Absolute Priviledge and Court Proceedings

We previously wrote about this case of Iqbal v Dean Manson Solicitors & Ors (No 2) [2013] EWCA Civ 149 in an article in Febuary 2012.  That related to the harassment part of proceedings which are now subject to appeal. This appeal relates to Iqbal’s appeal against a decision dismissing his claim for libel against Dean Manson solicitors.

Iqbal had been employed by the firm before starting his own practice.  He then proceeded to act against the firm in litigation by one of Dean Manson’s former clients, whom Iqbal had previously acted for whilst employed by them. The firm wrote several letters which were also copied to the court raising various issues of Iqbals’s alleged professional misconduct. He brought a libel claim complaining of twenty-one alleged defamatory publications by the firm which he alleged wrongly questioned his professional competence and conduct.

A libel claim was issued out of time save for two documents, 20 and 21.  The trial judge held that all documents were protected by absolute privilege.  Iqbal submitted that the trial judge misstated the principles of Smeaton v Butcher and that the correct principle was “no reference at all to the subject matter of the proceedings”.

On appeal the court looked at documents 20 and 21.  The documents were witness statements made in the cost assessment proceedings arising out of Dean Manson’s claim against Iqbal. There was absolute privilege from a claim in defamation for witness evidence given in the course of proceedings.  The task is not one of relevance but reference to the proceedings in question.

Clarke LJ restated the principles as follows :

 “(1) A statement by a witness or prospective witness, whether made to a solicitor for the purposes of the preparation of a statement, proof of evidence or affidavit, or made in a statement, proof of evidence or affidavit, is absolutely privileged unless it has no reference at all to the subject-matter of the proceedings.

(2) In deciding whether the statement has any reference to the subject-matter of the proceedings any doubt should be resolved in favour of the witness.”

It was not enough for the defamatory statements not to be of relevance to the matter in hand, it had to have no reference at all to the subject matter of the proceedings.  Mr Iqbal had claimed that the documents in question were wholly extraneous, irrelevant, and gratuitous libels.  The Court of Appeal disagreed. The statements only had a weak relevance to the subject matter of the proceedings but this was sufficient to satisfy the test as it could not be said the documents as a whole had no reference at all to the subject matter of proceedings.

The appeal was dismissed.


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