Iqbal v Dean Manson Solicitors & Ors (No 2)

Factual and Procedural Background

This appeal concerns an issue of absolute privilege in defamation proceedings arising from a contentious dispute between the Appellant, a solicitor-advocate representing himself, and the Respondents, a small firm of solicitors referred to as Company A. The Appellant was formerly employed part-time by Company A and later established his own practice. Company A initiated litigation against a third party, Mr Butt, who was represented by the Appellant. Company A sent several letters to the Appellant accusing him of misconduct and a personal vendetta, which led the Appellant to bring harassment proceedings against Company A under the Protection from Harassment Act 1997.

Company A defended the harassment claim with allegations against the Appellant including insubordination, immigration law breaches, and professional misconduct. The harassment claim was partially struck out on different occasions, with appeals resulting in mixed outcomes. The parties were encouraged to mediate, but mediation did not occur.

Subsequently, the Appellant issued a defamation claim in the High Court against Company A, alleging 21 defamatory publications between January 2009 and February 2011. Company A applied to strike out the claim or for summary judgment, asserting that most publications were time-barred and that all were absolutely privileged. The High Court judge held that the first 19 publications were statute barred and that most publications were covered by absolute privilege, except possibly one. Permission to appeal was granted only on the absolute privilege issue concerning the last two publications, which were witness statements made in costs assessment proceedings related to the underlying litigation.

The harassment proceedings continued separately, with amended particulars including references to the defamation claim materials. Company A applied to strike out these amendments based on absolute immunity and abuse of process. The county court judge struck out the amendments on abuse of process grounds but granted an interim injunction preventing Company A from repeating certain withdrawn or demonstrably false allegations.

The present appeal concerns the issue of absolute privilege in relation to the two witness statements (referred to as Document 20 and Document 21) made in the costs assessment proceedings.

Legal Issues Presented

1. Whether the two witness statements (Documents 20 and 21) made in costs assessment proceedings are protected by absolute privilege from defamation claims.
2. The correct interpretation and application of the test for absolute privilege, specifically whether statements must have "no reference at all" or "no reference at all to the subject-matter of the proceedings" to lose privilege.
3. Whether the alleged defamatory statements contained in the witness statements fall outside absolute privilege due to irrelevance or gratuitousness.

Arguments of the Parties

Appellant's Arguments

• The judge misapplied the legal test for absolute privilege by shortening the test to "no reference at all to the proceedings" rather than to the "subject-matter of the proceedings."
• The witness statements contained wholly extraneous, irrelevant, and gratuitous defamatory allegations unrelated to the costs assessment proceedings.
• Some allegations, such as those concerning the Solicitors Regulation Authority investigation and the Appellant's address for service, were defamatory and without reference to the subject-matter of the proceedings.

