(1) Dr Fatima Jabbar (2) DRJ55 Limited v AVIVA Insurance UK and others (No 1)

Reference: [2022] EWHC 1383 (QB)

Court: High Court, Queen’s Bench Division

Judge: Deputy Master Toogood QC

Date of judgment: 20 Jun 2022

Summary: Libel – summary judgment – absolute privilege – experts – CPR Part 35

Appearances: Adam Wolanski QC - Leading Counsel (Defendant) 

Instructing Solicitors: BLM (Defendants) Samuels Solicitors (Claimants)

Facts

The First Claimant was a doctor who provided medico legal reports. She sued for libel over defamatory remarks contained in a letter sent by the insurer Aviva to a solicitor acting for an individual who had threatened to sue Aviva for damages following a road traffic accident. The Defendants applied for summary judgment on the libel claim on the grounds that (a) its publication was protected by absolute privilege, alternatively (b) it was protected by qualified privilege and there was no viable case of malice.

Issue

(1) Was the publication made on an occasion of absolute privilege;

(2) Was it made on an occasion of qualified privilege;

(3) Was there a viable case of malice;

(d) Did any of the other pleaded causes of action have a reasonable prospect of success.

Held

Granting the application:

(1) The publication was protected by absolute privilege. Although no proceedings had been issued at the time of publication, the letter was sent pursuant to the requirements of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the “RTA Protocol”). It is strictly necessary to extend absolute privilege to Part 35 questions asked in respect to a claim which has been pursued under the RTA Protocol.  No sensible distinction can be drawn between claims proceeding under the RTA Protocol and claims in respect of which a Claim Form has been issued since it is necessary to permit a free and frank exchange of information to allow the claims to be negotiated and settlement achieved if possible.

(2) The publication was also protected by qualified privilege.

(3) No  viable case of malice had been pleaded.

(4) The other pleaded causes of action had no reasonable prospect of success.

Comment

A novel point regarding the application of absolute privilege of some potential significance for insurers in particular. A subsequent decision addresses the question of whether the court had jurisdiction to hand down this judgment even though the claim was settled before a draft judgment was circulated.