“As you are acting for the defendant we would like to raise a few questions in relation to your integrity as a solicitor acting in this matter, in particular whether you are satisfied before your client that you can act independently and impartially for your client and in his best interests. We understand that you are a sole practitioner and therefore you are dealing with this matter in person. Will your client be satisfied if he comes to know that you were in the past supervised by the Partners of our firm? Thanks to their blessing you were able to become who you are now. They made several recommendations for you. You were also employed by our firm in the past. Was your departure from the firm amicable or have you any issues in relation to your employment and departure still outstanding? This is an open letter, which will be presented in court if needed.”
“In essence we understand that the defendants Mr and Mrs Naseem Ahmad Tahir were personal contacts of yours and you have also worked on the file during your employment at Dean Manson Solicitors. We therefore believe that this raises serious conflict and conduct issues on your part since your departure from Dean Manson Solicitors was not pleasant and you were summarily dismissed due to your insubordination and reckless conduct in dealing clients’ matters and entering into unnecessary argument in court with immigration judge. We are therefore inclined to believe that you have intentionally taken instructions in this matter to set scores because of your personal vendetta with the firm. We suggest this because we have also come to know that you have been poaching and inciting clients of the firm belonging to a particular community to initiate malicious complaints before third parties. There is indicative of clear conflict involving ethical issues as you have been working on this file and have personal knowledge of the firm and its partners. We are very surprised that you are defending the clients in this matter since you are aware of the amount of work that has gone into this matter and the complex nature of the case whilst you worked with the firm. We will therefore advise you that you ask Mr Butt to settle our costs as it will prolong matters and incur unnecessary costs of litigation due to your own vendetta. All legal work carried out in accordance with his own instructions and personal guarantees (verbal and in writing) also confirmed through his MP to pay our legal costs for his release and hence he has no defence…”
“Thank you for your letter of February 18, 2009 we suggest that you wait for the decision of your premature and irrational application for strike off. We will state our position in defence before the Court should the need arise. We will also put you on strict notice that your former partner Mr Sajjid Ali had also worked with and passed out from this firm who had personal knowledge of the partners and the firm with whom you using his name later established partnership with thereby misleading the law society and general public unbefitting of the legal profession because Mr Ali has no permission to remain and work in the UK in breach of the law of land. We believe it is important for the court to know of you and your partner’s level of past association with our firm.”
“The absolute privilege which covers proceedings in or before a court of justice can be divided into three categories. The first category covers all matters that are done coram judice . This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence. The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings. The third category is the most difficult of the three to define. It is based on the authority of Watson v McEwan[1905] AC 480 in which the House of Lordsheld that the privilege attaching to evidence which a witness gave coram judice extended to the precognition or proof of that evidence taken by a solicitor. It is immaterial whether the proof is or is not taken in the course of proceedings. In Beresford v. White(1914) 30 TLR 591 the privilege was held to attach to what was said in the course of an interview by a solicitor with a person who might or might not be in a position to be a witness on behalf of his client in contemplated proceedings.”
“In this case, the area of concern is letters, pleadings and witness statements sent or filed in the course of legal proceedings. If the test of no real relevance sets far too high a test, it follows that any allegations which, although not on analysis relevant to the application or proceedings, nonetheless have some reference, however tenuous, to the proceedings in question, ought to be protected. It is plainly not desirable that litigants should be vulnerable to defamation claims if they misjudge, or lack the understanding to appreciate, the true ambit of the matter in dispute, and make allegations or include averments in the course of proceedings which are irrelevant to the issues but nonetheless have reference to the proceedings. Even malicious allegations must be protected, because otherwise honest witnesses would potentially be vulnerable to baseless litigation.”
