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Defamation

IMMUNITY FROM SUIT FOR DEFAMATION IN RELATION TO REGULATORY PROCEEDINGS: INDIVIDUALS

In the criminal and civil courts, judges, advocates and witnesses enjoy absolute immunity from suit for defamation in relation to statements made in court and statements made out of court which can fairly be said to be part of the process of either (a) bringing a suit (e.g. Watson v M’Ewan [1905] A.C. 480 (proof of evidence in a civil suit)) or (b) an investigation conducted with a view to possible prosecution (e.g. Taylor v Serious Fraud Office [1999] 2 A.C. 177 (information provided to the Serious Fraud Office in the course of an investigation)).

The basis for this immunity is that the public interest in encouraging freedom of speech and communication in judicial proceedings outweighs the defence of reputation protected by the libel laws (though note that neither advocates (Arthur J.S. Hall & Co v Simons [2002] 1 A.C. 615) nor expert witnesses (Jones v Kaney [2011] UKSC 13) are immune from suit for negligence). The same immunity has been held to extend to certain non-judicial tribunals. This article looks at the principles governing how regulatory disciplinary proceedings may attract absolute immunity, focusing in particular on Trapp v Mackie [1979] 1 W.L.R. 377 and White v (1) Southampton University Hospitals NHS Trust; (2) Roche [2011] EWHC 825.

Trapp v Mackie

The case concerned a local inquiry set up under statutory powers to investigate a decision to dismiss a headmaster. The Respondent gave evidence; the Appellant subsequently sought to bring proceedings against him for malicious falsehood. The Respondent’s evidence was held to be subject to absolute immunity. In deciding whether absolute immunity applies to proceedings before a tribunal, Lord Diplock first cited O’Connor v Waldron [1935] A.C. 76:

‘The kind of tribunal in which the evidence of witnesses is entitled to absolute privilege... [is] a tribunal which “has similar attributes to a court of justice or acts in a manner similar to that in which such courts act.’

before specifying four factors to be considered:

  • Whether the tribunal is ‘recognised by law’. This definition is not confined to tribunals constituted or recognised by Act of Parliament, though it encompasses all that are;
  • The nature of the question into which it is the tribunal’s duty to inquire. To satisfy this criterion, the question to be decided must be an issue in dispute between adverse parties of a kind similar to issues commonly to be decided in courts of justice;
  • The procedure adopted by the tribunal in carrying out its enquiry. The more similar to the procedure adopted in the courts of justice, the more likely a tribunal is to satisfy this criterion;
  • The legal consequences of the conclusion reached by the tribunal as a result of the inquiry. It is not necessary for the tribunal itself to issue conclusions of a binding and authoritative nature similar to those in a court of justice; provided that in practice the decision has a major influence on the final decision in law that is binding and authoritative, the tribunal’s decision will have sufficient weight to satisfy this criterion.

Additionally, his Lordship highlighted the following characteristics shared by the inquiry in Trapp v Mackie with civil courts of justice:

  1. Authorised by law;
  2. Inquiring into an issue in dispute between adverse parties of a kind similar to issues commonly to be decided in courts of justice;
  3. Held in public;
  4. Decisions as to oral evidence to be called and documents to be tendered left to the contending parties;
  5. Witnesses could be compelled to attend or produce documents under penal sanction and entitled to the same privilege to refuse to answer questions or produce documents as would apply in courts of justice;
  6. Oral evidence given on oath;
  7. Witnesses giving oral testimony subject to examination-in-chief by the party calling them and cross-examination by the adverse party in accordance with the normal procedure of courts of law;
  8. Adverse parties entitled to be represented by legally qualified advocates able to address the tribunal on the evidence led;
  9. Opinion of the tribunal a major influence on the ultimate decision-maker;
  10. Either party may be ordered to pay the costs of the adverse party as a result of proceedings before the inquiry; costs recoverable in the same manner as those in the civil courts.

His Lordship concluded that the presence or absence of any of these characteristics taken in isolation will not necessarily be sufficient to decide whether the proceedings of a particular tribunal attract absolute immunity, but that the cumulative effect of these characteristics was sufficient in this case.

