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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kearns & Ors v The General Council of the Bar  EWCA Civ 331 (17 March 2003)
Cite as:  1 WLR 1357,  WLR 1357,  EWCA Civ 331
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
(Mr Justice Eady)
London, WC2A 2LL
B e f o r e :
(Vice-President of the Court of Appeal Civil Division)
LORD JUSTICE MANTELL
LORD JUSTICE KEENE
| KEARNS & OTHERS
|- and -
|THE GENERAL COUNCIL OF THE BAR
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Messrs Peter Carter-Ruck & Partners) for the Appellants
Andrew Caldecott Esq, QC & Rupert Elliott Esq
(instructed by Messrs Berrymans Lace Mawer) for the Respondent
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Lord Justice Simon Brown:
"32. … [T]he New Zealand Court of Appeal in Lange -v- Atkinson  NZLR 385 … was surely right to have recognised the striking departure which Reynolds's case made from the earlier approach. Reynolds privilege (as we shall call it) although built upon an orthodox foundation, is in reality sui generis.
33. Whereas previously it could truly be said of qualified privilege that it attaches to the occasion of the publication rather than the publication, Reynolds privilege attaches, if at all, to the publication itself: it is impossible to conceive of circumstances in which the occasion of publication could be privileged but the article itself not so. Similarly, once Reynolds privilege attaches, little scope remains for any subsequent finding of malice.
35. … Once Reynolds privilege is recognised, as it should be, as a different jurisprudential creature from the traditional form of privilege from which it sprang, the particular nature of the 'interest' and 'duty' which underlie it can be more easily understood.
36. … [I]n this class of case the question whether the publisher has behaved responsibly is necessarily and intimately bound up with the question whether the defence of qualified privilege arises. Unless the publisher is acting responsibly privilege cannot arise. That is not the case with regard to the more conventional situations in which qualified privilege arises. A person giving a reference or reporting a crime need not act responsibly: his communication will be privileged subject only to relevance and malice."
"The Bar Council is established to discharge the following functions:
(a) To be the governing body of the Bar.
(b) To consider, lay down and implement general policy with regard to all matters affecting the Bar.
(c) To maintain the standards, honour and independence of the Bar, promote, preserve and improve the services and functions of the Bar and to represent and act for the Bar generally as well as in its relations with others and also in matters affecting the administration of justice.
(d) To formulate and implement policies … to regulate all aspects of
(i) education and training for the Bar …
(ii) qualification for Call to the Bar …
(iii) the grant of rights of audience …
(iv) maintenance of rules of conduct …."
"Dear Mr Stobbs, I am writing to seek the advice of the Bar Council in relation to the terms on which a body called Kearns Agency Limited, formerly called Kearns & Co, has been instructing junior barristers and continues to do so. I am a Pupil Master and I have recently become aware of an arrangement under which Kearns had instructed the working pupils in this chambers. I understand from those pupils that many of their contemporaries in other chambers have been regularly instructed on identical terms. I attach copies of letters of instruction in four cases, together with statements of costs sent to the barristers in those cases to present to court for the purposes of summary assessment of the costs. It will be seen that the arrangement is that the barrister is instructed as agents for Kearns Agency Limited at a pre-marked fee of £35 plus VAT. Kearns themselves seem to act as agents for a number of firms of solicitors. Remarkably the barrister is instructed not to contact the client, which seems to mean the solicitor, either before or after the hearing. It will be seen from the statements of costs that these do not accurately reflect the fee charged by the barristers. Instead of the fee being properly recorded as counsel's fees of £35 plus notional VAT, the barristers not being VAT registered, the fee claimed is 'agent's fixed fee' of £60 plus VAT. I have checked this morning with the Bar Council and the Kearns Agency Limited is not registered as a Bar direct body. The first issue that obviously arises is the fact that the presentation of the statements of costs may well mislead opponents and the Court. Both are obviously likely to imagine that the fee of £60 is the advocate's fee for the hearing. Both the pupils in this chambers have been scrupulous about pointing out to the Courts their actual fee and, as I understand it, the costs allowed have been reduced accordingly. However, there is an obvious risk that costs claims will be settled on a misleading basis, or that advocates at later hearings, perhaps employed by Kearns, may be less scrupulous. I am very concerned that the terms on which Kearns instruct barristers, and indeed the way in which they operate, will cause the barristers to be in breach of the code of conduct.
