Tort

Libel - bank passing information to financial regulatory body - absolute privilege attaching Mahon and Another v Rahn and Others (No 2): CA (Brooke, Mantell and Laws LJJ): 8 June 2000

The defendants, a Swiss bank and four of its partners, gave evidence to The Securities Association (TSA), a financial regulatory body, on a confidential basis concerning the claimants during a TSA investigation into the fitness of the second claimant to carry on investment business.A Serious Fraud Office investigation led to the claimants being charged with conspiracy to defraud TSA, but the trial judge ruled that there was no case.The claimants brought an action for libel against the defendants; the action was later amended to add malicious prosecution on the basis that the defendants were in reality the prosecutor.On a preliminary issue it was held that the information was not published on an occasion of absolute privilege, and the defendants' application for summary dismissal of the malicious prosecution claim was dismissed.

The defendants appealed.Patrick Moloney QC (instructed by Bircham & Co) for the defendants.

Alun Jones QC and Victoria Sharp (instructed by Sheridans) for the claimants.Held, allowing the appeal and dismissing the action, that proceedings before a TSA authorisation tribunal attracted absolute privilege; that information given to TSA while it was conducting an investigation into fitness to carry on investment business was similarly an occasion of absolute privilege; that in a complex case in which a prosecuting authority received evidence from various sources and exercised its discretion to decide whether there was sufficient evidence to prosecute, a claimant could not show that an informant rather than the prosecuting authority was in reality the prosecutor; and that, accordingly, an action for malicious prosecution against the informer had no prospect of success.