Practice and Procedure


PUBLISHED July 31, 2003

Letters sent to the Office for the Supervision of Solicitors in connection with a complaint it was investigating attracted absolute privilege. In the absence of dishonesty an expression of expectation did not amount to a fraudulent mis-statement.Appeal from the decision of Master Leslie of 2 May 2003 that letters to the Office for the Supervision of Solicitors ('OSS') were absolutely privileged. In July 2001 the claimant ('C') instructed the defendant ('D'), to represent him in family proceedings. C's instructions to D were to apply for contact with, and parental responsibility ('PR') for his two sons. In late November 2001, D ceased to act for C at C's request. By that time no application for PR had been made. D subsequently made a complaint to the Law Society. That complaint was taken up by the OSS. The present proceedings arose out of the responses made by D to the OSS concerning C's complaint. C claimed that D had stated in letters to the Law Society that C "clearly suffered from mental illness". C alleged slander and that D had defrauded C into believing he was obtaining PR when he was not. D pleaded, in relation to each publication complained of, that it occurred on an occasion of absolute privilege. Alternatively it was pleaded that each occasion was one of qualified privilege. C's case in fraud relied on a letter addressed to the respondent dated 7 August 2002, in which D stated that he had submitted the application for public funding so the certificate should be granted and proceedings issued for contact and PR. C claimed that this statement was false and that no application for PR had been made. On 2 May 2003 the Master concluded that letters to the OSS were absolutely privileged. He gave permission to C to appeal. He did not rule on qualified privilege, or on the alternative claim in fraud. C accordingly appealed. D cross-applied pursuant to CPR 3.4(2) that C's claims for libel and fraud be struck out. The grounds of D's application were that C's statement of case disclosed no reasonable grounds for bringing the claims, abuse of process, and failure to comply with an order of the court dated 15 January 2003 relating to the form of the proceedings.HELD: (1) In deciding whether a tribunal acts in a manner similar to courts of justice and would attract absolute, as distinct from qualified, privilege for witnesses when they gave testimony before it, consideration was given: (i) to under what authority the tribunal acted; (ii) to the nature of the question into which it was its duty to inquire; (iii) to the procedure adopted by it in carrying out the inquiry; and (iv) to the legal consequences of the conclusion reached by the tribunal as a result of the inquiry. (2) Immunities from civil liability had to be considered in the light of Art.6 European Convention on Human Rights. Such immunity could be compatible with Art.6 if conferring the immunity pursued a legitimate aim and if there was a reasonable relationship of proportionality between the means employed and the aim sought. (3) The nature of the question into which the OSS had the duty to enquire was that posed in Sch.1A para 1(1) Solicitors Act 1974, namely whether the professional services provided by D had not been of the quality which it was reasonable to expect of him as a solicitor. (4) The procedure adopted by the OSS was to make enquiries in the manner of a court. The procedures adopted by the Society were designed to ensure compliance with the standards of fairness which are applicable to courts of law, whether under the common law or under Art.6. The proceedings of the Society were not held in public, but that was not essential. The words complained of were not published otherwise than to the officials of the OSS. The plea of absolute privilege was bound to succeed and C's action was bound to fail. (5) Where a person made a statement as to his expectations or intentions, and that statement was made dishonestly, then it would found an action in fraud. There was no evidence that the letter was written dishonestly. The fact that D did not actually apply for PR was not a basis for advancing a plea of dishonesty on his part in the writing of the letter. (6) C did not rely on financial loss, but sought punitive measures for the distress that he claimed he had suffered. It was not the function of the court to impose penalties. The claim for fraud had no prospect of success because there was no basis for the allegation of fraud or dishonesty.Appeal dismissed. D's application allowed.

[2003] EWHC 1830 (QB)