Iqbal v Dean Manson Solicitors

The argument for the Defendants was, in summary, that HHJ Faber should have followed and applied the decision of HHJ Parkes QC that correspondence, witness statements, and statements of case in proceedings are all in principle protected by absolute privilege, subject only to the Smeaton v Butcher limiting principles; that in deciding whether the three letters and the three further documents at APC 56 -63 fell outside the scope of that privilege she had applied tests which were wrong in law; and that on a proper application of the law all those documents are absolutely privileged. The Claimants sought to uphold the Judge’s approach as being consistent with domestic authority. He sought to argue in the alternative that the doctrine of absolute privilege does not as a matter of legal principle extend to cases of harassment.

Each party raised a preliminary point in relation to the three letters. The Claimant said that it was an abuse of the court’s process for the Defendants to advance the privilege argument in respect of those documents. He submitted, first, that the Defendants’ argument amounted to a collateral attack on the Court of Appeal’s decision in Iqbal v Dean Manson (No 1) which, so he argued, had determined the privilege argument in his favour. He relied on Hunter v Chief Constable of West Midlands & Other [1982] AC 529 and subsequent authorities concerned with attempts to re-litigate issues decided in previous litigation. Further and alternatively, the Claimant submitted that the Defendants’ privilege argument was an abuse because the firm had failed to raise it earlier. Not only had they failed until 22 August 2012 to raise this argument in answer to his claim in the present action, they had not raised it when he sued on the three letters in the libel action either. He submitted that the firm had deliberately held the point back, and that in any event they were debarred from advancing it now. He relied on the principle that a party must bring forward his whole case on a single occasion. For the Defendants Mr Hirst submitted, as he had to HHJ Faber, that the Claimant was not entitled to dispute that the three letters were protected by privilege. The argument was that the Claimant’s concession and the decision of HHJ Parkes QC on the issue of absolute privilege for correspondence gave rise to an issue estoppel against the Claimant.

I deal first with the Claimant’s submissions. These are not points that the Claimant seems to have raised before HHJ Faber. She certainly made no reference to any of them in her judgment. As far as I can tell, the collateral attack point was first alluded to in a single paragraph of the Claimant’s Respondent’s Notice of February 2013. Otherwise, these lines of argument were not covered by that document. They emerged for the first time a week before the hearing, in the Claimant’s Supplemental Skeleton Arguments document of 11 June 2014. I therefore have to consider whether the Claimant should be allowed to rely on these new points on this appeal.

The general rule is that an appeal is limited to a review of the decision of the lower court: CPR 52.11(1). A party will not ordinarily be permitted to raise new points which were not raised before the court of first instance. The appeal court has a discretion to depart from this rule, the exercise of which must of course be guided by the overriding objective and the general principle that issues are to be decided once, at first instance, rather than allowing parties a second bite of the cherry if their initial arguments prove unsuccessful. I bear in mind that the Claimant’s arguments here are not ones that necessarily turn on findings of fact which could and should have been made in the court below. They are however arguments that involve the broad merits-based assessment referred to in Johnson v Gore-Wood (above). That is an exercise which the Claimant could have asked the first instance court to carry out, if he wished to pursue these arguments. In all the circumstances, I have concluded that he should not be allowed to rely on these points. It would be contrary to the general rule as to new points being raised on appeal and the late notice given is an additional reason for concluding that it would be unfair to allow it.

Having heard his submissions, however, I can add that I would have rejected the Claimant’s abuse of process arguments, for the following reasons. First, the collateral attack complaint is clearly misconceived. As Rix LJ observed in Iqbal v Dean Manson (No 2) [2013] EWCA Civ 149 at [7] and [59], no issue of absolute privilege was raised before the Court of Appeal in Iqbal v Dean Manson (No 1) [2011] EWCA Civ 123. In Dean Manson (No 1) the Court was addressing only the question of whether the letters could be viewed as crossing the threshold of seriousness required for a claim in harassment. The passage at [54] of that I have quoted in paragraph 22 above did not involve any conclusion on privilege. There is thus no decision on the point, and hence nothing on which it can be said the Defendants was mounting a collateral attack by advancing the privilege argument here.

