Lawyers act as agents for their clients like many other professionals. An agent who makes a defamatory statement on the client’s behalf can be liable for that statement in his own right. However, in some situations, lawyers can defend defamatory statements on the grounds of privilege but this is not available if the statement is said to be motivated by malice. The privilege defence is therefore “qualified” as opposed to being absolute.
Some guidance on qualified privilege (“QP”) can be found in the recent libel case of Khader v Aziz and Davenport Lyons.
Ms Khader found a £1 million diamond bracelet at a Mayfair club which she returned to its owner Ms Aziz (the former wife of the Sultan of Brunei). This was reported in the Daily Mail as follows:
“and the generous reward offered by a woman whose former husband’s fortune reached £65 billion at its peak? ‘the Queen gave her a hug and a kiss, I am told’.”
This put Ms Aziz in a bad light, portraying her as ungenerous and her solicitors contacted the newspaper to put across her side of the story. Ms Khader then sued Ms Aziz and her solicitors for slander claiming that the solicitors had informed the newspaper falsely that she had tried to “embezzle” money from Ms Aziz by making up the story about the bracelet.
The court did not accept that the solicitors had said as much, but in any event held that the solicitors’ statement to the newspaper was not actionable because it was made to protect their client’s interests in response to a derogatory portrayal of her in the media. Such statements made in “reply to an attack” can be protected by QP.
The court referred back to the earlier case of Regan v Taylor which itself quoted from a 1894 case (Baker v Carrick).
“It is the duty of the solicitor to do all that he can to protect the interests of his clients and he stands in the same position with regard to privilege as that in which his client would stand in the case of a similar action against him”.
But how far can or should the solicitor go? The court in Regan made it clear that QP protection was not a licence to the solicitor to libel although the solicitor can (within limits) respond robustly to an attack on the client. Some key points emerge from these recent decisions.
The retainer: the solicitor must operate within the authority granted by the client
In Khader the court considered that a modern solicitor could have a general authority to represent a client by communications to the media and that Ms Aziz’ solicitors had such authority even though the written retainer letter did not expressly say so. It accepted the evidence which Ms Aziz and the solicitors gave that they were retained for services including proactively monitoring the press and responding on her behalf as necessary.
The court however quoted one judge in Regan who said that that the existence and terms of such a retainer would depend on the facts of each case. Solicitors should therefore ensure that their duties are fully recorded by retainer letter so that there can be no doubt about their authority to make statements for their client.
The solicitors “borrow” the privilege of the client
So, if the statement is not made in a situation which is privileged then the solicitor will not be protected. Ms Khader argued that the article was not a sufficient “attack” on Ms Aziz and so the QP was not available to protect the solicitors’ response. The court disagreed – the article was disparaging towards Ms Aziz which was sufficient to give rise to the right to respond.
There are other situations apart from a reply to an attack where QP may be claimed. For example, in Creative Resins International v Glasslam Europe and Donne Mileham and Haddock (2005) solicitors instructed by G in a copyright dispute wrote to a third party manufacturer stating that a product supplied to it by Creative Resins infringed copyright. Creative Resins sued G and its solicitors for libel but this was defended on the basis that G and the manufacturer had a common interest in being aware of the copyright infringement. Statements made pursuant to such a common interest can also be protected by QP.
Need to verify: “malice”
If the client authorises the solicitors to make a statement which the client knows is untrue, the client will lose QP protection. If the solicitors have no reason to know otherwise they may retain QP protection in their own right. However, failure to take reasonable steps to verify facts may also destroy the solicitor’s QP protection. Words published by a solicitor, as a professional person, may carry more weight than those of the client. Solicitors are expected to use their training and experience – which may mean that they should say more than instructed, or less according to the circumstances. If failure to check facts is interpreted as malice, not only will QP protection be destroyed but they may be exposed to extra “aggravated” damages.
Statements should be concerned only with what is relevant. If defamatory comments are included in a statement which are not relevant then the privilege will not apply to them.
A statement in terms which adopt and corroborate its content so that the words are the solicitors’ own rather than the client’s will be taken as such and privilege may not be available to the solicitor.
Know your client!
There may be no apparent divergence of interest between solicitor and client when a statement is published but once a defamation claim is made there can be a parting of the ways.
The client (or former client), to defend their own position, may deny that the solicitor had authority to make the statement or that instructions have been carried out accurately. A proper record of the authority should be kept (ideally in addition to the general retainer letter referred to above).
In Creative Resins the judge thought that the ability of the solicitors to defeat allegations of malice might depend on whether their clients were willing to waive legal professional privilege (not to be confused with QP) in their correspondence with the solicitors to show that the solicitors had not been reckless in relation to checking the facts. No client can be forced to do this.
The moral of the story is “know your client!” when all is said and done.