Kearns & Ors v The General Council of the Bar

When is verification a relevant circumstance in determining whether or not a defamatory communication is protected by qualified privilege? That, in the last analysis, is the question raised by this appeal.

It is clearly established that in cases of publication to the world at large “the steps taken to verify the information” (item 4 in Lord Nicholls’ non-exclusive list of matters to be taken into account - see Reynolds -v- Times Newspapers Limited [2001] 2 AC 127, 205) together with other such circumstances concerning the quality and reliability of the facts asserted, may be crucial in deciding whether qualified privilege attaches. Reynolds, however, applies only to media publications. As this court said in Loutchansky -v- Times Newspapers Limited (Nos 2-5) [2002] 2 WLR 640, 653:

“32.

… [T]he New Zealand Court of Appeal in Lange -v- Atkinson [1993] NZLR 385 … was surely right to have recognised the striking departure which Reynolds’s case made from the earlier approach. Reynolds privilege (as we shall call it) although built upon an orthodox foundation, is in reality sui generis.

33.

Whereas previously it could truly be said of qualified privilege that it attaches to the occasion of the publication rather than the publication, Reynolds privilege attaches, if at all, to the publication itself: it is impossible to conceive of circumstances in which the occasion of publication could be privileged but the article itself not so. Similarly, once Reynolds privilege attaches, little scope remains for any subsequent finding of malice.

…

35.

… Once Reynolds privilege is recognised, as it should be, as a different jurisprudential creature from the traditional form of privilege from which it sprang, the particular nature of the ‘interest’ and ‘duty’ which underlie it can be more easily understood.

36.

… [I]n this class of case the question whether the publisher has behaved responsibly is necessarily and intimately bound up with the question whether the defence of qualified privilege arises. Unless the publisher is acting responsibly privilege cannot arise. That is not the case with regard to the more conventional situations in which qualified privilege arises. A person giving a reference or reporting a crime need not act responsibly: his communication will be privileged subject only to relevance and malice.”

In cases which do not concern Reynolds privilege, whether or not steps are taken to verify information may be relevant in deciding whether the maker of a statement protected by qualified privilege has been guilty of actual malice so as to lose that privilege. But the question now arising is when is it relevant at the earlier stage, in deciding whether qualified privilege attaches in the first place?

The present appeal concerns neither media publications nor an assertion of malice. The question arises here in the context of a communication between the Bar Council and its 10,132 members. The offending publication was a letter written by Mr Mark Stobbs, the head of the Bar Council’s Professional Standards and Legal Services Department to all heads of chambers and senior clerks/practice managers. The letter concerned the Bar’s Code of Conduct. It was written in the mistaken belief that the appellants are not solicitors. Undoubtedly it was libellous. Undoubtedly it was untrue. For the purposes of this appeal we must assume it was unverified. Was it nevertheless a publication made on an occasion protected by qualified privilege?

Eady J below on 26 July 2002 held that it was and in the result entered summary judgment for the defendants under CPR Part 24.2. The appellants now appeal with permission which I myself gave on 23 October 2002. Although the Bar Council is named as defendant, it is in fact an unincorporated body without legal personality so that, as both parties agree, it is Mr Mark Stobbs who must be treated as defendant.

With that brief introduction let me at once set out the relevant facts which for the most part I gratefully take from the judgment below.

The Bar Council’s functions are set out in paragraph 1 of its Constitution:

“The Bar Council is established to discharge the following functions:

(a)

To be the governing body of the Bar.

(b)

To consider, lay down and implement general policy with regard to all matters affecting the Bar.

(c)

To maintain the standards, honour and independence of the Bar, promote, preserve and improve the services and functions of the Bar and to represent and act for the Bar generally as well as in its relations with others and also in matters affecting the administration of justice.

(d)

To formulate and implement policies … to regulate all aspects of

(i)

education and training for the Bar …

(ii)

qualification for Call to the Bar …

(iii)

the grant of rights of audience …

(iv)

maintenance of rules of conduct ….”

