Iqbal v Dean Manson Solicitors

Absolute privilege protects statements made in judicial proceedings from civil claims, including harassment claims, where the occasion is privileged and the statement has some reference or connection to the proceedings. A statement wholly extraneous to the proceedings falls outside the immunity.

The test applies to correspondence between litigating parties as well as pleadings, witness statements and oral evidence. False or malicious statements remain protected; their falsity or malice does not determine the scope of the privilege. Claims which repeat matters already determined in earlier proceedings may constitute an abuse of process. An injunction cannot properly restrain conduct which is privileged or where no sufficient risk of future actionable wrongdoing is shown.

The claimant brought a harassment claim under the Protection from Harassment Act 1997 concerning letters and other documents generated in related litigation. HHJ Faber struck out substantial parts of the amended particulars as abusive, but declined to strike out claims concerning three letters and three further documents. She also granted the defendants relief from sanctions, dismissed the claimant’s application for default judgment, and granted an injunction restraining specified allegations.

Both parties sought permission to appeal the County Court orders. The defendants challenged the refusal to strike out the claims concerning the six documents and the injunction. The claimant challenged the findings of abuse, relief from sanctions and default judgment. The central issues were the scope of absolute privilege, abuse of process, relief from sanctions and the propriety of the injunction.

1. Absolute privilege. The defendants’ appeal was allowed on the privilege issue. Absolute privilege is a true immunity from civil suit. It extends beyond defamation to other causes of action, including harassment. The recognised exceptions do not include civil harassment proceedings.
2. The applicable limiting principle is whether the statement has some reference or connection to the proceedings. Only a statement wholly extraneous to, and having no reference to or connection with, the proceedings falls outside the immunity. This test applies to party correspondence as well as pleadings, witness statements and oral evidence.
3. Privilege attaches to the occasion, but that does not mean every statement made on the occasion is protected. Individual statements may fall outside the immunity if wholly unconnected with the proceedings. However, relevance is not the test. False, malicious or inaccurate statements remain protected because the immunity exists to protect participants from vexatious litigation and to preserve freedom of expression in judicial proceedings.
4. The three letters concerned the claimant’s alleged conflict of interest and his conduct of the underlying litigation. The three further documents alleged that he was subject to a civil restraint order and, in one document, that he was improperly holding himself out as a barrister. Those allegations were made in relation to the litigation and were not wholly extraneous. All six documents were therefore protected by absolute privilege.
5. The County Court was entitled to treat the claimant’s attempt to pursue in the harassment action matters already dealt with in the libel proceedings as an abuse of process. The exercise required a broad, merits-based assessment of all the circumstances, including finality, duplication and whether the later proceedings misused the court’s process.
6. The challenges concerning relief from sanctions and default judgment failed. The County Court’s discretionary decision was not vitiated by an error of principle. The injunction was discharged because the remaining claim was bereft of arguably actionable past conduct and there was no sufficient basis for restraining future conduct on privileged occasions.

Permission was granted to the defendants and their appeal allowed. Permission was refused for the claimant’s appeal. The appropriate final order and costs were left for further submissions.

• High Court (Queen’s Bench Division): allowed the defendants’ appeal on absolute privilege, discharged the injunction and refused the claimant permission to appeal.
• Central London County Court: HHJ Faber’s orders dated 13 January 2013 struck out parts of the amended particulars as abusive, refused default judgment, granted the defendants relief from sanctions and granted an injunction restraining specified allegations.