Westcott v Westcott

JurisdictionEngland & Wales
JudgeLord Justice Sedley,Lord Justice Stanley Burnton,Lord Justice Ward
Judgment Date15 July 2008
Neutral Citation[2008] EWCA Civ 818
Docket NumberCase No: A2/2007/2727
CourtCourt of Appeal (Civil Division)
Date15 July 2008
Richard Anders Westcott
Dr Sarah Westcott

[2008] EWCA Civ 818


The Rt Hon. Lord Justice Ward

The Rt Hon. Lord Justice Sedley and

The Rt Hon. Lord Justice Stanley Burnton

Case No: A2/2007/2727







Royal Courts of Justice

Strand, London, WC2A 2LL

Kenneth Craig (instructed by John Stallard & Co) for the appellant

Nicholas O'Brien (instructed by BP Collins) for the respondent

Hearing date: 8th May 2008

Lord Justice Ward

Lord Justice Ward:

The issue


The surprisingly novel issue in this appeal is whether a person who makes a complaint to the police, thereby instigating a police investigation which does not lead to a prosecution, can shelter behind the defence of absolute privilege if a claim is brought against her in defamation; or whether such a complaint should be protected by qualified privilege so that the defence will only be defeated if the claimant can establish malice.


Mr Richard Parkes Q.C., sitting as a deputy judge of the Queen's Bench Division on 29th October 2007, determined in the defendant's favour a preliminary issue, namely, whether the oral publication and/or written publication to the police were protected by absolute privilege and/or immunity from suit. He entered judgment for the defendant accordingly and dismissed the claim with costs. The claimant now appeals with permission granted by Sir Henry Brooke.

The factual background


This all arises out of a sad and sorry domestic dispute which has now blown up out of all proportion. A marriage breakdown, difficulties over contact arrangements, and, with emotions inevitably running high, a blazing row between the wife, her husband and her parents-in-law led to the wife complaining to the police that her father-in-law had assaulted her and her child and to father-in-law bringing a retaliatory claim for defamation of his blameless character. In fact the police did not consider the complaint warranted further action. Perhaps the wife will rue making the complaint; perhaps father-in-law will rue not accepting the police's refusal to act as sufficient to assuage his wounded dignity, for here they are in the Court of Appeal. What a great shame for these intelligent parties that the public have been invited into their drawing room. So what is it all about?


The claimant, Mr Richard Westcott, a Justice of the Peace, is the father-in-law of the defendant, Dr Sarah Westcott. She is a General Practitioner. She was married to Edward Westcott. They have a son, Daniel, born in 200The marriage had broken down and they had separated.


On Good Friday, 25th March 2005, the defendant delivered Daniel to the address of her parents-in-law in order for Edward and his parents to have contact with the baby, then six months old. It is not necessary to reveal all the unseemly detail of what happened on that day. It is enough to say that a heated argument developed, tempers were lost, harsh and abusive words were spoken and blows were aimed or struck by one or more of the claimant, the defendant and Edward, and the defendant left in distress taking the baby with her.


Later that day she telephoned the police and reported, according to her defence, that:

“My father-in-law has flipped and hit me and my six month old baby. … I was hit on my upper body. Daniel was hit on his left side. I was hit at least 7 times.”


The police called on her that evening at her home and a police officer took a statement from her in which she said, among other things,

“At this point [when the defendant was pushing Edward out of her way] Richard, Edward's father, came between Edward and I. I have never seen Richard like that before. He was extremely angry and started to shout, “How dare you speak to him [Edward] like that in my house”. I replied “Fuck off” and this incensed him. Richard then lost it and started to lash out at me.

Richard lashed out several times hitting my upper arms as I tried to defend myself. I had hold of Daniel with my left arm and was trying to fend Richard off with my right arm. As I pushed Richard's arms away I was edging my way towards the lounge.

I wanted to get past Richard in order to get to the front door but Edward was blocking me. I ended up in the lounge because I couldn't get to the front door.

