WONG SHUI KEE ROGER t/a ROGER S.K. WONG & CO., SOLICITORS v. VICTOR L.L. CHU AND OTHERS

HCA5590/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 5590 OF 2000

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J U D G M E N T

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Introduction

1. Both the plaintiff and the defendants are solicitors practising in Hong Kong. One of their shared areas of expertise is the law of intellectual property. In 1994, the parties represented opposing litigants in proceedings which took place in this Court. The defendants acted as solicitors for a company which claimed that there had been an infringement of its copyright in certain battery-operated toys. The plaintiff acted as solicitor for the company against whom the proceedings had been instituted.

2. In the course of those proceedings, letters passed between the parties. Some were couched in direct, robust language.

3. On 2 November 1994, the defendants sent a letter to the plaintiff concerning the litigation. The plaintiff took exception to the contents of one paragraph of that letter. In his view it was defamatory of him. The paragraph read :

" We believe no reasonable Court will fail to see through this lame excuse you put up to excuse your tardiness in filing evidence in answer of the Summons. We regard it intellectually dishonest of you to suggest that the particulars requested of the Statement of Claim was what you had to see before your client would know what to say in answer to our client's Summons." [my emphasis]

4. It was the accusation that he had been 'intellectually dishonest' to which the plaintiff took exception. By letter dated 3 November 1994, he demanded that the statement be withdrawn and he receive an apology, failing which he would, to employ his words, take 'appropriate action'.

5. On 9 November 1994, the defendants replied. While an unreserved apology was not given, the letter was couched in conciliatory terms. The relevant portion read :

" We believe you have over-reacted to the remarks made in the sentence quoted, which were by no means intended to be 'offensive deplorable derisory and defamatory' in any respect. Rather, it was intended to express our strong disagreement with your persistent assertion that you were unable to prepare evidence until the particulars requested were delivered by us. If the words chosen have offended your sensitivities, please accept our apology. We do not believe it is in the interest of our respective clients to escalate the heat over this matter and engage in future rhetoric."

6. There does not appear, at that time, to have been further correspondence concerning the offending letter. However, in June 2000, more than five years after that letter had been received by the plaintiff, the present action was instituted.

7. That the words contained in the offending letter were defamatory of the plaintiff is stated in the following terms in paragraph 6 of the plaintiff's Amended Statement of Claim :

"The said words/remarks in their natural and ordinary meanings meant and were understood to mean that the Plaintiff was dishonest in the intellect, and therefore dishonest. The said words/remarks were extremely abusive and damaging to the reputation of the Plaintiff ...."

8. As for publication of the statement, the plaintiff, in paragraph 5 of the Amended Statement of Claim, claims that there have been three instances of publication. For the purposes of the limited issue argued before me, the defendants have not contested that publication was, in fact, made on those three occasions which may be stated as follows :

(a) the offending letter was opened and read by an assistant solicitor, an employee of the plaintiff, whose duties including perusing correspondence;

(b) a copy of the offending letter was sent by the defendants to their client; and

(c) copies of the offending letter were contained in what are commonly called 'court bundles' for use at a hearing at which a temporary injunction was to be sought : as such it was published to counsel representing the litigants and also the judge.

9. The defendants have defended the plaintiff's defamation action on a number of grounds. One of those grounds is that the alleged defamatory statement was made and published on occasions of absolute privilege, that is, within the course of proceedings before a court of judicature.

10. As the resolution of this defence was in no way dependent upon a resolution of contested factual issues and was able to be resolved on arguments of law, application was made by the defendants in terms of Order 33, rule 3 of the Rules of the High Court for a direction that the issue of absolute privilege be tried as a preliminary issue. In March of this year, having heard argument, Deputy Judge Muttrie made that order.

11. Accordingly, the matter comes before me to decide one issue only. It is whether all or any of the publications of the offending letter occurred on occasions of absolute privilege.

Absolute privilege in judicial proceedings

12. The nature of absolute privilege in judicial proceedings has been defined in seminal terms by Lopes LJ in the nineteenth century case of Royal Aquarium and Summer and Winter Garden Society Ltd v. Parkinson [1892] 1 QB 431 (at 451) :

".... The authorities establish beyond all question this: that neither party, witness, counsel, jury, nor judge, can be put to answer civilly or criminally for words spoken in office; that no action of libel or slander lies, whether against judges, counsel, witnesses, or parties, for words written or spoken in the course of any proceeding before any Court recognised by law, and this though the words written or spoken were written or spoken maliciously, without any justification or excuse, and from personal ill-will and anger against the person defamed. The 'absolute privilege' has been conceded on the grounds of public policy to insure freedom of speech where it is essential that freedom of speech should exist, and with the knowledge that Courts of justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the power and ought to have the will to check any abuse of it by those who appear before them."

