Buckley v Dalziel

JurisdictionEngland & Wales
JudgeTHE HON. MR JUSTICE EADY,The Hon. Mr Justice Eady
Judgment Date03 May 2007
Neutral Citation[2007] EWHC 1025 (QB)
Docket NumberCase No: HQ06X02623
CourtQueen's Bench Division
Date03 May 2007
Barbara Buckley
James Stewart Dalziel Melanie Dalziel

[2007] EWHC 1025 (QB)


The Hon. Mr Justice Eady

Case No: HQ06X02623



Patrick Moloney QC (instructed by Nelsons) for the Claimant

Victoria Jolliffe (instructed by DWF) for the Defendants

Hearing date: 19 April 2007

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

THE HON. MR JUSTICE EADY The Hon. Mr Justice Eady

This litigation arises out of a neighbours' dispute which some may think has been blown out of proportion and which is undoubtedly causing considerable distress and alarming expense to all concerned. Mr and Mrs Dalziel have a house next door to that of the Claimant, Mrs Buckley, although they are now planning to move in the light of all that has happened. While they were away on holiday in September 2005 Mrs Buckley, to put it as neutrally as possible, authorised the pruning of some of their trees and bushes on or near the boundary. It is Mrs Buckley's case, as pleaded, that the pruning was confined to branches overhanging or protruding into her land by at least one foot, and that the operation became necessary because she was having a fence built towards the edge of her land and the relevant branches were obstructing the process.


On their return from holiday, Mr and Mrs Dalziel were upset at what they found and, after a few weeks, Mrs Dalziel reported the matter to the Greater Manchester Police in three telephone conversations which took place on 6, 11 and 13 October 2005. Mr Moloney QC, appearing for Mrs Buckley, described the situation in terms of Mrs Dalziel “nagging” the police until they took an interest. At all events, those calls were recorded in the police log and form the subject matter of a claim in slander against Mrs Dalziel. Because that claim was launched more than twelve months after the relevant causes of action arose, Mrs Buckley has applied by notice dated 14 March 2007 for the court to exercise its discretion under s.32A of the Limitation Act 1980 to disapply the statutory limitation period imposed by s.4A of the Act. It is, I believe, uncontroversial that the deemed date of service of the amended claim form (in which the slander claim was first raised) was 22 November 2006. Thus the period by which the limitation period was exceeded was a few weeks only. In so far as there is any dispute about the dates, it is not critical to the issues now arising.


Following Mrs Dalziel's contact with the police, an officer called Ms Darnell came to their home and interviewed her and her husband on 14 October 2005. Having consulted her supervising officer, it seems that Ms Darnell was advised that the activities authorised by Mrs Buckley could possibly amount to a criminal offence (presumably criminal damage) and she thereupon took a witness statement from Mr Dalziel.


Mrs Buckley was informed of the complaint by the police officer and, on 24 October 2005, she attended Rochdale police station, where she was arrested, interviewed and bailed. Ultimately, the Crown Prosecution Service decided not to pursue the matter, and she was duly notified in the second week of November.


There then elapsed a considerable length of time, and it was only on 7 September 2006 that Mrs Buckley's solicitors wrote to Mr Dalziel to put him on notice that a claim form had been issued raising allegations of libel said to be contained in his police witness statement of 14 October 2005. At that stage, reliance was also placed on allegedly slanderous remarks said to have been uttered by him to his wife and to a Mrs Collins (his mother-in-law). Although these proceedings were issued within the twelve month limitation period, Mr Dalziel has served a notice of application dated 20 February 2007 seeking summary judgment under CPR Part 24. He relies on absolute privilege or immunity from suit (the distinction being immaterial, for present purposes, since both are manifestations of the same underlying public policy considerations).


The original claim form was issued on 8 September 2006 (although never served). The amended claim form was served (together with particulars of claim), as I have said, on or about 22 November. By this time, the claim against Mr Dalziel was confined to libel, and it was sought to add a claim in slander against Mrs Dalziel arising out of the telephone conversations with the police. It is said on Mrs Buckley's behalf that she was only in a position to take action over Mrs Dalziel's involvement after the Greater Manchester Police had consented to a third party disclosure order dated 11 October 2006, the relevant documents (i.e. the police log) being received by Mrs Buckley on 19 October 2006.


