Clarke v Davey

Reference: [2002] EWHC 2342 (QB)

Court: Queen's Bench Division

Judge: Gray J

Date of judgment: 8 Nov 2002

Summary: Defamation - Slander - Strike out - CPR Part 24 - Abuse of process - Summary judgment - s.8 Defamation Act 1996 - Absolute privilege - Qualified privilege - Malice

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Appearances: Justin Rushbrooke KC (Claimant) 

Instructing Solicitors: Reid Minty for the Claimant; Reynolds Porter Chamberlain for the Defendant


C worked on a freelance basis for a solicitors’ firm, DDL. D was a barrister. C and D had both been working on the defence of a Mrs Munson to serious criminal charges. C left DDL in order to work for a new firm. Mrs Munson decided to change solicitors to C’s new firm. D held a meeting with Mrs Munson at her home, as a result of which she changed her mind about moving firms. C alleged that during the meeting D made numerous defamatory statements about her which were then recorded in a letter from Mrs Munson. She brought a slander claim for the words allegedly spoken by D. D applied to strike out the action under CPR Part 24 and as an abuse of process, and for summary judgment under s.8 Defamation Act 1996.


(1) Whether C had any real prospect of success or there was any other compelling reason why the case should be disposed of at trial;
(2) Whether the case should be dismissed as an abuse of process.


Dismissing the application:
(1) The conflict of evidence on the issue of what words were spoken by D meant that C had a real prospect of success on that issue. The words were capable of bearing a defamatory meaning. C had a real prospect of establishing that More v Weaver [1928] 2 KB 520 was either no longer good law or was distinguishable and that therefore D’s words were not protected by absolute privilege. C had no real prospect of establishing that the words spoken by D to Mrs Munson were not protected by qualified privilege, but did have a real prospect of establishing an improper motive constituting malice on D’s part. There was also a real prospect that C would establish that the words disparaged her in her calling.
(2) The claim was not an abuse of process. To be an abuse of process the claimant must be seeking some collateral advantage; she was not here. Further, although general damages would be likely to be low, C might recover a significant sum in aggravated damages.


Although the facts were somewhat unusual, Gray J’s treatment of the tension between More v Weaver and Minter v Priest (seen in the light of more recent decisions such as Saif Ali v Sydney Mitchell) is significant on the issue of absolute privilege for communications between lawyer and client. Also of note is his examination of the interplay between CPR Part 24 and s.8 Defamation Act 1996. Referring to CPR Part 53(2)(a), he observed that parties should not make concurrent applications under Part 24 and s.8 of the 1996 Act, both of which involve the same test, but should, at least in the case of defendants, instead apply only under Part 24.