TAYLOR v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The applicant, Thomas Patrick Taylor, is a United Kingdom national, born in 1933 and living in the Isle of Man. He is represented before the Court by Mr M. Spragg, a lawyer practising in London. The facts of the case, as submitted by the parties, may be summarised as follows. In 1994 the Serious Fraud Office ("SFO") was investigating a fraud involving US $8 million. The money obtained from the victim had passed through the hands of the applicant who was a solicitor practising in the Isle of Man or through a company with which the applicant was connected. By letter dated 4 May 1994, a lawyer employed by the SFO made a formal request to the Attorney-General for the Isle of Man for his assistance in the investigation of the fraud. The letter requested the Attorney-General to exercise his powers to summon the applicant for an interview about the transactions. It presented the facts as they appeared to the SFO and depicted the applicant’s part in the transaction in such a way as to suggest that the SFO suspected him of being a party to the fraud. The letter concluded by stating that, given the facts outlined, the SFO considered the use by the Attorney-General of the relevant power to summon to be justified and desirable and it invited the Attorney-General to authorise that SFO lawyer and a police officer to exercise those powers on his behalf. On 17 May 1994, the SFO lawyer and a colleague called upon Mr R who worked for the Law Society in the administration of the solicitors’ compensation fund to talk about the transaction which had given rise to a claim by the victim against the fund. The SFO lawyer made a file note of the interview which recorded Mr R’s view that the applicant should be struck off the roll of solicitors and the SFO lawyer’s contention that the applicant was a co-conspirator. On 3 June 1994 the Attorney-General sent the applicant a formal notice requiring him to attend for an interview but the applicant could not attend due to illness Two individuals were indicted on charges of conspiracy to defraud and eventually convicted. A third suspect was in the United States and died before an application for extradition had run its course. The applicant, despite the suspicions noted above, was not charged. One of the defendants had asked the applicant to give evidence on his behalf and, consequently, gave the applicant a file of documents which included “unused material” which had been disclosed, in accordance with recently established obligations, by the prosecution. The file included a copy of the letter of 4 May 1994 to the Attorney-General from the SFO and the file note of the meeting between the SFO lawyer and Mr R. The applicant therefore commenced an action for libel against the SFO, the Law Society, the SFO lawyer and Mr R. The applicant alleged that the letter contained a libel published by the SFO and the SFO’s lawyer to the Attorney-General, that the file note contained a libel published by the SFO and the SFO’s lawyer to Mr R as well as a libel published by Mr R to the SFO’s lawyer and that both documents had been published by the SFO’s lawyer by their disclosure to the relevant defendant’s solicitor. All four defendants took out summonses to strike out the action as an abuse of process. On 26 July 1996, the High Court judge struck out the action on the ground that the disclosure of the two documents to the defendant’s solicitors was subject to an implied undertaking that they would not be used for any purpose other than that defendant’s defence. The applicant could not, therefore, use them as the basis of a libel action without the leave of the court. The applicant appealed. Shortly before his appeal was heard, the case of Mahon v. Rahn ([1998] Q.B. 424) was decided by the Court of Appeal. That court found that material disclosed by the prosecution to a defendant in criminal proceedings, whether obtained by compulsion or voluntarily, was not subject to any implied undertaking analogous to that which already existed in relation to material discovered in civil proceedings. The Court of Appeal dismissed the applicant’s appeal in June 1997. It regarded the Mahon v. Rahn decision as a binding authority which obliged it to hold that the grounds upon which the High Court had struck out the action could not be sustained. But the court accepted the argument that the proceedings could be struck out as a result of an immunity from suit because the documents were brought into existence for the purposes of a criminal investigation. The applicant appealed to the House of Lords on the ground that the Court of Appeal had extended the principle of immunity from suit beyond its proper sphere. The respondents, on the other hand, argued that the Mahon v. Rahn case had been wrongly decided and that the Court of Appeal judgment ought also to be upheld on the basis of the “implied undertaking”. On 29 October 1998, the House of Lords rejected the applicant’s appeal and upheld the respondents’ (Taylor v. the Serious Fraud Office [1999] A.C. 177). The five Law Lords were unanimous that the documents disclosed by the prosecution to the defence were disclosed subject to an implied undertaking to the court not to use the documents for any other purpose other than the conduct of the defence. The applicant’s attempt to do so was accordingly an abuse of process and had been rightly struck out on that ground. Four of the Law Lords further upheld the view of the Court of Appeal that the statements relied on by the plaintiffs to found the action were protected by absolute immunity and the proceedings were rightly struck out on that ground as well. Lord Hoffmann considered that the two principles in debate were well established and that the question was rather the extent of their reach. In particular, the first question was whether the public interest in the administration of justice required the implied undertaking (which had originated in the law of discovery in civil proceedings) to be applied to documents disclosed by the prosecution to the defence in criminal proceedings. Lord Hoffman considered that the Court of Appeal had erred in Mahon v. Rahn and concluded that the disclosure of documents by the prosecution as unused material under its common law obligations generated an implied undertaking that they would not be used for any collateral purpose. In support of this implied undertaking, he cited the interests (protection of privacy and confidentiality) of those giving statements to the police and to other investigatory bodies and of those mentioned in the statements. Considering the arguments raised that there were other means to protect people who might be adversely affected by the collateral use of disclosed documents, such as the rules of public interest immunity and qualified privilege, he observed that the first was not designed to protect the same interests and could give only accidental protection and that qualified privilege also did not protect the privacy of persons mentioned in the statements and, as stated by Fry LJ in Munster v. Lamb (1883) 11 QBD 588, did not protect those involved in court proceedings from the harassment of litigation. Although it was not therefore strictly necessary to consider the question of the application of an immunity from suit, Lord Hoffman went on to consider the matter on the basis that it was necessary to know whether, if the statements had been read out in open court, they could have been relied on thereafter for the purposes of a libel action. The immunity from suit in question was for those taking part in a trial (judges, advocates and witnesses) for anything written or spoken during the proceedings. It was absolute and could not be defeated even by proof of malice. The novel question was whether it could be extended to statements made to or by investigators for the purposes of a criminal investigation. Lord Hoffman recalled that the general rule was that the extension of absolute privilege was to be viewed with the “most jealous suspicion, and resisted, unless its necessity is demonstrated”. He considered that it had been shown to be necessary for the administration of justice to extend the immunity from suit to those assisting investigators and to investigators themselves, and that the protection would apply to all statements which could be fairly said to be part of the process of investigating a crime or possible crime with a view to prosecution or a possible prosecution. It was, however, limited to actions in which the alleged statement constituted the cause of action (defamation) and so would not apply to an action for malicious prosecution. He stated that the immunity: “... is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say. It is generated by the circumstances in which the statement was made and it is not concerned with its use for any purpose other than as a cause of action.” He went on to state that the test was a strict one and to fall within the immunity it had to be shown that the immunity was “necessary for the administration of justice”. It would not therefore cover “irrelevant and gratuitous libels”, statements extraneous to the investigation but could not be confined only to out-of-court statements of persons who were subsequently called as witnesses as the person had to know at the time at which he spoke whether or not the immunity attached. The same reasoning and necessity applied to the position of investigators: “It would be an incoherent rule which gave a potential witness immunity in respect of the statements which he made to an investigator but offered no similar immunity to the investigator if he passed that information to a colleague engaged in the investigation or put it to another potential witness. In my view it is necessary for the administration of justice that investigators should be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings.” He noted that the implied undertaking and immunity were related: “The implied undertaking prevents, as far as possible, the publication or dissemination of disclosed documents and therefore restricts the extent to which damage can be caused by defamatory statements which they may contain. In this sense, the injustice which may be caused by the fact that such defamatory statements are protected by the immunity is reduced.” He observed as to the risk to the applicant from the statements concerned: “<he> might have taken some comfort from the fact that the documents which showed that he had been under suspicion could go no further than the files of the SFO and <F.>‘s solicitors. They could not have damaged his reputation in the outside world. Instead, he chose to bring libel proceedings and (apparently due to the thoughtlessness of his solicitors) put the statements into the public domain by quoting them in extenso on a specially endorsed writ.” Lord Hope similarly commented on the relationship between the two principles: “I see the two solutions [implied undertaking and immunity] as complementary to each other. If the absolute privilege and the consequent immunity are to be kept within limits which are necessary for the administration of justice, they must be accompanied by a rule which restricts the use and dissemination of disclosed material. The purpose of the immunity is to ensure the integrity of the investigation process. The disclosure should extend no wider that is necessary to serve the public interest in the administration of justice. It should not be accompanied by risks to the good name of those who are not on trial from whom the protection of defamation proceedings has been removed by the immunity. So a restriction on the release and collateral use of the disclosed material by means of the implied undertaking can be seen as a necessary balance against possible harm which might flow from the absolute nature of the immunity.”