Waple v Surrey County Council

Absolute privilege for statements connected with judicial or quasi-judicial proceedings must be extended cautiously. Material outside proceedings falls within the third category only where this is strictly necessary to protect participants from a flank attack and the connection with proceedings is reasonably close. A contribution notice under Part III of Schedule 2 to the Children Act 1989 does not itself commence proceedings, since agreement may avoid any court application. Correspondence between solicitors investigating a child’s placement therefore did not attract absolute privilege. The ordinary protection was qualified privilege. The court also declined to create a wider immunity for local-authority child-welfare communications, leaving that balance to Parliament.

The plaintiff, adoptive parent of a child placed in foster care by the defendant local authority, brought defamation proceedings over a solicitor’s letter describing her conduct at a planning meeting. The letter’s author later withdrew one allegation and apologised. The High Court, Queen’s Bench Division, struck out the writ and statement of claim, holding that the letter was absolutely privileged. On appeal, the issue was whether a contribution notice under Part III of Schedule 2 to the Children Act 1989, and related correspondence between solicitors, formed part of judicial or quasi-judicial proceedings or was sufficiently connected with contemplated proceedings to attract absolute privilege.

1. Disposition. Brooke LJ allowed the appeal and discharged the order striking out the action. Sir Brian Neill and Nourse LJ agreed. The plaintiff received her costs here and below, and leave to appeal to the House of Lords was refused.
2. Statutory scheme. Part III of Schedule 2 to the Children Act 1989 permits a local authority to seek parental contributions when it is looking after a child. Service of a contribution notice does not itself commence court proceedings. If the parent agrees the amount and payment arrangements, unpaid sums may be recovered as a civil debt. A contribution order is needed only where agreement cannot be reached or is withdrawn.
3. Absolute privilege. The courts should be slow to enlarge absolute privilege. Under the third category identified in Lincoln v Daniels [1962] 1 QB 237, protection outside formal proceedings requires strict necessity to protect participants from a flank attack and a reasonably close connection with the proceedings. The pre-action protection recognised in Evans v London Hospital [1981] 1 WLR 184 and M (A Minor) v Newham LBC was confined to investigations with an immediate link to possible proceedings.
4. The solicitor’s letter was an information exchange between legal advisers. It was neither a prescribed or formal stage of proceedings nor immediately linked with proceedings that were likely to follow. It was therefore outside the third category and did not attract absolute privilege. Qualified privilege remained the ordinary protection for such correspondence.
5. The court rejected a wider immunity from suit. The exceptional decision in Hasselblad (GB) Ltd v Orbinson [1985] QB 475 turned on special facts and did not justify further judicial expansion. The balance between protecting reputations and protecting council officers from litigation was a matter for Parliament.
6. By way of procedural guidance, where an issue requires serious argument and careful consideration, strike-out should not ordinarily be used; the issue should be raised in the defence and tried as a preliminary issue.

• Court of Appeal: Appeal allowed; the order striking out the action was discharged. [1997] EWCA Civ 3032
• High Court, Queen’s Bench Division: French J struck out the writ and Statement of Claim on the basis that they disclosed no cause of action, alternatively that the proceedings were frivolous and vexatious. The order was dated 17 December 1996 and sealed on 8 January 1997.