13. Absolute privilege by its nature is a privilege of some magnitude, one which may, albeit for a higher interest, impinge substantially on the rights of individuals. It is therefore a privilege to be kept within defined boundaries. It is for this reason no doubt, as Brooke LJ observed in Waple v. Surrey County Council [1998] 1 All ER 624 (at 627), that it has been settled for over 100 years that 'the courts should be very slow to extend the scope of this privilege'.

14. When absolute privilege is applicable in judicial proceedings has been stated by Devlin LJ in Lincoln v. Daniels [1962] 1 QB 237. In so doing (at 257) he has divided the privilege into three categories :

".... The first category covers all matters that are done coram judice. This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence. The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings. The third category is the most difficult of the three to define. It is based on the authority of Watson v. M'Ewan [1905] AC 480, in which the House of Lords held that the privilege attaching to evidence which a witness gave coram judice extended to the precognition or proof of that evidence taken by a solicitor. It is immaterial whether the proof is or is not taken in the course of proceedings. In Beresford v. White (1914) 30 TLR 591, the privilege was held to attach to what was said in the course of an interview by a solicitor with a person who might or might not be in a position to be a witness on behalf of his client in contemplated proceedings."

In the course of judicial proceedings ...

15. With the exception of the limited circumstances contained in Devlin LJ's third category, absolute privilege only comes into being with the commencement of judicial proceedings. It then endures until the conclusion of those proceedings.

16. In the present matter, it is not disputed that proceedings in the High Court came into being in August 1994 and continued until August of the following year.

17. In those proceedings, the defendants acted as solicitors for a company called Soma International Limited ('Soma') which designed and manufactured toys. Action was instituted against a company called Dolly Dolls & Toys Factory Limited ('Dolly Dolls') on the basis that Dolly Dolls, in manufacturing and distributing a range of battery-operated toy figures, was infringing Soma's copyright. The plaintiff was engaged to act as solicitor for Dolly Dolls.

18. As is common in actions concerning alleged infringement of copyright, the defendants issued a writ of summons seeking a permanent injunction, damages and the like ('the main action') and at the same time commenced interlocutory proceedings seeking a temporary injunction until the main action had been resolved.

19. The interlocutory proceedings were set down for hearing in mid-November 1994 and near to that date court bundles were prepared in anticipation of the hearing. They were delivered to the court and counsel. As it turned out, the parties were able to reach agreement in terms of which Dolly Dolls consented to an interim injunction. A consent order was made to that effect. There was, therefore, no need for a contested hearing.

20. In the main action, in May 1995 the defendants issued a summons seeking summary judgment in respect of liability. The matter came to trial in July 1995 and shortly thereafter judgment was granted in favour of Soma. This led to a final settlement of the litigation in terms of which Dolly Dolls paid an agreed amount of damages and legal costs. The terms of final settlement were recorded in a consent order.

21. The offending letter was dated 2 November 1994, well after litigation in both actions had commenced. It is not disputed, therefore, that it came into existence and was published in the course of judicial proceedings.

For the purpose of the proceedings ...

22. While absolute privilege is available where it is derived from judicial proceedings in the ways described by Devlin LJ, it will only protect communications when they are published for the purposes of the proceedings. Judicial proceedings, therefore, cannot be used as a shield to protect a party making a defamatory statement that is not for the purposes of the proceedings.

23. That, of course, begs the question : how is it to be determined whether a communication is or is not made for the purposes of the proceedings?

24. It has been said that the boundary where absolute privilege is lost and the lesser protection of qualified privilege is assumed is unsettled. In the present case, however, the plaintiff has argued that the defendants have crossed that boundary. An attempt must therefore be made at demarcation.

25. In my judgment, while relevance is a factor, it is by no means the determining factor. It seems to me that of first importance is the nature of the occasion on which the communication is made, that is, the form of the communication rather than its substance. There is an oblique reference to this principle in Lincoln v. Daniels (supra) where Devlin LJ said (at 259) :

".... On such a point form is of the first importance; it is by form rather than by the substance of the complaint that a writ is to be distinguished from a letter before action. ...."