This may explain why the Claimant’s arguments emerged in the Supplemental Skeleton Arguments. On those alternative arguments my conclusion, applying the guidance to be found in Johnson v Gore-Wood (above), would have been that it was not and is not an abuse for the Defendants to rely on absolute privilege now, in relation to the three letters, in this action. It is regrettable in some ways that privilege was only raised in that regard when the Defendants issued their striking out application in this action, in August 2012. Clearly, it could have been raised earlier. Mr Hirst was unable to explain why it was not. That could have costs consequences. I cannot conclude, however, that the Defendants abused the process by holding the point back deliberately for some tactical advantage. I cannot see any persuasive explanation for them to have done so. One possible explanation may be that it was thought that issues regarding the three letters properly belonged in this action, where those letters have been relied on from the outset. Another may be that it was not thought at the time that absolute privilege would avail in respect of these letters. I note that there was a change of Counsel between the hearings before HHJ Parkes QC and HHJ Faber. Whether or not either of these is the explanation, I would not regard the

That has a bearing on the Defendants’ preliminary point. Mr Hirst relied on a passage at para 8.01 of Spencer Bower & Handley, Res Judicata, 4^th ed that “A decision will create an issue estoppel if it determined an issue in a cause of action as an essential step in its reasoning”, and on the following passage from Lord Diplock’s speech in Thoday v Thoday [1964] P 181, 198:

“If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled are determined by a court of competent jurisdiction, either upon evidence or upon admission … neither party can, in subsequent litigation between one another, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.”

On analysis, however, this is a point of limited significance. Mr Hirst may be entitled to submit that the Claimant is estopped by the decision of HHJ Parkes QC from disputing that absolute privilege in principle protects party and party correspondence copied to the courts in which the proceedings were taking place from an action for libel. That is the substance of the concession that HHJ Parkes QC recorded at [30] of his judgment. The Claimant did not dispute before me that he had made the concession recorded there. The Claimant is in my view estopped from disputing that publication of the same letters to staff of his firm in the ordinary course of business is protected from an action in libel by an ancillary privilege. That is the point decided against the Claimant by HHJ Parkes QC at [32]. Finally, the Claimant is estopped from denying that absolute privilege protects letters to the SRA from a clam in libel, as he also conceded before HHJ Parkes QC.

The Claimant has not, however, sought to dispute these points. His arguments have been as summarised above: that HHJ Faber was right in her application of the law to the particular facts of the six disputed documents, or alternatively that absolute privilege does not protect against harassment claims. Neither of those points was before HHJ Parkes QC. I do not accept the further argument advanced in Mr Hirst’s Skeleton Argument that the Claimant is estopped because “the question whether an absolute privilege subsisted in relation to the contents of the early 2009 letters had been answered by HHJ Parkes QC in the libel action.” That argument rests on the fact that HHJ Parkes QC held other documents containing substantially the same or similar statements to be privileged. However, as Mr Hirst has argued on other aspects of this appeal the privilege, where it exists, attaches to an occasion and not to a particular statement or allegation. True, when the same or similar statements are made at different points in a piece of litigation the answer to the question whether they fall within the scope of a privilege may well be the same. That, however, is not a matter of estoppel. It seems to me that in principle each separate occasion must be viewed separately.

Where it applies, absolute privilege or absolute immunity from suit protects a

As Lord Hoffmann explained in Arthur JS Hall & Co v Simons [2002] 1 AC 615, 697:

The privilege or immunity is not limited to witnesses but extends to other participants in proceedings, and it protects not only against actions in defamation but also against claims based on other causes of action: see Marrinan v Vibert [1963] 1 QB 528, 535 per Sellers LJ, and Hall v Simons (above) where Lord Hobhouse said this at 477-478:

As Auld LJ observed in Heath v Commissioner of Police for the Metropolis [2005] ICR 329 at [52]:

“The absolute immunity from suit is a core immunity in our system, critical to the integrity and effectiveness of our judicial system, which, save for a few well defined exceptions … applies to all forms of collateral action however worthy the claim and however much it may be in the public interest to ventilate it. Claims of unlawful discrimination are clearly of that importance, but no more than many others, such as the citizen's right to protect his own good name or good character or to claim for conspiracy to injure or for misfeasance in public office, say, in giving evidence in a criminal trial resulting in the claimant's loss of liberty.”

The “well defined exceptions” referred to by Auld LJ include claims for malicious prosecution and proceedings for contempt of court. They do not include civil claims for harassment or, indeed, any proceedings for harassment.

Three broad categories of statement have been recognised as attracting in principle the protection of the absolute privilege which covers proceedings in or before a court of justice: see the passage from the judgment of Devlin LJ in Lincoln v Daniels cited above. As HHJ Parkes QC held, those categories clearly encompass statements of case and witness statements. That is well established by authority and has never been controversial in the present action. There is less authority as regards correspondence. The Hong Kong Court of Appeal decided in Wong Shui Kee v Chu that correspondence between solicitors for parties to extant litigation falls in principle within the scope of the privilege and, as noted by HHJ Parkes QC, the editors of Gatley on Libel and Slander 11^th ed adopted that proposition at para 13.15. The current, 12^th edition is to the same effect. The point is not controversial on this appeal. The Claimant conceded it before HHJ Parkes QC. Even if he is not estopped from disputing it in this action, he did not dispute the point before HHJ Faber, she decided it against him and he does not complain of that decision. The issue of law that does arise on the appeal is where the outer limits of the privilege lie.

