Defamation – Libel – Conflict of laws – Legal professional privilege – Double actionability – Summary judgment – Qualified privilege – Malice
The Claimants were a Czech company and its chairman. They brought an action for libel against the Defendants, a Scottish company, two of its subsidiaries and two of its directors, for the publication of defamatory allegations to HM Ambassador and commercial secretary in Prague.
(1) Whether legal professional privilege attached to the documents in question; (2) Whether the requirements of the double actionability rule were fulfilled; (3) Whether summary judgment should be granted on the defence of qualified privilege.
Documents concerned with settlement or strategy in litigation would normally attract legal professional privilege, whereas documents concerned with commercial tactics or strategy may well not, and individual documents were ruled upon accordingly. The requirements of the double actionability rule were fulfilled. In the unusual circumstances of this case it would be pre-empting the rule of the jury to rule definitively on the issues of qualified privilege or malice.
There are some cases where the the common interest existing between the publisher and publishee will be so obvious as not to require any factual analysis – see e.g. Kearns v Bar Council [2003] EWCA Civ 331; [2003] 1 WLR 1357; [2003] 2 All ER 534; [2003] EMLR 565. There will be others, of which this case is an example, where the issue will require further factual investigation making it unsuitable for any sort of summary determination.