Regan v Taylor

Qualified privilege protecting a person’s reply to an attack may extend to an authorised agent’s publication on the principal’s behalf. A solicitor is not confined to acting as a mere channel of communication. Where the retainer and circumstances permit, the solicitor may use relevant material derived from his own experience or opinions without obtaining specific prior approval. The question is whether the publication was within the scope of the solicitor’s authority and duty and was relevant, in a broad and reasonable sense, to the attack or enquiry. The privilege is coextensive with that available to the principal, but it does not protect indiscriminate or irrelevant personal attacks. At the summary-judgment stage, the issue is whether the claimant has no real prospect of rebutting the defence.

The claimant, Simon Regan, brought a libel claim arising from comments made by the defendant, Thomas David Barton Taylor, a solicitor acting for Gordon Anglesea. The comments criticised Scallywag and its editor after the magazine published serious allegations concerning Mr Anglesea while his libel proceedings against other media organisations were pending.

Gray J dismissed the claim on the basis that the publication was protected by qualified privilege arising from a reply to an attack. The claimant appealed, contending that the privilege did not extend to the solicitor’s own opinions or to a counter-attack made without specific authority from the client. The central issue was whether there was no real prospect of rebutting the asserted scope of the solicitor’s authority.

1. Majority outcome. Lord Justice May, with whom Lord Justice Henry agreed, would dismiss the appeal. Lord Justice Chadwick dissented and would allow it.
2. The relevant question under Part 24.2 of the Civil Procedure Rules 1998 was whether the publication was so clearly within the scope of Mr Taylor’s authority and duty that Mr Regan had no real prospect of rebutting the qualified-privilege defence. The issue involved both direct fact and inference.
3. The ordinary principles of qualified privilege applied. A person attacked may reply with defamatory statements about the attacker where the statements are made in good faith and are fairly relevant to the accusations. Relevance is assessed broadly and reasonably.
4. An authorised agent receives the same privilege as the principal would have received. A solicitor acting in contentious matters is not necessarily a mere conduit. His retainer may require him to advise, use his experience and communicate material not expressly dictated by the client. Specific prior authority for every statement is unnecessary where the general retainer and circumstances support that conclusion.
5. On the facts, Mr Taylor had general authority to deal with the media in connection with Mr Anglesea’s libel proceedings and authority to address the contemplated criminal libel proceedings. His answer to the journalist was closely related to the reasons for that course and was germane to the serious attack by Scallywag. The publication was therefore privileged, and the claimant had no reasonable prospect of rebutting the defence.
6. The decision did not confer a general licence on agents to publish personal opinions. Irrelevant or indiscriminate material may fall outside the privilege. The court rejected the suggested special rule placing solicitors in a different position from agents generally for defamation purposes.
7. Lord Justice Chadwick considered that the authority question could not properly be resolved summarily. He regarded the final attack on the integrity of Scallywag as potentially distinct from the explanation for pursuing criminal libel and would have allowed the appeal for trial of that issue.

• Court of Appeal (Civil Division): Gray J dismissed the libel claim on 29 April 1999 on the basis that the publication was protected by qualified privilege. The Court of Appeal dismissed the appeal by a majority. Lord Justice Chadwick dissented. Leave to appeal to the House of Lords was refused.