More v Weaver

Communications between a solicitor and client made to obtain legal advice or discuss advice already given are absolutely privileged when relevant to that discussion. The privilege protects statements even if they are false, defamatory or malicious; malice does not convert it into qualified privilege.

Relevance marks the boundary of protection. An irrelevant statement is outside the privileged occasion, and a genuine issue of relevance may be left to a jury. Where the communications plainly concern the subject of the legal advice and there is no evidence of irrelevance, the court should not leave that issue to the jury. The appeal was therefore dismissed.

The appellant sued the respondent in libel and slander over letters written by the respondent to her solicitors while seeking advice about a loan used to acquire and operate a hotel. The letters became public during proceedings involving the appellant.

A master and judge had struck out the statement of claim as frivolous and vexatious, but it was restored so that the disputed scope of solicitor-client privilege could be argued. The central issue was whether such communications were absolutely privileged, or only qualifiedly privileged so that malice could be investigated, and whether the alleged statements were relevant to the advice.

Scrutton LJ delivered the leading judgment. Lawrence and Greer LJJ agreed. The decision was unanimous and the appeal was dismissed.

1. Basis and scope of absolute privilege. Absolute privilege is justified where free and fearless speech is necessary for the discharge of important legal functions. The law accepts the risk of malicious or untrue statements because the possibility of defamation proceedings would hamper those functions. The privilege applies to judges, counsel and witnesses. Watson v. M'Ewan [1905] AC 480 illustrated its extension to a witness’s statement to the solicitor taking the witness’s proof.
2. Solicitor-client communications. The same principle applies to communications from a client to a solicitor, and from solicitor to client, made for the purpose of obtaining legal advice or discussing advice already given, provided the communications are relevant to that professional discussion. The approach treating solicitor-client privilege as merely qualified, expressed in Morgan v. Wallis 33 Times LR 495, was not followed. The contrary reasoning in Browne v. Dunn 6 The Reports 67 was treated as supporting absolute privilege for relevant communications.
3. Relevance. Relevance is the limit of the privilege. A communication unrelated to the matter being discussed falls outside the protected occasion. Where relevance is genuinely disputed, the question may be left to the jury.
4. Application. The communications concerned the debtor’s character and the circumstances, timing and terms on which the loan might be redeemed. They were plainly relevant. It would therefore have been wrong to leave relevance to the jury, and the fact that the statements might have been untrue did not affect the privilege.

The judgment records that the statement of claim was initially struck out by a master and judge as frivolous and vexatious, then restored to permit argument on the scope of solicitor-client privilege. No citation for the lower decision is stated.

1. Court of Appeal: agreed with Swift J’s view that the communications were absolutely privileged and dismissed the appeal.