Lord Fraser highlighted a number of cases where certain tribunals had been held not to enjoy absolute immunity:

  1. A meeting of the London County Council for granting licences for music and dancing (Royal Aquarium Case [1892] 1 Q.B. 431). The function of granting licences is administrative and not judicial, and the constitution and procedure of the meeting were not analogous to that of a law court;
  2. Communications to a court of referees under the Unemployment Insurance Act 1920(Collins v Henry Whiteway & Co Ltd [1927] 2 K.B. 378). The court of referees was ‘not a body deciding between parties, nor did its decision affect ‘criminally or otherwise the status of an individual’;
  3. An inquiry under the (Canadian) Combines Investigation Act 1927 ; ‘the tribunal had power to administer oaths and to summon witnesses, but it was also entitled to use methods of investigation entirely unlike those used by a judge. Moreover the inquiry could not lead to a decision of any issue either by the commissioner who held it or by the minister to whom his report was to be transmitted’.

Lord Fraser concluded that ‘provided the tribunal is one recognised by law, there is no single element the presence or absence of which will be conclusive in showing whether it has attributes sufficiently similar to those of a court of law to create absolute privilege’. The dicta of their Lordships make clear that it is not possible to apply a prescriptive approach in determining whether a tribunal attracts absolute immunity; the question of immunity in relation to individual tribunals will fall to be decided on the facts of each case.

It is worth noting that their Lordships referred with approval to a number of cases in which the tribunal at hand was held to attract absolute privilege, including disciplinary proceedings before the benchers of the Inns of Court (Lincoln v Daniels [1962] 1 Q.B. 237). In relation to solicitors, see also Baxendale-Walker v Middleton [2011] EWHC 998 (following Addis v Crocker [1961] 1 Q.B. 11). Baxendale-Walker highlights the fact that the tribunal members themselves enjoy absolute immunity (as well as the fact that initiating court proceedings to mount a collateral attack on a final decision will be held to be an abuse of process.

White v (1) Southampton University Hospitals NHS Trust; (2) Roche

This case concerned a letter sent on behalf of the first Respondent to the Fitness to Practise directorate of the General Medical Council (‘GMC’) raising concerns about the Appellant. The Appellant sought to bring proceedings for defamation in relation to the letter. These were struck out on the basis that the letter was protected by absolute immunity. Eady J refused the appeal to the High Court and in his judgment provides a helpful analysis of the immunity in relation to fitness to practise tribunals.

His Lordship referred to Gatley on Libel and Slander (11th edition) which describes the Fitness to Practise Panel of the GMC as a judicial tribunal within the meaning of the rule and says that ‘absolute privilege attaches to a statement made before such bodies when holding an inquiry as to the professional conduct of those over whom they have jurisdiction, and also to statements contained in any petition, information or letter of complaint by which such bodies are set in motion’.

His Lordship detailed the public policy objective behind the immunity, namely that it operates ‘to enable people to speak freely, without inhibition and without fear of being sued, whether making a complaint of criminal conduct to the police or drawing material to the attention of a professional body such as the GMC or the Law Society for the purpose of investigation’. His Lordship recognised that an inevitable consequence of such an immunity is that it has the potential to protect a malicious informant, and cited the speech of Devlin LJ (as he then was) in Lincoln v Daniels to highlight that such a risk will only be conscionable in cases in which there is a sufficient public interest:

‘Absolute privilege is granted only as a matter of public policy and must therefore on principle be confined to matters in which the public is interested and where therefore it is of importance that the whole truth should be elicited even at the risk that an injury inflicted maliciously may go unredressed. The public is not interested in the membership of a private club’.

In applying Trapp v Mackie, his Lordship cited with approval a decision of the Employment Appeal Tribunal in Ahari v Birmingham Heartlands and Solihull Hospitals NHS Trust(UKEAT/0355/07/CEA) which held that:

  • The GMC is recognised by law: its powers and procedures are governed by the Medical Act 1983 and the GMC (Fitness to Practise) Rules 2004;
  • The nature of the issue in question is akin to a civil issue between adversarial parties before the courts;
  • The GMC rules embody a procedure similar to those in a court of law;
  • The findings in a fitness to practise case will provide a binding determination of parties’ rights.