The answer is clear, when it comes to statements made orally or in writing by witnesses in the course of proceedings in Court: the limiting principles are those identified by the Court of Appeal in Smeaton v Butcher [2000] EMLR 985 and cited by HHJ Parkes QC. The authorities were reviewed again by the Court of Appeal in Iqbal v Mansoor (No 2) [2013] EWCA Civ 149 where Rix LJ said this at [32]:

“What has emerged from the cases is that it is not enough for the defamatory language to be irrelevant to the matter in hand for it to fall outside the privilege, it must have no reference at all to the subject-matter of the proceedings.”

Rix LJ went on to illustrate the distinction, and the limits of the privilege, by citation. The illustrations given covered a variety of circumstances. It is sufficient to refer to some of them.

In Munster v Lamb (above) the statement at issue was an allegation of keeping drugs for criminal purposes which had been put at a trial by an advocate, Lamb, to Munster, a barrister who had prosecuted Lamb’s client for burglary. The statement was held absolutely privileged, Brett MR observing (at 599) that even assuming the words complained of were uttered maliciously and without any justification from improper motives and that they were irrelevant

“nevertheless, inasmuch as the words were uttered with reference to , and in the course of, the judicial inquiry which was going on, no action will lie against the defendant, however improper his behaviour may have been.” (Emphasis added.)

In Seaman v Netherclift (1876) 2 CPD 53 the statement was an allegation of forgery made by an expert witness whilst under cross-examination as to credit. The allegation was not relevant to the issue in the case at hand. It related to a document that had been subjected to examination by the expert in a previous action. However, it was held to be absolutely privileged, Bramwell BA observing (at 60) that “the statement of the defendant was made as witness and had reference to the inquiry”. Bramwell BA took the view that the words “having reference to the inquiry” ought to have “a very wide and comprehensive application”, though a witness would not be protected “for anything he might say in the witness-box, wantonly and without reference to the inquiry.” Cockburn CJ made a similar point when he said this:

“… if a man when in the witness-box were to utter something having no reference to the cause or matter of inquiry in order to assail the character of another, as if he were asked: Were you at York on a certain day? and he were to answer: Yes, and A.B. picked my pocket there; it might certainly be said in such a case that the statement was altogether dehors the character of witness, and not within the privilege.”

In Samuels v Coole & Haddock [1997] CLY 4860 the statement was one made in an affidavit by solicitors for parties to an action, alleging that the plaintiff had threatened and abused one of their clients at their offices, affecting his health. The solicitors applied to strike out the claim as being absolutely privileged. The judge at first instance refused the application on the basis that the allegations had “no real relevance” to the litigation and was simply intended to poison the court’s mind. The Court of Appeal reversed that decision and struck out the action. Holman J said:

“[The judge] converted the test of whether the statement had ‘some reference’ to the inquiry into one of ‘no real relevance’. In my judgment there is a world of difference between those two tests. ‘No real reference’ is far too high a test. It is not justified by authority and would dangerously imperil the vital public interest which witness immunity serves to protect…Whether true or false, what Mr Jones was describing in paragraphs 7 to 19 of his affidavit was narrative as to subsequent dealings between various people in connection with the subject-matter of the legal proceedings themselves, namely the car, and therefore it did have ‘some reference’ widely and loosely defined, to the inquiry.”

In Smeaton v Butcher the statements at issue were made in affidavit evidence filed by a landlord in support of an application to strike out a tenant’s claim against hm for unlawful eviction. The landlord alleged that payment of a deposit was a condition precedent to the tenancy, that the tenant’s deposit cheque had been dishonoured, and that on another occasion the claimant had acted similarly towards another landlord and was operating a scam. The affidavit was passed to the other landlord and the tenant sued the landlord in defamation for so publishing it. Clarke LJ said

“35 … the statements in the affidavit as published to Ms Dornan [the second landlord] or indeed as subsequently published in connection with the Brentford proceedings were made with reference to the subject-matter of those proceedings. In my judgment the contrary is not arguable.”

In Duke v Puts [2004] SKCA 12, [2004] 6 WWR 208 defamation proceedings were brought by a pharmacist, Mr Duke, against a doctor, Dr Puts, over a “bizarre vendetta” against the pharmacist. In the course of this, allegations against Mr Duke featured in complaints of professional misconduct that Dr Puts made to the College of Physicians and Surgeons against another doctor, Dr Jones Dr Puts relied on absolute privilege with respect to these allegations. The Saskatchewan Court of Appeal reviewed much of the English jurisprudence and concluded (at [57]–[58]):

“Thus, there is authority for the proposition that although comments made in the context of judicial or quasi-judicial proceedings need not be relevant in the sense that they contribute to the resolution of the matter they must have some nexus or be connected to the proceedings.”

