forward the intended meaning of the publication and then show that it is true. Where a plaintiff is itself advancing multiple alleged meanings it may not extend the trial unduly to permit the defendant also to advance one. The availability of the defence is also very important in any jurisdiction where a plaintiff is entitled to amend its claim during the trial to rely on a different or lesser defamatory meaning than those it originally relied on, because the new meaning may be one to which the defendant might have wished to raise a truth defence. A jury is entitled to consider all possible meanings in deciding what the published words meant, and if one of those meanings is true the defendant will naturally wish to say so and the jury will equally naturally wish to know that. It is for these sorts of reasons that the "Polly Peck" form of truth defence has been developed at common law and recognised by various - although not all - Courts overseas (including Australia, although it was recently heavily criticised in Australia by a minority of the High Court of Australia in Chakravarti v Advertiser Newspapers ).

The leading New Zealand case on the issue, dating from 1986, was the decision of the Court of Appeal in BCNZ v Crush, which essentially held that a defendant could only prove the truth of the meanings alleged by the plaintiff, and could not set up and prove the truth of alternative meanings. In 1990, however, a new Defamation Act was enacted, including s.8(3)(a) which outlines a statutory defence of truth, the natural construction of which would permit a defendant to plead a "Polly Peck" truth defence.

In several cases in the High Court it has since been argued that this was not the effect of s.8(3)(a), and that Crush remains the law in New Zealand, notwithstanding the apparently clear words of s.8(3)(a). The Court of Appeal has now considered that issue in TVNZ v Haines.

In Haines, the plaintiff was a house moving company which sold a house to a customer and relocated it to the customer's property in Kamo. The roof leaked, a dispute arose, and the customer refused to pay the balance owing to the plaintiff, which claimed that it was entitled to take the house away again. TVNZ broadcast a series of programmes which were critical of the plaintiffs. The plaintiffs sued, alleging that the broadcasts meant that they rip off their customers, are dishonest, operate in a thuggish or intimidatory manner, are not to be trusted, and are unprofessional, incompetent or incapable of performing their work in a workmanlike manner. TVNZ contended that the broadcasts had different meanings, i.e. that the plaintiffs failed to re-erect the house in a proper workmanlike manner, acted unprofessionally, and operated in a threatening or intimidating manner. In the High Court Justice Venning held that TVNZ was not entitled in its defence of truth to allege and prove lesser defamatory meanings than those alleged by the plaintiffs.

The Court of Appeal has now ruled on the issue. The Court of Appeal considered that there was nothing in the legislative history of s.8(3)(a) of the Defamation Act to indicate an intention to overrule the effect of Crush, and approved the view expressed in Australia by the minority in Chakravarti that a "Polly Peck" form of truth defence is procedurally undesirable. The result is that the word "imputations" in s.8(3)(a) has been held to mean "the imputations pleaded by the plaintiff", and there is consequently no "Polly Peck" form of truth defence in New Zealand.

The decision is perhaps controversial because:

1. It takes an unusual approach to statutory interpretation. Normally it is permissible to consider the legislative history in order to resolve an ambiguity in a statutory provision. In this case however the provision is clear, and the uncertainty only arises as a result of the analysis of the legislative history. Such an approach is wrong in principle - where the words used in a statute have a natural and ordinary meaning, and there is no apparent ambiguity, that is the law, and it ought not to be necessary for anyone to have to investigate the legislative history in order to check whether something else might have been intended.
   
   
2. In deciding what a New Zealand statutory provision means, this decision draws support from an Australian judgment which is dealing with the common law position in that jurisdiction and not with an analogous statutory provision; and that judgment is a minority judgment which may not even be the law in that jurisdiction (it was an appeal from South Australia).
   
   
3. Defamation law is an arcane and complex field having its own peculiar rules of pleading and practice. The "Polly Peck" form of truth defence has evolved as part of a coherent body of defamation law and practice. Rules regarding how a defendant can plead are intimately related to rules about how a plaintiff can plead. A rejection of the "Polly Peck" defence has ramifications for the applicability of other case law which may not immediately appear to be affected but which it would now be wrong to apply in New Zealand (eg decisions which permit a plaintiff to amend its claim to rely on lesser defamatory meanings at trial). This issue does not appear to have been considered in Haines.

Although the Court of Appeal denied it, the result gives a distinct tactical advantage to plaintiffs in this area; distances New Zealand's defamation law from that in much of the rest of the Commonwealth; and is a potentially dangerous statutory interpretation precedent. It will make pleading in defamation simpler in some cases, but not necessarily fairer.

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