England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBENI 97/0131/E

(Mr Justice French) Royal Courts of Justice

Strand, London WC2

Wednesday, 17th December 1997

B e f o r e :

LORD JUSTICE NOURSE

LORD JUSTICE BROOKE and

SIR BRIAN NEILL

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WENDY WAPLE Plaintiff/Appellant

-v-

SURREY COUNTY COUNCIL

Defendants/Respondents

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Handed Down Judgment prepared by

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MR T ATKINSON (instructed by Messrs Mundays of Claygate, Esher, Surrey) appeared on behalf of the Appellant Plaintiff.

MR F PANFORD (instructed by Messrs Hempsons of London WC2) appeared on behalf of the Respondent Defendants.

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J U D G M E N T

(As Approved by the Court)

Crown Copyright

Wednesday, 17th December 1997

LORD JUSTICE BROOKE:

This is an appeal by the Plaintiff from an order of Mr Justice French dated 17th December 1996, which was drawn up and sealed on 8th January 1997, striking out the Plaintiff’s writ and Statement of Claim as disclosing no cause of action, alternatively on the ground that the proceedings are frivolous and vexatious.

The Plaintiff and her husband are the adoptive parents of a boy J, who was born in May 1980. In 1992 problems developed in the relations between J and his parents, and on 22nd December 1992 the Defendant County Council placed J with foster parents. A problem arose as to the cost of the fostering, and the Plaintiff’s husband declined to supply details of his means and his outgoings. As a result, on 7th January 1993 the council served on him a contribution notice pursuant to its powers under Paragraph 22 of Part III of Schedule 2 of the Children Act 1989 requiring him to contribute £77.56 per week towards J’s maintenance with effect from 7th January 1993 until J reached the age of 16, or such earlier date as he ceased to be looked after by the council. The council made it clear that this was a provisional assessment, made in the absence of information about Mr Waple’s financial circumstances.

In July 1993 the Waples’ solicitor, Mrs Ison, had a meeting with the Council’s solicitor, Mr O’Brien, and following this meeting she wrote him a letter dated 2nd August 1993 in which she articulated her clients’ three main concerns, into which Mr O’Brien had undertaken to inquire. The second of these concerns related to a meeting the previous November when the Plaintiff was alleging that a doctor had told her in front of her son, and without any warning to her, that it was necessary for his emotional welfare and development that he should be removed from her household and moved to a new family placement. Mrs Ison reminded Mr O’Brien that he had undertaken to make inquiries to find out who had initiated J’s removal into foster accommodation and who had first given these instructions to the council.

In his response dated 5th August 1993 Mr O’Brien referred towards the end of his letter to a telephone call by the Plaintiff to the council’s social service office on 27th November 1992 suggesting that the doctor in question had indicated to them that J would need to be accommodated away from home. He said that this was the first time the council’s social workers had acquired any knowledge of the Waple family. The paragraph of Mr O’Brien’s letter to which exception is taken in these proceedings relates to the events of a planning meeting at the doctor’s unit on 15th December. It reads:

“At the meeting on 15th December Mrs Waple took the lead in arranging for J to leave home and be looked after by the County Council. During this meeting Mrs Waple demanded unequivocally that J be removed from home by 23rd December. She threatened to lock him in his room if he was not removed, she said he was to go and she did not want the Social Workers to ‘pussy foot around’. For the avoidance of doubt, Mrs Waple gave instructions/issued demands that J be removed.”

On 17th November 1993 Mrs Ison wrote a letter before action telling the council that proceedings for defamation would be issued, and inviting it to withdraw the allegation that the Plaintiff had threatened to lock J in his room and to apologise. On 19th November 1993 Mr O’Brien withdrew the suggestion that the Plaintiff had threatened to lock J in his room and apologised unreservedly. He said he ought to have used the word “confine” rather than “lock”.

The writ in these proceedings was issued on 13th April 1994. The Defence included a plea that the letter was written on an occasion of absolute privilege, and on the Defendants’ strike-out summons, issued on 13th August 1996, the judge had to determine whether this plea was a good one. The judge ruled that it was, and the Plaintiff now appeals by leave of the judge. It did not appear to be seriously in issue that qualified privilege would attach to Mr O’Brien’s letter, although Mr Atkinson wishes to keep this point open for argument at the trial.