( Kearns are a limited company which is not a Bar direct body. This is a breach of paragraph 401 of the Code of Conduct.
( One instruction of the fee arrangement is that the fee to the professional client or the opponent for the barrister's work is £70.50, of which the barrister receives £35 and Kearns the balance. If that is right, this is a breach of paragraph 307(d) and/or (e) of the Code of Conduct.
( The presentation of the misleading statements of costs is a breach of paragraph 708 of the Code of Conduct.
( The entire arrangement, and in particular the instruction to the barrister not to speak to his professional client appears to breach paragraph 303(b) and indeed 301 of the Code of Conduct.
I would be grateful for the guidance of the Bar Council on these issues. I am away on holiday from 17th September to 4th October, but if any further information is required in that time [Mr X] should be available to assist. I have also given a copy of this letter and its enclosures to my head of chambers, ... who may be able to assist. Yours sincerely."
"Dear Sirs," [and then there is a series of subheadings: "Case, Court, Date, Time] Agreed fee, £35 plus VAT.
Thank you for agreeing to act as our agents. Please read this letter and our client's letter of instruction carefully upon receipt. Please pay particular attention to the terms of any order requested by our client. Please check that the court and times listed on the Notice of Application correspond with your diary entry as it would appear some courts sit at alternative venues from time to time. Please quote our reference number with all queries or correspondence. We enclose the papers relevant to the application and would ask you to rely upon the pleadings in the claimant's witness statement and letter of instruction. Please contact our Miss Ruth Williams with any queries at least one day before the hearing. Do not contact our client direct. In successful cases, a short attendance note is all that we require. However, if we do not achieve the desired result, or if the application is adjourned, we need to know why. A handwritten attendance note will suffice if a typed attendance note will result in a delay in the return of the papers. In certain actions, we may also enclose a pro forma attendance note for you to complete instead of a typed report. Please prepare and fax or email your report to our office, not our client immediately after the hearing. The papers and a note of your charges should follow in the next day's post. May we take this opportunity to once again thank you for your kind assistance.
Yours faithfully, The Kearns Agency.
E-mail email@example.com a one-stop service that brings court agency into the 21st century."
"I attach a letter that I have received from [the barrister] ... detailing some instructions which appear to have been sent to chambers by the Kearns Agency Limited. I have spoken to [the barrister] and he thinks that originally this group was called Kearns & Co and that chambers accepted work assuming that it was a firm of solicitors. It seems to me that this is a clear breach of the Code of Conduct. Counsel's relationship here is with the agency rather than with solicitors (there is nothing in the correspondence to suggest that solicitors are even aware that counsel is being instructed or that they are personally liable for counsel's fees) and the remainder of the arrangement looks very close to that which troubled us over Brown & Associates. It seems to me that I should issue some guidance on this subject to the Bar and I attach a possible draft. Strictly, it seems to me that [the chambers] and the various pupils involved have been guilty of misconduct in accepting this work. I suspect that this applies to a substantial number of other chambers. I am reluctant to raise complaints in respect of [the chambers] since [the barrister] said they accepted instructions in order to gather evidence for us ... and they have, in any case, drawn the matter to our attention. I suggest we take a similar line to that we have on Browns, which is that we will treat as misconduct any instructions accepted after the warning has been circulated. Are you content with this approach?"
"To all Heads of Chambers, all Senior Clerks/Practice Managers. Dear Head of Chambers/Senior Clerk/Practice Manager,
Instructions from solicitors' agents. The Bar Council has received information that a company called Kearns Agency Limited, formerly called Kearns & Co, has been seeking to instruct members of the Bar to appear in court on behalf of solicitors.
