Apsion v Dilnot

Publications made in the course of a complaint to a professional disciplinary body, and in the body’s resulting proceedings, attract absolute privilege. The privilege is not defeated by alleging malice. A claimant cannot use a later defamation action as a collateral challenge to disciplinary findings. A libel cause of action is complete on publication. Later events, including an allegedly concealed settlement offer, do not form part of that cause of action or postpone limitation.

The claimant, a retired barrister, sued a former client for defamation and malicious falsehood based on words published in complaints and correspondence to the Bar Council or Bar Standards Board and related bodies. A Master struck out the claim on the grounds of absolute privilege and collateral attack on disciplinary findings. Permission to appeal was ultimately granted for an oral hearing.

The claimant also challenged the judge’s participation on apparent-bias grounds, relying on the judge’s earlier involvement in related proceedings and a previous permission decision. The issues were whether the claim was privileged, impermissibly collateral, time-barred, or affected by apparent bias.

1. Apparent bias. A judge is not disqualified merely because the judge previously decided a similar point or was involved in related proceedings. The earlier decision may be persuasive, but the judge is not bound by it (paras [7]-[14]).
2. Collateral challenge. The proposed distinction between professional incompetence and causing damage or difficulty had no practical substance. The action could not realistically proceed without challenging findings of the COIC Tribunal and the Visitors. The appeal was dismissed on this ground (paras [26]-[30]).
3. Absolute privilege. Absolute privilege applied to the publications in the complaint to the professional body, its resolution through the courts, and publication to the other identified recipients. Alleged malice did not affect the privilege. Lincoln v Daniels and Mahon v Rahn (No 2) supported that conclusion. Darker v Chief Constable in the West Midland did not assist the claimant (paras [30]-[32]).
4. Limitation. The proceedings were issued years after the one-year limitation period. The alleged settlement offer was not part of the cause of action in libel. The cause of action was complete on publication. C v Mirror Group was applied (paras [33]-[36]).
5. The appeal was dismissed as wholly without merit (para [38]).

• High Court (Queen’s Bench Division): Master Eyre struck out the claim and dismissed the action on 21 July 2010, refusing to set aside that order on a renewed application.
• High Court (Queen’s Bench Division): Sir Charles Gray refused permission to appeal on paper on 22 December 2010. Supperstone J later granted permission for an oral hearing.
• High Court (Queen’s Bench Division): The appeal was dismissed by Tugendhat J as wholly without merit: [2011] EWHC 869 (QB).