Gray v Avadis

Statements made to a professional regulatory body during an active complaints investigation may attract absolute privilege where the body is recognised by law, investigates questions comparable to civil proceedings, follows procedures safeguarding fairness, and can impose legally significant consequences. The privilege extends to material forming part of the proceedings, including responses to complaints and investigations connected with possible disciplinary proceedings. The absence of an oral hearing or public proceedings does not prevent the protection. A fraud allegation requires sufficient material capable of supporting dishonesty; the fact that an expected application was not ultimately made does not, without more, establish fraud in an earlier statement of expectation. The court will not impose punitive penalties in civil proceedings.

The claimant instructed the defendant solicitor in family proceedings concerning contact with, and parental responsibility for, his children. After the solicitor ceased acting, the claimant complained to the Law Society’s Office for the Supervision of Solicitors (OSS), alleging inadequate service and related wrongdoing.

The claimant sued for libel over statements made by the solicitor in two letters to the OSS, and for fraud based principally on an earlier letter stating that an application for public funding had been submitted and proceedings were expected. Master Leslie held that the libel claim was bound to fail because the letters were absolutely privileged and gave permission to appeal. The appeal was heard with the defendant’s application to strike out the fraud claim or obtain summary judgment. The central issues were whether the OSS proceedings attracted absolute privilege and whether the pleaded fraud had any reasonable prospect of success.

1. Libel—absolute privilege. The appeal was dismissed. The defendant’s application was allowed to the extent that the fraud claim was struck out.
2. The test identified in Trapp v Mackie [1979] 1 WLR 377 requires consideration of the tribunal’s legal authority, the nature of the question entrusted to it, its procedure, and the legal consequences of its conclusions. The inquiry is not governed by a single mechanical touchstone because competing public policies must be balanced.
3. The OSS was recognised by law through the statutory scheme governing the Law Society. Its inquiry included whether professional services were below the quality reasonably expected of a solicitor and whether regulatory steps, including compensation, should be taken. Those questions were comparable to matters determined in civil proceedings.
4. The OSS procedure was investigatory, but that did not prevent it from operating in a manner similar to a court. It could require production of documents, used procedures designed to meet applicable standards of fairness, and its conclusions could have legally significant consequences. The fact that the process was private and conducted on written material was immaterial.
5. Both letters were written as part of pending OSS proceedings. The second letter was not outside the privilege merely because the claimant had not yet answered it. It was sent in response to the review process and a copy was provided to the claimant, who could comment on it.
6. The alternative submissions concerning communications incidental to proceedings protected by absolute privilege were well founded in any event, applying the reasoning in Mahon v Rahn (No 2) [2000] 1 WLR 2150. It was unnecessary to decide the qualified-privilege and malice issues.
7. The fraud claim had no reasonable prospect of success. The earlier letter expressed an expectation that public funding would be granted and proceedings would be issued; it was not shown to be a false statement of existing fact. Although a dishonest statement of expectation or intention can found fraud, there was no evidence of dishonesty. A preliminary OSS report upholding a complaint was not a formal OSS decision, and the later adjudicator had not adopted it.
8. The claimant’s wish for a punitive measure did not support the civil claim. Penalties could be imposed through the Law Society complaint process, not in these proceedings.

1. High Court (Queen’s Bench Division)—The appeal from Master Leslie was dismissed. The defendant’s application was allowed and the fraud claim was struck out.
2. Master Leslie—Held that the letters to the OSS were absolutely privileged and that the libel claim was bound to fail; permission to appeal was granted. The qualified-privilege issue and alternative fraud claim were not determined.