Practice and Procedure


PUBLISHED April 7, 2003

The defence of qualified privilege was afforded to the Bar Council in circumstances where they had sent a communication, libelling the claimants to it's members.Appeal by the appellants ('K') against a decision of Eady J in which he had held that respondent Bar Council ('BC') had been entitled to summary judgment under CPR Part 24.2. The question on appeal was, when was verification a relevant circumstance in determining whether a defamatory communication was protected by qualified privilege. K had submitted that: (i) in every case where qualified privileged had been claimed, whatever its category, the question which was one of public policy, was whether in the particular circumstances of the case the publication complained of should enjoy the protection; and (ii) following an analysis of the case law from Toogood v Spyring (1834) 1 CM&R 181 to Horracks v Lowe [1975] AC 135 there was no distinction such as 'common interest' and 'duty-interest' between cases, one category shaded into the other and the question was whether qualified privilege attached to any particular occasion or communication had to always depend on the facts.HELD: (1) A helpful categorisation was to be found by distinguishing between on the one hand cases where the communicator and the communicatee were in an existing and established relationship and on the other hand cases where no such relationship had been established and the communication was between strangers. (2) This distinction had been supported by the authorities that K had cited. Once that distinction had been established it became more understandable that the law ought to attach more privilege to communications within existing relationships than to those between strangers. (3) It did not matter whether BC had properly been regarded as owing a duty to the Bar to rule on questions of professional conduct such as had arisen here or sharing with the bar a common interest in maintaining professional standards. What had mattered was that the relationship between them was an established one that plainly required the flow of free and frank communications in both directions on all questions relevant to the discharge of BC's functions (see Stuart v Bell (1891) 2 QB 341). (4) On the conventional approach to the common law of qualified privilege and in the circumstances of the instant case BC had to succeed.Appeal dismissed.

[2003] EWCA Civ 331