SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 70434/01
by Patrick MAHON and Andrew KENT
against the United Kingdom
The European Court of Human Rights (Second Section), sitting on 8 July 2003 as a Chamber composed of
MrJ.-P. Costa, President,
SirNicolas Bratza,
MrL. Loucaides,
MrC. Bîrsan,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 17 May 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants are Mr Patrick Mahon, an Irish national born in 1940 and resident in Uruguay, and Mr Andrew Kent, an Australian national born in 1947 and resident in London. They are represented before the Court by Mr A. Daniel, a solicitor practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 December 1990, Mr C. Rahn of Rahn and Bodmer, a private Swiss merchant bank, made a complaint to The Securities Association (the “TSA”) alleging that the applicants, who were respectively Managing Director and Corporate Development Manager of the London stockbrokers, T.C. Coombs, had been party to a substantial fraud on the Swiss bank. The bank had already been in contact with the Serious Fraud Office (the SFO), which was investigating a Mr Johnson and his companies, and an official of the SFO had invited the bank to give any information about losses which it might have suffered in that respect. The letter alleged, in particular, that in 1988 the Swiss bank had agreed to buy from T.C. Coombs shares in a company, Coastline Resources Ltd, for the price of 5 million pounds sterling (GBP), of which GBP 2 million would be provided by T.C. Coombs. It was alleged that the Swiss bank had discovered that the deal was circular, namely, Mr Johnson, or his companies, were both seller and ultimate purchaser. It was further alleged that, after the Swiss bank had paid GBP 3 million, T.C. Coombs made a fraudulent claim in 1989 for a further GBP 2 million and that it transpired that the shares were in fact worthless. The letter was prefaced with a statement that its contents were based on presumptions and did not purport to be accurate or complete.
The TSA was a body established by the Securities and Investment Board which had been set up pursuant to the Financial Services Act 1986. It had the function, inter alia, of regulating the activities of stockbrokers and determining which bodies and individuals were fit and proper to conduct business.
A copy of the letter of 20 December 1990 was sent to the Director of the SFO, whose responsibility it was under the Criminal Justice Act 1987 to investigate allegations of serious or complex fraud. The SFO and the TSA worked together on the complaint. The SFO had already instituted criminal proceedings for fraud against Mr Johnson in early 1990.
The applicants allege that the Bank was selective in the documents which it passed on to the investigation and deliberately gave a false and misleading impression, with the intent of provoking a prosecution.
On 1 February 1991, the applicants were arrested and shortly afterwards the firm of T.C. Coombs was put into liquidation. Charges of fraud and conspiracy were brought against the applicants. Their trial took place between June and August 1993. The TSA letter of 20 December 1990 was disclosed to the defence. During the trial, the SFO had unsuccessfully claimed that public interest immunity attached to a number of documents including the TSA letter. The letter was subsequently discussed in open court.
After the prosecution had called all its evidence, the applicants’ counsel submitted that there was no case to answer. The judge agreed and directed that verdicts of not guilty be entered. He observed that there was no contemporary documentation suggesting that the real price for the shares was GBP 3 million:
“I cannot help feeling that if the Serious Fraud Office knew as much then as they know now it may well be that they would not have launched this prosecution in the first place, so much of the nitty-gritty of what was going on only came out from the witness box as a result of the cross-examination of those witnesses.”
On 17 December 1993, the applicants commenced an action for libel, alleging that the partners of the bank and the bank itself had defamed them by telling lies to the TSA in the letter of 20 December 1990, and claiming compensation and aggravated damages for the very serious financial damage that had resulted. The defendants claimed that the letter had been written on an occasion of “qualified privilege” and also that the claim was vexatious and an abuse of process as the letter had been written in the strictest confidence to the TSA in the discharge of its public functions.
On 19 June 1996, the High Court struck the case out as an abuse of process. The applicants’ appeal was upheld in the Court of Appeal on 23 May 1997.
