About this case:

• Citation:
  [2023] NIKB 90
• Judgment:
  External link
• Court:
  NI High Court

Delivering the judgment, Danny Friedman KC, sitting as a High Court judge, noted the complaints were worthy of absolute privilege protection despite accepted procedural issues relating to the format of how the complaints were lodged.

Background

The plaintiff was a practising solicitor in Northern Ireland with an “unblemished professional record”. He issued a statement of claim in 2021 which asserted that a series of allegations by the defendant company, through its director, defamed him. The claim related to three letters sent to the LSNI professional conduct committee and staff.

The defendant company is registered in Ireland. It accepted that it sent the correspondence with a view to complaining about the plaintiff’s professional conduct concerning his allegedly inappropriate contact with shareholders in the defendant company and otherwise becoming improperly involved in a local community group protesting against the defendant’s business activities.

The defendant maintained that, by choosing to address its complaints to the LSNI, its statements were covered by absolute privilege.

The LSNI’s investigation

In June 2021, a solicitor caseworker was assigned from the LSNI’s professional conduct department, who acknowledged the initial complaint. They also wrote to the plaintiff’s law firm to seek its comments and/or explanations for the letter.

The plaintiff denied any wrongdoing, and in August 2021 was informed that the professional conduct committee had formally determined not to uphold the complaint.

The defendant then sent a second and third letter, with a view to persuading the committee to reconsider its decision. The committee met again in September 2021, and their decision regarding the complaint remained unchanged.

The plaintiff’s arguments

Although the letters were sent as a complaint, the plaintiff submitted that because the defendant had used the ‘wrong’ process, absolute privilege could not apply. The court noted, however, that neither the assigned caseworker nor the committee itself ever indicated that the defendant had used the wrong process.

The plaintiff also accused the defendant of “vexatious and gratuitous behaviour”, and argued that absolute privilege was an exceptional bar, which requires scrupulous management and oversight by a court before a defendant is allowed to enjoy its protection.

He argued that the defendant ought to have registered the complaint online or through a template form. However, the court noted that there was no evidence that the form and/or the online facility existed at the time of the complaint, and the committee did not object to the processes being initiated in this manner.

It was further submitted that the additional letters could not enjoy absolute privilege protection, because the decision had been made, and could not be re-examined. It was therefore, according to the plaintiff, functus, and the defendant had no standing to write another complaint.

The plaintiff argued that even if the committee was prepared to consider the later letters, the fact that they did could not protect the defendant under defamation law. To support this, the plaintiff cited guidance which requests “that all aspects of the complaint are included in the conduct complaint form as new issues cannot be raised at a later date”.

In response, the defendant noted that all of its additional letters were readily examined and considered by the relevant parties. Further, the later letters were merely adding additional information. Once the committee refused to alter its initial determination, the defendant did nothing more.

Consideration

The court accepted that absolute privilege is exceptional because it provides for immunity from suit for defamation irrespective of malice. However, ignoring procedural issues, the court found that the initial letter amounted to a complaint inviting the relevant disciplinary body to investigate its content.

The plaintiff claimed that even if the initial complaint was covered by absolute privilege, the further letters of complaint were not. The judge did not agree. Of relevance here was the fact that the June 2021 LSNI response acknowledged the possibility that the defendant might in the meantime be “able to provide… further information or contribute to the matter”.

Ultimately, the court did not see the information supplied in the later letters to constitute additional complaints. They were attempts to provide further information in relation to the original complaint.

The court also noted that all of the relevant publications were published either to the LSNI or the assigned caseworker and nowhere else.

The court next considered the format of the complaint, which was emailed to the LSNI. The judge held that any alleged irregularities of the form in which the complaint was submitted were “truly minor”.

The court therefore rejected the plaintiff’s argument that the defendant’s alleged error of not using the correct supplied template, or uploading the complaint on the online platform, were sufficient to remove the absolute protection of the privilege.

Any errors relating to how the complaint was communicated was not so significant as to justifiably impact the application of this “public policy-based protection”.

Conclusion

For these reasons, the court dismissed the claim.

Accepting that this result may appear “harsh”, the court stressed that this was a “privileged occasion” per Gatley on Libel and Slander Thirteenth Edition (May 2022), in which “it is for the public benefit that a person should be able to speak or write freely and that this should override or qualify the protection normally given to reputation by the law of defamation”.