It is necessary first to say something about the law relating to the contribution notice which was served in this case.

Part III of Schedule 2 to the Children Act 1989 creates a statutory scheme whereby if a local authority is looking after a child under 16, then in certain specified circumstances, it is given power to recover contributions towards the child’s maintenance from each of his or her parents. If the local authority considers it reasonable to recover contributions from a parent, the scheme is triggered off by its serving what is called a contribution notice on the parent in question specifying the weekly sum which it considers he or she should contribute, together with arrangements for payment, the nature of which is spelled out in Paragraph 22(3) of the Schedule. Where agreement is reached as to both these matters, and the parent notifies the authority in writing that he or she so agrees, and any contribution subsequently becomes overdue and unpaid, the authority has the power to recover it summarily as a civil debt. If agreement cannot be reached, or if it is later withdrawn, the local authority has the power to seek what is called a contribution order from a court, and the scheme describes the type of contribution order that may be made, and the arrangements by which the authority may enforce it.

The judge described the events which followed the service of the contribution notice in the present case as “legal proceedings of a sort” but it will be seen that if the local authority reaches agreement with the parent as to the quantum and the arrangements for paying his or her contribution, there will be no need to involve a court so long as the parent keeps up the agreed payments.

The modern rules about absolute privilege extend the privilege to statements made in the course of judicial or quasi-judicial proceedings, and statements contained in documents made in such proceedings. It has been settled for over 100 years that the courts should be very slow to extend the scope of this privilege: see Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431, at p 451, when Lopes LJ rationalised the width of the privilege by reference to the requirement of public policy to ensure freedom of speech in a context in which it was essential that such freedom of speech should exist, “ and with the knowledge that Courts of justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the will to check any abuse of it by those who appear before them”.

It is instructive to consider the policy reasons given by the courts from time to time when fixing or refixing the limits of this type of absolute privilege. In Watson v McEwan [1905] AC 480 the House of Lords extended the scope of the privilege to statements made by a witness to the client and solicitor in preparing a case for trial. The Earl of Halsbury LC pointed out at p 487 that if this was not the case, witnesses would be very reluctant to give any such information for fear of a libel suit, and that it was very obvious that the public policy which rendered the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice - namely, the preliminary examination of witnesses to find out what they could prove. He referred in this context to the hardship which would arise if it were impossible to administer justice because people would be afraid to give their testimony.

In Lincoln v Daniels [1962] 1 QB 237 this court ruled that communications sent to the secretary of the Bar Council alleging professional misconduct by a barrister did not attract absolute privilege, since they were not a step in an inquiry before an Inn of Court. Devlin LJ accepted at p 259 that this was a matter of form rather than substance but he said:

“On such a point form is of the first importance; it is by form rather than by the substance of the complaint that a writ is to be distinguished from a letter before action.”

At pp 257-8 he had identified three categories of the absolute privilege which covers proceedings in or before a court of justice. The first covers what is said in court and the second covers everything that is done from the inception of the proceedings onwards, such as the pleadings:

“The third category is the most difficult of the three to define. It is based on the authority of Watson v McEwan , in which the House of Lords held that the privilege attaching to evidence which a witness gave coram judice extended to the precognition or proof of that evidence taken by a solicitor. It is immaterial whether the proof is or is not taken in the course of proceedings. In Beresford v White [1914] 30 TLR 591 the privilege was held to attach to what was said in the course of an interview by a solicitor with a person who might or might not be in a position to be a witness on behalf of his client in contemplated proceedings.”

Devlin LJ went on to say at p 260 that it was obvious that unless there were a category of this sort the absolute privilege granted for matters said and done coram judice might be rendered illusory. He did not treat the principle enunciated by Lord Halsbury LC in Watson v McEwan as necessarily limited to the proofs of witnesses. He thought it might well cover, for example, instructions given by a party to his solicitor, going beyond matters to which the party could himself depose, for the preparation of a statement of claim or like document. In considering later authorities, he said at p 261 that these showed that the connection between the two things - the evidence and the precognition, the document and the draft, the actuality that is undeniably privileged and the foreshadowing of it - must be reasonably close. At p 263 he expressed his view as to the nature of this third category in these terms:

“It is not at all easy to determine the scope and extent of the principle in Watson v McEwan . I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor. The sense of Lord Halsbury’s speech is that the extension of the privilege to proofs and precognition is practically necessary for the administration of justice; without it, in his view, no witness could be called. I do not think that the same degree of necessity can be said to attach to the functions of the Bar Council in relation to the Inns of Court. It is a convenience to the public to have a central body to deal with, but that is as high as it can be put. In my judgment the defence of absolute privilege fails.”

