G v Avadis

Absolute privilege extends to communications made in proceedings before a tribunal where, viewed cumulatively, the tribunal and its procedures are sufficiently similar to those of a court. The relevant characteristics are not a rigid checklist. Neither the presence nor absence of any particular feature is necessarily decisive. Written and private procedures do not prevent the protection. A fraud allegation must be pleaded with particularity and supported by evidence capable of meeting the high standard required for such a serious allegation. Failure to carry out an instructed step, without evidence of dishonesty, may support negligence but does not by itself establish fraud. Absolute privilege is compatible with Article 6.

The claimant instructed the defendant solicitor in family proceedings and later complained to the Office of the Supervision of Solicitors about the defendant’s conduct. He brought defamation proceedings concerning two letters sent by the defendant to the OSS, and also alleged fraud.

Tugendhat J held that the letters were protected by absolute privilege and struck out the fraud claim under CPR 3.4. The claimant sought permission to bring a second appeal on the privilege issue and challenged the fraud ruling and alleged interference with his Article 6 rights. The central questions were whether the OSS proceedings were sufficiently analogous to court proceedings and whether the fraud claim had any prospect of success.

Dyson LJ refused the application for permission to appeal. The High Court had reached the correct conclusions on absolute privilege, fraud and Article 6.

1. Absolute privilege. The relevant question was whether the proceedings in which the OSS sought the defendant’s response were sufficiently similar to proceedings in a court of justice. The principle described in Trapp v Mackie [1979] 1 WLR 377 extends absolute privilege to evidence before tribunals that act in a manner similar to courts. The principle originated in the decision referred to in Dawkins v Lord Rokeby (1875) LR 7 HL 744.
2. Cumulative assessment. The characteristics identified by Lord Diplock in Trapp v Mackie were not a checklist that had to be satisfied in whole or substantial part. The absence of several characteristics was not necessarily determinative. Relevant features of the OSS included its power to compel documents, sanctions for non-compliance or false explanations, procedures designed to secure fairness, and legal consequences comparable to those of a court, including determinations, compensation and costs. The fact that proceedings were private or conducted on written material was immaterial. Taken together, these features made the analogy with court proceedings sufficiently strong for absolute privilege to apply.
3. Fraud. Fraud is a serious allegation which must be pleaded with particularity and proved to the required high standard. The bare fact that the defendant had been instructed to apply for parental responsibility but had not done so did not provide a proper basis for alleging dishonesty. The defendant’s speculation that the application may not have been made because its prospects were poor did not improve the fraud case. It might support a negligence claim, but negligence was distinct from fraud.
4. Article 6. The court agreed with the High Court, having considered A v United Kingdom, that absolute privilege was compatible with Article 6. The claimant’s complaint about notice of judgment also had no substance.

Order: application refused.

1. Court of Appeal (Civil Division): On 8 October 2003, Dyson LJ refused permission to appeal and upheld the conclusions reached below.
2. High Court, Queen’s Bench Division: Tugendhat J, on 30 July 2003, held that the OSS communications attracted absolute privilege and struck out the fraud claim under CPR 3.4.
3. Master Leslie: On 2 May 2003, ruled on the privilege issue and granted permission to appeal because the issue was of general importance.