On June 7, 2012, in Mansfield v. Bernabei, No. 111314 (Va. Jun. 7, 2012), the Virginia Supreme Court upheld the doctrine of absolute judicial privilege vis-à-vis “communications made before the filing of an action”. Id. at 1. That Fairfax County special case rejected a retaliatory personal injury suit for pre-filing defamation after the underlying action was dismissed on summary judgment despite being in “good faith” and “not frivolous, unreasonable or without foundation”. Id. at 2.
“In the Commonwealth, it is well settled that words spoken or written in a judicial proceeding that are [material,] relevant and pertinent to the matter under inquiry are absolutely privileged against actions on the basis of defamation”. Id. at 6 (internal citations omitted). Mansfield observed further, “Absolute privilege clearly extends outside the courtroom.” Id. at 7.
“Thus, regarding the applicability of absolute privilege to communications preliminary to a proposed judicial proceeding, this Court adopts the rule expressed in the Restatement (Second) of Torts §586, 587 as well as the additional requirement that the disclosure be made only to interested persons.” Id. at 12-13. Mansfield reiterated: “For absolute privilege to attach, the communications must be ‘material, relevant or pertinent’ to the judicial process.” Id. at 13 (emphasis added).
“Applying this requirement to communications prelimary to proposed judicial proceedings requires a reviewing court to examine whether: (1) the statement was made preliminary to a proposed proceeding; (2) the statement was related to a proceeding contemplated in good faith and under serious consideration, and (3) the communication was disclosed to interested persons.” Id. In Mansfield, plaintiff’s counsel satisfied the test where the defamatory draft complaint was marked “For Settlement Purposes Only,” was sent under demand letter threatening to “initiate a formal legal action,” and was followed by filing of a substantially similar complaint within a week of demand. Id. at 13-14.