26. With reference to the definition of absolute privilege by Lopes LJ (supra), it is the fact that statements are written or spoken 'in office' or 'in the course of any proceedings before any court recognized by law' that vests those statements with the protection of absolute privilege. That is the matter of first importance.

27. Take, for example, a witness being cross-examined in a trial. What if that witness, perhaps with his case weakening, blurts out something which is irrelevant to the issues involved and constitutes a defamatory remark about his opponent. Is that witness to be open to a claim for defamation? If so, how is a witness to be able to speak freely? How is counsel to be able to cross-examine so that perhaps, by such irrelevant remarks, the weakness of an opponent's case is revealed. Clearly in such an instance the witness is protected by absolute privilege notwithstanding the irrelevancy of the remark or any malice contained in it.

28. The same principle must apply with written communications. Of first importance must be the form of the communication rather than its content; in short, is it written in the course of legal proceedings and in respect of those proceedings? If, despite the existence of those two factors, a communication would be open to a claim for damages in defamation, it would - to employ the words of Lane J in the Ontario Court (General Division) of Canada, Lubarevich v. Nurgitz and Others (1996) Ont. C.J. Lexis 1640 - make 'a potential defendant out of every lawyer writing on a client's behalf'. Lawyers must be able to represent their client's best interests fully and where necessary 'without pulling their punches'. As Lane J said : only an absolute privilege will suffice to enable the lawyer to perform the function assigned to him or her in judicial proceedings under our system of law.

29. Where then is the boundary to be drawn so that on the one side of it the protection of absolute privilege is lost? In my judgment, it is only lost when, in making a statement, written or oral, the statement maker steps outside of the confines of the judicial proceedings and embarks on an independent course of action.

30. That, I am satisfied, accords with long-established principle. See for example Seaman v. Netherclift (1876) 2 CPD (at page 60) in which Bramwell JA said :

".... Suppose while the witness is in the box, a man were to come in at the door, and the witness were to exclaim, 'that man picked my pocket'. I can hardly think that would be privileged. I can scarcely think a witness would be protected for anything he might say in the witness-box, wantonly and without reference to the inquiry. ...."

31. In respect of written statements, the principle may, I believe, be illustrated in a similar analogy. Assume a solicitor representing a litigant writes to the solicitor for the opposing litigant to demand delivery of overdue pleadings. Assume further that in the letter he writes the following : "I saw you in the changing room of the club last night taking money from clothing that had been left there. You are clearly a thief." That accusation of dishonesty is not made in any way for the purpose of the litigation proceedings. In saying those words, the solicitor is not acting in his capacity as a solicitor for his client, he has done no more than seize the opportunity to make a statement in his private capacity. In so doing - no matter what the heading to the letter may read - he has, in my view, stepped outside of the confines of the proceedings and embarked on an independent course of action, namely, the making of a private accusation.

32. In submitting that the offending letter was not written for the purposes of the legal proceedings, the plaintiff has spread his net wide. The statement in the offending letter, he said, was so plainly without relevance to the conduct of the litigation that it could not be said to be a statement made for the purposes of the proceedings. It was, he argued, an entirely extraneous attack on his character independent of the proceedings. The plaintiff advanced his argument by saying that the statement was made by the author of the letter in a private capacity and not in his or her capacity as a solicitor : this must be so because the statement did not in any way advance the client's case and was irrelevant to it.

33. Can it be said that in making the alleged defamatory statement the defendants stepped outside of the confines of the judicial proceedings and embarked on an independent course of action? The answer requires an examination of the circumstances in which the offending letter came to be written :

(a) When the plaintiff was engaged to defend the two actions brought by Soma, he caused various pleadings and affirmations to be filed. In respect of the main action, Dolly Dolls' defence together with a Request for Further and Better Particulars of the Statement of Claim were filed by mid-October 1994.

(b) A week after that, on 17 October 1994, the defendants wrote to say that they would be filing their Further and Better Particulars within 14 days, that is, by the last day of the month. The letter ended by saying : "We trust that with this our affirmative reply, a formal application to court [for an extension of time] is not necessary."

