David Mayer v Francis Hoar [29.06.12]
Mr Hoar acted for a neighbour of Mr Mayer, against whom Mr Mayer had brought proceedings under the Protection from Harassment Act 1997. Mr Mayer’s claim against was dismissed on 11 January 2012 when he failed to attend the final hearing.
Before his claim was dismissed, Mr Mayer unsuccessfully sought injunctions against Mr Hoar’s client. Shortly after the failure of his applications, Mr Mayer complained about Mr Hoar’s conduct to the Bar Standards Board and in a response to a letter from Bar Standards Board Mr Hoar stated that "the only evidence ever submitted by Mr Mayer in support of his allegation that he suffers from this psychiatric disorder [PTSD] is in the form of a letter from a general practitioner based entirely upon his own account …" The Bar Standards Board sent this letter to Mr Mayer who commenced a libel action against Mr Hoar. Mr Hoar’s advisors applied for summary judgment or to strike out the claim.
The question of whether Mr Hoar’s response to the Bar Standards Board was written on occasion of absolute privilege was held to be a strict matter of law and that the words complained of by Mr Mayer in Mr Hoar’s response were published on an occasion of absolute privilege.
Mr Mayer’s argument that Mr Hoar’s letter could not be the subject of privilege as it suggested that Mr Mayer’s complaint to the Bar Standards Board was not protected by qualified privilege and reserved the right to sue Mr Mayor for libel, was dismissed as hopeless. Mr Hoar’s response was held to have been incapable of being construed as any such waiver.
The claim brought by Mr Mayer was held to be bound to fail and was dismissed by the High Court.
The decision follows the previous cases of Lincoln v Daniels and Mahon v Rahn (No.2) and affirms that comments from a member to a regulatory body are protected by absolute privilege when responding to a request in the course of the body’s investigations.
The High Court did not deem it necessary to consider whether it is open for a professional to waive absolute privilege. However, it is clear that a professional’s response to a regulatory body’s request reserving the right to take legal action against the complainant cannot constitute a waiver of absolute privilege.
The rise in direct access instructions increasingly places barristers in direct contact with those they represent. This decision will therefore be welcomed by barristers wary of any backlash from their comments in responding to a complaint made to the Bar Standards Board.