DR FATIMA JABBAR v AVIVA INSURANCE UK LIMITED

Summary judgment may be given where a claim has no realistic prospect of success and there is no other compelling reason for trial. A court may determine a short point of law or construction summarily where the evidence is sufficient and the parties have had a proper opportunity to address it.

Absolute privilege may extend to communications forming part of the RTA Protocol where that extension is strictly necessary. Part 35 questions asked in that process were sufficiently connected with contemplated proceedings. Qualified privilege also applied, but the claimant had no realistic prospect of proving malice. Claims in conspiracy and tortious interference must be adequately particularised, including the alleged conspirators, unlawful acts, contracts and acts of inducement. Proposed amendments with no realistic prospect of success should be refused.

The claimants brought proceedings against insurers arising from communications concerning the First Claimant’s medico-legal reports. The claims included defamation, conspiracy to injure, unlawful means conspiracy and tortious interference with contract. Proposed amendments sought to add malicious falsehood and breach of data protection rights.

The defendants applied for summary judgment on the defamation claim and strike out of the other claims under Civil Procedure Rules 1998. The central issues were whether the relevant communication was protected by absolute or qualified privilege, whether malice and serious harm had a realistic prospect of proof, and whether the pleaded or proposed claims disclosed reasonable grounds.

1. Summary judgment. The court applied the realistic-prospect test in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch). Under CPR 24.2(a)(i), the court may determine a short legal issue summarily where it has the necessary evidence and the parties have had a fair opportunity to make submissions, as explained in ICI Chemicals & Polymers Limited v TTE Training Limited [2007] EWCA Civ 725.
2. Absolute privilege. The categories of absolute privilege are not closed, but extension is justified only where strictly necessary to protect participants from collateral litigation. The RTA Protocol was closely connected with contemplated proceedings and formed part of an integrated litigation framework. Part 35 questions asked under, or closely connected with, that protocol were therefore covered by absolute privilege. The insurer was treated as the defendant for this purpose. Summary judgment followed on the defamation claim.
3. Qualified privilege and malice. Alternatively, the communication was protected by qualified privilege because it tested the reliability of medical evidence relevant to the claim. The claimant had no realistic prospect of proving malice. Malice must be pleaded with stringent particularity, including the individuals through whom a corporate defendant is said to possess the relevant state of mind, as illustrated by Qatar Airways Group v Middle East News FZ LLC [2020] EWHC 2975 (QB) and the authorities there discussed.
4. Other claims. The conspiracy claims failed for inadequate identification of the alleged conspirators, communications, acts and predominant purpose. The unlawful-means conspiracy claim also could not be based on communications protected by absolute privilege. The tortious-interference claim identified neither a contract allegedly breached nor acts of inducement or procurement. A wish that solicitors instruct another expert did not itself establish interference with contract.
5. Amendments and final order. The proposed malicious-falsehood amendment had no realistic prospect of success and did not properly plead malice or the meaning understood by the publishee. The proposed data-protection claim failed to identify the personal data allegedly unlawfully processed. Both amendments were refused. The agreed consent order dismissing the claims and requiring the claimants to pay the defendants’ costs reflected the order that would have been made; no further order was required.

• High Court (Queen's Bench Division): the hand-down issue was determined in [2021] EWHC 1729 (QB).
• High Court (Queen's Bench Division): the claimants’ appeal against that decision was dismissed by Chamberlain J in [2022] EWHC 912 (QB).
• High Court (Queen's Bench Division): the present judgment recorded that the agreed order dismissed the claims and required the claimants to pay the defendants’ costs.