Following a decision of the House of Lords concerning malicious prosecution (Martin v. Watson [1996] A.C. 74), where it was held that a person acquitted of a crime could bring an action for damages if, among other conditions, he could show that the defendant, a private citizen, was the real or substantial prosecutor, the applicants added a claim for malicious prosecution to their defamation action, alleging that the defendants had been the real prosecutors in their case.
In their amended defence, the defendants now raised the defence of “absolute privilege”, relying in part on the House of Lords decision in Taylor v. the Serious Fraud Office ([1999] A.C. 177) and that they were immune from suit. They also claimed that the malicious prosecution claim had no real prospect of succeeding at trial.
On 1 July 1999, the High Court rejected the defendants’ applications to strike out the action on the above-mentioned bases. The defendants appealed against this ruling.
On 7 June 2000, the Court of Appeal allowed the appeal. It held that the letter of 20 December 1990 had been written on an occasion of absolute privilege and that there was no prospect that the malicious prosecution claim could proceed, distinguishing between simple cases such as Martin v. Weston and a more complex case, such as the applicants, in which a major prosecuting authority obtained its information from a variety of sources.
In his judgment of 281 paragraphs, with which the two other judges agreed, Lord Justice Brooke stated inter alia:
“144. It is well known that statements made in the course of judicial proceedings attract absolute privilege...
146. In Munster v. Lamb (1883) 11 Q.B.D. 588, 607 [Fry LJ] said;
‘The rule of law exists, not because the conduct of those persons ought not of itself to be actionable, but because if their conduct was actionable, actions would be brought against judges and witnesses in cases in which they had not spoken with malice, in which they had not spoken with falsehood. It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it’s the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty. It must always be borne in mind that it is not intended to protect malicious and untruthful persons but that it is intended to protect persons acting bona fide who under a different rule would be liable, not to verdicts and judgments against them, but to the vexation of defending actions.’
During the course of the next hundred years the protection of absolute privilege has been extended to ‘tribunals exercising functions equivalent to those of an established court of justice:’... The specialist textbooks give examples of cases which fall on either side of the line. Most notably, absolute privilege has been found to attach to the proceedings of disciplinary tribunals established by professional bodies... In Trapp v. Mackie [1979] 1 W.L.R. 377 the House of Lords took the opportunity of identifying the criteria which must be applied when determining whether the proceedings of a tribunal are protected by absolute privilege.
148. Lord Diplock... suggested the following four matters which fell to be considered... (1) under what authority the tribunal acts; (2) the nature of the question into which it is its duty to inquire; (3) the procedure adopted by it in carrying out the inquiry; and (4) the legal consequences of the conclusion reached by the tribunal as a result of the inquiry...”
Considering the function of the TSA and its rules and practices, Lord Justice Brooke reviewed its role in giving authorisation to persons as fit to carry on investment business. He noted that authorisation could be given by a committee but that, where authorisation was refused, the matter went before a tribunal. He found that the tribunal satisfied three of Lord Diplock’s four tests, as the TSA fulfilled important statutory functions of a public nature; its tribunal was under a duty to enquire into the dispute between the applicant and the TSA’s authorisation committee as to whether the applicant was a fit and proper person to carry out an investment business; and the legal consequences of the conclusion reached by the tribunal as a result of its enquiry were very important both to the applicant and to the public. The applicant would commit a criminal offence if he carried on business without authorisation and the public needed protection from persons who were not fit or proper. He concluded:
“170. I am completely satisfied that the proceedings before a TSA authorisation tribunal were such as to attract absolute privilege... In light of the power of the preliminary hearings officer to override the rules [on limited discovery] if he considered it just to do so, I can see nothing in its procedure to disqualify it from attracting absolute privilege. Those who drafted its rules clearly intended them to be as close as possible to the rules of a court of justice as was compatible with the need to provide a procedure which was reasonably swift and which was not overburdened with costly rehearing processes. The rule makers were at pains to balance the requirements of justice (hence the creation of the overriding power) with the need to establish procedures which avoided the well known problems which beset litigation in relation to the discovery process.
...
173. I now turn to the question whether the absolute privilege which I would accord to the proceedings themselves also attaches to a communication like the TSA letter.