The unhappy history of this litigation began with a letter being sent by a member of the Bar on 12th September 2001 seeking guidance, entirely properly, from his professional body on a recent and unfamiliar development in the way certain members of the Bar, including in his own chambers, were being instructed. He wrote to Mr. Stobbs in the following terms:

“Dear Mr Stobbs, I am writing to seek the advice of the Bar Council in relation to the terms on which a body called Kearns Agency Limited, formerly called Kearns & Co, has been instructing junior barristers and continues to do so. I am a Pupil Master and I have recently become aware of an arrangement under which Kearns had instructed the working pupils in this chambers. I understand from those pupils that many of their contemporaries in other chambers have been regularly instructed on identical terms. I attach copies of letters of instruction in four cases, together with statements of costs sent to the barristers in those cases to present to court for the purposes of summary assessment of the costs. It will be seen that the arrangement is that the barrister is instructed as agents for Kearns Agency Limited at a pre-marked fee of £35 plus VAT. Kearns themselves seem to act as agents for a number of firms of solicitors. Remarkably the barrister is instructed not to contact the client, which seems to mean the solicitor, either before or after the hearing. It will be seen from the statements of costs that these do not accurately reflect the fee charged by the barristers. Instead of the fee being properly recorded as counsel’s fees of £35 plus notional VAT, the barristers not being VAT registered, the fee claimed is ‘agent’s fixed fee’ of £60 plus VAT. I have checked this morning with the Bar Council and the Kearns Agency Limited is not registered as a Bar direct body. The first issue that obviously arises is the fact that the presentation of the statements of costs may well mislead opponents and the Court. Both are obviously likely to imagine that the fee of £60 is the advocate’s fee for the hearing. Both the pupils in this chambers have been scrupulous about pointing out to the Courts their actual fee and, as I understand it, the costs allowed have been reduced accordingly. However, there is an obvious risk that costs claims will be settled on a misleading basis, or that advocates at later hearings, perhaps employed by Kearns, may be less scrupulous. I am very concerned that the terms on which Kearns instruct barristers, and indeed the way in which they operate, will cause the barristers to be in breach of the code of conduct.

 Kearns are a limited company which is not a Bar direct body. This is a breach of paragraph 401 of the Code of Conduct.

 One instruction of the fee arrangement is that the fee to the professional client or the opponent for the barrister’s work is £70.50, of which the barrister receives £35 and Kearns the balance. If that is right, this is a breach of paragraph 307(d) and/or (e) of the Code of Conduct.

 The presentation of the misleading statements of costs is a breach of paragraph 708 of the Code of Conduct.

 The entire arrangement, and in particular the instruction to the barrister not to speak to his professional client appears to breach paragraph 303(b) and indeed 301 of the Code of Conduct.

I would be grateful for the guidance of the Bar Council on these issues. I am away on holiday from 17th September to 4th October, but if any further information is required in that time [Mr X] should be available to assist. I have also given a copy of this letter and its enclosures to my head of chambers, ... who may be able to assist. Yours sincerely.”

The standard letter of instruction to which that letter refers was expressed as follows, and it is addressed to the barrister in question:

“Dear Sirs,” [and then there is a series of subheadings: “Case, Court, Date, Time] Agreed fee, £35 plus VAT.

Thank you for agreeing to act as our agents. Please read this letter and our client’s letter of instruction carefully upon receipt. Please pay particular attention to the terms of any order requested by our client. Please check that the court and times listed on the Notice of Application correspond with your diary entry as it would appear some courts sit at alternative venues from time to time. Please quote our reference number with all queries or correspondence. We enclose the papers relevant to the application and would ask you to rely upon the pleadings in the claimant’s witness statement and letter of instruction. Please contact our Miss Ruth Williams with any queries at least one day before the hearing. Do not contact our client direct. In successful cases, a short attendance note is all that we require. However, if we do not achieve the desired result, or if the application is adjourned, we need to know why. A handwritten attendance note will suffice if a typed attendance note will result in a delay in the return of the papers. In certain actions, we may also enclose a pro forma attendance note for you to complete instead of a typed report. Please prepare and fax or email your report to our office, not our client immediately after the hearing. The papers and a note of your charges should follow in the next day’s post. May we take this opportunity to once again thank you for your kind assistance.

Yours faithfully, The Kearns Agency.

E-mail ruth@kearns.co.uk a one-stop service that brings court agency into the 21st century.”

Upon receipt of the barrister’s letter and enclosed information, Mr Stobbs contacted the Chairman of the Professional Conduct and Complaints Committee having, in the meantime, drafted a letter with a view to its being circularised to heads of chambers and to senior clerks or practice managers. He wrote to him on 14th September and it is thus clear that he acted promptly on learning of the barrister’s concerns. The information passed to the Chairman was as follows:

“I attach a letter that I have received from [the barrister] ... detailing some instructions which appear to have been sent to chambers by the Kearns Agency Limited. I have spoken to [the barrister] and he thinks that originally this group was called Kearns & Co and that chambers accepted work assuming that it was a firm of solicitors. It seems to me that this is a clear breach of the Code of Conduct. Counsel’s relationship here is with the agency rather than with solicitors (there is nothing in the correspondence to suggest that solicitors are even aware that counsel is being instructed or that they are personally liable for counsel’s fees) and the remainder of the arrangement looks very close to that which troubled us over Brown & Associates. It seems to me that I should issue some guidance on this subject to the Bar and I attach a possible draft. Strictly, it seems to me that [the chambers] and the various pupils involved have been guilty of misconduct in accepting this work. I suspect that this applies to a substantial number of other chambers. I am reluctant to raise complaints in respect of [the chambers] since [the barrister] said they accepted instructions in order to gather evidence for us ... and they have, in any case, drawn the matter to our attention. I suggest we take a similar line to that we have on Browns, which is that we will treat as misconduct any instructions accepted after the warning has been circulated. Are you content with this approach?”

On 18th September Mr Stobbs received an e-mail from the Chairman in response. He agreed with his approach and, subject to minor amendment, sanctioned the terms of the draft which at that stage he was assuming would be included in the Bar Council’s regular bulletin for practitioners, Bar News. It was against this background that Mr Stobbs sent on 24th September the circular letter which now forms the subject matter of this libel action:

“To all Heads of Chambers, all Senior Clerks/Practice Managers. Dear Head of Chambers/Senior Clerk/Practice Manager,

Instructions from solicitors’ agents. The Bar Council has received information that a company called Kearns Agency Limited, formerly called Kearns & Co, has been seeking to instruct members of the Bar to appear in court on behalf of solicitors.

The instructions coming from this company make it clear that the instructions come from them and that barristers are not to contact the solicitors concerned. Kearns and Co are not solicitors and do not have a Bar direct licence. In the Bar Council’s view, it is improper for barristers to accept work from this company unless it is clear that: (1) the instructions are given on behalf of a solicitor; (2) it is made clear that counsel is not prohibited from contacting the solicitor in the case of difficulty; (3) the solicitor accepts responsibility for counsel’s fees. We also understand that the agents concerned do not separately identify the fees paid to counsel from additional fees which appear to be claimed by the agency. Whenever this occurs, counsel should insist that such fees are separately identified in the costs, or there is a clear danger that counsel may be party to misleading the Court. If there are concerns that it will not be possible to comply with this guidance, counsel should not accept the instructions. There is no reason why they should not contact the solicitors directly to inform them of this.

Yours sincerely, Mark Stobbs.”

The proceedings were begun in due course on 30th November 2001 by three complainants, namely Mr Robert Kearns, Kearns & Co (a firm) and Kearns Agency Limited. Meanwhile, however, there had been correspondence in the immediate aftermath of Mr Stobbs’ circular being published. It is clear that little time was lost since a telephone call was made to Mr Stobbs early in the morning of 25th September and, following that, a draft apology was forwarded at 3.54 pm on the same day by Mr Niall Morrison, the Chief Executive of the Bar Council. It was sent by fax and addressed to the Senior Partner, The Kearns Agency Limited.

On 26th September a letter of apology and correction was sent to all recipients of the original circular. This was in agreed terms and was dated 25th September 2001:

“To All Heads of Chambers, all Senior Clerks/Practice Managers,

Instructions from solicitors and agents, Kearns Agency Limited, correction and apology.

I wrote to chambers on 24 September about the Kearns Agency Limited. That memorandum stated that this firm were not solicitors. Unfortunately, owing to our administrative error, this information was incorrect. The Bar Council wishes to make it clear that the Kearns Agency Limited are a firm of solicitors and as such are perfectly entitled to instruct counsel. The Bar Council apologises unreservedly to the Kearns Agency Limited and its partners for the error, and for any confusion and inconvenience caused.

Mark Stobbs, Head of Professional Standards and Legal Services Department.”

The claimants have pleaded the following defamatory meanings as attaching to the words complained of: (1) The claimants were holding themselves out as solicitors when in fact they were not; (2) the claimants were wrongfully seeking to prevent the barristers they instructed from contacting their real instructing solicitors directly; (3) the claimants were seeking to mislead the court by failing separately to identify their fees in the costs which they were, through counsel, seeking to recover at court hearings; (4) it would be professionally improper for any barrister to accept instructions from the claimants in their own right; (5) the claimants were thereby guilty of improper, unethical, and probably unlawful, conduct of the most serious kind. There is a claim for damages including aggravated damages, and for an injunction.