White also underpins the fact that this immunity applies not only to statements before the tribunal in question but also to statements and correspondence for the purpose of investigating possible misconduct with a view to bringing proceedings (see also Vaidya v GMC & Others [2010] EWHC 984 at para 51, applying Westcott v Westcott [2009] 2 W.L.R 838 to professional disciplinary proceedings, to the effect that immunity from suit applies from the earliest moment when a complaint is first made).

Types of tribunal which will attract absolute immunity

In Hay v Institute of Chartered Accountants in Scotland [2003] S.L.T 612 the Court of Session (Outer House) held that it was not possible without some inquiry into the facts to form a view whether the proceedings before the Institute’s disciplinary committee attracted absolute immunity. In Mahon v Rahn (No. 2) [2000] 1 W.L.R 2150 Brooke LJ commented at pp.2190-2190 ‘I must make it clear that I am not addressing the case, which the S.F.A. probably had in mind, in which some malicious informant spontaneously proffers to an S.R.O. information about an investment adviser which is untrue and defamatory, and the claimant can prove his case in a libel action without the need to rely on documents disclosed in civil or criminal proceedings. Whether any extension of absolute privilege needs to be made in such a case will have to be decided on some other occasion’.

Notwithstanding this, in light of the applicable principles laid down in the other authorities cited here, it would be surprising if such proceedings did not attract absolute immunity in that they share significant characteristics with the majority of regulatory disciplinary proceedings relating to health, social care and financial regulation:

  • Recognised by law:

    In relation to disciplinary proceedings, such regulators are exercising public functions in a matter of public interest. Bodies subject to primary or secondary legislation and/or whose decisions are amenable to either statutory appeal or judicial review (as opposed to those where an individual’s only recourse would be to seek to enforce private law rights) can be said to be recognised by law (Contrast with, for example, a private organisation such as the Jockey Club, decisions of which are not amenable to judicial review; R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 1 W.L.R 909. Consider also s.6(3)(b) of the Human Rights Act 1998 whereby ‘public authority’ includes ‘any person whose functions are functions of a public nature’ and s.6(5) which provides that in relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private);

    In addition, the right to practise one’s profession constitutes a civil right for the purposes of Article 6 of the European Convention on Human Rights (see e.g. Kulkarni v Milton Keynes Hospital NHS Foundation Trust and another [2009] EWCA Civ 789), bringing such decisions within the ambit of the courts (and thus capable of being ‘recognised by law’);

  • Nature of the issue in question:

    Fitness to practise proceedings are invariably adversarial in a manner similar to proceedings in the civil courts;

  • Procedures adopted:

    Fitness to practise proceedings are invariably conducted in a manner similar to civil proceedings, including (but not limited to) the following:

    i. The parties are entitled to be legally represented;
    ii. The tribunal may compel the attendance of witnesses and disclosure of documents;
    iii. Panels usually sit with a legal advisor to ensures the observance of applicable certain common law rules;
    iv. The parties choose which evidence to lead in support of their case;
    v. Evidence is usually given under oath;
    vi. Witnesses are subject to examination-in-chief and cross-examination in a manner similar to the courts of justice;

  • Binding nature of conclusions reached: In general, fitness to practise proceedings are determinative of an individual’s rights, unless subject to successful appeal.

Impunity for malicious complainants?

In relation to false statements in criminal or civil proceedings, the courts have been at pains to point out that other torts such as misfeasance in public office and malicious prosecution may be actionable and that criminal proceedings for perjury and conspiracy to pervert the course of justice may also be brought. In the context of regulatory disciplinary proceedings, it is conceivable that a prosecution could be mounted under s.2 of the Perjury Act 1911 (false statement made on oath in non-judicial proceedings), especially considering the dearth of other available sanctions though a note of caution should be sounded in that there is little evidence of such a prosecution has ever taken place.

David Northfield
Associate at Field Fisher Waterhouse

 

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