Stocker v Stocker

Whether a pre-trial publication attracts absolute privilege is determined when the publication occurs. Later use of the material in court cannot retrospectively confer immunity. A statement made before proceedings must be made for the purpose of the possible proceedings. The issue may require a factual distinction between evidence prepared for that purpose and a general expression of views. The jurisdiction to strike out a libel claim as failing to disclose a real and substantial tort is exceptional and fact-sensitive. It is not a numbers exercise: publication to one person may be seriously damaging.

The claimant brought a libel claim against the defendant, his former wife, concerning Facebook postings and an email sent to the former partner of another woman. Before trial, the defendant applied under CPR r.3.4(2)(a) and/or (b) to strike out the email-publication claim, relying on absolute privilege and the contention that the publication did not disclose a real and substantial tort. The claimant accepted that French proceedings attracted the same privilege as English proceedings, but disputed that the email itself was absolutely privileged. The central issues were whether later deployment of the email in French custody proceedings was determinative, whether it had been made for the purpose of those proceedings, and whether the claim was plainly abusive or insubstantial.

The defendant’s application was dismissed. The claim based on the email publication was not struck out.

1. Absolute privilege. The issue had to be determined at the time of publication, because publication was the alleged tort. Later deployment of a statement in judicial proceedings could not retrospectively make an otherwise tortious publication immune. The reasoning in Taylor v Director of the Serious Fraud Office and Singh v Reading Borough Council supported that conclusion.
2. A necessary condition of absolute privilege for a statement made before proceedings by a prospective witness was that it was made for the purpose of those proceedings. The relevant purpose was provision of material which the maker would be prepared to give as evidence, rather than a loose expression of views. The principles in Evans v London Hospital Medical College (University of London) and Darker v Chief Constable of West Midlands supported that test. Whether the defendant had the necessary purpose was a matter for trial.
3. The fact that the communication came directly from a litigant, rather than through a lawyer, was not an absolute bar. However, where evidence-gathering was not filtered by a lawyer, the boundaries of the immunity might require particular care.
4. The Jameel (Yousef) v Dow Jones and Co Inc jurisdiction was exceptional and fact-specific. Publication to a single person could constitute a real and substantial tort. The email publication went beyond the Facebook publications, and the possible need for an injunction and pleaded abuse of process required factual investigation at trial.