Court of Appeal

Published August 27, 2008

Westcott v Westcott

A person who made a complaint to the police, instigating an investigation which did not lead to a prosecution, was entitled to rely on the defence of absolute privilege if proceedings were subsequently brought.

The Court of Appeal (Lord Justice Ward, Lord Justice Sedley and Lord Justice Stanley Burnton) so held on July 15, 2008, when dismissing the appeal of the claimant, Richard Anders Westcott, from a decision of Mr Richard Parkes, QC, sitting as a Deputy Queen’s Bench Division Judge ([2007] EWHC 2501 (QB)), ruling, as a preliminary issue, that any oral and/or written publication made to the police by the defendant, Sarah Westcott, and sought to be relied upon in the instant defamation proceedings, was protected by absolute privilege and/or immunity from suit. The judge dismissed the claim with costs.

The claimant appealed on the grounds, inter alia, that neither the oral complaint nor the written statement made thereafter should be treated as part of the investigation but rather as steps to instigate the investigation, and where no prosecution had ensued neither statement enjoyed the protection of absolute privilege, but only of qualified privilege.

LORD JUSTICE WARD said that, having regard to, inter alia, dicta in Taylor v Serious Fraud Office ([1999] 2 AC 177), the occasion of the making of the oral complaint and the subsequent written complaint had to be absolutely privileged.

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