Can a cease and desist letter be considered defamatory?

SATSUMA

Hypothetically can a cease and desist letter sent from a solicitor to an individual itself contain defamatory statements? If outrageous comments are made in the cease and desist?

The publication element would be the letter itself. Ie, it being viewed by solicitors in the firm, the ability to access the firms database, the solicitors clients discussing the accusations to obtain instruction etc.

Its an interesting concept I've never considered
Any thoughts?

Victor

It could. However there is the practical issue of publication - only the sender(s) and recipient(s) have seen it.

Peregrinus

Assume that the defamatory statements originate from the client on whose behalf the letter is sent.

To whom are they "published" (other than the recipient of the letter)? It seems to me, only to the solicitor who drafts the letter and any support staff in the solicitor's firm who may have sight of it in the course of their work. And that looks like an occasion of qualified privilege to me. Plus, the onus would be on the plaintiff to identify the people to whom the letter had been published, and prove publication, and show that the publication had the effect of lowering those people's estimation of the plaintiff.

I think this one is going nowhere, frankly.

The DayDream

Uh, no. Writing and sending a letter is not publishing.

Peregrinus

The DayDream wrote: »

Uh, no. Writing and sending a letter is not publishing.

Oh, it absolutely can be, for defamation purposes. If I write a letter to my friend in which I give my unvarnished opinion of you, I have published those statements about you to my friend.

Claw Hammer

SATSUMA wrote: »

Hypothetically can a cease and desist letter sent from a solicitor to an individual itself contain defamatory statements? If outrageous comments are made in the cease and desist?

The publication element would be the letter itself. Ie, it being viewed by solicitors in the firm, the ability to access the firms database, the solicitors clients discussing the accusations to obtain instruction etc.

Its an interesting concept I've never considered
Any thoughts?

Any discussion between the clients and the solicitors would be covered by qualified privilege. There is no publication in sending the letter to the person themselves who is accused of wrongdoing.
In order to succeed in defamation on the basis that there was publication to the solicitors in the firm, it would have to be shown that the instructions to the solicitor were activated by malice.

Peregrinus

Claw Hammer wrote: »

Any discussion between the clients and the solicitors would be covered by qualified privilege. There is no publication in sending the letter to the person themselves who is accused of wrongdoing.
In order to succeed in defamation on the basis that there was publication to the solicitors in the firm, it would have to be shown that the instructions to the solicitor were activated by malice.

. . . Which would be very hard to do. The courts lean very strongly in favour of people's right to obtain legal advice, so they would be very, very strongly resistant to constraining that right by holding that, in instructing your solicitor about a dispute with another person, you were maliciously defaming that other person.

There's another consideration which the defamed person would do well to bear in mind. The alleged defamation is communicated to one or two people in the solicitors firm, who almost certainly neither know nor care about the plaintiff, are accustomed to hearing clients air greivances, and will forget about what was said by the end of the week. But if the plaintiff launches a defamation action and it goes to trial, the defamatory allegations will be published to a far, far wider circle of people, and have much greater visibility. By launchign proceedings the plaintiff will, in the words of one Australian judge, "call in an airstrike on his own position"; the defamation action will have a much greater impact on his reputation than the instructions to the solicitor ever would have.

Jim2007

Peregrinus wrote: »

Oh, it absolutely can be, for defamation purposes. If I write a letter to my friend in which I give my unvarnished opinion of you, I have published those statements about you to my friend.

But that is not what is under discussion here. We are talking a direct communication concerning your behavior.

Peregrinus

Jim2007 wrote: »

But that is not what is under discussion here. We are talking a direct communication concerning your behavior.

We're talking about a bit more than that, I think.

Sending a letter to A containing derogatory statements about A is not "publication" for defamation purposes; the statements about A have to be published to someone who isn't A.

But the OP is asking about the process of sending the letter. The process involves Client making derogatory statements about A to Solicitor (when giving instructions); Solicitor maybe dictating a letter to Secretary which includes those derogatory statements; and (possibly) Solicitor submitting the letter to Partner for signature before it is sent. So the process involves publication of the statements to Solicitor, maybe to Secretary, maybe to Partner. Can any of these publications associated with the letter found a defamation action?

Answer: almost certainly not. They are all publications, so far as defamation law is concerned, but they are protected by qualified privilege and legal privilege. In theory you could possibly succeed if you could show that any of the publications was actuated by malice; in practice — good luck with that.

SATSUMA

OP here, just to be clear this is genuinely a hypothetical scenario to encourage discussion.

There are some very valid points here.

Playing devils advocate... what if the accusations were made about someone known in the firm like a prominent barrister?

Yes there's privileged communications. But let us assume that the barrister is known to that law firm/ most law firms. Let's assume that the claims are in fact false.

Victor

Depending on the relationship between the solicitor and the barrister, it's possible the solicitor would decline to take instruction from the client, citing conflict of interest.

There would of course be the issue of matter that the solicitor might know to be demonstrably wrong.

Claw Hammer

SATSUMA wrote: »

OP here, just to be clear this is genuinely a hypothetical scenario to encourage discussion.

There are some very valid points here.

Playing devils advocate... what if the accusations were made about someone known in the firm like a prominent barrister?

Yes there's privileged communications. But let us assume that the barrister is known to that law firm/ most law firms. Let's assume that the claims are in fact false.

You are still down to malice.

Peregrinus

Suppose A, a prominent barrister, receive many instructions from B, a solicitor. C consults B with respect to a possible defamation claim, and at the consultation he makes serious allegations against B, reflecting on his professional competence, integrity and standards.

