The Virginia Defamation Law Blog
Judicial privilege (also known as judicial immunity) allows a party to litigation or other judicial proceeding to make statements during the course of the proceeding that would otherwise be considered slanderous or libelous. The Virginia Supreme Court recently held that judicial privilege will also apply to certain statements made in advance of such proceedings where the following conditions are met: (1) the statement is made preliminary to the proposed proceeding; (2) the statement is material, relevant or pertinent to the proceeding; (3) the proceeding is contemplated in good faith and is under serious consideration; and (4) the communication is disclosed only to persons having an interest in the proposed proceeding. The Circuit Court of Loudoun County had occasion to apply the test in Hubbard v. Goehring. (Note: at issue in the Loudoun case was whether absolute judicial immunity applied to false statements made to the police. Such statements will generally be protected by qualified privilege, even if absolute privilege is found not to apply.)
Deanne Hubbard managed Jack and Mary Goehring’s rental properties. Ms. Hubbard and her family also occupied commercial and residential properties owned by the Goehrings. Mr. Goehring filed a criminal theft affidavit against Ms. Hubbard alleging identity theft, fraud, embezzlement and bank fraud. The Goehrings told the Assistant Commonwealth’s Attorney that they intended to file civil charges against Ms. Hubbard. Mr. Goehring found out when Ms. Hubbard would be arrested and arranged for a photographer to photograph the arrest. The pictures were published on the front page of a local newspaper, on the evening news and on YouTube. Ms. Hubbard was acquitted of embezzlement charges, and she and her family brought a defamation action against the Goehrings. The Goehrings contend that statements made to the public prosecutor and police regarding Ms. Hubbard’s alleged criminal activity are subject to the judicial privilege.
Relying on the Restatement (Second) of Torts, the court added a good-faith requirement to the immunity test, finding that in addition to the elements laid out by the Virginia Supreme Court, good faith is required on the part of the private individual bringing the criminal charges and that such good faith must persist throughout the 
prosecution.
The court noted that the many alleged false and defamatory statements about Ms. Hubbard were made to a variety of individuals in various contexts. Some of the alleged activity–such as arranging for the photographing of the arrest and the publication of the photographs– went beyond relevant material for a criminal complaint and arguably lacked the good faith required for application of the privilege. Other alleged statements, the court found, were clearly relevant to the proposed proceeding and “may not be so limited by the issue of relevancy to the ongoing criminal investigation and prosecution.”
The court declined to apply the privilege to any of the alleged statements as a matter of law, but kept the door open to make such a ruling at a later date, after the close of discovery. While overruling the plea in bar to the defamation claim, the court ruled expressly that the defendants could raise the issue of privilege again as to specific statements after the discovery phase of the litigation was complete.