G v Avadis

1. LORD JUSTICE DYSON: Mr G seeks permission to appeal rulings made by Tugendhat J in a judgment handed down on 30th July 2003. He ruled that the publication of letters, dated 1st May and 12th November 2002 written by the defendant, who is a solicitor, to the Office of the Supervision of Solicitors ("OSS") in response to inquiries made by them following a complaint made to them by Mr G about the defendant, a publication complained of as defamatory, were protected by absolute privilege. The judge based himself on three conclusions. First, that the OSS is itself a tribunal exercising functions equivalent to a court of justice, and that the letters were published to it as part of its proceedings. Alternatively, that the publications were statements made during inquiries made in connection with potential proceedings before the Solicitor's Disciplinary Tribunal. And/or thirdly that, the OSS is itself a tribunal exercising functions of a judicial nature and the letters were published during inquiries made in connection with potential proceedings before it. This ruling by the judge was made on appeal from a ruling of Master Leslie, dated 2nd May 2003. Accordingly, this part of the application concerns a second appeal. I should point out that Master Leslie had himself given permission to appeal because he considered the question of whether the statements attracted absolute privilege was one of some general importance.

2. The other ruling which Mr G seeks permission to challenge is a ruling made pursuant to an application which was issued by the defendant and heard at the same time as Mr G's appeal against the ruling on absolute privilege. By this ruling, the judge struck out Mr G's claim for fraud pursuant to CPR 3.4 on the basis that the claim had no prospect of success since there was no basis for the allegation of fraud or dishonesty.

3. The background to this application is set out by the judge in the opening paragraphs of his judgment. In short, it is this. In July 2001, Mr G instructed the defendant to represent him in family proceedings. His initial instructions were that the defendant should apply for contact and parental responsibility ("PR") for his two sons, who were then residing with their mother. In late November 2001, the defendant ceased to act for Mr G at Mr G's request. Mr G subsequently made a complaint to the Law Society. That complaint was taken up by the OSS. The present proceedings arise out of the response that was made on two occasions by the defendant to communications from the OSS concerning Mr G's complaint. Mr G issued proceedings on 11th December 2002, and the judge summarises the essential elements of Mr G's claim in these terms, at paragraph 2:

"'Mr Avadis has stated in two letters to the Law Society that the claimant "... clearly suffered from mental illness" and has further stated that he doubted I would ever have contact with my two sons (in another letter to the Law Society) "given his [my] conduct and the state of his [my] mental health..." I have never been found to have a mental illness and my conduct towards Mr Avadis was always civil. Mr Avadis is only making this malicious slander because I have proved to the Law Society that he defrauded me (as his client) into believing he was obtaining PR for me when he was not doing so.'"

4. Mr G contends that he should be given permission to appeal essentially because the judge reached the wrong conclusion both on the absolute privilege point and on the application to strike out the fraud claim. I shall take the absolute privilege point first. The question of whether the OSS is for these purposes to be treated as analogous to a court of justice lies at the heart of this aspect of the application. Mr G has drawn my attention to the well-known passage in the speech of Lord Diplock in Trapp v Mackie [1979] 1 WLR 377. The judge purported to apply the guidance given by Lord Diplock in his speech in that case. At pages 378 to 379, Lord Diplock said:

" ... That absolute privilege attaches to words spoken or written in the course of giving evidence in proceedings in a court of justice is a rule of law, based on public policy, that has been established since earliest times. That the like privilege extends to evidence given before tribunals which, although not courts of justice, nevertheless act in a manner similar to that in which courts of justice act, was established more than a hundred years ago by the decision of this House in Dawkins v Lord Rokeby (1875) LR 7 HL 744 ..."

5. The question for the judge, therefore, was whether the proceedings in the course of which the OSS sought a response from the defendant, and in which the defendant gave that response, were ones sufficiently similar to court proceedings to require as a matter of law absolute privilege to attach to communications between the OSS and the defendant.

6. Mr G has drawn my attention to a passage in the speech of Lord Diplock to which the judge did not refer, which appears at page 383 to 384 of the report. In that passage, Lord Diplock identified ten characteristics which, on the facts of that case, the tribunal shared with courts of justice. Mr G submits that only a few of those characteristics apply to the OSS. Lord Diplock said:

"I am far from suggesting either that the presence of any one of these characteristics taken in isolation would suffice to attract absolute privilege for witnesses in respect of testimony given by them before a tribunal or that the absence of any one of these characteristics would be fatal to the existence of such absolute privilege. An appeal which has been argued on one side by a litigant in person, however skilfully, does not, in my view, afford an appropriate occasion for stating propositions of law in any wider terms than are necessary to dispose of that particular appeal. I would therefore content myself by saying that the cumulative effect of the ten characteristics that I have listed are more than enough to justify the contention of the respondent."