Devlin LJ considered, therefore, that in this third category of cases the privilege should be extended only to situations where it was strictly necessary to do so in order to protect those who were to participate in the proceedings from a flank attack.

The judge did not refer to Lincoln v Daniels in his judgment, although we have been told the case was cited to him. Instead, he quoted from a passage in the judgment of Starkie J in the High Court of Australia in Cabassi v Vila (1940) 64 CLR 130 at p 140 where it was being contended that a cause of action in conspiracy could be founded on evidence which had been given in the course of a trial. Starkie J’s judgment was referred to with approval by Sellers LJ in Marrinan v Vibart [1963] 1 QB 528 at p 536, a case in which this court was concerned with a similar problem. After discussing the earlier authorities, Starkie J said that it did not matter whether the action was framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiracy together for the purposes of injuring another. The relevant rule of law was that no action lay against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of legal proceedings. Starkie J ended this passage by saying that the law protected witnesses and others, not for their benefit, but for the higher interest, namely the advancement of public justice.

The judge relied on this passage when he said that it could not be doubted that the privilege from suit of those engaged in the preparation for, or conduct of, litigation of whatever nature was far reaching. This does not, however, in my judgment, resolve the issue which arises in the present case since as Devlin LJ pointed out in Lincoln v Daniels , it is the form, not the substance with which the court is traditionally concerned in cases of this type, and I have already observed that the mere fact that a contribution notice is served does not inevitably mean that relevant proceedings will ever start in a court of justice any more than the writing of a letter before action inevitably has that effect.

Confronted with this difficulty, Mr Panford referred us to a passage in the judgment of Drake J in Evans v London Hospital [1981] 1 WLR 184 which was approved by Lord Browne-Wilkinson in X (Minors) v Bedfordshire CC [1995] 2 AC 633 at p 755. In that case the plaintiff claimed damages against a hospital and two pathologists in relation to a post mortem report they had prepared following the death of the plaintiff’s 5-month old son. The judge struck out the statement of claim on the basis that the immunity from a civil action which is given to a witness in judicial proceedings in respect of evidence given in those proceedings covers statements made prior to the issue of a writ or the commencement of a prosecution provided that such a statement was made for the purposes of a possible action or prosecution at a time when a possible action was being considered. He said at p 191E-H:

“The immunity given to a witness or potential witness is because: ‘the administration of justice would be greatly impeded if witnesses were to be in fear that ... persons against whom they give evidence might subsequently involve them in costly litigation’: see per Salmon J in Marrinan v Vibart [1963] 1 QB 234, 237.

If this object is to be achieved I think it essential that the immunity given to a witness should also extend to cover statements he makes prior to the issue of a writ or commencement of a prosecution, provided that the statement is made for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered. In a large number of criminal cases the police have collected statements from witnesses before anyone is charged with an offence; indeed sometimes before it is known whether or not any criminal offence has been committed.

If immunity did not extend to such statements it would mean that the immunity attaching to the giving of evidence in court or the formal statements made in preparation for the court hearing could easily be outflanked, and rendered of little use. For the same reason I think that the immunity must extend also to the acts of the witness in collecting or considering material on which he may later be called to give evidence.”

In M (A Minor) v Newham LBC, one of the cases decided at the same time as X (Minors) , Lord Browne-Wilkinson said at p 755E that he found the reasoning of Drake J compelling at least in relation to the investigation and preparation of evidence in criminal proceedings. He went on to say that in his judgment exactly similar considerations applied where, in performance of a public duty, a local authority was investigating whether or not there was evidence on which to bring proceedings for the protection of a child from abuse, such abuse frequently being a criminal offence. If a psychiatrist was instructed to carry out the examination of a child for the specific purpose of discovering whether the child had been sexually abused and (if possible) the identity of the abuser, she must have known that if such abuse was discovered, proceedings by the local authority for the protection of the child would ensue and that her findings would be the evidence on which those proceedings would be based. It followed, in Lord Browne-Wilkinson’s opinion, that such investigations having such an immediate link with possible proceedings in pursuance of a statutory duty could not be made the basis of subsequent claims. This approach is very similar to the approach of the majority of the House of Lords in Saif Ali v Sidney Mitchell & Co [1980] AC 198 when they were only willing to allow advocates immunity from suit in relation to matters intimately connected with the conduct of the case in court (see Lord Wilberforce at p 215, Lord Diplock at p 224 and Lord Salmon at p 232).