(c) Although a defence had been filed in the main action, by 29 October 1994 - with the hearing of the interlocutory proceedings due to take place in about two weeks - the plaintiff had not filed any affirmation or other answer in respect of those proceedings. As a result, on that date the defendants wrote to the plaintiff demanding to know whether Dolly Dolls intended to file evidence. The letter read (in part) :

" In the normal course of events, our client should have a right of reply to any evidence to be lodged by your client and should further have a reasonable period of time to do so, if desired. Now that the hearing is only two weeks ahead, and when our client's evidence was filed more than two and a half months ago, our client will not permit any late filed evidence from your client to be admitted for the purpose of the hearing without a proper chance afforded to our client to reply thereto.

.... We further give you notice that should any late filing of evidence render it practicably impossible for our client to reply hereto and thereby necessitate an adjournment of the 15th November 1994 hearing, our client shall seek against your client all its costs inclusive of Counsel's brief fees so thrown away or occasioned. We reserve our client's rights to produce this letter to the Court as to the question of costs should it become necessary."

(d) On 31 October 1994, the plaintiff replied to the following effect :

" Although we have requested Further and Better Particulars of your Statement of Claim on 11th October 1994 and you have promised to supply the same to us on or before 31st October 1994, so far we have not received the same and therefore we are put into a difficult if not an impossible position to draft and prepare the affirmation/affidavit in opposition to your client's evidence filed into court and we reserve our right to claim against your client for costs including counsel's fee thrown away for any adjournment of the summons as a direct result of your said failure."

(e) It was this letter which precipitated the drafting of the offending letter. The defendants clearly were stung by the suggestion that their failure to date to file their Further and Better Particulars had put the plaintiff into a 'difficult if not impossible position' in drafting an affirmation in opposition. They saw this as an excuse - an exercise, as they put it, of 'intellectual dishonesty' on the part of the plaintiff - who, in any event, had most of the information he had requested before him in Soma's detailed affirmations. The offending letter (in part) thus read :

" After the Statement of Claim was served on you on 13th September 1994, it took you almost one month to serve a Request for Particulars. We note that the alleged want of particulars in no way hampered your preparation of your client's Defence. The particulars requested were served on you in 3 weeks' time, as promised. If your had bothered to study our client's Affirmations at all, most if not all of the particulars requested were contained therein.

We believe no reasonable Court will fail to see through this lame excuse you put up to excuse your tardiness in filing evidence in answer of the Summons. We regard it intellectual honest of you to suggest that the particulars requested of the Statement of Claim was what you had to see before your client would know what to say in answer to our client's Summons."

34. While I make no comment on the wisdom of the alleged defamatory words, I fail to see how it can be said that, in making them, the defendants stepped outside of the confines of the proceedings and, to use the plaintiff's words, 'made a private attack on his character'. The central matter in issue was the alleged failure of Dolly Dolls, the defendant in the interlocutory proceedings, to file its affirmation or other answer within the allowed time limits. That alleged failure had repercussions in respect of delay and costs. The defendants were attempting on behalf of their client to assume the tactical high ground so that, if an adjournment of the interlocutory hearing was necessary, their client would at least be indemnified in costs. Patently they were seeking the best advantage of their client in the litigation. Whether they were doing so in an exemplary fashion is not to the point. What is to the point is that clearly they were acting in their capacity as solicitors representing their client and equally clearly they were seeking to advance their client's interests in the litigation.

35. I am therefore satisfied that the alleged defamatory statement was written and published not only in the course of the judicial proceedings but for the purposes of those proceedings.

Absolute privilege : a consideration of Devlin LJ's first category

36. The first category of absolute privilege which covers proceedings in or before a court of justice, said Devlin LJ :

".... covers all matters that are done coram judice. This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence."

37. As I understand it, it was the plaintiff's contention that absolute privilege under this first category only comes into being when there is an actual hearing, that is, when the parties are physically coram judice : 'before the court'. Accordingly, documents which are intended to be used in evidence, if published prior to the hearing, are not protected.

38. I can well understand the logic of that contention in the circumstances say of a defamatory document, such as a letter, being circulated to the public or sent to newspapers for publication prior to a hearing. But the plaintiff has based his contention on a more radical premise, namely, that, even if counsel who are to appear and the judge who is to preside see the defamatory document prior to the hearing commencing, they see it devoid of the protection of absolute privilege.

