Bottomley v Brougham: 1908

The official receiver is acting in a judicial capacity in making his report and his further report and in conducting the examination under that further report. A judge is privileged from inquiry as to whether he is malicious. Channell J considered whether the OR in carrying out investigative functions came within the doctrine of absolute privilege. He held: ‘I think, in the first place, that the official receiver has a statutory duty to inquire in a judicial way into certain matters by the Act of 1890, and that in performing that duty he is acting in a judicial capacity. It is quite true that the report is made ex parte, but that makes no difference. A judge in hearing an ex parte application is still acting as a judge, and the absolute privilege applies quite as much as when he is hearing a case in which both parties appear. The fact that this was a preliminary inquiry equally does not prevent it being a judicial enquiry. An inquiry before a magistrate on a charge of murder, for instance, which he has certainly no power to deal with, and as to which he is only inquiring in a preliminary way whether there is a case for committing the accused person for trial, is clearly a judicial proceeding although it is preliminary to trial. It is strongly contended on the part of the plaintiff that there is mischief and danger in allowing absolute privilege in this case, because it is an ex parte statement, and the person against whom the charge is made has no opportunity of meeting it; it appears to me, however, that the answer to that is the very fact that it is preliminary, and that it does lead to further inquiry upon which that person does have that opportunity of explaining and giving his view of the matter, and that, it being obviously known by anybody who sees or reads the report of the official receiver that, qua report, it will lead to future proceedings in which the report may be entirely displaced, that really prevents any serious mischief arising from applying this doctrine to such a proceeding as this. I think, therefore, that this report may be considered to be absolutely privileged on the footing of its being the judgment of a judicial officer upon a matter entrusted to him for inquiry’.
However Channell J went on to give an alternative ground for holding that the OR attracted absolute privilege which proceeded on the arguably opposite premise that the function which the OR was exercising was more analogous to that of a prosecutor than a judge: ‘But, even if that is not sound, there is the further ground that the report of the official receiver may be treated, not so much as the judgment in a judicial proceeding, but as the initial stage of proceedings in the winding-up Court, which clearly is a Court. It is the information upon which the proceedings take place and it is made by the official receiver under a statutory duty. It seems to me to come within the authority of the case of Lilley v Roney 61 L.J. (Q.B.) 727, and to be a much stronger case, because in that case complaint by a person who considered himself aggrieved by the conduct of a solicitor – a complaint which was the initiation of proceedings before the Law Society – was held to be privileged as being the commencement of proceedings of a legal character. I quite agree that there the privilege was rather the privilege of a litigant than the privilege of the judge; it was the privilege of a man who was starting proceedings. It is perhaps not quite accurate to say the official receiver is in any sense a litigant, but when he comes before the winding-up Court upon the examination no doubt he is, in one sense, a party to the proceedings; he is, as it were, appearing for the prosecution. It is much the same as when the Attorney-General appears upon an information filed by the Attorney-General; he is then a party to the proceedings possibly, not a litigant, and I should say certainly not acting as a judge, but I do not see that that much affects the matter here. In presenting this report the official receiver is informing the Court of alleged matters for inquiry, and so initiating a judicial enquiry; and it seems to me to be entirely analogous to what was held to be absolute privilege in Lilley v Roney, and to be a stronger case. It was done in the course of the performance of a duty imposed upon him in his position of officer of the Court. It is much like the report of an official referee, or someone of that sort, to whom matters are referred to report to the Court. I suppose no one would doubt that those reports were privileged.’


Channell J


[1908] 1 KB 584

Cited by:

CitedMore v Weaver CA 11-Jul-1928
The appellant brought the latest of several actions, this time alleging defamation in letters from the respondent to her own solicitors making certain statements about the appellant. Those letters had become public in the course of the earlier . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Insolvency, Defamation

Updated: 11 May 2022; Ref: scu.552688