In my judgment, it is not open to us, when taking account of this line of authority, to extend the scope of the absolute privilege granted to statements made in connection with judicial proceedings to the statement made in Mr O’Brien’s letter. Mr O’Brien has said in an affidavit that in his experience as a child care law practitioner it was quite common for parents not to give their solicitors all the facts and he often received letters and telephone calls from solicitors basically asking him to verify what their clients had told them. He always answered these inquiries, because he believed that it was in the best interests of the child to do so. When he received Mrs Ison’s letter, his principal concern was to provide her, at her request, with as much information as possible so that she could advise her clients properly. This is the kind of exchange in which solicitors acting for a public authority often involve themselves, and although in the ordinary way their letters would attract qualified privilege, I can see no warrant for extending the scope of absolute privilege to cover a communication of this type. It is not the type of communication embraced in Devlin LJ’s third category in Lincoln v Daniels . Nor does it have an immediate link with possible proceedings of the kind the courts were considering in Evans v London Hospital or M (A minor) v Newham LBC. It was not, as Mr Panford suggested, “part and parcel of the legal proceedings which were contemplated”.

Mr Panford then submitted, in purported reliance on the controversial decision of this court in More v Weaver [1928] 2 KB 520 (for which see Minter v Priest [1930] AC 558 per Viscount Dunedin at p 574 and Lord Atkin at p 586), that absolute privilege should attach to communications between legal advisers, not immediately connected with legal proceedings, in which they set out the manner in which their respective cases were going to be advanced. He said that there were sufficient safeguards (such as the court’s jurisdiction over solicitors as officers of the court or the Law Society’s disciplinary jurisdiction) to act as a check against deliberate or improper abuse of such privilege, and that qualified privilege would be inadequate to protect solicitor to solicitor communications about intended litigation. He said it was not fanciful to suggest that council officials might be impeded from making complaints under the Children Act if their communications regarding contribution orders were not absolutely privileged since even an official who honestly believed in the truth of a complaint (and therefore had the defence of qualified privilege) might be deterred by the fear of a defamation action.

In the present context he said that many parents in the plaintiff’s position will have strongly resented their perceived treatment by local authorities. The proper performance by council staff of their child welfare functions has an inherent tendency to produce dissatisfied parties, emotional upset, occasional outbursts, frustration and a desire to blame others for adverse outcomes, and in these circumstances he submitted that, like witnesses in litigation, a council’s child welfare staff and its legal advisers ought to have the benefit of absolute privilege in their communications with children’s parents and their advisers in order to spare them from the potential worry and concern of defamation proceedings which would be time consuming and inconvenient to defend and whose costs will seldom be fully recoverable from the other side.

The ordinary rule is that letters written by a solicitor in the performance of his or her duties to a client of the firm attract qualified privilege ( Baker v Carrick [1894] 1 QB 838) and this is a free-standing privilege of the solicitor who is not infected automatically by the malice of the client ( Egger v Viscount Chelmsford [1968] 1 QB 248 per Lord Denning MR at p 261). Mr Panford showed us a Lexis transcript of the judgment of this court in McCarrick v Metropolitan Borough of St Helens (unreported, 20th November 1992) from which it appeared that Auld J at first instance had been willing to extend absolute privilege to a letter written by a solicitor for a local authority in connection with a dispute about the valuation of a house which ultimately finished up in the Lands Tribunal. This court did not have to rule on that issue, since they found that there was no evidence of malice such as to destroy a defence of qualified privilege. Auld J had apparently been willing to accord the letter absolute privilege on the basis that sending a letter for the purpose of establishing an issue was akin to a step in the proceedings, but Leggatt LJ, whose hesitation was shared by Mann and Balcombe LJJ, said that the letter did not constitute a prescribed or formal stage in the proceedings, and he could see an argument that it was therefore not properly to be regarded as having been part of the proceedings so as to enjoy the protection of absolute privilege.