A defence was served on 14th January 2002 raising a number of points, including a dispute on meaning, as to reference to the first claimant, and as to the status of the Bar Council and its capacity to sue or be sued. There is also a partial plea of justification confined to the possible meanings that: (1) the third claimant under the direction or control of the first claimant failed to identify in statements of costs its own fees separately from those of counsel appearing in court and so created a clear danger that the court might be misled unless counsel took care to make the true position clear; and that (2) such conduct was improper and unethical.

The primary substantive defence, however, and the one with which the present proceedings are concerned, is naturally that of qualified privilege. The plea appears at paragraph 9 of the defence and is supported by the following particulars:

“1.

It is the function of the Bar Council to implement general policy with regard to all matters affecting the Bar and to maintain the standards, honour and independence of the Bar. Any of its functions may be delegated to any committee. It is responsible for education and training in pupillage, and continuing education for barristers. In addition to paragraph 1 of the Constitution of the General Council of the Bar, the defendant will particularly refer to its standing orders 1-4, 13-15 and 52-56.

2.

On 12th September 2001, Mr Stobbs received a letter of complaint from [the barrister] an experienced junior counsel at [chambers address]. The third claimant regularly instructed counsel, mainly pupils of necessarily very limited experience, to appear for very low fees to seek judgment for the recovery of debts. The defendant will rely on the full terms of that letter and the enclosures. The letter stated that the third claimant had formerly been called Kearns and Co. The enclosures included correspondence from the third claimant which was in clear breach of practice rule 11 of the Solicitors’ Practice Rules 1990 which required it to use on its stationery either the word ‘Solicitor(s)’ or the words ‘Regulated by the Law Society’. Rule 11 is a fundamental rule designed to ensure that any person considering any correspondence from solicitors, including a recognised body, would appreciate that they were solicitors and subject to the regulatory regime of the Law Society with all the protection and disciplinary sanctions which that regime affords. Neither the third claimant’s letterhead, nor the text of the enclosed letters themselves, contained any similar statement to that required by the practice rules.

3.

The letter from [the barrister] also stated that statements of costs supplied by the third defendant to be presented to the court misrepresented the advocate’s fee for the hearing and that ‘there is an obvious risk that costs claims will be settled on a misleading basis.’ The letter’s enclosures included documents in support of that charge.

4.

The letter complained of was submitted to, and approved by, the Chairman of the Professional Conduct and Complaints Committee before it was sent out.

5.

Heads of barristers’ chambers have responsibility for the members of their chambers, including pupils, and for ensuring that they comply with their professional obligations. The defendant will rely in this context on paragraph 404 of the Bar’s Code of Conduct. Chief Clerks and Practice Managers have responsibilities for the acceptance of work for barristers and the terms on which such work is accepted.

6.

The defendant will refer to the Bar’s Code of Conduct and in particular to paragraphs 301(a), 302, 303(b), 401(a) and 603(c).

7.

In the premises, the defendant had a legal and/or social and/or moral duty to publish the letter to the pleaded recipients who had a corresponding duty or interest in receiving it, and/or the defendant published the said words in the furtherance or protection of an interest to persons either sharing the same interest or with a corresponding duty or interest to receive them.”

In order to make that plea comprehensible it is necessary to set out the particular passages in the Bar’s Code of Conduct there referred to. Paragraph 301, so far as is relevant, is as follows:

“A barrister must have regard to paragraph 104 and must not (a) engage in conduct whether in pursuit of his profession or otherwise which is (i) dishonest or otherwise discreditable to a barrister, or (ii) prejudicial to the administration of justice, or (iii) likely to diminish public confidence in the legal profession or the administration of justice, or otherwise bring the legal profession into disrepute.”

Paragraph 302:

“A barrister has an overriding duty to the Court to act with independence in the interests of justice. He must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court.

Paragraph 303(b):

“A barrister: ... (b) owes his primary duty as between the lay client and any professional client or other intermediary to the lay client and must not permit the intermediary to limit his discretion as to how the interests of the lay client can best be served.”

Paragraph 401(a):

“A barrister in independent practice, whether or not he is acting for a fee, (a) may supply legal services only if he is instructed by a professional client or by a Bar direct client, or is appointed by the Court.”

Paragraph 603(c):

“A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed, and for this purpose a barrister would be professionally embarrassed: ... (c) if the instructions seek to limit the ordinary authority or discretion of a barrister in the conduct of proceedings in court, or require a barrister to act otherwise than in conformity with law or with the provisions of this code.”

