Court qualifies solicitor's privilege

Roger Pearson looks at how a woman's libel action is challenging a solicitor's right to protection over correspondence.

A recent Court of Appeal action will remind those in the legal profession of the risks of defamation proceedings being taken against them for claims made in their correspondence.

The action centres on a couple who had requested that Surrey County Council place their adopted child with foster parents. Following the child's placement, the husband was served with a provisional notice of assessment requiring him to make contributions for the child's maintenance.

Correspondence ensued in a bid to reach an agreement over the payment of weekly sums for the child. It was during the course of this correspondence that a solicitor acting for the council wrote a letter containing an alleged libel.

The wife launched a libel action in the High Court but the council succeeded in having it struck out by Mr Justice French on the basis that the letter had been written on an occasion of absolute privilege. He ruled that the case disclosed no cause of action.

However, the Court of Appeal reinstated the claim. Lords Justices Nourse and Brook and Sir Brian Neill said that the mere fact that a contribution notice had been served in the proceedings did not mean that relevant proceedings would reach court any more than the writing of a letter before action had that effect.

Had they acceded to claims that a pending defamation action should be struck out on the basis that a solicitor's letter at the centre of a dispute was subject to absolute privilege it would have been a landmark ruling.

Lord Justice Brook, in upholding the right of the claimant to go on with her action, said that the scope of absolute privilege granted to statements made in connection with judicial proceedings could not be extended to the statement in the solicitor's letter on which the dispute was based.

Such a letter was not correspondence which could be classified as having immediate links with possible proceedings and was not part and parcel of legal proceedings which were contemplated.

He also warned against what he dubbed a 'creeping tendency' to resort to strike-out proceedings at advanced stages of litigation. He said that such moves should not be allowed in clearly arguable cases.

Richard Ryan, an assistant solicitor at Hempsons, who represented Surrey County Council, stresses that while the moves to strike out on the basis of absolute privilege failed, the defence of qualified privilege in respect of the contents of the solicitor's letters remains very much alive.

But the plaintiff's solicitor, Fiona McAllister of Mundays, says that, while she accepts that the impact of the interlocutory action would have been far more dramatic had the council failed to win reinstatement, the case is still one which should give solicitors cause to pause for thought.

A huge amount of correspondence is written by solicitors in such matters, says McAllister, stressing that her client's action indicates the potential for solicitors to be taken to court over what they write.

McAllister adds: 'The fact that this case has been launched should serve as a warning to solicitors, some of whom can be aggressive in their correspondence, to take steps to verify what they write and not just take what a client might say at face value.'