On 7 September 2023, the High Court of Northern Ireland delivered judgment in the case of McGettigan v Mannok Holdings  NIKB 90. The Plaintiff, a practising solicitor, claimed that Mannok Holdings had defamed him in three letters to the Law Society of Northern Ireland’s (LSNI) Professional Conduct Committee (PCC), submitted in complaint against him.
The court was required to decide, as a preliminary issue, whether the correspondence was covered by the defence of absolute privilege. We set out an overview of the case below, which is to be welcomed as a further indication of the Northern Irish courts’ appetite for an early determination of key issues in defamation proceedings.
Mannok Holdings, formerly Quinn Industrial Holdings, wrote to the LSNI in April 2021 to complain about the Plaintiff’s professional conduct, specifically his alleged contact with Mannok’s shareholders and subsequent involvement with a local community group protesting against its business activities. In August 2021, the PCC determined that there was no case for the Plaintiff to answer. Following this, Mannok sent two further letters to the LSNI containing additional information and requesting that the PCC reconsider its decision. In September 2021, the PCC dismissed the complaint and upheld its original determination. Subsequently, the Plaintiff issued defamation proceedings against Mannok.
The Plaintiff’s case was both narrow and technical. The parties agreed at the outset that the publications were capable, in principle, of being covered by absolute privilege. However, the Plaintiff, citing ‘Guidance’ on complaints drawn from the LSNI’s website in June 2023, submitted that Mannok had used the ‘wrong process’ to make its complaint and that, consequently, absolute privilege did not apply.
The Judge found that the legal basis advanced for dismissing Mannok’s defence of absolute privilege was, in the main, ‘incorrect, or not seriously advanced’, and that it was unclear whether the Guidance relied on had existed in the same form in 2021. Nonetheless, Mr Friedman KC, sitting as High Court Judge, noted that, in fact, much of the process followed in response to Mannok’s complaint had adhered to the Guidance (including triaging, assignment of a caseworker, a discretionary request for information from the Plaintiff, and referral to the PCC for determination).
However, counsel for Mr McGettigan argued that the difference, with reference to the Guidance, was that Mannok should have registered the complaint via the LSNI’s dedicated online portal or used the template form provided. It was contended that, since absolute privilege is an exceptional bar that protects communications otherwise subject to sanction, its conferral requires ‘scrupulous management and oversight’ by the court.
The Plaintiff also argued that, even if the letter of complaint submitted in April 2021 attracted privilege, the second and third letters could not enjoy such protection because they followed the PCC’s decision on the matter in August 2021. As such, the PCC was functus officio, i.e., without power to re-examine its decision, and Mannok had no ‘standing’ to write again, putting it outside the protection of the law of defamation.
Following a consideration of the history of absolute privilege, and its roots in judicial proceedings, Friedman J acknowledged that it had been extended to ‘a range of regulatory law enforcement fields where the investigation could lead to a tribunal, commission or inquiry procedure exercising judicial-type functions.’ He found that, in the language of the case law surveyed, Mannok’s initial letter to the LSNI in April 2021 was ‘a volunteered complaint inviting the designated professional disciplinary body to investigate its content’, and ‘sought to initiate a quasi-judicial investigation.’
He then proceeded to consider whether the form and continuation of Mannok’s correspondence had the effect of negating privilege. In doing so, he considered Lilley v Roney (1892) 61 LJQB 727, which held that ‘form is of the first importance’ when initiating complaints to bodies authorised to determine them. While the Judge considered that these obiter comments ‘capture[d] the spirit of the Plaintiff’s submissions,’ he rejected the Plaintiff’s case that Mannok’s minor formal errors were sufficient to remove the protection of absolute privilege.
Friedman J also held that Mannok’s two further letters of complaint were similarly covered by the privilege since there was nothing to indicate that, following determination of the complaint, the PCC was unable to re-examine its decision. The Judge answered the preliminary issue in Mannok’s favour and dismissed the claim.
Although it is unsurprising that the claim was dismissed, McGettigan is perhaps most notable for its indication of the Northern Ireland judiciary’s increasing willingness to ‘grasp the nettle’ in defamation proceedings, where the claim rests on an unsustainable foundation. This is a welcome further development in a sequence of recent case law including MacAirt and Others v JPI Media NI  NIQB 52, in which Scoffield J demonstrated a preparedness to strike out multiple claims at an early stage under Order 82 Rule 3A of the Rules of the Court of Judicature (NI) 1980. The limitation of Order 82, however, is that it only allows for a dismissal of meanings which cross the threshold of perversity. In practice, this has meant that a range of potentially permissible meanings are left on the table until trial, which often does little to narrow the key issues in dispute.
It remains to be seen whether early determinations will become par for the course, and how far the judiciary will build on the reforms inaugurated by the Defamation Act (Northern Ireland) 2022. One of the Act’s key watersheds, for instance, was section 7, which reversed the long-standing presumption in favour of jury trials. It has long been thought that this will open the way for the courts here to determine the meaning of a publication as a preliminary issue, in line with the procedure in England and Wales. This was also the outcome envisaged by the Act’s sponsor in debate during the legislative process at Stormont (‘if there is no jury, there is no bar on the judge deciding, right up front, what the single meaning is’).
With a number of claims issued since the advent of the 2022 Act due to be heard in 2024, the law of defamation in Northern Ireland may be subject to further change in the coming months. In particular, the principles arising from these actions, in addition to ongoing debate on reform of the threshold for defamation claims, will no doubt engage the focus of lawmakers during the statutorily mandated review of defamation law in Northern Ireland, scheduled for mid-2024.