David Mayer v Francis Hoar [05.07.12]
High Court confirms communications between professional and regulatory body in furtherance of investigation into professional’s conduct is protected by absolute privilege. The defendant barrister, Mr Hoar, acted for Mr Mayer’s neighbour, against whom Mr Mayer had brought proceedings under the Protection from Harassment Act 1997. This claim was dismissed on 11 January 2012, when Mr Mayer failed to attend the final hearing.
Shortly afterwards, Mr Mayer complained about Mr Hoar’s conduct to the Bar Standards Board and, in a response to a letter from them, 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 then commenced a libel action against Mr Hoar. Mr Hoar’s advisors applied to strike-out the claim.
The High Court held that the question of whether Mr Hoar’s response to the Bar Standards Board was written on an occasion of absolute privilege was a 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 Mr Mayer’s complaint to the Bar Standards Board was not protected by qualified privilege and reserved the right to sue him for libel, was dismissed as hopeless. The court also noted that Mr Hoar’s response was incapable of being construed as a waiver.
Accordingly, the libel claim brought by My Mayer was bound to fail and was dismissed by the High Court.
This decision follows the previous cases of Lincoln v Daniels  and Mahon v Rahn (No.2)  and affirms that comments to a regulatory body are protected by absolute privilege when they are 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 to a professional to waive that absolute privilege, although 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.
This decision will be welcomed by barristers wary of any backlash arising from their comments when responding to complaints made to the Bar Standards Board, especially given that the rise in direct access instructions increasingly places barristers in direct contact with those they represent.