174. There could probably never be a case which illustrated more vividly the competing considerations of public policy which the court is required to resolve in a situation like this.”
He went on to refer to the recent judgment of the House of Lords in Taylor v. Director of the Serious Fraud Office [1999] 2 A.C. 177, which concerned the question whether absolute immunity should extend to statements made during an investigation by the SFO:
“190. In the context of a criminal investigation Lord Hope was heavily influenced by the existence of the growing tendency towards disclosure by the prosecution of confidential documents in criminal cases. He said, at pp. 217-218:
‘In my opinion it is necessary here, as in so many matters affecting the criminal law, to balance the public interest in the administration of justice against the interests of the individual. The history of the evolution of the disclosure rules shows that the balance has swung a long way towards the interests of the individual who is being prosecuted. This is in recognition of the fact that the defendant in criminal proceedings has the right to insist on a fair trial. Fairness to the defendant demands the widest possible disclosure. In practice, to avoid the risk of unfairness and because the prosecutor does not have the time or resources to edit out every item which need not be disclosed, disclosure under the modern rules tends to provide the defence with more material than is strictly necessary. But the administration of justice is not all about fairness to the defendant. It is also about the interests of those individuals who may be affected by dissemination of the material. There is a public interest also, in the detection and punishment of crime. If that interest is put at risk because of the consequences of the disclosure rules, the balance between the public interest and the interests of the individual is disturbed. It needs to be adjusted in favour of the public interest. This cannot be done by reducing the scope of the disclosure rules. That would prejudice the right of the defendant to a fair trial, which is always paramount. What can be done is to increase the protection to those who may be affected by the disclosure rules against the collateral use of such material - that is to say, against its use for purposes other than to ensure that the defendant has a fair trial.’
These considerations dictated his conclusion... that there was a requirement to extend to informants, investigators and prosecutors whose statements were revealed by the operation of the disclosure rules the benefit of absolute privilege in respect of the statements made which was already accorded to witnesses, and that this absolute immunity should be extended to actions... based on the disclosed material.
Lord Hutton was strongly of the same opinion. He did not consider that qualified privilege would give adequate protection to investigators and those who spoke to them because he thought that there would be a real risk that an unfounded allegation of malice made by a plaintiff bringing an action for defamation would subject an investigator or informant to harassment to which he should not be subjected... He ended his speech by saying...
‘In this case, whilst the immunity may on occasions benefit a malicious investigator or informant, I consider that the balance of public advantage lies in allowing it to the defendants.’ ...
194. Important though the investigation of crime undoubtedly is, I have not found it possible to make a logical distinction between the situation in which a criminal investigator seeks evidence to support a criminal charge and a situation in which a financial regulator seeks evidence to put before a tribunal to the effect that someone is not a fit and proper person to conduct investment business. It appears to me ... that the flow of information to financial regulators might be seriously impeded if its informants feared that they might be harassed by libel proceedings and if it was impeded in this way the purposes of Part I of the Financial Services Act 1986, of protecting the public from unfit investment advisers, would be put at risk. For these reasons, I would allow the defendants’ appeal on the first issue and hold that the TSA letter was published on an occasion which attracted absolute privilege.
195. I must make it clear that I am not addressing the case, which the SFA [the TSA’s successor] probably had in mind in which some malicious informant spontaneously proffers to an SRO [self regulating organisation] information about an investment adviser which is untrue and defamatory, and the claimant can prove his case in a libel action without the need to rely on documents disclosed in civil or criminal proceedings.”
As regarded the applicants’ claim of malicious prosecution, Lord Justice Brooke noted that a lay informant could be regarded as a prosecutor where he procured the institution of criminal proceedings by furnishing information that he knew to be false and where the facts were so peculiarly within his knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment. Since however in this case the SFO had carried out an extensive investigation and acquired a substantial volume of evidence independently of the defendants, who had not approached the SFO spontaneously with their own account, and since the SFO as a skilled organisation set up to handle serious fraud prosecutions had exercised its own independent discretion, there was no prospect of the applicants proving at trial that the defendants were properly to be regarded as prosecutors.
