Khader v Aziz & Anor

A solicitor acting within the broad scope of a client’s retainer may benefit from qualified privilege when responding to media criticism of the client, even without specific instructions as to the communication or its wording. The defence may be defeated by proof of malice, but malice must be supported by pleaded facts showing dishonesty, recklessness or an improper motive; negligence, failure to enquire, or conduct that is merely emotional or misguided is insufficient. Claims based on bare assertions, inadequately pleaded publications, unsupported conspiracy allegations or speculative loss may be struck out. A limitation period is not postponed under section 32(1)(b) of the Limitation Act 1980 without material deliberate concealment of a fact which the claimant was required to plead.

The claimant brought two actions arising from alleged statements made after a newspaper article concerning the return of a diamond bracelet. The first action was against the person criticised in the article and her solicitor. The second was against the solicitor’s firm and supervising partner.

The claims included defamation and injurious falsehood. The claimant sought permission to amend her particulars of claim to add further publications and conspiracy. The defendants sought summary judgment or strike-out relief. In the second action, the claimant also relied on section 32(1)(b) of the Limitation Act 1980 to avoid the limitation period.

1. Qualified privilege. Publication by a solicitor is protected where the client would have been protected in making the same publication, provided the solicitor acted within the scope of authority. Specific instructions as to the communication or wording are unnecessary. The solicitor’s authority is a question of fact and may be inferred from the retainer. A person criticised in the media is entitled to respond and is allowed considerable latitude in deciding what is relevant and reasonably necessary. The pleaded conversation with the journalist therefore attracted qualified privilege for both the client and the solicitor, who was acting as her authorised agent.
2. Other publications. The alleged publication to club employees was too vague under CPR 53 PD 2.4 and was unsupported by the evidence. The alleged letter was inadequately pleaded because the words complained of were not set out, and disclosure produced no supporting evidence. Those claims had no real prospect of success and were struck out under CPR Part 24.
3. Malice. The test is the same in libel and injurious falsehood. Malice must be pleaded and proved by facts from which dishonesty or recklessness may be inferred. A formulaic assertion, a failure to make enquiries, negligence, or conduct that is merely emotional, misguided or uncritical is insufficient. The claimant’s alternative and hypothetical explanations did not satisfy that test. There was no unequivocal allegation or evidence of dishonesty by the client.
4. Amendments and conspiracy. The proposed amendments were prolix, speculative and unsupported. They did not cure the defects in the existing claims, establish a realistic case on malice or qualified privilege, or provide evidence of further publications. The proposed conspiracy claim lacked a pleaded agreement or combination and did not plead pecuniary loss.
5. Limitation. Section 32(1)(b) of the Limitation Act 1980 requires material deliberate concealment. The alleged lack of authority was not a concealed fact which the claimant was required to plead in defamation or injurious falsehood proceedings. The claimant also knew, or could readily have discovered, the identities of the solicitors involved. The limitation argument was therefore insurmountable.
6. The claims in both actions were struck out. Permission to amend and the claimant’s application for summary judgment were refused.