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What is absolute privilege ?

July 7, 2012

Absolute Privilege

There are certain occasions that are deemed so important that those making statements upon them are not liable in defamation, despite that the fact that those statements are a true, or even malicious.Those occasions are called cases of absolute privilege,

Parliamentary proceedings.

The courts have no jurisdiction to hear evidence of proceedings in Parliament. The immunity extends beyond statements made in Parliament, but also to all reports, papers, votes and proceedings published by the authority of the House. Members of Parliament and other elected representatives can only do their job if they are free to debate issues openly. So it is that all these people are protected by absolute privilege. Nobody can be sued for defamation as a result of anything they say as part of proceedings of parliament.

Judicial Proceedings

Any statements made in proceedings before a superior and inferior court, magistrates courts are all privileged. That extends to all courts, provided they are exercising functions equivalent to those of an established court of justice.

In cases of doubt as to whether they are judicial proceedings the overriding factor is whether there will emerge from the proceedings the determination of truth and justice of which is a public concern.

It is certainly the case that it extends therefore to disciplinary committee of the Law Society, an inquiry as to the conduct of a barrister, a court marshall, and other similar inquiries. It has to determine the rights, guilt or innocence of somebody, so it would therefore be the case if the functions of the body are administrative, it does not determine the rights of guilt of any party, it won’t be protected. An example of that might be an application for a licence for a pub, a Social Security Adjudication.

Protection covers the Judge, Counsel, witnesses, anyone giving evidence, such as the police, jurors, however, malicious.

Statements made in the preliminary stages before a hearing can be treated as being made in the course of proceedings, as long as they are used in the proceedings for which they are made or other relevant court proceedings. Such statements include:

  • Statements of case
  • Affidavits
  • Witness statements
  • Expert reports
  • Interviews with potential or actual witnesses
  • General out of court statements made by or to investigators which could fairly be held to be part of the process of investigating a crime with a view to a prosecution

Interestingly, it wouldn’t apply if a statement was made in the proceedings which was not relevant to the claim, so for example, if, as in the case of Seaman v Netherclift (1876 (2CPD53). A witness was asked: “Where you at York on a certain day?” The witness replied, “Yes, and AB picked my pocket there.” That would not have the protection of absolute privilege as it was entirely unconnected to the proceedings.

Privilege extends to documents in the proceedings, such as statements, court documents, particulars of claim, defence. However, documents produced in the proceedings which do not have a link with them would not be protected.

Solicitor Client Communications

Clients and witnesses giving statements to their solicitors, which are to be used in judicial proceedings, are protected by absolute privilege.

Discussions between a solicitor and his client, where another party is defamed, would be protected by absolute privilege.

Reports of Judicial Proceedings

A fair and accurate report of judicial proceedings heard in public, and which are published contemporaneously with those proceedings, is absolutely privileged, under section 14 of the Defamation Act 1996. Contemporaneous publications would be those that are heard as soon as is practicable, after publication is permitted. For example, if a newspaper is published daily, then it would be contemporaneous if it was published in the next edition. In the same way, if an edition was weekly or monthly, then it would be termed contemporaneous to publish in the next weekly or monthly edition.