These citations have a clear and consistent message: if a statement is made on an occasion which is, in principle, protected by privilege and it has some reference to or connection with the proceedings then it will fall within the scope of the privilege; a statement which is wholly extraneous to and has no reference to or connection with the legal proceedings in question will fall outside the privilege. In this formulation I have deliberately omitted reference to a requirement that a statement should have reference to “the subject-matter” of proceedings. That is because an important conclusion reached by the Court of Appeal in Iqbal v Mansoor (No 2) was that it would be wrong to read the Smeaton v Butcher test as if it were a statute. Rix LJ said this of document 20 (Baig 4):

“48 The essential single ground of Mr Iqbal’s limited appeal is that H.H. Judge Parkes misstated and therefore misapplied the Smeaton v Butcherprinciples when he spoke of Document 20 having “no reference at all to the proceedings”. Mr Iqbal submitted that the correct principle is “no reference at all to the subject-matter of the proceedings”. If the question was asked: “Why should the interim costs certificate be set aside or varied, or the costs assessment be adjourned pending the harassment claim appeal?, Mr Baig’s answer in his witness statement was simply that there were serious issues about the conduct of Mr Butt’s solicitor. However, submitted Mr Iqbal, those were wholly extraneous, irrelevant, and gratuitous libels (to pick up the words of Lord Hoffmann in Taylor vDirectorof the Serious Fraud Office) and without reference at all to the subject-matter of the proceedings.

49

In my judgment, however, the burden of Document 20 is to address the complaint of the paying party, Dean Manson, that the receiving party’s (Mr Butt’s) solicitor, Mr Iqbal, had a conflict of interest which was relevant to the assessment of costs. It was also suggested that a vendetta by Mr Iqbal against Dean Manson, illustrated by his harassment claim which had been struck out but was subject to appeal, was equally relevant to the assessment of costs and its timing. Although Mr Iqbal was not, of course, Mr Butt, he was nevertheless Mr Butt’s solicitor and in that sense responsible for the costs expended and claimed against Dean Manson. However weak the relevance asserted, it is difficult to say that the document as a whole has no reference to the subject-matter of the costs assessment proceedings in play. It plainly did.

50

It is true that the reference to Mr Ali (“despite him having no permission to stay, engage in business or work in the country”) appears to be a gratuitous insult to a third person, Mr Ali, if untrue; but it is not Mr Ali who complains. In his oral submissions on appeal Mr Iqbal did not refer to this aspect of Document 20 but concentrated rather on what was said about the SRA: but, however unsatisfactory those allegations were, it cannot be said that they were not made without reference to the costs proceedings. Mr Iqbal had no answer to the suggestion made by the court to him that the whole document was a complaint made against him in his capacity as Mr Butt’s solicitor and not in some other capacity. In these circumstances I see no relevant distinction between the Smeaton v Butcherformulation and the judge’s shortened expression of it.”

The cases cited by way of illustration support the conclusion that one should not read too literally the test of reference to “the subject-matter” of proceedings. The terminology used in Munster v Lamb and Seaman v Netherclift was broader. The Court’s decisions on the facts of those cases are not easy to reconcile with a principle that limits the privilege to statements that are (to put it another way) “about” the subject-matter of the litigation. The cross-examination in Munster v Lamb, for instance, was on a collateral matter.

It is true that neither Smeaton v Butcher nor any of the other authorities I have mentioned was concerned with correspondence between the parties to litigation. However, it is hard to see a principled basis for distinguishing in this respect between correspondence and other communications. Indeed, it would seem that the same tests should in principle apply in whatever context the issue arises, provided of course that the occasion is one that attracts the protection of the privilege in principle. If different tests were applicable then the protection afforded in relation to statements of case or witness statements or oral evidence could prove illusory and be outflanked by the pursuit of a claim in respect of a letter between the parties making the same assertions. That protection is vital, for reasons explained by HHJ Parkes QC in his paragraph [17]. In my view the Claimant was right to contend before HHJ Parkes QC and HHJ Faber that the relevant limiting principle when it comes to absolute privilege for correspondence is the Smeaton v Butcher test.

