Refusal to strike out defamation proceedings where defence of absolute privilege merits greater legal argument and consideration

Application to strike out the proceedings – argued that the claim discloses no reasonable cause of action and/or an order pursuant to the inherent jurisdiction of the Court striking out the proceedings on the grounds that they disclose no reasonable cause of action or that they are frivolous and vexatious – defamation - clear as a matter of law that a defence of absolute privilege applies in circumstances where the allegedly defamatory statement was made by the defendants to the Data Protection Commissioner in the course of the latter’s investigation of a complaint by the plaintiff and, more specifically, on foot of an express request by the DPC that the defendants write to the plaintiff and copy that letter to the DPC - background/chronology of the case - Section 17 of the Defamation Act 2009 - defendants contended that absolute privilege at common law encompassed the occasion of the allegedly defamatory statement in the present case and that the common law privilege was carried through by s.17(1) of the Act of 2009 - statutory privilege - submitted that all of the criteria of proceedings involving the performance of a judicial function had been fulfilled - manner of pleading the defamatory imputation was inadequate - defence of absolute privilege - decision in Gray v. Avadis - whether or not absolute privilege applied to an investigation conducted under the auspices of the (English) Law Society - satisfied that there is, at the very least, an issue to be tried as to whether absolute privilege stems from this source - whether or not the proceedings involved the performance of a ‘judicial function’ - complex exercise and involves the close examination of a number of variables - Court needs to conduct the analysis in the shadow of Article 6 of the European Convention on Human Rights and the authorities of the European Court of Human Rights to consider matters such as proportionality and whether a Convention-compliant interpretation suggests one particular interpretation over another - not satisfied that the conclusion to be reached is at the level of clarity for the claim to be struck out at this stage of the proceedings, given its far-reaching nature and its novelty – whether defence of absolute privilege applies merits considerably greater legal argument and consideration - appropriate amendments can be made if necessary in due course and/or particulars can be sought – not a grounds to strike out the proceedings – application to strike out proceedings refused