The parties in this libel action were formerly married. The claim is in respect of various Facebook postings and an email. At the PTR, the Defendant applied, pursuant to CPR r.3.4, to strike out the claim based on the email on the grounds it was protected by absolute privilege and/or was not a real and substantial tort.
The email was sent by the Defendant to the Claimant’s new partner’s ex-husband (Mr Roche). It was part of a chain of emails in which Mr Roche referred to the custody proceedings for his children which were then taking place in France. It appears that the email was referred to, at least on appeal, in those proceedings. The Defendant contended that absolute privilege applied. Nicol J refused to strike out the claim (on either ground). The Defendant had not shown that, on the pleadings, the claim was bound to fail.
In respect of absolute privilege, Nicol J accepted the submissions for the Defendant that:
whether a publication takes place on an occasion of absolute privilege has to be determined at the time of publication; and
“it is a necessary condition of absolute privilege for statements made in advance of judicial proceedings by prospective witnesses that the statement is made for the purpose of such proceedings”.
The Defence did not plead that the purpose of the email was to set out what the Defendant would say if she were called as a witness in the French proceedings. Nicol J held that the Defendant’s intentions should be considered on the evidence at trial.
The application also raised an interesting point as to the precise scope of absolute privilege. It was agreed that absolute privilege could in principle apply to evidence gathering by a litigant-in-person as well as a lawyer on a litigant’s behalf, but Nicol J said “Nonetheless, when evidence gathering is not filtered by a lawyer with some knowledge of what is or is not relevant or is or is not proper to be included in the evidence, some more thought may need to be given to the precise boundaries of when the privilege will apply.”
The judgment is available here.