Kearns & Ors v The General Council of the Bar

In traditional qualified privilege cases, a relevant communication made within an established relationship attracts privilege irrespective of whether the publisher investigated or verified its contents. Verification may bear on actual malice, but it does not determine whether the occasion is privileged.

This rule differs from the responsibility requirement governing media publication to the world at large. The size of the audience within an established relationship does not create an intermediate category. Where a communication is volunteered between strangers, however, its circumstances and the quality of the information may require closer examination to determine whether a duty or corresponding interest arose.

The Bar Council circulated a letter to heads of chambers and senior clerks stating, mistakenly, that the appellants were not solicitors. The letter warned barristers about accepting instructions from them and about potentially misleading statements of costs. A correction and unreserved apology followed promptly.

The appellants brought libel proceedings. Eady J held that the communication was made on an occasion of qualified privilege and entered summary judgment for the defendant under Part 24.2 of the Civil Procedure Rules: [2002] EWHC 1681 (QB).

The appeal concerned whether the absence of investigation or verification could prevent qualified privilege from attaching to a non-media communication made within the established relationship between the Bar Council and members of the Bar.

1. The appeal was dismissed unanimously. The Bar Council and members of the Bar had an established relationship requiring free and frank communication in both directions about professional rules and standards. The circular was relevant to the discharge of the Bar Council’s functions. Its publication was therefore made on an occasion of qualified privilege.

2. Per Simon Brown LJ, with whom Mantell and Keene LJJ agreed, the useful distinction was between communications made within an existing and established relationship and voluntary communications between strangers. It was unnecessary to decide whether the present relationship should be classified as one of common interest or of duty and corresponding interest.

3. Within an established relationship, the adequacy of investigation or verification does not determine whether qualified privilege attaches. Such matters may be relevant to actual malice and the loss of privilege. No malice was alleged. The fact that the statement was false, libellous and assumed to be unverified therefore did not defeat the defence.

4. Communications voluntarily made between strangers may require closer scrutiny. In that setting, the nature and quality of the information may help determine whether a social or moral duty, and a corresponding interest in receiving the communication, arose at all.

5. The responsibility-based privilege considered in Reynolds was a distinct form of privilege applying to media publication to the world at large. It did not govern traditional non-media communications within an established relationship. Publication to more than 10,000 members of the Bar did not create a halfway category because every recipient had an identifiable relationship with the Bar Council.

6. De Buse was distinguished. The Bar Council communicated its concluded ruling on the request for professional guidance, rather than circulating an unresolved complaint or preliminary investigative material.

Order: Appeal dismissed, with costs to be assessed on the standard basis if not agreed.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The communication was protected by qualified privilege: [2003] EWCA Civ 331.
2. High Court, Queen’s Bench Division: Eady J held that the communication was made on an occasion of qualified privilege and entered summary judgment for the defendant under Part 24.2 of the Civil Procedure Rules: [2002] EWHC 1681 (QB).