On those facts it is the respondent’s submission that this is a plain case of common law qualified privilege according to well settled principles and, since malice is not alleged, that the defence is bound to succeed. Mr Caldecott QC contends that there is a common and corresponding interest between the Bar Council and the recipients of the letter and that the subject matter of the letter is relevant to the established relationship between them, those facts of themselves giving rise to the protection of the privilege. He asks us to accept the correctness of Eady J’s conclusion below:

“I am left in no doubt that this was a classic case of qualified privilege based upon an existing relationship, and on a common and corresponding interest in the subject matter of the letter.”

The appellants submit, however, that in every case where qualified privilege is claimed, whatever its category, the question, which is one of public policy, is whether, in the particular circumstances of the case, the publication complained of should enjoy protection. True, Mr Rampton QC acknowledges, there may be cases in which the court need look no further than the subject matter of the communication and the relationship between the parties to it. Equally, however, he submits, there will be other cases where it will be necessary for the court to look beyond those circumstances in order to determine whether, in truth, the required duty and/or interests existed. This, he argues, is such a case.

Before turning to consider these rival arguments further it is convenient first to set out certain of the classic statements of law to be found in the authorities. I take them in chronological order.

The plaintiff was the captain of a ship. The first mate wrote to a friend, the defendant, charging the plaintiff with misconduct. The defendant showed the letter to the shipowner who then dismissed the plaintiff. The court of four divided 2:2 - Tindal CJ and Erle J holding that the defendant’s communication to the owner was privileged, Coltman and Cresswell JJ deciding the contrary. Tindal CJ at p596 said:

“The only question is, whether the case does or does not fall within the principle, well recognised and established in the law relating to privileged or confidential communications; and, in determining this question, two points may, as I conceive, be considered as settled - first, that if the defendant had had any personal interest in the subject-matter to which the letter related, as, if he had been a part-owner of the ship, or an underwriter on the ship, or had had any property on board, the communication of such a letter to [the shipowner] would have fallen clearly within the rule relating to excusable publications - and, secondly, that if the danger disclosed by the letter, either to the ship or the cargo, or the ship’s company, had been so immediate as that the disclosure to the ship-owner was necessary to avert such danger, then, upon the ground of social duty, by which every man is bound to his neighbour, the defendant would have been not only justified in making the disclosure, but would have been bound to make it.”

The plaintiff was the valet to Mr Stanley, the explorer. After staying at a hotel in Edinburgh they moved to Newcastle, Mr Stanley being the guest of the defendant, the mayor. Whilst they were in Newcastle the Chief Constable of Edinburgh wrote to the Chief Constable of Newcastle explaining that there was some suspicion that the plaintiff had committed a theft from a hotel room in Edinburgh and inviting the Chief Constable of Newcastle to attempt some inquiry into the matter. The Chief Constable showed the letter to the defendant who, without investigating the matter further, told Mr Stanley about the letter just as Mr Stanley and the plaintiff were about to leave Newcastle. Because of what he had been told Mr Stanley dismissed the plaintiff some days later. By a majority of 2:1 the Court of Appeal held that the occasion of the communication was privileged, not, per Lindley LJ at p349, “on the ground that the defendant made the communication complained of in the conduct of his own affairs or in a matter in which his interest was concerned” (because Mr Stanley and the plaintiff were just about to leave Newcastle so that the plaintiff, even if prone to thieving, would no longer pose a risk to the defendant himself), but because, per Lindley LJ at p350, “all, or at all events, the great mass of right-minded men in the position of the defendant would have considered it their duty, under the circumstances, to inform Stanley of the suspicion which had fallen on the plaintiff.”

Scrutton LJ, having cited the passage just set out from Adam -v- Ward, continued:

“With slight modifications in particular circumstances, this appears to me to be well established law, but, except in the case of communications based on common interest, the principle is that either there must be interest in the recipient and a duty to communicate in the speaker, or an interest to be protected in the speaker and a duty to protect it in the recipient. Except in the case of common interest justifying intercommunication, the correspondence must be between duty and interest. There may, in the common interest cases, be also a common or reciprocal duty. It is not every interest which will create a duty in a stranger or volunteer. This appears to fit in with the two statements of Parke B already referred to [including that in Toogood -v- Spyring] and with the language of Erle CJ in Whiteley -v- Adams, that the communication was made in the discharge of some social or moral duty, or on the ground of an interest in the party making or receiving it. This is approved by Lindley LJ in Stuart -v- Bell, but I think should be expanded into ‘either (i) a duty to communicate information believed to be true to a person who has a material interest in receiving the information, or (ii) an interest in the speaker to be protected by communicating information, if true, relevant to that interest, to a person honestly believed to have a duty to protect that interest, or (iii) a common interest in and reciprocal duty in respect of the subject matter of the communication between speaker and recipient.’”