The instructions coming from this company make it clear that the instructions come from them and that barristers are not to contact the solicitors concerned. Kearns and Co are not solicitors and do not have a Bar direct licence. In the Bar Council's view, it is improper for barristers to accept work from this company unless it is clear that: (1) the instructions are given on behalf of a solicitor; (2) it is made clear that counsel is not prohibited from contacting the solicitor in the case of difficulty; (3) the solicitor accepts responsibility for counsel's fees. We also understand that the agents concerned do not separately identify the fees paid to counsel from additional fees which appear to be claimed by the agency. Whenever this occurs, counsel should insist that such fees are separately identified in the costs, or there is a clear danger that counsel may be party to misleading the Court. If there are concerns that it will not be possible to comply with this guidance, counsel should not accept the instructions. There is no reason why they should not contact the solicitors directly to inform them of this.
Yours sincerely, Mark Stobbs."
"To All Heads of Chambers, all Senior Clerks/Practice Managers,
Instructions from solicitors and agents, Kearns Agency Limited, correction and apology.
I wrote to chambers on 24 September about the Kearns Agency Limited. That memorandum stated that this firm were not solicitors. Unfortunately, owing to our administrative error, this information was incorrect. The Bar Council wishes to make it clear that the Kearns Agency Limited are a firm of solicitors and as such are perfectly entitled to instruct counsel. The Bar Council apologises unreservedly to the Kearns Agency Limited and its partners for the error, and for any confusion and inconvenience caused.
Mark Stobbs, Head of Professional Standards and Legal Services Department."
"1. It is the function of the Bar Council to implement general policy with regard to all matters affecting the Bar and to maintain the standards, honour and independence of the Bar. Any of its functions may be delegated to any committee. It is responsible for education and training in pupillage, and continuing education for barristers. In addition to paragraph 1 of the Constitution of the General Council of the Bar, the defendant will particularly refer to its standing orders 1-4, 13-15 and 52-56.
2. On 12th September 2001, Mr Stobbs received a letter of complaint from [the barrister] an experienced junior counsel at [chambers address]. The third claimant regularly instructed counsel, mainly pupils of necessarily very limited experience, to appear for very low fees to seek judgment for the recovery of debts. The defendant will rely on the full terms of that letter and the enclosures. The letter stated that the third claimant had formerly been called Kearns and Co. The enclosures included correspondence from the third claimant which was in clear breach of practice rule 11 of the Solicitors' Practice Rules 1990 which required it to use on its stationery either the word 'Solicitor(s)' or the words 'Regulated by the Law Society'. Rule 11 is a fundamental rule designed to ensure that any person considering any correspondence from solicitors, including a recognised body, would appreciate that they were solicitors and subject to the regulatory regime of the Law Society with all the protection and disciplinary sanctions which that regime affords. Neither the third claimant's letterhead, nor the text of the enclosed letters themselves, contained any similar statement to that required by the practice rules.
3. The letter from [the barrister] also stated that statements of costs supplied by the third defendant to be presented to the court misrepresented the advocate's fee for the hearing and that 'there is an obvious risk that costs claims will be settled on a misleading basis.' The letter's enclosures included documents in support of that charge.
4. The letter complained of was submitted to, and approved by, the Chairman of the Professional Conduct and Complaints Committee before it was sent out.
5. Heads of barristers' chambers have responsibility for the members of their chambers, including pupils, and for ensuring that they comply with their professional obligations. The defendant will rely in this context on paragraph 404 of the Bar's Code of Conduct. Chief Clerks and Practice Managers have responsibilities for the acceptance of work for barristers and the terms on which such work is accepted.
6. The defendant will refer to the Bar's Code of Conduct and in particular to paragraphs 301(a), 302, 303(b), 401(a) and 603(c).
7. In the premises, the defendant had a legal and/or social and/or moral duty to publish the letter to the pleaded recipients who had a corresponding duty or interest in receiving it, and/or the defendant published the said words in the furtherance or protection of an interest to persons either sharing the same interest or with a corresponding duty or interest to receive them."
