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08 August 2016

Court Declines To Stay Defamation Proceedings Brought By Solicitor

Summary of Judgment

Mr Justice Stephens, sitting today in the High Court in Belfast, dismissed an interlocutory application on behalf of the Chief Constable to stay proceedings for defamation brought by a solicitor, Mark Austin, in respect of a comment made by a police officer during an interview of the solicitor’s client.

The court heard that prior to the first police interview, Mr Austin (“the plaintiff”) consulted with his client and then prepared a statement which the client signed and dated and which the plaintiff was authorised to read into the record as his account of what occurred on the evening in question. The plaintiff told the court that the decision as to the time at which a pre-prepared is made during the course of a police interview is a matter of professional judgment - on some occasions it can be to the advantage of the client to wait before putting a case on the record in order to see, through the questions which the police ask and the disclosure which is given by the police, the extent to which the police are in possession of any evidence. On other occasions it can be tactically advantageous to confront known evidence that lies against a client by making a statement at an earlier time in the interview process. The plaintiff asserted that each case is different and that this is part of the important advices given to a client and the judgment calls to be made on how a solicitor shall represent a client during “after caution” police interviews.

In this case, the plaintiff sought to read the pre-prepared statement at the end of the second police interview. When the plaintiff said his client had prepared a statement, he was asked by one of the police officers why it wasn’t offered at the beginning of the interview. He told the officer: “It’s obviously at our discretion if and when we …”. The officer replied, “Well it is but it’s slightly unprofessional to at the end then offer the pre-prepared statement”. The plaintiff said it was not unprofessional and the officer said that it was unprofessional. The plaintiff read the pre-prepared statement. When the officer asked the plaintiff to provide a photocopy of the statement he replied, “No, I’m not providing anything, it’s on tape, and I do take grievance at being called unprofessional”.

The plaintiff asserted that after the interviews he spoke to the Custody Sergeant who informed him that the officer had no intention of retracting her comments. Counsel acting for the Chief Constable (“the defendant”) claimed the Custody Sergeant said he offered to attempt resolution of the dispute but that his offer was rebuffed by the plaintiff. The plaintiff made a complaint to the Police Ombudsman. In a letter informing the plaintiff of the outcome of the complaint, the Ombudsman’s Office said it had been provided with information that the Custody Sergeant spoke to the police officer immediately after the incident and provided her with appropriate disciplinary action which included reminding her that the comment was inappropriate, unprofessional and should not be repeated. The Ombudsman upheld the complaint.

The plaintiff issued a writ of summons seeking damages for slander and defamation on the basis that the words were not only spoken by the police officer in the hearing of the plaintiff’s client and the other interviewing officer, but they were recorded and listened to by those transcribing the tape for the purpose of the complaint to the Ombudsman as well as being listened to by those in the Ombudsman’s office involved in investigating the complaint. The plaintiff alleges that the words spoken meant that he was “unprofessional in the manner by which he conducted himself as an officer of the Court and as a solicitor advising and representing a client suspected of having committed a serious criminal offence”, and that they suggested he was discharging his duties in a “disreputable way and in a manner unbecoming to his profession as a solicitor”. The defendant asserted that the comment was not inappropriate and that the words were capable of being interpreted as meaning that in disclosing a pre-prepared statement at the conclusion of the interview the plaintiff caused delay in the interview process.

The purpose of the interlocutory hearing was to determine whether the proceedings should be stayed as an abuse of process on the basis that there has been “no real and substantial tort” under the legal principles established by case law. Counsel for the defendant submitted that the tort was not a “real tort” on the basis that the words used were trivial so that the plaintiff has no real prospect of establishing that they met the threshold of seriousness test. He claimed that the words did not “substantially” affect in an adverse manner the attitude of other people towards the plaintiff, or have a tendency to do so, and commented that publication had been limited to a very small number of people.

Mr Justice Stephens said the court is required to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant’s reputation. He said this case involves the freedom of expression of those responsible for the investigation of serious crime which is a most important function in a democratic society: “The threat of defamation actions on the proper questioning of those suspected of serious crimes is an important aspect of this case”.

Referring to the leading case, the judge said the application of the principles should take into account the legal and procedural differences as between this jurisdiction and England and Wales. In Northern Ireland costs are significantly lower than in England and Wales and as a result it is less likely that a claim will be struck out here on the balance between costs involved in achieving an award and the damages that could potentially be awarded. Mr Justice Stephens said a part of the balancing exercise is a consideration of the likely level of an award in Northern Ireland if the matter proceeded to a trial. This will depend on a number of factors including the gravity of the libel, the effect on the plaintiff’s feelings, the publication of an apology, and vindication of the plaintiff’s reputation. Another feature to be considered is whether the issues are complex, because if they are not and if the matter falls within the jurisdiction of the county court, then if an application was made the case could be remitted to that court where the costs regime is more controlled. Mr Justice Stephens noted that a plaintiff may commence any action in the county court, regardless of its potential value, provided that he does not claim more than £3,000.

Mr Justice Stephens said the case is at an interlocutory stage and his following conclusions are not binding if the case goes to trial:

  • There was limited publication and he did not consider publication to the Ombudsman had any effect on the plaintiff’s reputation;
  • The decision of the Ombudsman vindicates the plaintiff;
  • The defendant has asserted that the plaintiff did act inappropriately and if this action was stayed there would remain an allegation against the plaintiff that a defamatory meaning is true.

The judge concluded that there remains a challenge to the plaintiff’s professionalism which he is entitled to take seriously. He considered the case has a low value within the county court jurisdiction and that the costs in the county court are proportionate. He dismissed the defendant’s application to stay the proceedings and said he would hear counsel in relation to the remittal of this action to the county court.

NOTES TO EDITORS

  1. This summary should be read together with the judgment and should not be read in isolation. Nothing said in this summary adds to or amends the judgment. The full judgment will be available on the Court Service website (www.courtsni.gov.uk).

    ENDS

    If you have any further enquiries about this or other court related matters please contact:

    Alison Houston

    Judicial Communications Officer

    Lord Chief Justice’s Office

    Royal Courts of Justice

    Chichester Street

    BELFAST

    BT1 3JF

    Telephone: 028 9072 5921

    E-mail: Alison.Houston@courtsni.gov.uk