It is Mrs Buckley's case that the Defendants' communications to the police were malicious, and I need to proceed on that assumption for the purposes of the present applications. I shall turn first to Mr Dalziel's application based on absolute privilege or immunity from suit.


It has always been recognised that absolute privilege covers defamatory statements made in court proceedings for policy reasons which are obvious and very familiar. The principle has, over the years, been extended to what is said in a witness statement: see e.g. Watson v McEwan [1905] AC 480 and Lincoln v Daniels [1962] 1 QB 237, 257–8.


The policy reasons underlying that process of judicial extension were considered by the House of Lords in Taylor v Serious Fraud Office [1999] 2 AC 177. It was there held that, in the context of a criminal investigation, the immunity extended to statements made out of court if they could fairly be said to be part of the process of investigating a crime or possible crime. As was explained by Lord Hope, at p218, the public interest requires that those involved in such an investigation should be able to communicate freely and without being inhibited by the threat of proceedings for defamation. That requirement, therefore, should be accorded priority over the countervailing consideration that sometimes a malicious informant may be able to benefit from such a rule in circumstances which would appear to be unfair or unjust: see e.g. ibid at pp221–222.


Another consideration which was thought to be relevant to striking the balance between these competing policy considerations is that the communication of defamatory material contained in police witness statements will ordinarily be very limited. As Lord Hope explained at pp218–219:

“Those who provide information to investigators usually do so in the belief, which may or may not be expressed by them, that the information is being given out of a sense of public duty and in confidence. That information may, if it is to be useful to the investigator, contain material which is defamatory. So long as the information goes no further, no harm is done to anybody. But disclosure releases the defamatory material from the control of the prosecutor. Unless protected, it may be disseminated further and become actionable”.


Clearly this reasoning supports Mr Dalziel's application, persuasively advanced on his behalf by Ms Jolliffe, since the only claim now remaining against him relates to a police witness statement. How then does Mr Moloney seek to overcome this hurdle?


He raised essentially two arguments. First, it is said that their Lordships in Taylor were addressing where the policy balance should be struck prior to the enactment of the Human Rights Act 1988 (the decision itself dating from 1997) and would now be required to give greater priority to the protection of reputation in accordance with Article 8 of the European Convention on Human Rights and Fundamental Freedoms.


Secondly, Mr Moloney argues that, in any event, different considerations apply to those who are not merely potential witnesses but actually the complainants who set the process of criminal investigation in motion. He also makes the related and overlapping submission that there is a material distinction between those who volunteer defamatory statements and those who are required to co-operate with the police or do so out of a genuine sense of duty.


As to the first argument, I can see no basis on which I could or should hold that such a recent decision of the House of Lords was incompatible with the European Convention (which would, of course, have been well in their Lordships' minds in 1997). I have in mind, in particular, the observations of Lord Bingham in Kay v Lambeth Borough Council [2006] 2 AC 465 at [40]-[45] on the importance and value of adhering to precedent in the interests of certainty and clarity, and also as to the often generous margin of appreciation accorded to national courts by the judges at Strasbourg.


Secondly, although Ms Jolliffe concedes that there may be no direct authority on defamatory statements “volunteered” by a malicious informant, she argues from principle that there is no rational basis for the distinction sought to be drawn between complainants and witnesses. She submits that it would undermine the policy which underlies their Lordships' decision in Taylor. In particular, the victims of rape, sexual assault, or domestic violence might (so the argument runs) be inhibited from making complaints if they were protected only by qualified privilege. Of course, the last thing in practice that such victims have in mind is the distinction between qualified and absolute privilege, but in principle there is clearly much force in Ms Jolliffe's argument.


Moreover, Ms Jolliffe suggests that once the matter proceeds to the stage where a police statement is being taken it will almost certainly be the case that...

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