The most common publication arising out of a meeting is a "minute" (or the minutes) of the meeting. There is no statutory definition of this word but in common usage it means "a brief summary of proceedings of an assembly, committee, etc." The main purpose of a minute is to record in writing a concise, accurate and objective account of the business transacted at the meeting. For the most part, minutes record no more than essential details of the proceedings and the decisions made. They may be contrasted with a "report" on a meeting, which will incorporate information about opinions expressed, arguments ventilated, speeches delivered, reports tabled, facts brought to light, and so on.

A.   Filing the minutes with the ASC

As this task is a legal duty imposed on the chairperson by the insolvency laws it follows that the occasion (filing the minute) is privileged. Therefore unless the chairperson is actuated by malice, he or she will not be liable for any defamatory remarks included in the minute. However, here the distinction between a "minute" and a "report" (see above) is likely to be crucial. The law says a "minute" shall be filed; and as a minute ordinarily records little more than the names of those present and the resolutions passed, any "minute" that is like a "report" might not be protected.

Thus, where a local council sent an internal report on charges against employees, as well as an agenda, minutes, etc., to a public library to be exhibited there, it was held that the publication was not privileged, but that if only the decision reached by the council had been communicated it might have been.

To be safe the prudent creditor acting as chairperson will ensure that the minute which is to be placed on public record only records what is required by law.

B.   Circulation to other persons

The circulation of a minute or a report of a meeting to those persons who were entitled to attend the meeting is a privileged occasion. Therefore, unless the publisher of the minute or report - e.g., the chairperson - is motivated by malice, he or she will not be liable.

This does not mean that publication of a minute or report cannot give rise to liability for defamation. For where a statement is not privileged when first made - because, for example, it was actuated by malice or was irrelevant - it does not become privileged on republication. So if such a statement is republished, the original publisher will again be exposed to liability. And whereas a statement made in the confines of a meeting might go unnoticed by the victim, republication in a minute or report will significantly reduce the chances of it remaining so.

Given this risk it would be easy to conclude that the person who prepares the minute or report should leave out those defamatory statements which might not be privileged. But censorship of this kind is precisely what the concept of qualified privilege (and this chapter) is designed to discourage. If a creditor wants to make certain statements about the affairs of an insolvent company to other creditors he or she should be allowed to. Besides, in nearly all cases it will be impossible for anyone other than the original publisher to know whether a statement is privileged or not, because much will depend on the original publisher's motives (see Malice xxxx).

Moreover, even if it turns out the original publisher was actuated by malice, the person who prepares the minute or report of the meeting and distributes copies to creditors will be protected by qualified privilege unless he or she is shown to have been actuated by malice or some other improper motive: " A defendant is only affected by express malice if he himself was actuated by it...."

C.   Statements made in the protection of the publisher's own legitimate interests

Although this occasion seldom arises at meetings of creditors or in communications with the administrator, one aspect of it is worth noting: the permitted response to an attack on a person's reputation.

A man (or woman) whose reputation is attacked is entitled to take reasonable steps to answer the allegation. In doing so he may make statements defamatory of his attackers to refute the charges made against him and to vindicate his character. But if his motive is not refutation or vindication, but a desire to blacken the character of the person who has made the charges, he will be held malicious (see xxxx).

Qualified privilege is lost if the method of its exercise exceeds the reasonable needs of the occasion.

For example, if the occasion is privileged because of a common interest, the selected method of publication must be such as will reasonably ensure that the statement is not circulated beyond those who share that interest. Thus, as explained above (xxxx), in the case of creditors communicating with other creditors at a meeting, the prudent publisher will, before making a defamatory statement, try to have persons other than creditors, directors of the company and the administrator excluded from the meeting.

See also the commentary on publications arising out of meetings (xxxx).

The protection granted to the publisher of an untrue defamatory statement made on an occasion of qualified privilege is lost if the victim can show that in publishing the statement the publisher was actuated by malice. "Malice" may be defined as personal spite or ill will or any wrong or improper motive. Evidence of malice may be either intrinsic - i.e. found in the words themselves or in the circumstances in which they were published - or extrinsic - i.e. found in facts unconnected with the publication itself which tend to show improper, indirect or ulterior motives on the part of the publisher.

In deciding whether or not malice exists the following issues are considered:

Ordinarily to be protected by qualified privilege the publisher must have made the statement with an honest belief in its truth.

If it can be proved that such belief was absent, malice by the publisher will usually be established.