I do not consider that the decision in Wong Shui Kee v Chu affects these conclusions.In that case the plaintiffs and defendants were solicitors practising in Hong Kong who acted for the parties to copyright litigation. Some months after the litigation began the defendants wrote a letter to the plaintiffscontaining an allegation of “intellectual dishonesty”. The plaintiffs sued for libel in respect of publication of that letter by the defendants to (i) the defendants’ clients, (ii) an assistant solicitor at the plaintiffs, and (iii) Counsel and the Judge in the proceedings, by way of inclusion in court bundles. The Judge at first instance held at the trial of preliminary issues that all such publications were protected by absolute privilege. The plaintiffs appealed against the finding in relation to publications (i) and (ii). The appeal was dismissed.

The Hong Kong Court of Appeal approached the issues before it by asking whether such publications fell within the second or third of the categories identified by Devlin LJ in Lincoln v Daniels. Thequestions therefore were whether inter partes correspondence qualified as “documents brought into existence for the purpose of the proceedings” or “practically necessary” for the purposes of the proceedings. It was held to fall into each of those categories. At [13] Le Pichon JA upheld the reasoning of Hartmann J, who had held at [34] as follows:

“While I make no comment on the wisdom of the alleged defamatory words, I fail to see how it can be said that, in making them, the defendants stepped outside of the confines of the proceedings and, to use the plaintiff's words, ‘made a private attack on his character’. The central matter in issue was the alleged failure of Dolly Dolls, the defendant in the interlocutory proceedings, to file its affirmation or other answer within the allowed time limits. That alleged failure had repercussions in respect of delay and costs. The defendants were attempting on behalf of their client to assume the tactical high ground so that, if an adjournment of the interlocutory hearing was necessary, their client would at least be indemnified in costs. Patently they were seeking the best advantage of their client in the litigation. Whether they were doing so in an exemplary fashion is not to the point. What is to the point is that clearly they were acting in their capacity as solicitors representing their client and equally clearly they were seeking to advance their client's interests in the litigation.”

Ma JA, agreeing, observed at [31] that absolute privilege attaches to “solicitors’ correspondence made in the course of legal proceedings which set out a party’s position or stance in relation to any part of the proceedings” because it advances the administration of justice and is “practically necessary”. Stone JA agreed with both judgments.

Smeaton v Butcher does not appear to have been cited to the Hong Kong Court of Appeal. I do not in any event read the Court’s decision as propounding a test for the ambit of absolute privilege which is more restrictive than or even differs materially from that laid down in Smeaton v Butcher. The primary issue for the Court was whether, in principle, inter partes correspondence falls in principle within the scope of absolute privilege for statements in judicial proceedings. The passages I have cited from Ma JA were directed towards that issue. The question of whether the statement complained of could be seen as outside the scope of such privilege was addressed, but the criterion which the Court seems to me to have approved is whether the statement was “outside the confines of the proceedings”. That is the test applied by Hartmann J in the passage approved by Le Pichon JA. The further observations of Hartmann J which were approved by Le Pichon JA were not in my judgment setting out further or different criteria. Rather, they supplied reasons for concluding that in the particular case the criterion of “outside the confines of the proceedings” was plainly not satisfied. If and to the extent thatthe Hong Kong Court of Appeal was taking a different course from that adopted in the English authorities then in my judgment, for the reasons I have given above, the right course is to follow domestic authority and to apply the established Smeaton v Butcher test to the content of correspondence, as it applies to the content of other documents created in the course of litigation which are in principle protected by privilege.

Against the background set out above, I have concluded that HHJ Faber’s

HHJ Faber’s second and alternative approach to the absolute privilege issue was that immunity would not or might not apply to inaccurate allegations that the Claimant was dismissed which may have been made in bad faith. That is in my judgment contrary to principle. As Munster v Lamb makes clear, the privilege protects false and malicious statements, as the price of shielding the honest from attack. Indeed, as Ma JA observed in Wong Shui Kee at [23]

“The defence of absolute privilege is, as the name suggests, absolute in nature. It will provide a complete answer to any claim for defamation even where the relevant remarks are completely untrue or made with malice.”

HHJ Faber’s “additional reasons for the lack of immunity” were that the sending of letters to the Court alleging a conflict of interest was “irregular and improper” and thus outside the privilege. She relied in this regard on footnote 135 of Gatley 11^th ed(note 152 of the 12^th edition). Unlike her, I have had the benefit of being shown the authorities there cited. They are of more limited ambit than the Judge seems to have believed and do not in my view bear on the facts of the present case. Gould v Hume (1829) 3 C & P 625 was a case in which the plaintiff debtor had applied to the Insolvent Debtors Court for discharge from custody. A creditor of the plaintiff wrote to the Chief Commissioner of the Court making a variety of allegations and asking the Commissioner to “see through” the plaintiff’s hypocrisy and “punish him accordingly”. Tindal CJ directed the jury that “such an irregular and improper proceeding” was not protected by the privilege that attaches to statements made in regular proceedings at law. This, therefore, is a case in which a non-party intermeddled in proceedings by a direct communication with the decision-making tribunal designed to influence the outcome. It is not within the category of correspondence which was, by concession, treated as privileged in this case.