Having then explained that lack of “honest belief” or indifference to the truth would constitute express malice, Lord Diplock continued, at p150:

“But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be ‘honest’, that is, a positive belief that the conclusions they have reached are true. The law demands no more.”

Later in his judgment, at p151, Lord Diplock stated that the court should not apply an objective test of relevance to every part of the defamatory matter published on a privileged occasion:

“[O]rdinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them to do so. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded.”

Based on those and other such authorities it is Mr Caldecott’s submission that common interest cases and duty-interest cases are quite distinct, communications in the former category attracting privilege on a wide and generous basis, communications in the latter category having to be much more closely scrutinised on the facts. Whereas attempts at verification and the like may well be relevant to the latter category of case, they will not, he submits, be relevant to the former unless and until the issue of malice is raised.

Mr Rampton submits on the contrary that there is no distinction between these various cases: one category shades into the other and the question whether qualified privilege attaches to any particular occasion or communication must always depend on the facts.

The argument, as it seems to me, has been much bedevilled by the use of the terms “common interest” and “duty-interest” for all the world as if these are clear-cut categories and any particular case is instantly recognisable as falling within one or other of them. It also seems to me surprising and unsatisfactory that privilege should be thought to attach more readily to communications made in the service of one’s own interests than in the discharge of a duty - as at first blush this distinction would suggest. To my mind an altogether more helpful categorisation is to be found by distinguishing between on the one hand cases where the communicator and the communicatee are in an existing and established relationship (irrespective of whether within that relationship the communications between them relate to reciprocal interests or reciprocal duties or a mixture of both) and on the other hand cases where no such relationship has been established and the communication is between strangers (or at any rate is volunteered otherwise than by reference to their relationship). This distinction I can readily understand and it seems to me no less supportable on the authorities than that for which Mr Caldecott contends. Once the distinction is made in this way, moreover, it becomes to my mind understandable that the law should attach privilege more readily to communications within an existing relationship than to those between strangers. The latter present particular problems. I find it unsurprising that many of the cases where the court has been divided or where the defence has been held to fail have been cases of communications by strangers. Coxhead -v- Richards was just such a case. As Coltman J, one of those who held that privilege did not attach, observed:

“The duty of not slandering your neighbour on insufficient grounds, is so clear, that a violation of that duty ought not to be sanctioned in the case of voluntary communications, except under circumstances of great urgency and gravity.” (emphasis added)

Stuart -v- Bell was another case where the court was divided. There, of course, Mr Bell was to be regarded as a stranger for the purposes of the communication sued upon since he no longer had any interest in the matter; his was a voluntary communication. Watt -v- Longsdon involved communications of both sorts. The plaintiff there was the managing director of a company, the defendant a fellow director and a friend of the plaintiff’s wife. A manager of the company wrote to the defendant accusing the plaintiff or immorality and dishonesty. The defendant, making no attempt at verification, showed the letter both to the company chairman and to the plaintiff’s wife. The former communication was held privileged, the latter not. With regard to the latter, Scrutton LJ at p149 said:

“The communication to Mrs Watts stands on a different footing. I have no intention of writing an exhaustive treatise on the circumstances when a stranger or a friend should communicate to husband or wife information he receives as to the conduct of the other party to the marriage. I am clear that it is impossible to say he is always under a moral or social duty to do so; it is equally impossible to say he is never under such a duty. It must depend on the circumstances of each case, the nature of the information and the relation of speaker and recipient.”

One searches the authorities in vain for comparable statements in the context of communications made between those in an established relationship which, by its very nature, involves reciprocal interests and/or duties.

The closest that the appellants come to finding such a statement is in Lord Buckmaster’s speech in London Association for Protection of Trade -v- Greenlands Limited [1916] 2 AC 15, 23:

“Again, it is, I think, essential to consider every circumstance associated with the origin and publication of the defamatory matter, in order to ascertain whether the necessary conditions are satisfied by which alone protection can be obtained, but in this investigation it is important to keep distinct matter which would be solely evidence of malice, and matter which would show that the occasion itself was outside the area of protection.”

In my judgment, however, that authority does not avail the appellants. All that Lord Buckmaster was saying was that every circumstance has to be considered which bears on the question whether the necessary conditions for invoking privilege are satisfied. Where the communication is made within an established relationship and is relevant to it, the necessary conditions are satisfied. Lord Buckmaster was certainly not suggesting that verification is a relevant consideration in all qualified privilege cases; indeed, he was in part emphasising the importance of keeping distinct matters going to malice and those going to the existence of the privilege. That was a theme upon which Lord Diplock was later to expand in Horrocks -v- Lowe (see paragraph 27 above).

