Two leading London-based human rights lawyers have been threatened with defamation proceedings for making submissions on behalf of their client, in a highly unusual development.
The threat was made by lawyers representing the Gibraltar government and senior ministers, including the chief minister, Fabian Picardo, at an inquiry exploring alleged corruption at the top of the British overseas territory’s administration.
Caoilfhionn Gallagher KC and Adam Wagner, both from Doughty Street chambers, are representing Gibraltar’s former police chief, Ian McGrail, who claims he was pressed into taking early retirement after seeking to execute a search warrant against someone who had a close relationship with Picardo. The chief minister denies the allegations.
In written submissions by Sir Peter Caruana KC, himself a former chief minister of Gibraltar and representing the current government, he said he had been instructed that allegations made by Gallagher and Wagner on behalf of McGrail “are considered to be outrageous and wholly untrue and considered also to be highly defamatory. We are further instructed by the chief minister to say that he fully reserves his rights against all relevant persons in this respect.”
At a preliminary inquiry hearing last week, responding to the submissions, Gallagher said: “We consider it to be both inappropriate and continuing intimidatory and victimising conduct. We have asked for that threat to be withdrawn. Regrettably that has not happened.”
She highlighted the defence of qualified privilege, available to lawyers when representing clients in proceedings.
In response, Caruana told the inquiry: “It is only a threat if my learned friend or her client believes that they are not entitled to the defence of qualified privilege.”
But the inquiry chair, Sir Peter Openshaw, a former UK high court judge, described the threats of defamation as “misplaced. People must be allowed to make their submissions and witnesses must not be deterred from giving evidence or making submissions to the inquiry, and as I say I regret that that threat was made.”
Speaking after the hearing, Wagner called for an apology. He said: “Lawyers representing their clients should never face personal threats of defamation, and it is particularly concerning that these threats emanated from the Gibraltar government itself. We are pleased that Sir Peter Openshaw criticised the government’s conduct.”
Mark Stephens, co-chair of the International Bar Association’s Human Rights Institute, also condemned the Gibraltar government’s conduct. “Lawyers should be free to represent their clients without fear of being personally sued for defamation,” he said. “It is disappointing and an affront to human rights to see this tactic being used by the government of a British overseas territory against UK and Gibraltar lawyers.”
