David Mayer v Francis Hoar (2012) EWHC 1805 (QB)

In a recent decision, the High Court has affirmed the principle that communications between approved regulators and informants in the course of investigations are likely to be protected by absolute privilege.

Mr Hoar, a barrister, acted for a defendant client in County Court proceedings brought by Mr Mayer. Following the dismissal of the County Court proceedings, Mr Mayer made a complaint to the Bar Standards Board (the Board) about Mr Hoar's conduct towards him. Whilst part of the complaint was summarily dismissed by the Board, Mr Hoar was asked to comment on allegations that he had ridiculed Mr Mayer for his disability and had harassed him in the course of that case.

In his reply to the Board, Mr Hoar refuted the allegations and, in relation to Mr Mayer's disability, contended 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'.

In his letter to the Board, Mr Hoar also complained that Mr Mayer's allegations against him were malicious, that is, they were untrue to the knowledge of Mr Mayer, and stated that he reserved the right to sue Mr Mayer in libel in the event that he repeated his allegations in 'a public forum'.

Mr Mayer was provided with a copy of Mr Hoar's letter to the Board and brought a claim in libel on the basis of those words.

It later emerged that Mr Hoar's statement regarding evidence of the claimant's psychiatric disorder, set out above, was incorrect, in that the letter in respect of his psychiatric disorder was in fact from a psychiatrist, not a GP. Mr Hoar apologised to Mr Mayer for this error, but claimed that the libel proceedings against him should be vacated in any event on the basis that his letter to the Board was protected by absolute privilege.

Mr Hoar relied on Mahon v Rahn (No 2) [2000] 1 WLR 2150, in which the court held that absolute privilege applied to communications between a financial services regulatory body and its informant, where the information was provided for use in investigations into a person's fitness to carry on investment business. In the present case, the court held that the circumstances were 'indistinguishable' from those in Mahon, in that the Board was set up by the regulatory body of barristers, the General Council of the Bar, to have responsibility for handling complaints against barristers. Accordingly absolute privilege applied to the communications between Mr Hoar and the Board.

The court dismissed as 'hopeless' Mr Mayer's argument that Mr Hoar had waived his right to absolute privilege by reserving the right to sue Mr Mayer for defamation, stating that Mr Hoar's letter to the Board was incapable of being construed as such a waiver.