39. It is on this basis that the plaintiff asserts that there was publication of the offending letter to counsel who were to appear at the interlocutory hearing and the judge who was to preside. Publication took place because the offending letter was contained in court bundles sent to counsel and the court.

40. As it was, argued the plaintiff, the interlocutory proceedings were settled. No hearing took place. The contents of the court bundles were, therefore, never put in as evidence. The matter, therefore, was never coram judice.

41. In my judgment, the plaintiff's argument is misconceived. Counsel read the papers prior to the hearing in order properly to make their submissions at the hearing. The judge did the same so that he would be able properly to preside. Such preparation was so integral to the hearing itself that it cannot be divorced from it. Such preparation, to employ the words of Devlin LJ, must be included in 'all matters that are done coram judice'.

42. If it were otherwise it would, in my view, lead to absurdities. A document which could be defamatory, no matter how central to the issue, would have to be withheld from counsel and the judge until the actual hearing commenced. Only then, no matter how much its contents may assist or undermine the purpose for which the hearing has been called, may it be divulged.

43. In the present instance, the fact that the parties reached a settlement in respect of the interlocutory proceedings is of no assistance to the plaintiff. Leaving aside the fact that a consent order was obtained, the reading of papers in the court bundles by counsel and the judge prior to the hearing for the purposes of that hearing were matters done coram judice. As such, the offending letter, which was contained in the court bundles, was published on an occasion of absolute privilege.

Absolute privilege : a consideration of Devlin LJ's second category

44. Devlin LJ said that the second category of absolute privilege in judicial proceedings :

".... covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings."

45. It is the defendants' case that publication of the offending letter to the assistant solicitor in the employ of the plaintiff and to their own client falls within the contemplation of this second category. Accordingly, both occasions of publication are protected by absolute privilege.

46. The plaintiff contests this on the basis that Devlin LJ's second category extends only to 'all pleadings and other documents' generated for the purposes of the legal proceedings and does not include letters. The plaintiff has argued that 'other documents' includes affidavits, affirmations, statutory forms and the like but does not include letters passing between the legal advisors. Letters generated in the course of litigation and for the purpose of it, while given the protection of qualified privilege, are not afforded the sanctuary of absolute privilege.

47. Strangely, the issue of whether inter partes correspondence in litigation is subject to absolute privilege does not appear to have been authoritatively decided. Mr Chow, for the defendants, has only been able to find two cases in which the issue has been dealt with, both first instance decisions.

48. In my judgment, however, correspondence between legal advisors is essential to the efficient, economic and timely resolution of judicial proceedings. Taxing masters allow a great deal of such correspondence because they understand that it plays an integral part in the management of litigation. Correspondence is regularly shown to courts when questions of costs are advocated. A letter concerning overdue pleadings may avoid the necessity of an application to court with its consequent explosion in costs. Litigation correspondence is not a luxury, it is not 'an optional extra', it is an essential element in the professional conduct of litigation. I am satisfied that it is, therefore, contemplated in Devlin LJ's second category of absolute privilege as being, in addition to affirmations, statutory forms and the like, a form of document brought into existence for the purpose of the proceedings.

49. The authors of Gatley on Libel and Slander, 9th Edition (at page 284) say that the protection of absolute privilege :

".... will attach to any matter incidental to the proceedings 'practically necessary for the administration of justice'. That it is convenient is insufficient. ...."

50. As I have said, litigation correspondence is 'practically necessary' for the professional conduct of litigation and therefore for the administration of justice. It is not merely convenient.

51. The common sense requirement of looking to what is 'practically necessary' is to be found again in the dicta of Devlin LJ in Lincoln v. Daniels (supra) where (at 263) he spoke of Lord Halsbury's speech in Watson v. M'Ewan [1905] AC 480 :

".... I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor. The sense of Lord Halsbury's speech is that the extension of the privilege to proofs and precognition is practically necessary for the administration of justice; without it, in his view, no witness could be called. ...."

52. The first of the two authorities referred to by Mr Chow is the decision of French J in Waple v. Surrey County Council [1997] 2 All ER 836. The headnote says that where, in the course of legal proceedings, the solicitor for one party requests the solicitor for the other party for information regarding the case which his client will advance, the answer given is given on an occasion of absolute privilege. This decision at first instance was overturned on appeal (see Waple v. Surrey County Council (supra, in paragraph 13) but it was overturned on the grounds that the correspondence had not taken place in the course of judicial proceedings. The Court of Appeal does not appear to have considered the issue of whether correspondence between solicitors fell within the contemplation of Devlin LJ's second category even though Lincoln v. Daniels and Devlin LJ's dicta in respect of absolute privilege was central to its decision.