On 6 July 2000, the applicants petitioned the House of Lords for permission to appeal. On 21 November 2000, the House of Lords refused leave to appeal.
B. Relevant domestic law and practice
In the case of Taylor v. the Serious Fraud Office [1999] A.C. 177, on 29 October 1998, the House of Lords were unanimous that the documents disclosed by the prosecution to the defence during criminal proceedings 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 held that 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.
He 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, where the cause of action consisted in abusing legal process by maliciously and without reasonable cause setting the law in motion against the plaintiff. There it did not matter that an essential step in setting the law in motion was a statement made by the defendant to a prosecuting authority or even the court.
COMPLAINTS
The applicants complain under Article 6 § 1 of the Convention that the United Kingdom failed to provide them with a fair and public hearing in respect of their defamation and malicious prosecution claims.
The applicants complain under Article 13 of the Convention that the United Kingdom have failed to provide a remedy.
THE LAW
1. The applicants complain that they were prevented from obtaining a hearing of their claims of defamation and malicious prosecution, invoking Article 6 § 1 of the Convention which provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
A. The parties’ observations
The Government accepted that Article 6 was applicable in the present case on the same basis as in Z. and Others v. the United Kingdom [GC], (no. 29392/95, ECHR 2001-V), namely, that there was at the outset of the proceedings a genuine and serious dispute as to whether domestic law permitted a claim for damages to be maintained in the circumstances. The legal issues arising from that dispute were litigated up to the Court of Appeal and the domestic courts balanced the competing considerations of public policy in a manner indistinguishable from the duty of care analysis in issue in the Z. and Others case. It was irrelevant, or of minimal importance, that the word “immunity” was used by the domestic courts. The courts were determining the scope of domestic substantive law and their interpretation could not be regarded as disclosing a restriction on access to court.
In any event, the immunity applied to the applicants’ defamation claim pursued a legitimate aim and was proportionate, as shown by the full and careful reasoning set out in the Court of Appeal’s judgment and in the House of Lords judgment in the Taylor case (cited above). In particular, the effect of the restriction was designed to ensure proper financial regulation and thereby to protect the public, the position of the regulators exercising a protective public purpose being directly analogous to the position of those who assisted the investigators of crime.
As regards the applicants’ claim of malicious prosecution, this was struck out on the basis that, given the ingredients of the tort, there was no real prospect of it succeeding on the facts, and this could not be regarded as disclosing a denial of access to court.
The applicants submitted that the United Kingdom failed to provide them with a fair and public hearing in the determination of their civil rights in respect of both the absolute privilege issue and the malicious prosecution issue. The case fell within Article 6 § 1 as the Court of Appeal did not rule on the scope of liability but imposed an absolute immunity applicable regardless of the merits of the case. It was implicit in the Court of Appeal judgment that the defendants might have told lies to the TSA and behaved maliciously causing serious damage and distress. Nonetheless, the applicants’ claims were struck out as it was regarded that an absolute immunity attached even to malicious allegations made to regulators and as the defendants were not regarded as prosecutors even though they misled the SFO in their investigations. As a result, there was no civil redress or remedy for the wrong which they suffered. The extension of an absolute immunity to proceedings before the TSA was disproportionate as that body, subject to the specific regime of tribunals, lacked many of the characteristics of a court, in particular the lack of any obligation of disclosure. The successor of the TSA, the SFA, did not itself consider it necessary for its proceedings to attract absolute privilege, understandably as it surely did not wish to attract malicious complaints. The Court of Appeal’s decision also conferred, without compelling justification, complete immunity from normal civil process on malicious informants. A finding that qualified privilege was applicable, which could have been defeated by proof of malice, would have provided the defendants with adequate protection in the circumstances.
B. The Court’s assessment
1. Applicability of Article 6 § 1 of the Convention
The Court recalls its constant case-law to the effect that “Article 6 § 1 extends only to contestations (disputes) over (civil) ‘rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States” (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 46, § 81; Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, p. 70, § 192; the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301, p. 37, § 80). It will however apply to disputes of a “genuine and serious nature” concerning the actual existence of the right as well as to the scope or manner in which it is exercised (Benthem v. the Netherlands judgment of 23 October 1985, Series A no. 97, p. 15, § 32).