“30. This aspect of the application has been greatly simplified by Mr Iqbal's acceptance in the course of argument that all this correspondence was in principle absolutely privileged in so far as it was published to the courts and the SRA [Solicitors Regulation Authority]. He had not in fact argued otherwise in his skeleton argument, although it had not been clear until oral submissions just what the limits of his opposition to the application were. In the event, he only opposed Miss Addy's application to the extent of the issues of publication to the staff of his firm (as to which he relied on Theaker v Richardson , and to which he disputed that absolute privilege applied) and of what I have called the Smeaton v Butcher test, namely the question of whether the contents of the letters had any reference to the proceedings to which they related. 31. It is not very satisfactory to have to proceed on the basis of a concession by a litigant in person, but Mr Iqbal is an experienced and able solicitor with higher courts advocacy rights, and I cannot see that I can properly go behind the stance that he has taken, on which Miss Addy must be entitled to rely. That is not to say that I would necessarily have come to a different conclusion had the matter been argued out. I note, for instance, that Prof. Horton Rogers suggests in Gatley on Libel and Slander (11th ed) at paragraph 13.15 that absolute privilege does extend to inter partes correspondence (citing the decision of the Hong Kong Court of Appeal in Wong Shui Kee v Chu [2002] HKEC 1570 , HKCA), and in the admittedly short decision of Cave and Lawrence LJJ in Lilley v Roney (1892) 61 LJQB 727 , a formal complaint to the Law Society about a solicitor was held to have been the proper way of setting in motion what were admittedly judicial proceedings and not to have been the proper subject of a libel claim. 32. It seems to me that I can deal very shortly with the publication to Mr Iqbal's staff of the party and party correspondence and letters to the court. If these were otherwise, as he concedes in principle that they were, properly to be regarded as absolutely privileged, then in my judgment publication of those letters to the staff of his firm in the ordinary course of business must be protected by an ancillary privilege. I have dealt with this point at [28] above. … 37 Finally, there are the two letters to the SRA. Mr Iqbal concedes that in principle absolute privilege applies to them, so I must proceed on the footing that it does.”
“The content of the judgment Wong Shui Kee v Chu does not support that proposition in relation to party and party correspondence. It requires as set out in Le Pichon JA’s judgment that it must not be a private attack on the litigant’s character and the solicitors must be seeking to advance their client’s interests in the litigation and Ma LJ’s judgment that the letter ought to set out a party’s position or stance in relation to any part of the proceedings.”
“84. It is also important to me as an alternative approach to this issue that APC 7 contains inaccurate information in alleging that Mr Iqbal was dismissed. This is contradicted in the Defence which says that he refused the offer of employment. This casts grave doubt on the good faith of the Defendant in writing that letter. Similarly the allegations in APC 9 have been deleted in the draft amended defence and that adds to doubts as to the good faith of the partners in the Defendant in their conduct of these proceedings. 85. Since the immunity is granted as a matter of policy to protect freedom from expression in litigation, in my view the public interest in the truth of evidence brought to the court might well mean that it would not be proper to allow a party to rely on the immunity in these circumstances in any event.”
“87. There are additional reasons for that lack of immunity. Footnote 135 in Gatley says that a letter properly sent to the court concerning the litigation will be privileged but if sending such a letter is irregular and improper it will not be privileged. I have not been supplied with the case law cited in that footnote. However I cannot see how sending such letters to the court can be regular or proper. 88. The proper way to bring to the court’s attention that a professional with a duty to the court may be acting in conflict of interest is to say so in an application before a judge. At that hearing the only information which it would be proper to put before the judge is technical information establishing such conflict of interest for example, an allegation that a solicitor who acted for the client when at a firm, after his departure acted against the client in litigation.”
“102. All three contain the false allegation (since withdrawn by the Defendant) that the Claimant has been subject to a civil restraint order. The statement of case contains another allegation which is that the Claimant is holding himself out to be a barrister without authorisation from the Bar Council. I am not aware whether that has been withdrawn but the Claimant contests it. He is to be seen in the Bar Directory. Even if all these documents were subject to absolute privilege and even if the content could be held to have reference to the proceedings in which they were filed I cannot apply a policy in favour of immunity to protect the Defendant from suit on statements which could so easily have been checked for accuracy and which have already been withdrawn and/or are demonstrably false. I will therefore not strike out these paragraphs.”
“(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including – a) The interests of the administration of justice; b) Whether the application for relief has been made promptly; c) Whether the failure to comply was intentional; d) Whether there is a good explanation for the failure; e) The extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol; f) Whether the trial date or likely trial date can still be met if relief is granted; g) The effect which the failure to comply had on each party; and h) The effect which the granting of relief would have on each party.”
“114. Although not at all impressed by the Defendant’s conduct overall, the factor which weighs most heavily is that it would be wholly wrong for the Claimant to obtain judgment in these proceedings on allegations which I have held to be an abuse of the process of the court and I grant relief from sanctions to the Defendant.”
