Iqbal v Dean Manson Solicitors & Ors (No 2)

Absolute privilege protects defamatory words in witness evidence, affidavits and witness statements made for judicial proceedings where they have any reference to the subject matter. The threshold is not relevance: an allegation may be irrelevant, malicious, false, gratuitous or weakly relevant and remain privileged if it bears some nexus to the proceedings. The document is assessed as a whole, and doubts are resolved in favour of the witness. Privilege ends only where the statement has no reference at all to the proceedings or is wholly extraneous. Wider questions about privilege in harassment or other exceptional proceedings were left open.

Mr Mashood Iqbal appealed from Judge Parkes QC’s decision in [2011] EWHC 2261 (QB). The judge held that the first 19 publications were statute-barred and that all 21 publications, with a possible exception, were protected by absolute privilege. Permission to appeal was limited to publications 20 and 21, witness statements made in costs proceedings arising from Dean Manson’s claim against Mr Butt.

Publication 20 concerned an application relating to an interim costs certificate and included allegations about Mr Iqbal’s conduct, alleged vendetta and regulatory position. Publication 21 concerned an application to set aside a default costs certificate and included an allegation concerning Mr Iqbal’s address for service. The respondents also sought to raise a new abuse-of-process point based on Jameel, but permission was refused. The central issue was whether the statements had no reference at all to the subject matter of the costs proceedings.

1. Appeal dismissed. The two witness statements were protected by absolute privilege. The order dismissing the appeal, with consequential costs orders, had already been drawn up, sealed and entered.
2. The court adopted the principles restated in Smeaton v. Butcher [2000] EMLR 985: a statement by a witness or prospective witness is absolutely privileged unless it has no reference at all to the subject matter of the proceedings, and any doubt is resolved in favour of the witness. The test is reference, not relevance. Munster v. Lamb (1883) 11 QBD 588 demonstrated that even malicious, unjustified and irrelevant statements may be privileged if made with reference to the judicial inquiry. Seaman v. Netherclift (1876) 2 CP 53 and Samuels v. Coole & Haddock (CA, unreported, 22 May 1997) illustrated the boundary: statements wholly outside the witness’s character or sphere, or wholly without reference to the inquiry, are not protected.
3. The reference must be assessed by considering the document as a whole. Document 20 addressed Dean Manson’s complaint that Mr Iqbal, as Mr Butt’s solicitor, had a conflict of interest and had conducted a vendetta relevant to the costs assessment. Its allegations were weakly relevant and included an unnecessary allegation concerning Mr Ali, but the statement nevertheless had reference to the subject matter. Document 21 addressed the application to set aside the default costs certificate. The allegation about the address for service was potentially insulting and disputed, but accuracy of service by the receiving party’s solicitor had reference to the ongoing costs proceedings.
4. The court noted wider limits on the doctrine, including the exceptions discussed in Roy v. Prior [1971] AC 470 (HL) and Taylor v. Director of the Serious Fraud Office [1999] 2 AC 177 (HL). It left open whether privilege operates differently in harassment, perjury, contempt or malicious-prosecution proceedings, and made no ruling on the separate harassment claim.
5. The respondents’ late Jameel point was not permitted because it had not been taken below, was not a pure point of law and required assessment of the circumstances. The supplemental request to reconsider the sealed order under the Re Barrell jurisdiction was also refused. Re L and B (Children) [2013] UKSC 8 and Tibbles v. SIG plc [2012] EWCA Civ 518 did not justify reopening the appeal.

• Court of Appeal (Civil Division) dismissed the appeal on the absolute-privilege issue and refused permission to raise the respondents’ late Jameel point.
• Queen’s Bench Division: Judge Parkes QC held that the first 19 publications were statute-barred and declined to disapply the limitation period. He also held that all 21 publications, subject to a possible exception, were covered by absolute privilege in [2011] EWHC 2261 (QB).