Kearns v General Council of the Bar
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon Brown,Lord Justice Mantell,Lord Justice Keene |
| Judgment Date | 17 March 2003 |
| Neutral Citation | [2003] EWCA Civ 331 |
| Docket Number | Case No: A2/2002/2002/QBENI |
| Court | Court of Appeal (Civil Division) |
[2003] EWCA Civ 331
Lord Justice Simon Brown
(Vice-President of the Court of Appeal Civil Division)
Lord Justice Mantell and
Lord Justice Keene
Case No: A2/2002/2002/QBENI
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
(Mr Justice Eady)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Richard Rampton Esq, QC & Timothy Atkinson Esq (instructed by Messrs Peter Carter-Ruck & Partners) for the Appellants
Andrew Caldecott Esq, QC & Rupert Elliott Esq (instructed by Messrs Berrymans Lace Mawer) for the Respondent
When is verification a relevant circumstance in determining whether or not a defamatory communication is protected by qualified privilege? That, in the last analysis, is the question raised by this appeal.
It is clearly established that in cases of publication to the world at large "the steps taken to verify the information" (item 4 in Lord Nicholls' non-exclusive list of matters to be taken into account —see Reynolds -v—Times Newspapers Limited [2001] 2 AC 127, 205) together with other such circumstances concerning the quality and reliability of the facts asserted, may be crucial in deciding whether qualified privilege attaches. Reynolds, however, applies only to media publications. As this court said in Loutchansky -v—Times Newspapers Limited (Nos 2–5) [2002] 2 WLR 640, 653:
"32. … [T]he New Zealand Court of Appeal in Lange -v—Atkinson [1993] NZLR 385… was surely right to have recognised the striking departure which Reynolds's case made from the earlier approach. Reynolds privilege (as we shall call it) although built upon an orthodox foundation, is in reality sui generis.
33. Whereas previously it could truly be said of qualified privilege that it attaches to the occasion of the publication rather than the publication, Reynolds privilege attaches, if at all, to the publication itself: it is impossible to conceive of circumstances in which the occasion of publication could be privileged but the article itself not so. Similarly, once Reynolds privilege attaches, little scope remains for any subsequent finding of malice.
…
35. … Once Reynolds privilege is recognised, as it should be, as a different jurisprudential creature from the traditional form of privilege from which it sprang, the particular nature of the 'interest' and 'duty' which underlie it can be more easily understood.
36. … [I]n this class of case the question whether the publisher has behaved responsibly is necessarily and intimately bound up with the question whether the defence of qualified privilege arises. Unless the publisher is acting responsibly privilege cannot arise. That is not the case with regard to the more conventional situations in which qualified privilege arises. A person giving a reference or reporting a crime need not act responsibly: his communication will be privileged subject only to relevance and malice."
In cases which do not concern Reynolds privilege, whether or not steps are taken to verify information may be relevant in deciding whether the maker of a statement protected by qualified privilege has been guilty of actual malice so as to lose that privilege. But the question now arising is when is it relevant at the earlier stage, in deciding whether qualified privilege attaches in the first place?
The present appeal concerns neither media publications nor an assertion of malice. The question arises here in the context of a communication between the Bar Council and its 10,132 members. The offending publication was a letter written by Mr Mark Stobbs, the head of the Bar Council's Professional Standards and Legal Services Department to all heads of chambers and senior clerks/practice managers. The letter concerned the Bar's Code of Conduct. It was written in the mistaken belief that the appellants are not solicitors. Undoubtedly it was libellous. Undoubtedly it was untrue. For the purposes of this appeal we must assume it was unverified. Was it nevertheless a publication made on an occasion protected by qualified privilege?
Eady J below on 26 July 2002 held that it was and in the result entered summary judgment for the defendants under CPR Part 24.2. The appellants now appeal with permission which I myself gave on 23 October 2002. Although the Bar Council is named as defendant, it is in fact an unincorporated body without legal personality so that, as both parties agree, it is Mr Mark Stobbs who must be treated as defendant.
With that brief introduction let me at once set out the relevant facts which for the most part I gratefully take from the judgment below.