I must come at this stage to a particular authority upon which Mr Rampton places very considerable reliance, De Buse -v- McCarthy [1942] 1 KB 156, an authority not cited to the judge below. The facts there were that the defendant town clerk had sent out a notice convening a meeting of the borough council to consider a committee report about the loss of petrol from one of the council’s depots. The report was attached to the notice which was posted at the town hall and in public libraries. The plaintiffs complained that the report was defamatory of them. The defendants pleaded that the publication was made on a privileged occasion on the ground that there was a common interest between the council and the ratepayers in the subject matter of the words complained of. The Court of Appeal, reversing the decision of the judge, held that the defence failed, because “there could be no common interest between the council and the ratepayers to have what in the circumstances was only a preliminary stage in the investigation communicated to the ratepayers in the form in which it was communicated” - per Lord Greene MR at p165.

Earlier in his judgment Lord Greene had cited Lord Atkinson’s speech in Adam -v- Ward (see paragraph 25 above) and continued:

“I prefer that language - referring to an interest or duty to make a communication - to language, sometimes found, which refers to an interest in the subject-matter of the communication. The latter phrase appears to me to be vague and leave uncertain what degree of relevance to a particular subject-matter the communication has to bear. Adopting the language of Lord Atkinson, we have to consider, first, what interest or duty the council had to communicate to the ratepayers the report of a committee which the council was proposing to consider … I cannot see that it can possibly be said that the council was under any duty to make that communication to the ratepayers.”

So too here, submits Mr Rampton, Mr Stobbs’s circular letter to the Bar was likewise premature because in this case, as in De Buse -v- McCarthy, there had been no investigation or verification of the complaint.

The argument based on De Buse is to my mind fallacious. What Mr Stobbs was here communicating was indeed the Bar Council’s conclusion upon the request for guidance it had received. Whether it had been adequately investigated is another matter. That, however, as Lord Diplock explained in Horrocks -v- Lowe, in the context of an established relationship goes to malice rather than whether the occasion of the communication is privileged. The parallel with De Buse would be if the Bar Council had circularised the barrister’s request for guidance (and the implicit charge against the appellants) before ruling upon it. That they were entitled, indeed bound, to give a ruling, cannot be in doubt. Nor, in my judgment, can it be doubted that they did so in the context of an established relationship between the Bar Council and the Bar which, with regard to relevant communications between them, must necessarily attract qualified privilege.

In paragraph 33 of his judgment below, Eady J referred to the facts of Stuart -v- Bell and continued:

“33.

… This again was a case which turned upon duty rather than an established personal or business relationship. This, submits Mr Caldecott, in my judgment correctly, is why the Court was concerned to evaluate the quality of the information. It was relevant to go into the specific information, rather than confining the enquiry to the broad subject matter of the conversation, in order to decide whether a specific duty had arisen. Mr Price asks rhetorically why should one evaluate the quality of information for a social or moral duty case, as in Reynolds or Stuart -v- Bell for example, but not in cases of a common and corresponding interest? The answer to that question is, it seems to me, that it has long been the policy of the law to protect persons in certain kinds of relationship with one another, and indeed to encourage in such cases free and frank communications in what is perceived to be the general interest of society. In those cases, one does not need to assess the interest of society afresh in each case. We all need to know where we stand. In this area the law was thought to be settled, on the basis that the balance would fairly be struck if liability in such situations was confined to those cases where the occasion of communication was abused - in the sense that malice could be established. Nothing short of malice would undermine the law’s protection.”

Subject only to the point I have already made about preferring for my part a distinction between cases depending on whether they do or do not involve an existing relationship rather than a distinction between common interest cases and those involving duty-interest, I agree with the approach taken in that paragraph. It matters not at all whether Mr Stobbs and the Bar Council are properly to be regarded as owing a duty to the Bar to rule on questions of professional conduct such as arose here, or as sharing with the Bar a common interest in maintaining professional standards. What matters is that the relationship between them is an established one which plainly requires the flow of free and frank communications in both directions on all questions relevant to the discharge of the Bar Council’s functions.

There is one final authority to which I should refer since it is Mr Rampton’s submission that, since deciding the present case, Eady J in Komarek & Another -v- Ramco Energy plc (unreported, Case No HQ 01X01631 21 November 2002) concluded that it is after all necessary in certain common interest cases to examine by evidence at trial all the circumstances surrounding the publication complained of. Mr Rampton invites our particular attention to paragraph 46 of Eady J’s judgment in that case:

“46.

