Mayer v Hoar

Communications made by a barrister to the professional regulator in response to a request for comments on a complaint are protected by absolute privilege, provided the regulator is exercising functions comparable to those of a disciplinary or regulatory tribunal. The privilege is determined as a matter of law by the occasion of publication. A party cannot avoid or waive it merely by purporting to reserve a right to bring separate proceedings concerning the complaint. Where the alleged publication is absolutely privileged, a libel claim based on it is bound to fail and may be dismissed.

Mr Mayer brought a libel claim against Mr Hoar, a barrister, concerning statements in Mr Hoar’s response to a complaint made by Mr Mayer to the Bar Standards Board. The response was sent after the Board requested Mr Hoar’s comments on allegations that he had mocked Mr Mayer’s disability and harassed him. Mr Hoar accepted that one factual description in the letter was mistaken and apologised, but maintained that the communication was absolutely privileged. Mr Mayer argued that privilege had been waived because Mr Hoar had purported to reserve a right to sue him for libel. The court determined whether the communication to the regulator was protected by absolute privilege.

1. The court held that the words complained of were published on an occasion of absolute privilege and dismissed the libel action. The claim was wholly without merit.

2. The Bar Standards Board was established by the General Council of the Bar to handle complaints against barristers and perform related regulatory functions. Communications to it were protected to the same extent as communications to a Bench of an Inn of Court in Lincoln v Daniels [1962] 1 QB 237, and as communications to comparable regulatory bodies.

3. The court relied on Mahon v Rahn (No 2) [2000] 1 WLR 2150 at paragraphs 159, 170 and 194, where a letter sent at the request of a financial-services regulator investigating a person’s fitness to conduct business was held to have been written on an occasion of absolute privilege. The present circumstances were indistinguishable. The same conclusion was supported by Westcott v Westcott [2008] EWCA Civ 818; [2009] QB 407.

4. Whether the letter was written on an occasion of absolute privilege was a matter of law. The court did not need to decide whether a defendant could waive absolute privilege. In any event, the letter was incapable of being construed as a waiver merely because it reserved a right to sue.

5. The claim being bound to fail, the court had no occasion to determine Mr Mayer’s cross-application for judgment.

First-instance decision. The judgment records an application to strike out the claim or obtain summary judgment, but does not state any earlier judicial decision in the same proceedings.