After a few moments of screaming the words “Help me” I managed to calm myself down and sat down. I got up and went to push past Edward and Richard. At this point Richard lashed out again raising both his arms. He was targeting my upper arms but he hit Daniel at least twice. I don't think he meant to do it but he still did it.

At this stage Edward pushed Richard back and said “That's enough Dad”. I gathered up my things and placed Daniel into his pram. Daniel was crying and I was extremely upset. I couldn't believe what had happened. I had never seen Richard like that before. I spoke to Edward briefly before driving away with Daniel.”

Her statement concluded:

“I have since taken Daniel to the hospital for a check up but he appears to be OK. Neither of us have any visible injuries and [illegible] not in any pain. I wish to pursue a formal complaint against Richard and will attend court if I am required to do so.”


The judge concisely set out the matters which followed and I gratefully adopt his résumé.

“3. It is common ground that as a result of the defendant's making these allegations to the police Worcestershire Social Services found out about them and advised the defendant to ensure the safety of her son by not visiting the claimant. The claimant contends that as a result he has been seriously compromised in his position as a JP and a member of the Family Panel of the Family Proceedings Court and he maintains that the fact that [as he alleges] social services, without any investigation of the facts, appear to regard him as someone from whom his grandchild should be protected, has caused him particular upset and embarrassment.

4. In consequence of these allegations, which he maintains are wholly false, the claimant issued proceedings in March 2006 seeking damages for slander and libel and an injunction.

5. The Defendant has pleaded justification and absolute, alternatively qualified, privilege. Her pleaded case in support of the defence of absolute privilege is that the complaint that she made by telephone to the police was published to them in their capacity as investigators of crime with the intention that they should make a record of her complaint and use it as part of an investigation and/or prosecution. As a result of the conversation, a policeman came to see her that evening, asked her to tell him what happened, and recorded her account in a written statement which she dictated. The defendant pleads that the written statement was published to the police in their capacity as investigators of crime with the intention that it be used as part of an investigation and/or prosecution. (Strictly, the defendant dictated her statement rather than writing it, so that publication of the statement to that particular policeman was a slander rather than a libel, but nothing turns on that).

6. The claimant admits that the occasion of publication would in principle have been protected by qualified privilege, but contends that the allegations were made maliciously, on the basis that the defendant knew perfectly well that they were untrue. He disputes the validity of the plea of absolute privilege which, if made good, would be a complete defence to his claim even if the defendant had made her allegations maliciously. In those circumstances, the parties agreed that it was desirable to determine the question of absolute privilege as a preliminary issue. It is of course no part of my function to decide what actually happened at the claimant's house that day.”

The judgment under appeal


In a commendable judgment the deputy High Court judge reviewed the authorities as I will do in a moment. I can summarise the conclusions he reached on the application of the principles he extracted from those authorities to the facts of the case as follows:

(1) The written statement was part of the process of investigating the possible crime which the prior oral complaint disclosed and fell within the immunity from suit recognised by Drake J. in Evans v London Hospital Medical College [1981] 1 W.L.R. 184, 192.

(2) There was no rational distinction between the complainant's statement to the police and a statement made by any other witness. To deny the complainant the same protection would undermine the policy underlying the decision in Taylor v Director of the Serious Fraud Office [1999] 2 A.C. 177 namely, as the judge defined it,

“the public interest in free and uninhibited communication by those involved in police investigations should be given priority, notwithstanding the risk that a malicious person may benefit.”

(3) Any analogy with the policy considerations which apply to malicious prosecution was unhelpful for the torts are different.

(4) Article 8 of the E.C.H.R. added nothing because:

“The test of necessity imposed by Article 8(2) as a justification for interference with Convention rights is in practice no different from the test of necessity in the interests of the administration of justice which was stated by the House of Lords in Taylor: see per Lord Hoffmann at 214D and G.”

(5) If the written statement was protected by absolute privilege, then the oral statement which preceded it should be protected also because:

“If that were not...

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