53. The second of the two authorities to which Mr Chow made reference is the Canadian decision of Lubarevich v. Nurgitz and Others (supra, paragraph 28) in which the court had no difficulty in finding that a solicitor's letter written in the course of litigation and for the purpose of it may be absolutely privilege. In particular, Lane J, referring to earlier Canadian and United States authorities indirectly on point, said :

" These cases establish that the publication of a letter such as the one at issue here is an occasion of absolute privilege if done in the course of a solicitor's investigation of a client's case with a view to litigation, and if directed to a limited audience from whom the solicitor anticipates obtaining relevant or potentially relevant information. ...."

54. From a reading of the two judgments cited by Mr Chow, the fact that the document in issue was a letter does not appear to have raised any concerns : in my view, a telling point in itself

55. I am therefore satisfied that inter partes correspondence generated in the course of judicial proceedings and for the purposes of those proceedings is, together with all pleadings and other forms of documentation, protected by absolute privilege.

Sending copies of correspondence to client

56. The plaintiff has argued that, even if correspondence directly between solicitors may be protected by absolute privilege, that protection should not be extended to copies of letters sent by solicitors to their clients. Such a course, said the plaintiff, is not practically necessary for the conduct of the legal proceedings. Such copied correspondence should only be afforded the lesser protection of qualified privilege.

57. I cannot agree. The clients are the ones conducting the litigation. It is their litigation. They are entitled to know what is being done and said on their behalf. I would imagine, in fact, that a duty rests on solicitors to keep their clients appropriately advised. Some clients may insist on exhaustive referral, others may be less insistent. But I would be loath, by the vehicle of this judgment, to attempt to curtail the entitlement of litigants to know exactly what is being done on their behalf.

58. I am satisfied, therefore, that lawyers' correspondence brought into existence for the purpose of judicial proceedings (and therefore falling into Devlin LJ's second category) includes copies of that correspondence published to the litigants themselves.

59. In light of the findings I have made concerning correspondence arising out of judicial proceedings being copied to the litigants, it is not necessary to consider the far broader question of the privilege that attaches in any event to communications that pass between solicitors and their clients. However, in so far as those communications are generated by legal proceedings (as in the present case), I would adopt the dicta of Scrutton LJ in More v. Weaver [1928] 2 KB 520 (521) as being the appropriate principle of jurisprudence :

".... There are a few, not many, cases where untrue communications or statements which are defamatory are by the law of England treated as absolutely privileged, so that, although they are untrue, defamatory and malicious, the law does not allow any action to be brought in reference to them. The reason is that there are certain relations of life in which it is so important that persons engaged in them should be able to speak freely that the law takes the risk of their abusing the occasion and speaking maliciously as well as untruly, and in order that their duties may be carried on freely and without fear of any action being brought against them, it says: 'We will treat as absolutely privileged any statement made in the performance of those duties.'"

A licence to allow scurrilous correspondence ...

60. In his submissions, the plaintiff argued with conviction that if absolute privilege was 'extended' to cover litigation correspondence between solicitors, it would, in some quarters, be seen as a licence to allow scurrilous, coarse, abusive and otherwise inappropriate language. I was urged 'to think twice' before allowing such licence. With respect to the plaintiff, that ignores two cogent factors. First, solicitors are members of a profession who, by the dictates of their own integrity, are obliged to avoid the use of such language. Invariably, while holding steadfast to the best interests of their clients, solicitors do exactly that. Second, if occasionally the language employed by solicitors is objectively unbefitting, there are sanctions to be applied in the form of censure by the courts, costs and, if necessary, the profession's own disciplinary bodies.

Conclusion

61. For the reasons given in this judgment, I am satisfied that the three occasions on which the offending letter was published are each occasions of absolute privilege. That being so, whether the words contained in the letter are defamatory or not, they cannot be the subject of the plaintiff's action.

62. The plaintiff, in his pleadings, alleges no other occasions of publication. The action must therefore be dismissed.

63. I can see no reason why costs should not follow the event. I make an order nisi that costs of the action are awarded to the defendants, that order to be made final within 30 days of the date of handing down of this judgment unless a prior application is made to seek a different order.