Neutral Citation Number: [2012] EWHC 1805 (QB)

Case No: HQ12D01525

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date:05 /07/2012

Before :

THE HONOURABLE MR JUSTICE TUGENDHAT
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Between :

	DAVID MAYER	Claimant	
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	FRANCIS HOAR	Defendant	

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Mr David Mayer appeared in person and was not represented

Lorna Skinner  (instructed by Clyde & Co) for the Defendant

Hearing dates: 29 June 2012
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Judgment

Mr Justice Tugendhat : 

1.	The Defendant applies for an order striking out this claim for libel. The Defendant is a barrister. Mr Mayer had brought proceedings in the Bow County court against a neighbour under the Protection from Harassment Act 1997. The Defendant acted in those proceedings for the defendant neighbour. Mr Mayer’s claim against his neighbour was dismissed on 11 January 2012 by HHJ Hornby upon Mr Mayer’s failure to attend. Mr Mayer’s complaints against the Defendant have also been dismissed by the BSB.
2.	The libel action arises out of earlier hearings in those proceedings which took place in the High Court on 21 October and 4 November 2011. Mr Mayer sought injunctions, but his applications were dismissed. On 11 November 2011 the Bar Standards Board (“BSB”) received from Mr Mayer a complaint summarily against the Defendant. The BSB dismissed part of the complaint summarily, but, after extensive correspondence, on 14 March 2012 the BSB wrote to the Defendant requiring his comments on the remainder of Mr Mayer’s complaint. This part of the complaint was an allegation that the Defendant had mocked Mr Mayer for his disability and harassed him. 
3.	In the letter the BSB reminded the Defendant that it is the duty of a barrister under para 905(d) of the Bar’s Code of Conduct to respond promptly to any request from the BSB for such comments or information.
4.	On 4 April 2012 the Defendant responded to that letter. The action for libel is brought in respect of words in the Defendant’s letter to the BSB. The words complained of include that “the only evidence ever submitted by Mr Mayer in support of his allegation that he suffers from this psychiatric disorder [PTSD] is in the form of a letter from a general practitioner based entirely upon his own account…”
5.	In the course of his response to the BSB, in which he denied Mr Mayer’s allegations, the Defendant also complained that Mr Mayer’s complaints against himself were malicious, that is that they were untrue to the knowledge of Mr Mayer. He went on to say that he did not believe that Mr Mayer’s complaint to the BSB was “protected by qualified privilege” and he warned Mr Mayer that he reserved the right to issue a claim of libel against him, and that he would not hesitate to sue Mr Mayer for libel, in particular if Mr Mayer repeated the allegation “in any public forum where he is not protected by absolute or qualified privilege”.
6.	On the 5 April the BSB sent the Defendant’s letter to Mr Mayer. On 18 April, without any intervening communication, Mr Mayer issued his claim form for libel. 
7.	On 24 April Mr Mayer served the claim form by hand. On the same day the Defendant sent two letters to Mr Mayer. First, the Defendant wrote a letter in which he acknowledged that the words complained of cited above were mistaken. The letter that Mr Mayer had submitted about his disability was from a psychiatrist. The Defendant apologised for this mistake. Second, the Defendant wrote a letter in which he requested Mr Mayer to discontinue the libel action. He explained that his response to the BSB had been protected by absolute privilege, and he cited Lincoln v Daniels [1962] 1 QB 237 and Marrinan v Vibert [1963] 1 QB 528.
8.	On 27 April Mr Mayer sent to the Defendant an e-mail in which he himself cited from Lincoln v Daniels. He said that the Defendant’s response to the BSB was not protected by absolute privilege because the Defendant himself reserved the right to sue Mr Mayer for libel.
9.	On 21 May the Defendant issued his application for an order striking out the claim, or for summary judgment. On 6 June Mr Mayer issued a cross application for judgment. On 22 June 2012 the BSB dismissed Mr Mayer’s complaint against the Defendant.
10.	At the end of the hearing I held that the words complained of were published on an occasion of absolute privilege, and I dismissed the action. I stated that I would give my reasons later, as I now do.
11.	The Legal Services Act 2007 designates The General Council of the Bar as the approved regulator in respect of barristers. The BSB was set up by The General Council of the Bar in January 2006 with responsibility for handling complaints against barristers, among other functions. As such communications to it are protected to the same extent as were communications to a Bench of an Inn of Court in Lincoln v Daniels, and as communications to other regulatory bodies exercising similar functions to that of the BSB:  Mahon v Rahn (No 2) [2000] 1 WLR 2150 paras 159, 170, 194.  In that case a financial services regulatory body investigating stockbrokers’ fitness to conduct business had received a letter sent at that body’s request. A libel action had been brought on the contents of the letter. It was held to be written on an occasion of absolute privilege. See Westcott v Westcott [2008] EWCA Civ 818 para 25; [2009] QB 407.
12.	The circumstances of the present case are indistinguishable. Mr Mayer’s argument for distinguishing this case is that the Defendant waived his right to rely on absolute privilege by purporting, in his letter of 4 April, to reserve his right to sue Mr Mayer.  That argument is hopeless. Whether or not the Defendant’s letter was written on occasion of absolute privilege is a matter of law. Whether or not it is open to a defendant to waive a defence of absolute privilege is not a point that needs to be considered. The letter of 4 April is incapable of being construed as any such waiver.
13.	Accordingly, the claim is bound to fail and I had no occasion to proceed to Mr Mayer’s application. The claim for libel is wholly without merit.