In the present case, the applicants were claiming damages on the basis of libel and malicious prosecution, torts in English law which are largely developed through the case-law of the domestic courts. Their case was rejected by the Court of Appeal on High Court on 7 June 2000 on the basis that the allegedly libellous material was protected by an immunity and that there was no reasonable prospect of establishing that the defendants could be regarded as prosecutors for the purposes of the malicious prosecution claim.
Given the fact that the issues were litigated to the Court of Appeal and disclosed some diversity of interpretation of domestic law, the Court is satisfied that at the outset of the proceedings there was a serious and genuine dispute about the existence of the right asserted by the applicants under domestic law. In such circumstances, the Court finds that the applicant had, on at least arguable grounds, a claim under domestic law.
Article 6 was therefore applicable to the proceedings brought by the applicant. The Court must therefore examine whether the requirements of Article 6 were complied with in those proceedings.
2. Compliance with Article 6 § 1 of the Convention
The Court, in the Golder case, held that the procedural guarantees laid down in Article 6 concerning fairness, publicity and expeditiousness, would be meaningless if there was not protection of the pre-condition for enjoyment of those guarantees, namely, access to court. It established this as an inherent aspect of the safeguards enshrined in Article 6, referring to the principles of the rule of law and the avoidance of arbitrary power which underlie much of the Convention (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, pp. 13-18, §§ 28-36).
Article 6 § 1 “may ... be relied on by anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 § 1” (see Le Compte, Van Leuven and De Meyere v. Belgium, judgment of 23 June 1981, Series A no. 43, § 44). Where there is a serious and genuine dispute as to the lawfulness of such an interference, going either to the very existence or the scope of the asserted civil right, Article 6 § 1 entitles the individual “to have this question of domestic law determined by a tribunal” (see Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, § 81; see also Tre Traktörer v. Sweden, judgment of 27 July 1989, Series A no. 159, p. 18, § 40).
The right is not however absolute. It may be subject to legitimate restrictions, for example, statutory limitation periods, security for costs orders, regulations concerning minors and persons of unsound mind (see Stubbings and Others v. the United Kingdom, judgment of 22 October 1996, Reports 1996-IV, pp. 1502-3, §§ 51-52; Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316-B, pp. 80-81, §§ 62-67; the Golder judgment, cited above, p. 19, § 39). Where the individual’s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57). If the restriction is compatible with these principles, no violation of Article 6 will arise.
It is contended by the applicants, on the one hand, that in this case the decision of the Court of Appeal striking out their claims deprived them of access to court, in particular as the absolute immunity arising in their libel action operated as an exclusionary rule, or immunity from liability, which prevented their claim being decided on the facts. The Government argued, on the other hand, that the courts were applying principles of substantive law, drawing a comparison with Z. and Others v. the United Kingdom, in which no restriction of access arose where the courts, having balanced competing considerations of public policy, struck out actions on the ground that no duty of care was owed.
(a) The Court observes, firstly, that the applicants’ claims in defamation were not struck out on the basis of any missing ingredient in the basic cause of action but rather because the letter, alleged to have contained libellous statements, could not be used to found the action. This discloses some similarities with the judgment in the case of A. v. the United Kingdom (no. 35373/97, § 65, ECHR 2002-X) which concerned the absolute privilege in defamation attaching to statements made by Members of Parliament in carrying out their functions in Parliament. However, the Court did not decide in that case whether the privilege acted as a restriction on access to court as, in any event, the same issues of legitimate aim and proportionality arose under the applicant’s substantive complaints under Article 8.
