Westcott v Westcott

Factual and Procedural Background

This case arises from a domestic dispute involving the breakdown of a marriage and subsequent contact difficulties concerning a child. The Defendant, a General Practitioner, made a complaint to the police alleging that the Plaintiff, her father-in-law and a Justice of the Peace, had assaulted her and her child. The police did not pursue prosecution based on the complaint. The Plaintiff then brought a defamation claim against the Defendant, alleging that her complaint was false and damaging to his reputation. The Defendant pleaded absolute privilege as a defence, arguing that the complaint was made in the course of a police investigation and was therefore immune from suit. The Deputy High Court Judge ruled in favour of the Defendant on the preliminary issue of whether the oral and written statements to the police were protected by absolute privilege and dismissed the claim. The Plaintiff appealed with permission granted by a senior judge.

Legal Issues Presented

1. Whether a person who makes a complaint to the police, instigating a police investigation that does not result in prosecution, is protected by absolute privilege in defamation proceedings.
2. Alternatively, whether such complaints should only be protected by qualified privilege, which can be defeated by proof of malice.

Arguments of the Parties

Appellant's Arguments

• The oral complaint and subsequent written statement to the police should not be regarded as part of the investigation but merely steps to instigate it, thus not attracting absolute privilege.
• Qualified privilege should apply, with malice as the relevant standard, to avoid unjustly shielding malicious complainants.
• Public policy does not support extending absolute privilege to malicious complainants when failed prosecutions only require malice to be proven.
• Denying the Plaintiff a remedy for defamation infringes his rights under Article 8 of the European Convention on Human Rights.

Respondent's Arguments

• Public policy demands that individuals should be able to make complaints to the police without fear of subsequent litigation, thus absolute privilege should apply from the outset.
• Protection should be consistent for those involved in the criminal investigation process, including complainants, investigators, and prosecutors.
• Allowing immunity only after prosecution would undermine the administration of justice by discouraging free communication with law enforcement.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the competing public interests: the need to encourage free and uninhibited reporting of alleged criminal conduct to the police versus the protection of individuals’ reputations from defamatory falsehoods. It reviewed established authorities on absolute privilege, including its extension beyond courtroom testimony to statements made during investigations. The court emphasized the test from Evans v London Hospital Medical College that absolute privilege applies when statements are part of investigating a crime or possible crime with a view to prosecution.

The court rejected the appellant's argument that the initial complaint was merely an instigation step not protected by absolute privilege, reasoning that protection must apply from the earliest moment the criminal justice system becomes involved to avoid chilling effect on reporting. It held that both oral and written statements to the police were part of the investigatory process and thus absolutely privileged.

The court distinguished defamation claims from malicious prosecution claims, noting that absolute privilege applies to the former but not the latter, where malice and abuse of process remain actionable. It further found no violation of Article 8 of the European Convention on Human Rights, concluding that the public interest in administration of justice justifies the immunity and that it is proportionate.

The reasoning was supported by recent authorities endorsing the principle that complainants to police must be free to speak without fear of litigation even if malicious informants benefit from such protection, as the balance of public interest favors robust criminal justice administration.

Holding and Implications

The court DISMISSED the appeal, upholding the ruling that both the oral complaint and the subsequent written statement made to the police enjoy absolute privilege and immunity from defamation claims.

The direct effect is that complainants to the police are protected from defamation actions arising from their statements made in initiating or assisting police investigations, even if those statements are malicious. No new precedent was established, but the decision clarifies and affirms the application of absolute privilege in the context of police complaints and investigations, emphasizing the primacy of public policy favoring uninhibited reporting for the administration of justice.