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Alleged defamatory comments made in course of pre-action protocol covered by absolute privilege

Percy Preston of Brett Wilson LLP is interviewed about the High Court's decision in Jabbar and another v Aviva Insurance UK Ltd and others [2022] EWHC 1383 (QB).

Analysis: This judgment concerned the defendants’ application for an order striking out the claims for unlawful means conspiracy, conspiracy to injure and tortious interference with contract, on the basis that the Particulars of Claim contained no ‘reasonable grounds’ for bringing these claims. The defendants also successfully sought summary judgment on the claimants’ defamation claim. Deputy Master Toogood QC held that the claimants had no real prospect of succeeding in this claim, because, inter alia, the publication complained of was made under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (‘RTA Protocol’) and was protected by absolute privilege. The court also granted the defendants’ strike out applications in relation to the claims for unlawful means conspiracy, conspiracy to injure and tortious interference with contract

What are the practical implications of this case?

The main issue at stake in this case (whether ‘Part 35 questions asked in the course of a Pre-Action Protocol by the insurer of a proposed defendant should be covered by absolute privilege’) is a narrow one. However, the section of the Master’s judgment dealing with this question (paras [44]–[65]) will be of interest to defamation practitioners because of its comments on the relationship between absolute privilege and communications within a Pre-Action Protocol.

Citing the Court of Appeal’s decision in Jet 2 Ltd v Hughes [2019] EWCA Civ 1858, the Master noted that a pre-action protocol is ‘an integral and highly important part of litigation architecture’. However, this is not to say that all communications within such a protocol would automatically be occasions of absolute privilege. Rather, it would depend on the extent to which the communications have an ‘immediate link’ or sufficiently close connection with possible proceedings (Waple v Surrey County Council [1997] EWCA Civ 3032).

The special character of the RTA Protocol, which imitate pre-trial procedures ‘more thoroughly than other pre-action protocols’ (White Book paragraph C13A-005), meant that comments made within the RTA Protocol were very likely, if not certain, to be ‘part and parcel of contemplated legal proceedings’. As such, the publications complained of in this case were protected by absolute privilege.

The second point arising from the judgment is one of general good practice. A case must be pleaded with sufficient particularity to disclose reasonable grounds for bringing the claim, or risk being struck out. In the present case, there were extensive failings in the pleadings, not least that the claimants had pleaded conspiracy, but without identifying any of the conspirators or any communications that could evidence a conspiracy. As a result, the Master showed little hesitation in striking out the claims for unlawful means conspiracy, conspiracy to injure and tortious interference with contract, pursuant to CPR 3.4(2)(a), as the Particulars had failed to disclose any reasonable grounds for bringing the claim.

What was the background?

The first claimant, Ms Jabbar, is a doctor. Her main business is providing medico-legal reports as an expert witness in whiplash cases. Ms Jabbar is the sole director of the second claimant, a company set up to administer the first claimant’s medico-legal practice. The first and second defendants are subsidiaries of the third defendant, a multinational insurance company.

In February 2018, the first claimant prepared a medical report based on her examinations of Karleen Marshall, who had been involved in a traffic accident in November 2017. In December 2018, an employee of the first defendant’s claim department, Mr Xavier, sent an email to Ms Marshall’s solicitor headed ‘Part 35 Questions to claimant’s Medical Expert’. This email contained a series of questions about the first claimant’s medical evidence, including the allegedly defamatory publication, in which Mr Xavier asked whether it was true that the General Medical Council (GMC) had restricted the first claimant from examining or contacting patients.

On 1 November 2019, the claimants sent a Letter of Claim to the defendants, alleging that the insurers had made publications to solicitors which were defamatory and malicious. The Letter of Claim alleged that these publications were aimed at discouraging solicitors from seeking reports from the first claimant, because first, this would reduce the amount payable to injured parties, and secondly, to cause financial loss to the first claimant.

The Claim Form was issued on 19 December 2019 and the Particulars on 31 March 2020. On 2 November 2020, the defendants’ solicitors issued an application for summary judgment on the defamation claim pursuant to CPR Pt 24, and to strike out the claims for conspiracy to injure, unlawful means conspiracy and tortious interference with contract pursuant to CPR 3.4(2)(a).

What did the court decide?

The central issue in deciding the defamation claim was whether questions asked by the insurer of a proposed defendant under Part 35 of the RTA Pre-Action Protocol are protected by absolute privilege.

The Master decided that it was ‘strictly necessary’ to extend absolute privilege to Part 35 questions asked by a defendant’s insurer, because no ‘sensible distinction’ can be ‘drawn between claims proceeding under that Protocol and claims in respect of which a Claim Form has been issued’. It is trite law that statements made in the latter context would be protected by absolute privilege. The RTA Pre-Action Protocol has ‘particularly close connections with litigation’, indeed it was ‘specifically designed to replace litigation where possible’. To hold that statements made under its auspices are not protected by absolute privilege would enforce a largely arbitrary distinction between RTA proceedings and formal litigation, and would defeat the public policy aim of allowing ‘free and frank exchange of information’ required for ‘claims to be negotiated and settlement achieved’. (citing King v Grundon [2012] EWHC 2719).

If the court was wrong in deciding that the publications complained of were covered by absolute privilege, the Master held that they were, in any event, subject to qualified privilege. As the claimant had failed to plead any case on malice, this would provide the defendants with an alternative defence to absolute privilege. The Master also found that the claimants had failed to provide any evidence of serious harm and that they would be unable to provide such evidence by the time of trial.

The Master also granted the defendants’ strike out applications in relation to:

  • conspiracy to injure
  • unlawful means conspiracy, and
  • tortious interference with contract

In relation to the first two matters, the claimants had failed to adequately identify the alleged conspirators, or the communications which could be said to evidence/constitute a conspiracy.

In relation to the third point, the claimants had, inter alia, failed to identify ‘a single contract which it is alleged was breached by reason of any action of the Defendants’.


This article was first published on Lexis® PSL on 7 July 2022 and is reproduced with permission and thanks.


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