Kearns v General Council of the Bar
Reference:  EWCA Civ 331;  1 WLR 1357;  2 All ER 534;  EMLR 565
Court: Court of Appeal
Judge: Simon Brown Mantell & Keene LJJ
Date of judgment: 17 Mar 2003
Summary: Defamation - Libel - Qualified privilege - Existing relationship - Summary judgment - CPR Part 24
Instructing Solicitors: Peter Carter-Ruck & Partners for the Claimants. Berryman Lace Mawer for the Defendant.
The Defendants sent out letters to all heads of chambers and senior clerks erroneously stating that the Claimants had been holding themselves out to be solicitors. The Claimants brought a libel action. The Defendants relied on qualified privilege, and were granted summary judgment by Eady J. The Claimants appealed.
Whether the publication was protected by qualified privilege
The Court preferred an analysis based on whether there had been a pre-existing relationship between the publisher and publishee as the important test in relation to qualified privilege, rather than “common interest” and “duty and interest” categories. In this case, as there was a relationship between the publisher and publishees which required full and frank communications in both directions, the defence of qualified privilege had to succeed. As there was no plea of malice, the defendants were entitled to summary judgment. Appeal dismissed.
Whilst consideration of whether there is a pre-existing relationship between the parties will obviously be helpful in deciding whether qualified privilege will protect a particular publication, the test cannot be determinative. The Kearns case was particularly clear, but there will be cases where there is no pre-existing relationship where a publication will nevertheless be privileged. A good example would be tipping off a store detective about suspicions of shoplifting in relation to an individual. There would be no pre-existing relationship, yet the occasion would undoubtedly be privileged.