This is another example of the courts’ reluctance to extend the scope of absolute privilege in this field more widely than Devlin LJ’s third category in Lincoln v Daniels . Much the same judicial reluctance was shown by another division of this court in Daniels v Griffiths (unreported, 27th November 1997) when it declined to extend absolute privilege to communications to the Parole Board. Parliament has been willing in recent years to extend the defence of absolute privilege in certain respects in Acts creating new statutory schemes (for a list of such examples, see Gatley on Libel and Slander (9th Edition), para 13.46). If Parliament had wished to extend absolute privilege to communications by council officers acting in Children Act matters it would have been able to do so during the passage of that Bill. It appears to me that the balancing of the need to protect people’s reputations from being harmed by malicious communications and the need to protect council officers from the worry of any form of litigation is very much a matter for Parliament and not for the courts. I would therefore reject Mr Panford’s second submission.

His third and final submission was that even if it was not willing to extend the scope of absolute privilege the court should be willing, in reliance on a recent line of cases, to grant his clients immunity from suit. Examples of this line of authority are helpfully set out in Carter-Ruck on Libel and Slander (1997) at pp 132-4. These cases are for the most part concerned with claims to public interest immunity which may protect documents from inspection, or with the nature and scope of the implied undertaking not to use, without the leave of the court, documents disclosed on discovery except for the purposes of the proceedings in which they were produced. In Hasselblad (GB) Ltd v Orbinson [1985] QB 475, however, this court (Sir John Donaldson MR and O’Connor LJ, May LJ dissenting) held that although absolute privilege did not extend to an investigation by the European Commission under Article 89 of the Treaty of Rome, a letter disclosed to the Commission in the course of its investigations and then sent to the plaintiffs for comment in accordance with the Commission’s procedures should not be admitted in evidence in a libel action. The reason given by the majority of the court was that the public interest in ensuring that the Commission should not be frustrated in carrying out its duties under Articles 85 and 86 of the Treaty overrode the public interest that the plaintiffs as litigants were entitled to have their allegations that their private rights had been infringed investigated by the courts. Although that decision is binding on this court, it was a very special decision reached on its very special facts, and the dissenting judgment of May LJ shows, particularly at pp 507F-G and 508 C-D, the dangers involved if the courts, as opposed to Parliament, extend the scope of absolute privilege on a case by case basis without reference to principle. The width of the defence of absolute privilege is, after all, defined by a balancing of competing public interests, and Devlin LJ’s third category in Lincoln v Daniels explains the reasons for the privilege on the outer borders of legal proceedings. To extend it still further, in a case where the ordinary workings out of the rules of public interest immunity do not prevent a document from being disclosed and used in court, would in my judgment not be justified by authority or by principle.

I would therefore allow this appeal and set aside the judge’s order.

I should add, by way of a footnote to this judgment, that it would have been very much more satisfactory if this question whether absolute privilege applied had been tried as a preliminary issue, as in M Isaac and Sons Ltd v Cook [1925] 2 KB 391. There appears to be a creeping tendency to resort to the strike-out sanction at a fairly advanced stage of litigation. In the present case, for instance, the action had already been proceeding for two years, the pleadings were closed and discovery was complete before the Defendants’ solicitors first told the Plaintiffs’ solicitors that they had been instructed (sic) to make an application to strike out the claim. The unsatisfactory effect of this procedure was vividly illustrated by Mr Atkinson at the outset of this appeal when he began his submissions with the correct contention that the strike-out sanction should be reserved for very clear cases, and not used in cases where the contentions of a party were clearly arguable. In the event, he was persuaded by the court to abandon that line of argument and to treat the appeal as if it was an appeal from a decision on a preliminary issue in the action. I for my part would endorse what is said in paragraph 26.43 of the 9th Edition of Gatley on Libel and Slander :

“If the question is one requiring ‘serious argument and careful consideration’, the defendant should not apply to have the statement of claim struck out, but raise an objection in point of law in his defence, and apply to have it tried as a preliminary issue.”

SIR BRIAN NEILL: I agree.

NOURSE LJ: I also agree

Order: appeal allowed with costs here and below; judge's order striking out the action discharged; leave to appeal to the House of Lords refused. [Not part of approved judgment]