Well, just between you and me.

Case reviewed: Coughlan v Jones, Supreme Court, Dunedin 
[1916] NZLR 41

Background

Robert was engaged to marry Nellie.  Nellie’s second cousin, Minnie, wrote a letter to Nellie’s sister.  In the letter, Minnie wrote:

“Well, Ada, between you and me I think it is a great pity Nell is marrying that fellow.  No one has a good word for him; people that have known them for years reckon they are no good.  His mother kept a brothel a few years ago, and I would not like to tell you what I heard about him and which I know is true.” 

After the letter was written, Minnie learnt the brothel comment was untrue and expressed her regret to those who had seen the letter.

Nonetheless, Robert’s mother, Mrs Coughlan, sued Minnie for the brothel comment, and claimed £250 in damages (about $33,200 today).  Even though Minnie could not prove the truth of the brothel comment, she argued the letter was written with good intentions: to prevent an undesirable marriage in the family.  Her lawyer argued the occasion of publication was privileged.

Verdict

The jury found that, when Minnie wrote the letter, she believed the truth of the brothel comment.  However, in the witness box, Minnie said that she not want to prevent the marriage.  Seemingly on the basis of this comment, the jury considered that Minnie was driven to write the brothel comments out of mischief.  As a result, the jury decided that any privilege Minnie may otherwise have had, was defeated by malice.  The jury was unable to reach agreement on the amount of damages to be awarded, so the matter went to the Judge.

Judgment

The Judge described Minnie’s motivation for writing the brothel comments as being “a love of circulating wicked gossip“.  The Judge held that this amounted to malice.  But because the publication was made only to Nellie’s sister, the Judge deemed the damage to be minimal and awarded Mrs Coughlan only £20 in damages (about $2,650 today).

Comment

If the case was decided today, even if the brothel comment was privileged, it most certainly would have been defeated under section 19 of the Defamation Act: the case looks a neat fit for the second limb of section 19: that Minnie “took improper advantage of the occasion of publication” – that is, under a façade of seeking to protect Nellie, Minnie was really just gossip-mongering.