Tort

Defamation - affidavit by witness - privileged in respect of any proceedings to which affidavit having referenceSmeaton v Butcher and others:CA (Clarke and Latham LJJ):9 May 2000

In two landlord and tenant actions against different defendants the claimant claimed unlawful eviction from rented property.

In both cases the defendants alleged that cheques tendered in payment of rent were not met.

In support of an application to strike out the claim as frivolous, vexatious and an abuse of process, a defendant in the first case filed an affidavit which contained defamatory allegations about the claimant's motives and conduct of the proceedings and referred to the proceedings against the defendant in the second case.

He subsequently made the affidavit available to the defendant in the second case with a view to her using it to support a similar application.

The claimant brought a libel action against the defendants in the first case contending that, although the affidavit's contents were privileged in respect of their action, they were not so privileged on republication to the defendant in the second action.

The judge struck out the libel action as embarrassing, frivolous and vexatious.

The claimant appealed.

The claimant in person.

John Russell (Malcolm Dear Whitfield Evans, Kenton) for the defendants.Held, dismissing the appeal, that a statement by a witness or prospective witness, made to a solicitor for the purposes of preparing a statement, proof of evidence or affidavit in court proceedings, or in contemplation of so doing, attracted absolute privilege unless it had no reference at all to the subject matter of the proceedings; that where there was any doubt as to whether it had such reference, the doubt should be resolved in the witness's favour; and that, since the affidavit, although sworn for the purposes of the first landlord and tenant action, included material relevant to the second, and since an identical affidavit sworn specifically for those proceedings would undoubtedly have attracted absolute privilege, the fact that it was already in existence did not prevent it having reference to the second proceedings when republished with a view to its use for that purpose.