Respondents' Arguments

• The witness statements were made in the course of judicial proceedings and are therefore prima facie absolutely privileged.
• All allegations in the witness statements had at least some reference to the subject-matter of the costs assessment proceedings.
• The Appellant's submissions failed to distinguish between irrelevant and non-referential statements; the law requires only some reference to the subject-matter.
• The defamatory comments were made in the Appellant's capacity as the solicitor for Mr Butt and thus connected to the proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Iqbal v. Dean Manson Solicitors (No 1) [2011] EWCA Civ 123	Establishment of harassment claim based on letters amounting to a campaign against professional integrity.	Provided background context; no issue of absolute privilege was raised by Company A in that case.
Jameel (Yousef) v. Dow Jones & Co Inc [2005] EWCA Civ 75	Consideration of abuse of process in defamation claims with minimal publication.	Not argued below; court declined to admit the point on appeal as out of time and fact-sensitive.
Smeaton v. Butcher [2000] EMLR 985	Absolute privilege applies to witness statements that have any reference to the subject-matter of the proceedings.	Reaffirmed and applied as the governing test for absolute privilege in witness statements.
Munster v. Lamb (1883) 11 QBD 588	Rationale and scope of absolute privilege for statements made in judicial proceedings, even if irrelevant or malicious.	Supported the principle that absolute privilege protects witnesses acting bona fide in judicial proceedings.
Watson v. M'Ewan [1905] AC 480	Extension of absolute privilege to statements made in preparation for trial by prospective witnesses.	Confirmed the breadth of protection for witness statements beyond oral evidence.
Trotman v. Dunn (1815) 4 Campbell 211 & Seaman v. Netherclift (1876) 2 CP 53	Privilege applies only to statements made in character as a witness; statements outside that scope are not privileged.	Clarified limits of privilege, distinguishing statements made outside the witness role.
Samuels v. Coole & Haddock (CA, unreported, 1997)	Privilege applies if statement has some reference to subject-matter, not requiring real relevance.	Reversed lower court's approach, emphasizing a low threshold for reference to proceedings.
Roy v. Prior [1971] AC 470	Absolute privilege does not extend to perjury, contempt of court, or malicious prosecution.	Used to illustrate exceptions to absolute privilege.
Taylor v. Director of Serious Fraud Office [1999] 2 AC 177	Extension of absolute immunity to out-of-court statements related to criminal proceedings.	Referenced to discuss limits and rationale of absolute privilege.
Duke v. Puts [2004] SKCA 12	Distinguishes privileged statements connected to proceedings from irrelevant and gratuitous defamatory statements about third parties.	Considered analogous facts; court noted public policy considerations and limits of privilege.
Re Barrell Enterprises [1973] 1 WLR 19	Jurisdiction to reconsider and revise judgments.	Considered in context of Appellant's request to revisit the court's decision.
Re L and B (Children) [2013] UKSC 8	Clarifies modern approach to revising court orders balancing justice and finality.	Referenced in relation to reconsideration jurisdiction; noted limited applicability to present case.
Tibbles v. SIG plc [2012] EWCA Civ 518	Discusses jurisdiction under CPR 3.1(7) to vary or revoke court orders.	Referenced regarding the finality of court orders and possibility of variation.

Court's Reasoning and Analysis

The court focused on whether the two witness statements (Documents 20 and 21) were absolutely privileged from defamation claims. It reiterated the established legal principle that absolute privilege protects statements made by witnesses in judicial proceedings unless the statements have no reference at all to the subject-matter of those proceedings.

Applying this test, the court found that both documents were witness statements made in the course of costs assessment proceedings and thus prima facie absolutely privileged. Although some allegations within the statements were arguably irrelevant or gratuitous insults, the court held that they were made with reference to the subject-matter of the proceedings—namely the costs assessment and related litigation conduct.

The court rejected the Appellant's narrower interpretation of the test and concluded there was no material distinction between the judge's formulation and the established principles in Smeaton v. Butcher. The allegations were connected to the proceedings because they concerned the Appellant's conduct as the solicitor for the receiving party in the costs proceedings.

The court acknowledged that absolute privilege does not protect statements wholly extraneous or unrelated to the litigation but found no such statements here. It also recognized that absolute privilege may not apply in harassment proceedings or other contexts but emphasized that those issues were not before this court and were not argued.

The Appellant's subsequent request to reconsider the judgment under the Re Barrell jurisdiction was declined on grounds of timing and lack of good reason, especially as the points raised either revisited earlier submissions or introduced new arguments not properly before the court.

Holding and Implications

The court DISMISSED the Appellant's appeal against the High Court's decision that the two witness statements were absolutely privileged and thus immune from defamation claims.

The direct effect of this decision is that the Appellant cannot pursue defamation claims based on the witness statements made in the costs assessment proceedings. The ruling affirms the broad protection afforded to witness statements in judicial proceedings under the doctrine of absolute privilege.

No new precedent was established beyond reaffirming existing principles. The court emphasized the importance of finality in litigation and the need to balance protection of witnesses with preventing abuse of privilege, leaving open issues relating to harassment proceedings and other exceptions for future adjudication.