Westcott v Westcott (CA)

Reference: [2008] EWCA Civ 818; [2009] 2 WLR 838; [2009] 1 All ER 727; [2009] EMLR 2

Court: Court of Appeal

Judge: Ward, Sedley, Stanley Burton LJJ

Date of judgment: 15 Jul 2008

Summary: Defamation - Libel - Slander - Defences - Absolute privilege - Whether complaints to police are covered by absolute or qualified privilege - Preliminary issue

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Instructing Solicitors: John Stallard & Co for C; BP Collins for D


C was a Justice of the Peace. D was married to C’s son, though the marriage had broken down. After a visit to C’s home, D alleged to the police orally, and later in a written statement, that C had attacked her and her baby son, hitting her at least seven times and the baby at least twice.

C brought proceedings for libel and slander. D pleaded defences of justification and absolute, alternatively qualified, privilege. C admitted qualified privilege but pleaded malice in reply. The parties agreed that the question of absolute privilege should be determined as a preliminary issue. Richard Parkes QC sitting as a Deputy High Court Judge determined the preliminary issue in D’s favour and entered judgment for D on the basis that the publications to the police were covered by absolute privilege. C appealed.


Whether the Judge was correct to hold that a complaint to the police, thereby instigating a police investigation which did not lead to a prosecution, was covered by absolute privilege.


The Judge was correct to hold that the complaints to the police, both oral and written, were covered by absolute privilege: Taylor v Serious Fraud Office [1999] 2 AC 177 applied.


The position in defamation of complainants to the police had been uncertain for many years, with Gatley on Libel and Slander stating that they have “traditionally” only been protected by qualified privilege. Now the Court of Appeal has held that a complaint to the police was a statement made as part of the investigation into whether or not a crime has been committed and was, as such, absolutely privileged. Ward LJ made clear at [32] it was necessary ‘for the due administration of criminal justice that complaints of alleged criminal conduct should always be capable of being made to the police free from fear that a person accused will subsequently involve the complainant in costly litigation.’