"A barrister must have regard to paragraph 104 and must not (a) engage in conduct whether in pursuit of his profession or otherwise which is (i) dishonest or otherwise discreditable to a barrister, or (ii) prejudicial to the administration of justice, or (iii) likely to diminish public confidence in the legal profession or the administration of justice, or otherwise bring the legal profession into disrepute."
"A barrister has an overriding duty to the Court to act with independence in the interests of justice. He must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court.
"A barrister: ... (b) owes his primary duty as between the lay client and any professional client or other intermediary to the lay client and must not permit the intermediary to limit his discretion as to how the interests of the lay client can best be served."
"A barrister in independent practice, whether or not he is acting for a fee, (a) may supply legal services only if he is instructed by a professional client or by a Bar direct client, or is appointed by the Court."
"A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed, and for this purpose a barrister would be professionally embarrassed: ... (c) if the instructions seek to limit the ordinary authority or discretion of a barrister in the conduct of proceedings in court, or require a barrister to act otherwise than in conformity with law or with the provisions of this code."
"I am left in no doubt that this was a classic case of qualified privilege based upon an existing relationship, and on a common and corresponding interest in the subject matter of the letter."
Toogood -v- Spyring (1834) 1 CM&R 181, 193
"In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another …, and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits." - per Baron Parke.
Coxhead -v- Richards (1846) 2 CB 569
"The only question is, whether the case does or does not fall within the principle, well recognised and established in the law relating to privileged or confidential communications; and, in determining this question, two points may, as I conceive, be considered as settled - first, that if the defendant had had any personal interest in the subject-matter to which the letter related, as, if he had been a part-owner of the ship, or an underwriter on the ship, or had had any property on board, the communication of such a letter to [the shipowner] would have fallen clearly within the rule relating to excusable publications - and, secondly, that if the danger disclosed by the letter, either to the ship or the cargo, or the ship's company, had been so immediate as that the disclosure to the ship-owner was necessary to avert such danger, then, upon the ground of social duty, by which every man is bound to his neighbour, the defendant would have been not only justified in making the disclosure, but would have been bound to make it."
Whiteley -v- Adams (1863) 15 CB(NS) 392, 414
"I take it to be clear that the foundation of an action for defamation is malice. But defamation pure and simple affords presumptive evidence of malice. That presumption may be rebutted by showing that the circumstances under which the libel was written or the words uttered were such as to render it justifiable. The rule has been laid down in the Court of Exchequer [this was clearly a reference to Toogood -v- Spyring], and again lately in the court of Queen's Bench that, if the circumstances bring the judge to the opinion that the communication was made in the discharge of some social or moral duty, or on the ground of an interest in the party making or receiving it, then, if the words pass in the honest belief of the person writing or uttering them, he is bound to hold that the action fails." - per Chief Justice Erle.
Stuart -v- Bell (1892) 2 QB 341
Adam -v- Ward  AC 309, 334
"A privileged occasion … is an occasion where the person who makes communication has an interest or a duty, legal, social, or moral to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential." per Lord Atkinson
Watt -v- Longsdon  1 KB 130, 147
"With slight modifications in particular circumstances, this appears to me to be well established law, but, except in the case of communications based on common interest, the principle is that either there must be interest in the recipient and a duty to communicate in the speaker, or an interest to be protected in the speaker and a duty to protect it in the recipient. Except in the case of common interest justifying intercommunication, the correspondence must be between duty and interest. There may, in the common interest cases, be also a common or reciprocal duty. It is not every interest which will create a duty in a stranger or volunteer. This appears to fit in with the two statements of Parke B already referred to [including that in Toogood -v- Spyring] and with the language of Erle CJ in Whiteley -v- Adams, that the communication was made in the discharge of some social or moral duty, or on the ground of an interest in the party making or receiving it. This is approved by Lindley LJ in Stuart -v- Bell, but I think should be expanded into 'either (i) a duty to communicate information believed to be true to a person who has a material interest in receiving the information, or (ii) an interest in the speaker to be protected by communicating information, if true, relevant to that interest, to a person honestly believed to have a duty to protect that interest, or (iii) a common interest in and reciprocal duty in respect of the subject matter of the communication between speaker and recipient.'"