“INJUNCTION AND OTHER ORDERS 116. I am of the view that there should be an interim injunction against the Defendant however to prevent it from ever making again those allegations which it has withdrawn or which are demonstrably false.”
“The Court Ordered that DEAN MANSION SOLICITORS is forbidden whether by itself or by instructing or encouraging any other person from making any means any of the following allegations against the Claimant: 1. That a civil restraint order has been made against the Claimant; 2. That he made a bigamous marriage; 3. That in any respect he has infringed immigration law; 4. That he was sacked from employment by the Defendant; 5. That he practises as a barrister without authorization to do so; This order shall remain in force until further notice of the court.”
“If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled are determined by a court of competent jurisdiction, either upon evidence or upon admission … neither party can, in subsequent litigation between one another, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.”
“Why should a witness be able to avail himself of his position in the box and to make without fear of civil consequences a false statement, which in many cases is perjured, and which is malicious and affects the character of another? The rule of law exists, not because the conduct of those persons ought not of itself to be actionable, but because if their conduct was actionable, actions would be brought against judges and witnesses in cases in which they had not spoken with malice, in which they had not spoken with falsehood. It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it is the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty. It must always be borne in mind that it is not intended to protect malicious and untruthful persons, but that it is intended to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions.”
"The policy of this rule is to encourage persons who take part in court proceedings to express themselves freely. The interests of justice require that they should not feel inhibited by the thought that they might be sued for something they say."
"A feature of the trial is that in the public interest all those directly taking part are given civil immunity for their participation. The relevant sanction is either being held in contempt of court or being prosecuted under the criminal law. Thus the court, judge and jury, and the witnesses including expert witnesses are granted civil immunity. This is not just privilege for the purposes of the law of defamation but is a true immunity: Roy v Prior[1971] AC 470 , especially per Lord Morris, at pp 477-478. This rule exists in the interests of the trial process, ie in the public interest."
“The absolute immunity from suit is a core immunity in our system, critical to the integrity and effectiveness of our judicial system, which, save for a few well defined exceptions … applies to all forms of collateral action however worthy the claim and however much it may be in the public interest to ventilate it. Claims of unlawful discrimination are clearly of that importance, but no more than many others, such as the citizen's right to protect his own good name or good character or to claim for conspiracy to injure or for misfeasance in public office, say, in giving evidence in a criminal trial resulting in the claimant's loss of liberty.”
“What has emerged from the cases is that it is not enough for the defamatory language to be irrelevant to the matter in hand for it to fall outside the privilege, it must have no reference at all to the subject-matter of the proceedings.”
“… if a man when in the witness-box were to utter something having no reference to the cause or matter of inquiry in order to assail the character of another, as if he were asked: Were you at York on a certain day? and he were to answer: Yes, and A.B. picked my pocket there; it might certainly be said in such a case that the statement was altogether dehors the character of witness, and not within the privilege.”
“[The judge] converted the test of whether the statement had ‘some reference’ to the inquiry into one of ‘no real relevance’. In my judgment there is a world of difference between those two tests. ‘No real reference’ is far too high a test. It is not justified by authority and would dangerously imperil the vital public interest which witness immunity serves to protect…Whether true or false, what Mr Jones was describing in paragraphs 7 to 19 of his affidavit was narrative as to subsequent dealings between various people in connection with the subject-matter of the legal proceedings themselves, namely the car, and therefore it did have ‘some reference’ widely and loosely defined, to the inquiry.”
“Thus, there is authority for the proposition that although comments made in the context of judicial or quasi-judicial proceedings need not be relevant in the sense that they contribute to the resolution of the matter they must have some nexus or be connected to the proceedings.”