7. It is clear, therefore, that the absence of a number of those characteristics, and indeed even a substantial number of those characteristics, is not necessarily determinative of the question at issue. The judge must have had that passage in mind, it seems to me, although he does not refer to it expressly because between paragraphs 28 and 35 of his judgment he identified a number of characteristics of the OSS which led him to the conclusion that the OSS does act in a manner similar to a court. Those characteristics are "the power to compel production of documents", the fact that "failure to give an explanation in respect to any matter relating to his conduct might have made the defendant subject to the sanction of refusal of a practising certificate", the fact that "the procedures adopted by the Society are designed to ensure compliance with the standards of fairness which may be applicable to courts of law", and the fact that "the possible legal consequences of the conclusion reached by the Society as a result of the enquiry, in so far as they included a determination of the question at issue, and relief in the form of compensation and costs, are indistinguishable from the consequences of the determination of a court of law". The judge also referred to the fact that there was a sanction for failure to comply with the directions of the OSS. The judge said, at paragraph 35:

"But there is also a sanction for giving false explanations to the Society ... as there is for failure to comply with directions."

He also said, at paragraph 34, that the fact that the proceedings of the OSS were not held in public was not material: "courts commonly proceed on written material alone". Taking all those matters into account, the judge concluded, at paragraph 36, that the plea of absolute privilege was bound to succeed and the claimant's action was bound to fail.

8. I have considered Mr G's submissions very carefully. He has advanced them with moderation and intelligence, if he will allow me to say so. But I am quite satisfied that the judge reached the right conclusion, and for the reasons that he gave. As I have already stated, it would be an error to treat the list of characteristics stated by Lord Diplock as a checklist which has to be, or substantially to be, satisfied in all cases before proceedings can be regarded as sufficiently similar to court proceedings to attract the doctrine of absolute privilege. For the reasons given by the judge, there are substantial similarities between the proceedings of the OSS and a court of law, sufficient in my judgment for it to be plain that absolute privilege does extend to such proceedings.

9. I turn to Mr G's case in fraud. The essence of his allegation of fraud is that the defendant was instructed to apply for PR, but that he failed to do so. The judge dealt with this at paragraphs 41 to 46 of his judgment. Mr G criticises the judge for concentrating on the letter of 7th August 2001. He submits that the letter, at page 16 of the bundle, from the defendant to the OSS, dated 12th November 2002, is the more important document. He refers in particular to the second paragraph of that letter:

"I cannot comment upon what Mr G says unless I have sight of my file. He has been asked to provide the same and has failed to do so. As it ultimately proved, Mr G's prospects of ever obtaining PR, given his conduct and the state of his mental health, were not good. It may be that it was for this reason that I did not formally apply. I cannot however say unless I see the complete file with all my attendance notes. The contents on those attendance notes may in turn explain Mr G's protracted refusal to release the file."

10. Mr G says that it is clear from this passage that the defendant deliberately failed to apply for PR because he thought that Mr G's prospects of making a successful application were poor in the light of the defendant's perception as to the state of Mr G's mental health. So, says Mr G, this in effect amounts to an admission that the defendant maliciously and fraudulently refused to make the application for PR, and then failed to inform Mr G that he had not done so.

11. As the judge said, a plea of fraud is a very serious matter, and it is trite law that allegations of fraud have to be pleaded with particularity and that the standard of proof, given the seriousness of such an allegation, is correspondingly high. The judge said that there was no evidence before him that the letter of 7th August 2001 was written dishonestly. As the judge said, "the fact [is] (and it is an admitted fact) that the defendant did not apply for PR". That fact, said the judge, "is not a basis for advancing a plea of dishonesty on his part in the writing of the letter".

12. I am afraid that, in my judgment, to invite a court to find fraud simply on the basis that the defendant was instructed to make an application for PR and he failed to make the application has no prospect of success. As I have said, the standard of proof of fraud is very high. In my view, no court would make a finding of fraud on those bare facts. I do not consider that the fact that the defendant may have speculated that the reason why he did not make the application for PR might have been his perception that the prospect of the application being successful was small advances the fraud case. It may well advance a case in negligence, but that is an entirely different matter. I conclude, therefore, that the judge reached the right conclusion for the right reasons on this point as well.

13. Finally, Mr G has a number of general points that his human rights have been interfered with. He refers to Article 6. He has a point about the fact that, as he says, he was given no notice of the publication of the judgment. I would be very surprised if he was not notified of the date of when the judgment would be handed down. The judgment was reserved and was handed down in the usual way. Copies of it were available for anyone to read. There is no substance in this point.

14. As to his wider points on Article 6, although no Article 6 point was taken in the argument before the judge, the judge took the trouble to do his own research to satisfy himself that the rule of absolute privilege did not infringe Article 6. He dealt with this at paragraph 26 of his judgment. He referred to the decision of A v United Kingdom . He was satisfied that the rule of absolute privilege is compatible with Article 6, and so am I.

15. I appreciate that this decision of mine will be unacceptable to Mr G, and it will be no easier for him to take than was the decision of Tugendhat J. But I fear that, for the reasons that I have attempted to explain, the law is clear and for the reasons given this application must be refused.

Order: Application refused.