The allegations are false, and C knows them to be false. He is doing all this in the hope of damaging the relationship between A and B.

As Victor says, B may decline the instructions, but that doesn't really matter. The question is whether C's statements to B are defamatory of A; the answer to that question doesn't depend on whether C takes the case or not.

I think Claw Hammer is correct. A client's (or potential client's) instructions to a solicitor attract qualified privilege, but C loses the protection of qualified privilege if he knows that the statements he is making are untrue.

So, in the hypothetical, I think C is at risk of liablity for defamation.

But this is theoretical. In practice A would face very substantial barriers in proving everything he would need to prove in order to succeed. If B does decline the instructions, as Victor suggests, no solicitor's letter will ever be sent, and A will never know that the consultation took place, never mind what was said at it. If B accepts the instructions and a solicitor's letter is sent, all that A will know is what is stated in the letter, which is usually very general in nature. It will be difficult for him to prove exactly what C said to B. B will nto give evidence about what was said at the consultation, because the consultation attracts legal professional privilege.

And if A can prove what was said, he also has to prove that C said it, knowing it to be false. Proving C's knowledge of the falsity of his allegations is likely to be very difficult.

Finally, A as an experienced barrister will know how damaging it would be to him to have these allegations widely aired and reported. Even if he thinks he can prove everything he needs to prove in order to succeed in a defamation action, he will think long and hard before actually launching proceedings. You don't get to be a prominent barrister if it's your habit to make hasty and ill-advised judgments.

Mr. Incognito

Legal privilege applies- no

Peregrinus

Mr. Incognito wrote: »

Legal privilege applies- no

Legal privilege is different. It's a privilege against being compelled to testify about lawyer-client communications. It's not an immunity from legal consequences that would otherwise apply if those communications are criminal in nature, or give rise to a civil claim.

Legal privilege might make it very difficult for C to prove what A said to B. But if he can prove it, and if what was said is actionable, legal privilege won't mean that A has a defence to the action.

GerardKeating

Peregrinus wrote: »

I think this one is going nowhere, frankly.

Perhaps the the recipient of the letter cannot be defamed, but the defamatory statements could (in theory) refer to a third party, for example if the OP sent me a "cease and desist letter" demanding i stop "doing something" with a named third party, i would not be defamed, but the third party would be.

Peregrinus

GerardKeating wrote: »

Perhaps the the recipient of the letter cannot be defamed, but the defamatory statements could (in theory) refer to a third party, for example if the OP sent me a "cease and desist letter" demanding i stop "doing something" with a named third party, i would not be defamed, but the third party would be.

I think a solicitor's letter to A, accusing A and B of disreputable things, would certainly be protected by qualified privilege. There is no reason to think that the solicitor knows the allegation to be false — in fact, it's wildly unlikely that he does.

So we're back to suing on the basis of what the client said to the solicitor at the consultation, and we have the same problems of (a) proving what the client said during a confidential consultation that is protected by legal professional privilege, and (b) proving that the client knew it to be false.

Victor

Peregrinus wrote: »

I think a solicitor's letter to A, accusing A and B of disreputable things, would certainly be protected by qualified privilege. There is no reason to think that the solicitor knows the allegation to be false — in fact, it's wildly unlikely that he does.

So we're back to suing on the basis of what the client said to the solicitor at the consultation, and we have the same problems of (a) proving what the client said during a confidential consultation that is protected by legal professional privilege, and (b) proving that the client knew it to be false.

While that protects the solicitor, surely it can't protect the client?

Peregrinus

Victor wrote: »

While that protects the solicitor, surely it can't protect the client?

The client didn't send the solicitor's letter; the solicitor did.

We've got two separate publications here: Client publishes defamatory allegations about A and B to Solicitor in instructions; Solicitor publishes defamatory allegations about A and B to A in letter.

If B sues on foot of the letter the defendant is Solicitor, and B's problem is that the letter attracts qualified privilege, and he has to prove Solicitor's malice, which I doubt that he can do. If B sues on foot of the instructions the defendant is Client and B's problems are (a) proving what was said in instructions and (b) proving B's malice so as to overcome the fact that the instructions attract qualified privilege.

Victor

Peregrinus wrote: »

The client didn't send the solicitor's letter; the solicitor did.

The client procured the sending of the letter. Principal and agent.

Peregrinus

Victor wrote: »

The client procured the sending of the letter. Principal and agent.

OK. So, B sues Client and Solicitor, arguing that Client procured Solicitor to send a letter to A asserting that B and A together engaged in nefarious conduct of some kind or other.

Solicitor claims the defence of qualified privilege and, absent some very surprising facts, will succeed. He did not know that the instructions given to him by Client about what A and B were allegedly doing were false.

Can B recover from client? I think he has two problems.

1. As already referred to, Client will also claim qualified privilege, and to overcome this B will have to show that Client knew the allegations to be false. Not should have known, or should reasonably have known, but actually did know. Unless Client has done something very stupid, like admitting to someone that he knew the allegations were false, it will be very hard for B to prove this.

2. The only person to whom Client published the allegation that A and B were doing something nefarious together is A. If the allegation is in fact false, A knows it to be false. So, receiving the solicitor's letter won't lower B in A's estimation (thought it may lower Client). Any wider circulation of the allegation about A and B is the responsibility not of Client, but of B, for his decision to sue over it. So Client will argue that he should not be found liable because no damage to B's reputation in fact occurred or, at worst, that if he is liable damages should be nominal.