The facts of Thomas v Nield (1911) 30 NZLR 1208 were somewhat similar. The plaintiff’s wife had pleaded guilty to charges of stealing cheques and been remanded for sentence. The defendant wrote a letter to the Stipendiary Magistrate who was due to sentence her. The letter imputed to the plaintiff complicity in his wife’s offences, and invited the Magistrate to censure the plaintiff for his part. This therefore was again a communication from a non-party to a decision-making tribunal designed to influence its behaviour. Sim J held there was no privilege for the letter, stating at 1210 that the matters contained in the letter did not relate to the subject-matter of the inquiry and that as a private communication intended to influence the court it amounted to a contempt. Again, besides the fact that the case is not authority as to English law, it is

As to the three further documents complained of in APC 56-63 HHJ Faber in my judgment again departed from established principles. All three documents fell within a category which, it was common ground before her, is protected by absolute privilege as a matter of principle. That of course did not preclude examination of the individual documents to test whether they contained matter so extraneous to the litigation as to fall outside the ambit of the privilege. To hold, however, that absolute privilege did not apply because the statements in question could easily have been checked, or had already been withdrawn or were demonstrably false was to impose tests of malice, negligence, or mere falsity. That approach involved the same error as I have identified above: overlooking the fact that the privilege applies to false and even malicious statements. In applying these criteria when deciding whether Mr Mansoor’s witness statement in the libel action was privileged the Judge departed from binding authority in the form of Smeaton v Butcher. To do so with regard to statements of case was at odds with the decision of HHJ Parkes QC. As I have said, the test laid down in that case also applies in my judgment to correspondence. Conduct on the part of the Defendant of the kind described by HHJ Faber might be thought to justify a regulatory complaint against the firm or individuals involved but that is not a sound basis on which to determine whether absolute privilege applies.

My conclusion is therefore that the Smeaton v Butcher test, as explained in Iqbal v Mansoor (No 2), is the one that should have been and should now be applied to each of the six documents in question in order to determine whether they fall within the scope of the absolute privilege thatin principle applies to them. Applying that test to the six documents, it seems to me clear that however illjudged and indeed irrelevant much of their content may have been, the statements complained of fell within the scope of the privilege and cannot be characterised as wholly extraneous statements having no connection with and no reference at all to the proceedings.

The theme of the first three letters, so far as they concerned the Claimant, was that he should not be acting for the Defendants in the litigation due to a conflict of interest arising from his prior employment by the Defendants which gave him privileged and unfair knowledge. Whether these allegations were warranted or sound in principle is not the issue. They were arguments being advanced within the litigation about the conduct of the opposite party’s case and how it ought or ought not properly to be conducted. They were arguments and allegations made with reference to the proceedings, rather than being wholly extraneous. They were allegations made about the Claimant in his capacity as the solicitor to the defendants in the Leeds action.

As to the three further documents at APC 56-63, it seems to me that the allegation contained in each, that the Claimant was the subject of a CRO granted by Wandsworth County Court was clearly one made with reference to the proceedings and not an extraneous allegation. The point the Defendants were seeking to make, whether it was true or not, was that the Claimant was barred

The Claimant’s Respondent’s Notice of February 2013 set out grounds for resisting the Defendants’ appeal on the absolute privilege issue which included a list of “Exclusions from immunity/privilege”, a submission that conduct of a gravity that can be characterised as criminal does not attract immunity, and reliance on an extra-judicial lecture given by Justice Peter Garling to the MedicoLegal Society of New South Wales on 14 March 2012.

This is another new point or set of points, in the sense that the Claimant raised no such arguments before HHJ Faber. Indeed, this stance is contrary to the one he adopted at the hearing before HHJ Faber. At that stage it was, as I have said, common ground that the “principle of immunity” applies to proceedings other than defamation as decided in Heath. The sole issue raised by the Claimant was whether the offending statements fell within or outside the Smeaton v Butcher limiting principle. The substance of the case advanced in the Claimant’s Respondent’s Notice appears to have emerged initially in Supplemental Skeleton Arguments which he submitted to the Court of Appeal in November 2012. That was after HHJ Faber had handed down her judgment, and after the order dismissing the appeal in his libel claim, Iqbal v Mansoor (No 2), had been drawn up, sealed and entered. The Court of Appeal declined to entertain the new arguments put forward by the Claimant. Rix LJ made the following comments:

“58.