“48 The essential single ground of Mr Iqbal’s limited appeal is that H.H. Judge Parkes misstated and therefore misapplied the Smeaton v Butcherprinciples when he spoke of Document 20 having “no reference at all to the proceedings”
“Why should the interim costs certificate be set aside or varied, or the costs assessment be adjourned pending the harassment claim appeal?, Mr Baig’s answer in his witness statement was simply that there were serious issues about the conduct of Mr Butt’s solicitor. However, submitted Mr Iqbal, those were wholly extraneous, irrelevant, and gratuitous libels (to pick up the words of Lord Hoffmann in Taylor vDirectorof the Serious Fraud Office) and without reference at all to the subject-matter of the proceedings. 49 In my judgment, however, the burden of Document 20 is to address the complaint of the paying party, Dean Manson, that the receiving party’s (Mr Butt’s) solicitor, Mr Iqbal, had a conflict of interest which was relevant to the assessment of costs. It was also suggested that a vendetta by Mr Iqbal against Dean Manson, illustrated by his harassment claim which had been struck out but was subject to appeal, was equally relevant to the assessment of costs and its timing. Although Mr Iqbal was not, of course, Mr Butt, he was nevertheless Mr Butt’s solicitor and in that sense responsible for the costs expended and claimed against Dean Manson. However weak the relevance asserted, it is difficult to say that the document as a whole has no reference to the subject-matter of the costs assessment proceedings in play. It plainly did. 50 It is true that the reference to Mr Ali (“despite him having no permission to stay, engage in business or work in the country”) appears to be a gratuitous insult to a third person, Mr Ali, if untrue; but it is not Mr Ali who complains. In his oral submissions on appeal Mr Iqbal did not refer to this aspect of Document 20 but concentrated rather on what was said about the SRA: but, however unsatisfactory those allegations were, it cannot be said that they were not made without reference to the costs proceedings. Mr Iqbal had no answer to the suggestion made by the court to him that the whole document was a complaint made against him in his capacity as Mr Butt’s solicitor and not in some other capacity. In these circumstances I see no relevant distinction between the Smeaton v Butcherformulation and the judge’s shortened expression of it.”
“While I make no comment on the wisdom of the alleged defamatory words, I fail to see how it can be said that, in making them, the defendants stepped outside of the confines of the proceedings and, to use the plaintiff's words, ‘made a private attack on his character’. The central matter in issue was the alleged failure of Dolly Dolls, the defendant in the interlocutory proceedings, to file its affirmation or other answer within the allowed time limits. That alleged failure had repercussions in respect of delay and costs. The defendants were attempting on behalf of their client to assume the tactical high ground so that, if an adjournment of the interlocutory hearing was necessary, their client would at least be indemnified in costs. Patently they were seeking the best advantage of their client in the litigation. Whether they were doing so in an exemplary fashion is not to the point. What is to the point is that clearly they were acting in their capacity as solicitors representing their client and equally clearly they were seeking to advance their client's interests in the litigation.”
“58. …. Judge Faber was considering wider arguments in a different setting. The context there was a claim in harassment, which is a crime as well as a tort. It is arguable, but I am certainly not prepared to enter upon that argument here, that absolute privilege does not apply, or does not apply in quite the same way, in such a context: just as it does not apply in the case of perjury or contempt of court. Moreover, the allegations involved in the harassment proceedings both arise out of letters which are not, or arguably are not, matters of a witness’s evidence in the course of proceedings, and arguably have a degree of wantonness and egregiousness which may stand outside any reference whatsoever to the subject-matter of any proceedings. Moreover it is perhaps arguable that where there is a form of persecution, as in the case of Duke v Puts, which is the one authority which is closest on its facts to the allegations made by Mr Iqbal in the harassment claim, in effect an attempt to drive a professional man out of his livelihood, public policy demands a judicial inquiry unless it is plain that even so absolute privilege prevails. Even there, however, it will be recalled that the allegations in the complaint against Dr Jones which involved aspersions on a conspiracy involving both Dr Jones and Mr Duke were held to be within the privilege. None of that, however, arises in terms of the much more limited submissions which can be made in respect of Documents 20 and 21. I repeat, however, that such issues are not properly before this court, have not been argued between the parties before this court, and I intend to make no observations whatsoever with respect to them. 59. … Nor is this appeal the place to explore the limitations of the doctrine of absolute privilege to be found in dicta or cases discussing the exceptional cases of perjury, contempt of court, malicious prosecution and possibly other such cases (discussed for instance in an extra-judicial lecture given by Justice Peter Garling ….). Nor would it be relevant, in the light of the limited issues which arise out of documents 20 and 21, nor would it be fair at such a late state even if the order had not yet been perfected, to raise a case based on Osman v UK[1998] ECHR 101 .”