Full case report

McLaughlin v London Borough of Lambeth

Reference [2010] EWHC 2726 (QB)
Court Queen's Bench Division

Judge Tugendhat J

Date of Judgment 2 Nov 2010


Summary

Defamation – Human Rights Act 1998 – Arts 8 and 10 ECHR – Striking out – Rule in Derbyshire v Times Newspapers – collateral purpose – Jameel abuse of process


Facts

The claimants were the Head Teacher, former Head Teacher and Chairman of Governors of Durand Academy (formerly Durand Foundation School), a primary school within the London Borough of Lambeth. They sued for libel and under the Human Rights Act 1998 for breach of their Art 8 ECHR rights over three emails and a briefing paper sent by the first defendant’s Chief Internal Auditor, Internal Audit and Corporate Fraud Division to a civil servant in the then Department of Children Schools and Families (DCSF, now the Department for Education), to the claimants’ local MP and five other Lambeth employees. The meaning of the words complained of was (in the judge’s summary) that ‘the Claimants are personally responsible for the mistreatment of and failure to give proper provision to NQTs [newly qualified teachers], and for arrangements between the school and GMG [a company] whereby the Second Claimant is allowed to benefit improperly and/or unfairly to the detriment of the school’.

The defendants applied to strike out the claim on four different bases:
(1) that the effect and purpose of the claim was to circumvent the rule in Derbyshire v Times Newspapers Ltd [1993] AC 534 which prevents the Governing Body of Durand, as a governmental body, from suing for libel;
(2) that its effect and purpose was to circumvent the rule which prevents the Governing Body, as a public authority without Art 8 rights, from suing for breach of such rights;
(3) that it had been brought for a dominant collateral purpose, namely as a tactical ploy to assist Durand in its long-running dispute with Lambeth; and/or
(4) that it fell to be struck out as an abuse of process in the Jameel v Dow Jones & Co Inc sense.

The claimants put in witness statements taking issue with the assertions made and inferences drawn in the witness statements served by the defendants. The defendants did not apply to cross-examine the claimants on their statements.


Issue

Whether the claim should be struck out on all or any of the grounds relied upon.


Held

Dismissing the application:

On issues (1) & (2):

(a) There was no principle precluding individuals from suing in cases where what was impugned was their conduct in the carriage of the business of a governmental body. The House of Lords in Derbyshire was clearly contemplating that the individual’s right to sue was subject to no limitation other than the requirement that the words should refer to, and be defamatory, of that individual. Derbyshire followed; R (on the application of Comninos) v Bedford Borough Council considered.

(b) If there were such a limitation as the Defendants had contended for, the court might have to consider whether the words complained of were so closely connected to the management of the governmental body’s affairs that, as a matter of principle, they should not be permitted to sue in defamation. However, although in the present case the meanings complained of did not relate to aspects of the Claimants’ reputations which were exclusively private, it was at least arguable that any suggestion of financial impropriety could be said to undermine an individual’s personal integrity, and to be a serious interference with his private life. Karako v Hungary considered.

(c) It was further to be noted that since the First Defendant as a public authority had no rights under Art. 10 ECHR, that part of Lord Keith’s reasoning in Derbyshire which reflected the high importance attached to freedom of expression did not apply directly to the claim against it.

(d) Since the court should not strike out a claim save in circumstances where it was clearly and obviously right to do so, and where the applicable law was itself clear, it was not appropriate to strike out the claim on the basis that it was an attempt to circumvent the Derbyshire principle.

(e) Accordingly, the court did not need to consider whether the school was in fact a governmental body within the rule in Derbyshire.

On issues (3) & (4):

(a) The court could not dismiss as incapable of belief the evidence of the claimants as to their purpose in bringing the proceedings. Nor was it possible to conclude on the basis of the correspondence between the parties that the action had been brought for a collateral purpose.

(b) Since the words complained of were in electronic form it could be said that there was a real risk of republication in the future both within the Department for Education and within Lambeth. Even if the damage suffered thus far had been small, the main point of defamation proceedings was vindication, which included preventing or reducing the risk of future publications of the libels. Unlike in Jameel, there was a real prospect of vindication since the defence included a plea of justification.(c) It was therefore not possible to conclude that there was no real or substantial tort, or that the pursuit of the action was a disproportionate exercise, or an abuse of process of the court.


Comment

Yet another Jameel abuse application to add to the growing corpus of first instance decisions. The judge’s ‘clear’ conclusion on the Derbyshire point is perhaps not surprising given the apparently unambiguous wording of Lord Keith’s speech. More interesting is the possibility that the rule might not apply at all to claims brought against public authorities.


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Instructing Solicitors

Carter-Ruck for the Claimants; Kennedys for the Defendants


Links

School Governors allowed to sue in libel - Inforrm