…. Judge Faber was considering wider arguments in a different setting. The context there was a claim in harassment, which is a crime as well as a tort. It is arguable, but I am certainly not prepared to enter upon that argument here, that absolute privilege does not apply, or does not apply in quite the same way, in such a context: just as it does not apply in the case of perjury or contempt of court. Moreover, the allegations involved in the harassment proceedings both arise out of letters which are not, or arguably are not, matters of a witness’s evidence in the course of proceedings, and arguably have a degree of wantonness and egregiousness which may stand outside any reference whatsoever to the subject-matter of any proceedings. Moreover it is perhaps arguable that where there is a form of persecution, as in the case of Duke v Puts, which is the one authority which is closest on its facts to the allegations made by Mr Iqbal in the harassment claim, in effect an attempt to drive a professional man out of his livelihood, public policy demands a judicial inquiry unless it is plain that even so absolute privilege prevails. Even there, however, it will be recalled that the allegations in the complaint against Dr Jones which involved aspersions on a conspiracy involving both Dr Jones and Mr Duke were held to be within the privilege. None of that, however, arises in terms of the much more limited submissions which can be made in respect of Documents 20 and 21. I repeat, however, that such issues are not properly before this court, have not been argued between the parties before this court, and I intend to make no observations whatsoever with respect to them.

59.

… Nor is this appeal the place to explore the limitations of the doctrine of absolute privilege to be found in dicta or cases discussing the exceptional cases of perjury, contempt of court, malicious prosecution and possibly other such cases (discussed for instance in an extra-judicial lecture given by Justice Peter Garling ….). Nor would it be relevant, in the light of the limited issues which arise out of documents 20 and 21, nor would it be fair at such a late state even if the order had not yet been perfected, to raise a case based on Osman v UK [1998] ECHR 101.”

The question arises of whether the present appeal is the proper place for these issues to be explored. My very clear conclusion is that it is not. I have already outlined the principles that apply to the pursuit of new arguments on appeal and explained why the Claimant’s attempt to raise abuse of process arguments at this stage is unacceptable. The same applies with still more force to his attempt to argue that harassment claims fall outside the scope of the privilege. No explanation has been given of why these arguments were raised only on the appeal. The arguments are self-evidently of a potentially far-reaching nature. To explore them properly on this appeal in addition to the issues I have already dealt with would have called for far more time than the 1 day provided for by the Order of King J, and the Claimant made no attempt to increase the time estimate. The only written argument in support of his Respondent’s Notice was contained in his Supplemental Skeleton Arguments of 11 June 2014. This did not cover all of the points made in the Respondent’s Notice, whilst at the same time advancing new and different lines of argument in support of the overall proposition. The Claimant’s authorities bundle, which was very professionally prepared, did not contain copies of many of the texts relied on in the Respondent’s Notice (the extra-judicial lecture was absent, for example). In all these circumstances Mr Hirst was clearly hampered in dealing with the issues raised and it would have been impossible on any view to address them adequately.

My conclusion on the issue of absolute privilege is therefore that the Defendants should have permission to appeal, and that their appeal should be allowed.

A decision on such an issue represents an exercise of judgment with which an appeal court will be slow to interfere, in the absence of an error of principle. The Claimant submitted that in ruling on this issue HHJ Faber had failed to take into account the fact hat he had “pleaded” reliance on most of the additional matters in the APC well before the decision of HHJ Parkes QC. What the Claimant meant by “pleaded” in this context was however that he had mentioned the additional matters in skeleton arguments, grounds of appeal and witness statements at various stages in the present action. He had certainly made clear that he relied on the third letter (see above). He had also made clear that he wished to rely on the Defendants’ Defence in support of his case of harassment. He referred in this regard to the words of Rix LJ in paragraph [54] of Iqbal v Mansoor (No 1) that I have quoted above, to the effect that the Defence could arguably form part of the campaign of harassment. In all these circumstances it was wrong, said the Claimant, to conclude that he was harassing or intending to harass the Defendants by raising those matters by amendment in the APC.

The Claimant was right to say that though he had not formally pleaded them, he had made clear that he complained as harassment of the third of the three letters and the Defence in this action. That is clear from the passages from Iqbal v

Whether or not the Judge was right to categorise the Claimant’s conduct in pleading those same documents as harassment as a “collateral attack” on the High Court privilege rulings the reality was that, with one exception, the Claimant had no answer to the privilege argument on which the Defendants relied before HHJ Faber in respect of those documents. He had not disputed before either Judge that absolute privilege applied in principle. Before HHJ Parkes QC he had only argued the Smeaton v Butcher point, on which he had lost. Before HHJ Faber, he had accepted that the absolute privilege that protects against defamation applied equally to other causes of action. My conclusion is that HHJ Faber was clearly right to conclude that the Claimant could not ask the Court to revisit the issue in this action. The exception is, again, the publication to the Claimant’s staff of the letter to the SRA that was item 8 in the libel action, which HHJ Parkes QC held to be arguably not privileged. That single publication could not of itself support a harassment claim however. For all these reasons I refuse permission to appeal on this issue.