Horrocks -v- Lowe  AC 135, 149
"The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so." per Lord Diplock
"But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be 'honest', that is, a positive belief that the conclusions they have reached are true. The law demands no more."
Later in his judgment, at p151, Lord Diplock stated that the court should not apply an objective test of relevance to every part of the defamatory matter published on a privileged occasion:
"[O]rdinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them to do so. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded."
"The duty of not slandering your neighbour on insufficient grounds, is so clear, that a violation of that duty ought not to be sanctioned in the case of voluntary communications, except under circumstances of great urgency and gravity." (emphasis added)
"The communication to Mrs Watts stands on a different footing. I have no intention of writing an exhaustive treatise on the circumstances when a stranger or a friend should communicate to husband or wife information he receives as to the conduct of the other party to the marriage. I am clear that it is impossible to say he is always under a moral or social duty to do so; it is equally impossible to say he is never under such a duty. It must depend on the circumstances of each case, the nature of the information and the relation of speaker and recipient."
"Again, it is, I think, essential to consider every circumstance associated with the origin and publication of the defamatory matter, in order to ascertain whether the necessary conditions are satisfied by which alone protection can be obtained, but in this investigation it is important to keep distinct matter which would be solely evidence of malice, and matter which would show that the occasion itself was outside the area of protection."
"I prefer that language - referring to an interest or duty to make a communication - to language, sometimes found, which refers to an interest in the subject-matter of the communication. The latter phrase appears to me to be vague and leave uncertain what degree of relevance to a particular subject-matter the communication has to bear. Adopting the language of Lord Atkinson, we have to consider, first, what interest or duty the council had to communicate to the ratepayers the report of a committee which the council was proposing to consider … I cannot see that it can possibly be said that the council was under any duty to make that communication to the ratepayers."
So too here, submits Mr Rampton, Mr Stobbs's circular letter to the Bar was likewise premature because in this case, as in De Buse -v- McCarthy, there had been no investigation or verification of the complaint.
"33. … This again was a case which turned upon duty rather than an established personal or business relationship. This, submits Mr Caldecott, in my judgment correctly, is why the Court was concerned to evaluate the quality of the information. It was relevant to go into the specific information, rather than confining the enquiry to the broad subject matter of the conversation, in order to decide whether a specific duty had arisen. Mr Price asks rhetorically why should one evaluate the quality of information for a social or moral duty case, as in Reynolds or Stuart -v- Bell for example, but not in cases of a common and corresponding interest? The answer to that question is, it seems to me, that it has long been the policy of the law to protect persons in certain kinds of relationship with one another, and indeed to encourage in such cases free and frank communications in what is perceived to be the general interest of society. In those cases, one does not need to assess the interest of society afresh in each case. We all need to know where we stand. In this area the law was thought to be settled, on the basis that the balance would fairly be struck if liability in such situations was confined to those cases where the occasion of communication was abused - in the sense that malice could be established. Nothing short of malice would undermine the law's protection."
"46. [Counsel for the defendants] drew an analogy with the recent case of Kearns v General Council of the Bar  EWHC 1681 (QB). That too was primarily a common interest case, but it turned upon the well established relationship between the Bar Council and members of the Bar and communications between them on the subject of professional rules and standards. The issue was not fact-sensitive, therefore, in the sense that it would become necessary to investigate the particular circumstances surrounding each individual publication. Here, by contrast, the common and corresponding interest contended for is not, so to speak, 'off the peg' and is being tailored to the individual circumstances and people involved. There is more room therefore for factual enquiry at trial before it can be finally determined that the common interest alleged would be classified as 'legitimate' by the law of defamation. I am far from saying that all communications between British citizens abroad and local embassy staff would require close scrutiny. It would, for example, be obvious that a communication between a traveller and the British consul about a lost passport would attract such privilege. Here I am prepared to accept that the situation is not so clear cut."
Lord Justice Mantell:
Lord Justice Keene: