False complaints to statutory regulators unlikely to be actionable in defamation

When a professional is the subject of a potentially career ending false complaint to their regulator, they often ask whether the law of defamation can offer a solution. The answer is normally no. This is because typically such complaints are said to be made on an occasion of ‘absolute privilege’, affording the complainant a complete defence to a defamation claim.

What is absolute privilege?

If a statement is made on an occasion of absolute privilege then it is ‘immune from suit’. Absolute privilege was originally applied to statements made during the course of judicial proceedings. Significantly, absolute privilege will protect a publisher even if a statement has been with malice (this means where the person making it knows it to be false or has a ‘reckless disregard’ for truth or falsity). The principal justification behind the doctrine was famously set out by Lord Hoffmann in Taylor & Ors -v- Director of the Serious Fraud Office & Ors [1998] UKHL 39: “[t]he policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not.” A secondary justification is to ensure that a legal process has finality and to avoid a multiplicity of legal actions over the same facts.

Over time, the doctrine of absolute privilege has been extended by a combination of statute and the common (Judge-made) law. In the case of legal proceedings, it was extended to cover not simply evidence given in Court, but all prior statements made in the conduct of the proceedings, and that principle in turn, has been held to include complaints to the police (which may or may not result in legal proceedings) as confirmed in Westcott -v- Westcott [2008] EWCA Civ 818 (see our blog here). For a long time, it was considered that statements made to other forms of investigator, including regulators, were only occasions of qualified privilege (and therefore claims could be brought in respect of malicious complaints). However, following Westcott, the Courts have seemingly extended the doctrine of absolute privilege to at least cover statements made to statutory regulators (i.e. those whose power derives from Parliament/primary legislation). That was the decision in respect of complaints made to the General Medical Council in both Vaidya -v- General Medical Council [2010] EWHC 984 (QB) and White -v- Southampton University Hospitals NHS Trust & Anor [2011] EWHC 825 (QB), with the Court finding that in the latter that the GMC was, in effect, a ‘quasi-judicial’ body. In Huda -v- Wells & Ors [2017] EWHC 2553 (QB), Nicklin J found that the same logic almost certainly applied to a complaint to the General Osteopathic Council. It is very likely that the outcome would now be the same in respect of statements made to other statutory regulators, including the Competition and Markets Authority and the Financial Conduct Authority.

What if the regulator is a voluntary organisation rather than a statutory body?

The position may well be different where the regulator is not a statutory body, but rather a voluntary organisation, trade organisation/association or self-regulating body. In these situations, the defence of absolute privilege may not apply. The test is likely to be the extent to which, if at all, the organisation is fulfilling a public role that serves common, rather than private, interests. However, where the defence of absolute privilege does not apply, ‘qualified privilege’ could well do so instead.

What is qualified privilege?

Qualified privilege, whilst not as broad as absolute privilege, can be a formidable hurdle for a defamation claimant to overcome,. As described by Lord Atkinson in Adam -v- Ward [1917] AC 309, qualified privilege arises in a situation “where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.” Common examples include communications between employees and their employer or communications between healthcare professionals.

Qualified privilege is, as the name suggests, a form of privilege which is qualified. Specifically, its applicability depends on whether the statement in question is made with malice; the defence of qualified privilege will not succeed if malice can be established. Whilst it is for a defendant to raise qualified privilege as a defence, it is presumed that the defendant acted without malice (Clark -v- Molyneux (1877) 3 QBD 237) and the burden of proof shifts to the Claimant to demonstrate this, noting that the fact a statement is false is not usually on its own sufficient evidence of malice (Owens & Anor v Grose & Anor [2015] EWHC 839 (QB)). A claimant must normally produce compelling evidence that the defendant made an allegation knowing it was false (or with a reckless disregard as to truth/falsity). In practice, this can be very difficult – even where a claimant strongly believes the allegation was malicious.

Where does this leave a professional who has been the subject of a false complaint?

It is essential that any professional who is the subject of a false complaint properly engages with the process and, as a priority, focuses their resources on defending an investigation or proceedings. Regulatory solicitors should always be consulted at the outset, with media/reputation advice being sought at the same time where costs permit. A professional who seeks to target the complainant instead of engaging with the regulator may put themselves at higher risk of career damage. Additionally, misguided/collateral legal attacks on a complainant also risk being seen by a regulator/tribunal as a cynical deflection strategy or even witness intimidation. For all the reasons set out above, it may be unlikely that a claim in defamation will be viable, although it may be possible to obtain reporting restrictions or take other steps to try to alleviate reputational harm.

Where a professional may well have a basis for taking legal action is if the allegations have also been made outside of a protected communication channel. This may include on social media. It could also include a complaint to an employer (although the defence of qualified privilege will normally need to be overcome). It is important to note that in such claims, the reputational harm/financial loss must flow from the specific communication sued upon (as opposed to harm/loss that flows from a complaint to a regulator). Secondly, the limitation period for issuing a defamation claim is one year and this is very rarely disapplied (a claimant who says they were focussing on defending regulatory proceedings is unlikely to get far). That is not to say that proceedings should be issued hastily as they may harm the claimant’s position in any regulatory investigation/proceedings – whether by prejudicing their defence or simply be creating the wrong optics. For this reason, coordinated legal advice/strategy is essential. The last thing a professional should be doing is firing off an AI-generated threat of defamation proceedings to a complainant.

An unjust state of affairs

If a professional does not have the benefit of an insurance/defence policy or it places limitations on their choice of legal representation, then they can incur significant cost in responding to a regulatory investigation or defending regulatory proceedings. If they are not prosecuted, then these costs are never recoverable. If they are prosecuted and cleared then their costs will generally only be recoverable from the regulator in very limited circumstances (see our blogs here and here). They are never recoverable from the Complainant. Equally, a professional has no recourse to recover loss of earnings and other costs that flow from a complaint to a statutory regulator. Nor can they recover damages for any harm caused to their mental health, which is a frequent byproduct of a regulatory complaint. This often comes as a surprise to professionals who feel they are being persecuted, but rightly or wrongly that is the state of the law – with the harm suffered by false complaints being accepted as an occupational hazard of the job.