[Counsel for the defendants] drew an analogy with the recent case of Kearns v General Council of the Bar [2002] EWHC 1681 (QB). That too was primarily a common interest case, but it turned upon the well established relationship between the Bar Council and members of the Bar and communications between them on the subject of professional rules and standards. The issue was not fact-sensitive, therefore, in the sense that it would become necessary to investigate the particular circumstances surrounding each individual publication. Here, by contrast, the common and corresponding interest contended for is not, so to speak, ‘off the peg’ and is being tailored to the individual circumstances and people involved. There is more room therefore for factual enquiry at trial before it can be finally determined that the common interest alleged would be classified as ‘legitimate’ by the law of defamation. I am far from saying that all communications between British citizens abroad and local embassy staff would require close scrutiny. It would, for example, be obvious that a communication between a traveller and the British consul about a lost passport would attract such privilege. Here I am prepared to accept that the situation is not so clear cut.”

The defendants in Komarek were a company in business in Prague who had sent a document defamatory of the claimants, with whom they were in a business relationship, to the British Ambassador in Prague, asking for his assistance. That being so, the decision to my mind serves rather to confirm than to undermine the correctness of the view taken in the present case. I would suggest that it serves too to support my own preference for the emphasis to be placed on whether or not the communication is made in the context of a recognised existing relationship rather than on whether it is to serve a common interest or to discharge a legal, social or moral duty when deciding whether privilege attaches.

I would not wish to part from this appeal without expressing some considerable sympathy for these appellants. Were this to have been a media publication and Reynolds therefore to apply, there could be no question of qualified privilege attaching. And the Reynolds approach, one reflects, attaches on occasion to publications circulating no more widely and hardly more generally than in the present case - consider, for example, the Saudi Arabian newspaper with a circulation of some 1,500 readers in Al-Fagih -v- HH Saudi Research Marketing (UK) Limited [2001] EWCA Civ 1634. The law with regard to non-media publications, however, is different. Here, as Lord Diplock observed in Horrocks -v- Lowe, a man’s right to “vindicate his reputation against calumny” gives way to “the competing public interest in permitting men to communicate frankly and freely with one another … if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest” and in these cases “the law demands no more” than that the defendant shall have honestly believed what he said. With regard to these duty or interest cases the law has decided that “the common convenience and welfare of society” (Toogood -v- Spyring) is better served by allowing full and frank communication than by requiring the communicator to act responsibly. The media publisher, by contrast, has above all to act responsibly. There are, of course, a number of policy considerations in play here, some in conflict. They include considerations of legal certainty and the right to freedom of expression (a right enjoyed no less by those outside than those inside the media). Where in any particular type of case the balance should be struck raises deep and difficult questions. These are not, however, presently before us. No-one suggests on this appeal that we could or should be modifying the law. On the conventional approach to common law qualified privilege I am clear that in the circumstances of the present case the appellants must suffer and the respondent succeed.

I would dismiss this appeal.

I would also dismiss the appeal for the reasons given.

I agree. The question of whether the existing relationship in any particular case gives rise to a common interest or to a duty/interest situation will often produce a somewhat sterile dispute, and certainly in the present appeal it is not the crucial issue. Whichever of those two categories is said to apply, the fact remains that each of them normally presupposes an existing relationship between the person who made the statement sued on and the recipient of it. In such a case, so long as the statement is fairly warranted by the occasion, and is made in the absence of malice, it will be protected by qualified privilege, irrespective of the degree of investigation or verification carried out by the maker of the statement and irrespective of whether one categorises the situation as one of common interest or of duty and corresponding interest. The need to act responsibly will not arise: Loutchansky, paragraph 36.

The argument that publication to the 10,000 members of the Bar warrants treating the present case as being half-way towards the situation with which the House of Lords was dealing in Reynolds has no logical force to it. Reynolds was dealing with a publication made to all the world, with the result that no pre-existing relationship was required in order to receive the communication. However many members of the Bar there may be, each enjoys a clearly identifiable relationship with the Bar Council and that removes the case entirely from the scope of the decision in Reynolds. At one point in the argument, Mr Rampton acknowledged that it would not have made any difference legally if Mr Stobbs had responded merely to a single member of the Bar. In my view, that is right and it demonstrates that there is no half-way house between publication to those in a pre-existing relationship, whatever their number, and publication to all the world.

I too would dismiss this appeal.