It may be noted however that in A. v. the United Kingdom the Court observed, albeit as an obiter dictum, that the absolute privilege provided by Article 9 of the Bill of Rights was framed not in terms of a substantive defence to civil claims, but rather in terms of a procedural bar to the determination by a court of any claim which derived from words spoken in Parliament. In this case, the absolute privilege applied by the Court of Appeal did not derive from any statute but from its interpretation of domestic law and previous case precedent. Nonetheless, it may be noted that the rule according immunity from action in respect of statements made by judges, officers of the court, witnesses, counsel, informants, etc., did not depend on the cause of action to which they might give rise, attaching equally to defamation as to other tort actions (see, mutatis mutandis, Mond v. the United Kingdom (dec.), no. 49606/99, 10 June 2003), where the immunity in suit applied to the tort of negligent misstatement. It therefore appears that the absolute privilege or immunity has a scope wider than the substantive cause of action in this case and, to that extent, may be distinguished from the situation in the Z. and Others v. the United Kingdom case, where the action in negligence failed due to the failure of the applicants to make out one of the substantive ingredients of the claim, namely, the existence of a duty of care.
The Court considers therefore that in the present case the application of the privilege may be regarded as a bar on the applicants’ access to court in respect of their libel claim. It has therefore examined whether it may be regarded as pursuing a legitimate aim and demonstrating a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
As regards the aim, the Court recalls the explanation given by the Court of Appeal, that the immunity was necessary to ensure that the TSA, a body with investigative and judicial functions, could continue to protect the public effectively from persons unfit to carry out investment business. In particular, it was considered vital that banks or other persons be able to give information relevant to those functions without fear of harassing litigation. This may be regarded as a legitimate aim pursuing the interests of the administration of justice and the prevention of crime and disorder.
The applicants have argued that, nonetheless, the privilege bestowed on the TSA in this case was disproportionate, pointing to its blanket nature and the fact that in the proceedings itself the TSA’s successor made no claim for absolute privilege. The Court observes that the Court of Appeal showed awareness of the need to restrict the privilege to the purposes for which it was aimed, Lord Justice Brooke noting the case was not concerned with gratuitous libels which might be regarded as extraneous to any investigation. Nor did the privilege act to bar a malicious prosecution action, if the applicants could show that the defendants had abused legal process by maliciously and without reasonable cause setting the law in motion against them (see Taylor v. the Serious Fraud Office, cited above in Relevant Domestic Law and Practice). Lord Justice Brooke also gave consideration as to whether qualified privilege could provide the necessary protection to the public interest and quoted authority to the effect that this would leave a real risk that unfounded allegations of malice would subject investigators or informants to harassment, which would have a chilling effect on future investigations (see, mutatis mutandis, Taylor v. the United Kingdom (dec.), no. 49589/99, 10 June 2003, acknowledging the importance that the freedom and confidence of those participating in court proceedings should not be hampered by vexatious litigation).
The Court considers that in the circumstances the domestic courts carried out a careful balancing of the policy reasons for and against the privilege attaching to the allegedly libellous statement made in this case by bank personnel who had been invited to provide information by the SFO in the context of an already existing investigation.
Accordingly, it finds that any restriction on the applicants’ access to court may be regarded as proportionate and compatible with the spirit of Article 6 § 1 of the Convention.
(b) As regards the striking out of the applicant’s claims for malicious prosecution, this was not based on the application of any analogous privilege or immunity. The Court of Appeal found that the defendants could not be regarded as “prosecutors” in the sense required by the tort of malicious prosecution, in particular since the SFO had exercised its own independent discretion and relied on material gathered in a wide ranging investigation in bringing the charges against the applicants. Since the domestic courts’ rejection of the claim was based on their application and interpretation of the substantive principles applicable to the tort in question, the Court finds that the applicants cannot claim that they were thereby denied access to court. Rather they had the opportunity to raise before the courts all the relevant legal arguments supporting their claim in a procedure according with the requirements of Article 6 § 1 of the Convention.
This part of the application must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicants complain that they were denied an effective remedy for their complaints.
Article 13 of the Convention provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court has found above that the complaint of lack of access to court is manifestly ill-founded. Article 6 § 1 being the lex specialis for such complaints, no separate issue arises under Article 13 in the present case.
For these reasons, the Court by a majority
Declares the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy