It seems quite clear that the answer can be ‘yes’. This emerges from a recent case involving an acrimonious, ongoing, IP dispute. Whilst the letter sent to the defendant could not be held to be defamatory, the moment it was copied to a third party it was ‘published’, and so potentially defamatory. However, the solicitors claimed qualified privilege and the case then went before the judge to see whether or not the defamation claim should be struck out. He took the view that it would not be right to do that, and what emerges is that if a solicitor relies solely on his client’s instructions, where serious allegations are being made, and there have been no attempts to corroborate those instructions, then the solicitor stands a real risk of being joined in any subsequent defamation litigation. As a note in the SJ puts it, if a client is held to have acted cynically and dishonestly, it will be a heavy burden for solicitors to establish that they were themselves not reckless in publishing false statements if they cannot show that they took steps to satisfy themselves that the allegations were true. For instance, if allegations of fact are made, then the wise solicitor will make basic checks to ascertain that those factual allegations are correct.

The lesson that emerges is that solicitors who pass on damaging statements from their clients without checking, or at least making serious attempts to verify that information, stand a real risk of being held to be ‘reckless’ in so doing, and therefore may be deprived of a qualified privileged defence in subsequent defamation proceedings. So, if you have any doubts about what your client is saying (or think he is being over the top) then consider qualifying it with a phrase such as ‘we are instructed that’ or ‘it is our client’s contention that’, or similar. See note in [2007] SJ 696. © Practical Lawyer