The Bar Council's functions are set out in paragraph 1 of its Constitution:
"The Bar Council is established to discharge the following functions:
(a) To be the governing body of the Bar.
(b) To consider, lay down and implement general policy with regard to all matters affecting the Bar.
(c) To maintain the standards, honour and independence of the Bar, promote, preserve and improve the services and functions of the Bar and to represent and act for the Bar generally as well as in its relations with others and also in matters affecting the administration of justice.
(d) To formulate and implement policies … to regulate all aspects of
(i) education and training for the Bar …
(ii) qualification for Call to the Bar …
(iii) the grant of rights of audience …
(iv) maintenance of rules of conduct …."
The unhappy history of this litigation began with a letter being sent by a member of the Bar on 12th September 2001 seeking guidance, entirely properly, from his professional body on a recent and unfamiliar development in the way certain members of the Bar, including in his own chambers, were being instructed. He wrote to Mr. Stobbs in the following terms:
"Dear Mr Stobbs, I am writing to seek the advice of the Bar Council in relation to the terms on which a body called Kearns Agency Limited, formerly called Kearns & Co, has been instructing junior barristers and continues to do so. I am a Pupil Master and I have recently become aware of an arrangement under which Kearns had instructed the working pupils in this chambers. I understand from those pupils that many of their contemporaries in other chambers have been regularly instructed on identical terms. I attach copies of letters of instruction in four cases, together with statements of costs sent to the barristers in those cases to present to court for the purposes of summary assessment of the costs. It will be seen that the arrangement is that the barrister is instructed as agents for Kearns Agency Limited at a pre-marked fee of £35 plus VAT. Kearns themselves seem to act as agents for a number of firms of solicitors. Remarkably the barrister is instructed not to contact the client, which seems to mean the solicitor, either before or after the hearing. It will be seen from the statements of costs that these do not accurately reflect the fee charged by the barristers. Instead of the fee being properly recorded as counsel's fees of £35 plus notional VAT, the barristers not being VAT registered, the fee claimed is 'agent's fixed fee' of £60 plus VAT. I have checked this morning with the Bar Council and the Kearns Agency Limited is not registered as a Bar direct body. The first issue that obviously arises is the fact that the presentation of the statements of costs may well mislead opponents and the Court. Both are obviously likely to imagine that the fee of £60 is the advocate's fee for the hearing. Both the pupils in this chambers have been scrupulous about pointing out to the Courts their actual fee and, as I understand it, the costs allowed have been reduced accordingly. However, there is an obvious risk that costs claims will be settled on a misleading basis, or that advocates at later hearings, perhaps employed by Kearns, may be less scrupulous. I am very concerned that the terms on which Kearns instruct barristers, and indeed the way in which they operate, will cause the barristers to be in breach of the code of conduct.
•Kearns are a limited company which is not a Bar direct body. This is a breach of paragraph 401 of the Code of Conduct.
•One instruction of the fee arrangement is that the fee to the professional client or the opponent for the barrister's work is £70.50, of which the barrister receives £35 and Kearns the balance. If that is right, this is a breach of paragraph 307(d) and/or (e) of the Code of Conduct.
•The presentation of the misleading statements of costs is a breach of paragraph 708 of the Code of Conduct.
•The entire arrangement, and in particular the instruction to the barrister not to speak to his professional client appears to breach paragraph 303(b) and indeed 301 of the Code of Conduct.
I would be grateful for the guidance of the Bar Council on these issues. I am away on holiday from 17th September to 4th October, but if any further information is required in that time [Mr X] should be available to assist. I have also given a copy of this letter and its enclosures to my head of chambers, … who may be able to assist. Yours sincerely."
The standard letter of instruction to which that letter refers was expressed as follows, and it is addressed to the barrister in question:
"Dear Sirs," [and then there is a series of subheadings: "Case, Court, Date, Time] Agreed fee, £35 plus VAT.
Thank you for agreeing to act as our agents. Please read this letter and our client's letter of instruction carefully upon receipt. Please pay particular attention to the terms of any order requested by our client. Please check that...
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