Buckley v Dalziel & Anor

Absolute privilege extends to defamatory information supplied to the police in the course of investigating possible criminal wrongdoing. The protection applies equally to witnesses and initial complainants, even where the information is alleged to have been supplied maliciously. The appropriate remedies for abuse of the investigative process remain distinct causes of action such as malicious prosecution or perjury.

The statutory discretion to disapply the short limitation period for defamation claims is exceptional. The court must assess all the circumstances, including delay, the claimant’s knowledge, promptness, warning to the defendant and evidential prejudice. A short period of delay or limited prejudice is not, by itself, sufficient to make it equitable to extend time.

The claimant brought defamation claims arising from communications made by her neighbours to the police after they objected to the pruning of trees and shrubs. The claim against Mr Dalziel concerned a police witness statement and was met by an application for summary judgment based on absolute privilege or immunity from suit. The claim against Mrs Dalziel concerned alleged slander in telephone calls to the police and was brought outside the 12-month limitation period.

The claimant sought to rely on the Human Rights Act 1998 and on distinctions between witnesses and complainants. She also sought permission to amend her case to rely on earlier oral discussions with the police. The court therefore considered the scope of investigative privilege, the statutory discretion to extend time, and the proposed amendment.

1. Mr Dalziel’s application succeeded. Statements made in a witness statement during a police investigation into possible criminal wrongdoing fall within absolute privilege. The policy is to enable witnesses and complainants to communicate freely with investigators. The limited publication ordinarily involved in such communications supports the protection.

2. The court followed the balance struck by the House of Lords in Taylor v Serious Fraud Office [1999] 2 AC 177. The possibility that a malicious informant may benefit from the rule did not justify distinguishing initial complainants from other witnesses. The availability of malicious prosecution or perjury proceedings did not create a parallel claim in defamation. The Human Rights Act 1998 did not provide a basis for departing from that recent authority, having regard to the importance of precedent identified in Kay v Lambeth Borough Council [2006] 2 AC 465.

3. Mrs Dalziel’s limitation point succeeded. Under sections 4A and 32A of the Limitation Act 1980, the court had to decide whether it was equitable to disapply the 12-month limitation period. The discretion was exceptional. Relevant considerations included the claimant’s delay, when the relevant facts became known, promptness thereafter, whether the defendant had received warning, and the likely effect of delay on the evidence.

4. The short period by which the claim was late and the absence of substantial evidential prejudice were insufficient. The claimant had suspected Mrs Dalziel’s involvement well before obtaining the police log, had delayed instructing solicitors, and had not warned her during the limitation period. The limited reputational impact of the complaint and the disproportion between the likely benefit and the further distress and expense also weighed against extending time.

5. The court recognised that the protection of preliminary oral discussions leading to a police witness statement remained unsettled. Daniels v Griffiths [1998] EMLR 488 supported protection, but Mahon v Rahn (No. 2) [2000] 1 WLR 2150 indicated that the issue might require future appellate consideration. The court did not finally decide it.

6. The proposed amendment under CPR 17.4(2) was refused. It was raised only during submissions, after a delay of several months, and a broad interpretation of the same-facts requirement would have been required. It was not in the interests of justice or the overriding objective to leave the matter open.