This rule is subject to one qualification. There are occasions when it is the duty of a person to report to another what he or she hears irrespective of whether he or she believes it to be true or false. In such a case the fact that the person concerned did not believe the statement to be true would not be evidence of malice provided that he or she made clear his or her own disbelief.

Carelessness, impulsiveness, irrationality, stupidity or obstinacy in arriving at a belief do not, by themselves, constitute malice. As Lord Diplock explained so eloquently:

"The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by rigorous search for all available evidence and a judicious assessment of its probative value. In greater or less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be "honest", that is a positive belief that the conclusions they have reached are Š true. The law demands no more."

But carelessness, etc., in arriving at a belief may be evidence of malice if it shows that the publisher did not honestly believe in the truth of the words.

For the reason explained above, a publisher will not be held malicious solely because he or she failed to make any inquiry or investigation which might verify or falsify his or her statement. Similarly, a refusal to listen to an explanation by the person about whom the statement is going to be made may be an error of judgement, but is not in itself malice.

However, the failure to inquire, etc., may be so extreme that the publisher cannot be regarded as really believing his or her statement to be true. It has been said that a belief induced by intentionally shutting one's eyes to all the facts which tell in the opposite direction is not an honest belief; it is no belief at all.

If the publisher publishes untrue matter, without considering or caring whether it be true or not, he or she is treated as if he or she knew it to be false. In other words, disregard for whether the statement is true or false constitutes malice.

Vehement (passionate, violent) or exaggerated language in a statement, if wholly disproportionate to the requirements of the situation, may constitute evidence of malice.

If the maker of a statement uses the occasion for some reason other than the special reason for which immunity is given he or she loses the protection of the privilege. Again, Lord Diplock's explanation is instructive:

"The commonest case (of misuse) is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise be entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's motive may have been to obtain some private advantage unconnected with the duty or interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true."

Often when alleging improper motive, victims claim the motivation was a desire to injure them. If proved, such an allegation is fatal. But knowledge on the part of the publisher that the victim will be injured by the statement does not destroy the privilege if the publisher is using the occasion for its proper purpose.

If words which are wholly extraneous to the discharge of the duty or the safeguarding of the interest out of which the qualified privilege arises are included in the statement, those words will not be protected by privilege. Indeed their inclusion may be evidence of malice and operate to defeat the privilege enjoyed in respect of the remainder of the words.

Irrelevant words will be treated as one of the factors to be taken into consideration in deciding whether an inference that the publisher was actuated by malice can be properly drawn. Lord Diplock explained the law as follows:

"As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive."

Sometimes a defamatory publication is made by two or more persons. For example, the committee of a club might issue a letter containing defamatory words. Assuming such a defamatory publication is made on an occasion of qualified privilege, a question which might arise is: does malice on the part of one of those persons defeat the protection enjoyed by the others? The answer is no: "In such cases it has been held that each innocent member of the group is entitled to rely on the defence of qualified privilege, without being infected by the malice of others".

Under the law of agency a principal is responsible for the actions of his or her agents and employees. Thus if an agent or employee, acting within the scope of his or her authority, makes a malicious defamatory statement, the principal will be liable.

This rule may be of more than passing interest to creditors, since most of them (including all corporate creditors) are represented at meetings by agents, i.e. a proxy. What if the proxy acted maliciously in making defamatory remarks? Would the creditor - the principal - be liable?

The answer appears to lie in the words "acting within the scope of his or her authority". Hence, if a proxy's authority is limited to voting and (in order to enable him or her to do so intelligently) requesting information, it appears the creditor would not be liable for statements which go beyond these limits. In this regard it is worth noting the relevant wording on the proxy form most commonly used:

"I (name of creditor) appoint (name of person appointed) as my general proxy to vote at the meeting of creditors to be held on ...".

Where, however, a creditor appoints an employee, a director or a solicitor as proxy - in other words, a person who acts as the creditor's agent generally - it appears that, regardless of the wording of the proxy form, the creditor will be liable for any malicious defamatory statement made by such person.

Can the person appointed proxy (agent) be liable for malicious defamatory statements he or she makes? The answer hinges on whether he or she, personally, was malicious. If so, the answer is yes; if not, the answer is no. In other words, the malice of the principal is not imputed to the agent. A situation like this might arise where an agent is instructed by a (malicious) principal to make certain statements or the agent makes statements founded on information supplied by a (malicious) principal.

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