HHJ Faber’s decision on this issue was of course an exercise of discretion. An appeal court will not interfere with such a decision unless the court below has made an error of principle or “exceeded the generous ambit within which reasonable disagreement is possible”: G v G (Minors Custody Appeal) [1985] 1 WLR 647. The Claimant’s first point on this head of his proposed appeal was that HHJ Faber had ordered the Defendants to apply to her for relief and thereby given an appearance of partiality. This appears to me to take much too literally the words used by the Judge in her handed-down judgment. What in fact took place was that the Judge made clear to the Defendants that it was not enough for the Defendants to seek an extension of time for their Re-Amended Defence when they had been the subject of an unless order, and gave the firm time to put forward an application for relief from sanctions. This seems to me to be an unobjectionable case management decision that cannot reasonably be said to lend the Judge’s conduct any appearance of bias.

As the Claimant acknowledged in his Grounds of Appeal, the law as it stood at the time of this decision did not require the Judge to mention each factor in the CPR 3.9(1) checklist, assigning each to one side of the balance or the other: Khatib v Ramco International [2011] EWCA Civ 605. Here, however, the Judge did carry out that exercise. The Claimant advanced detailed criticisms of the Judge’s approach to the individual factors specified in CPR 3.9(1). For the most part, however, those criticisms did not raise any point of principle. Rather, they amounted in substance to no more than complaints that the Judge gave too much or too little weight to individual factors.

The exception to this was an argument in relation to the weight to be attached to the fact that the failure to plead a Re-Amended Defence was deliberate. The Claimant complained that HHJ Faber had not mentioned two authorities he had cited for the proposition that the gravity of non-compliance is the greater where it is conscious and may be decisive (CIBC Mellon Trust Co v Stolzenberg [2004] EWCA Civ 827 [162-167], Boscombe Athletic Club Ltd v Lloyds TSB plc [2003] EWCA Civ 1755). This is a point of no weight, however, in the context of this case. The Judge plainly appreciated that the non-compliance was deliberate. The key to her approach to that fact was her conclusion (at [110]) that the Defendants had not complied “because it formed the view that most of the amendments were abusive and that it would be disproportionately expensive to plead to them. In those respects it was correct.”

I do not regard any of the Claimant’s arguments on this issue as persuasive enough to justify the grant of permission to appeal. In my judgment, HHJ Faber’s approach to relief from sanctions is beyond sensible reproach.

Mr Hirst advanced a number of criticisms of the Judge’s approach to this issue, and they were arguable points in respect of which I grant permission to appeal. He submitted that the Judge failed to consider the provisions of s12 Human Rights Act 1998 which require prior notice, specify matters to be taken into account, and set a minimum threshold for the grant of an injunction affecting the

I am not persuaded by Mr Hirst’s submission that there was no evidence of a risk of repetition. That is a conclusion that was open to the Judge. It is unnecessary however to burden this already long judgment with a detailed discussion of the merits of the Judge’s approach on the other matters raised by Mr Hirst. Her decision rested on the assumption, which I have held to be false, that the Claimant’s claim disclosed a course of conduct by way of correspondence, witness statements and statements of case which was not only capable of amounting to harassment but also of being actionable because it fell outside the scope of absolute privilege. She envisaged an action which would continue to trial. I have held that on a proper application of the law of absolute privilege coupled with the Judge’s decision to strike out for abuse of process the claim is bereft of any arguably actionable past conduct. That would ordinarily lead to the dismissal of the claim in its entirety. Even if the Court did in those circumstances consider an application for an injunction to restrain future behaviour the short answer would be there was no or no sufficient evidence of a risk of future wrongdoing. It is not enough of course to show a threat or risk of repetition. No injunction could properly be granted to restrain statements on occasions protected by absolute privilege. The Claimant had failed so far to identify any occasion on which a statement had been made without that protection. The necessary basis for a finding that this was likely to occur, or even that it would or might occur, was absent.

For all these reasons I grant the Defendants’ application for permission to appeal and allow their appeal, and I refuse permission for the Claimant’s appeal. The injunction will be discharged. The inevitable consequence would seem to be that the Claimant’s claim falls to be dismissed. I will however hear the parties’ submissions on the appropriate form of order, and on costs.