Alsaifi v Secretary of State for Education

In 2013, the Claimant (C) was employed as a lecturer in accountancy and finance at Newcastle College. Allegations of inappropriate behaviour towards a 17 year old student, (referred to as Ms A) were made against the Claimant which, following a hearing, led to a Prohibition Order preventing him from teaching. In 2016, the High Court allowed C’s appeal against the Prohibition Order  and set it aside concluding that there was no jurisdiction over C because at the relevant time he was not a teacher to whom the relevant sections of the Education Act 2002 applied because C was teaching adult education classes: Alsaifi v SSE [2016] EWHC 1591 (Admin) Mrs Justice Andrews.

The National College for Teaching and Leadership (NCTL) was an executive agency of the Department for Education then responsible for regulation of teachers (since replaced by the Teaching Regulation Agency).

The Newcastle Chronicle published an article about the Court’s judgment setting aside the Prohibition Order under the title Ex-Newcastle College lecturer who made ‘sexual’ advances on student allowed back into the classroom on its website on 6th July 2017. A spokesman for the NCTL gave a four sentence quote to The Chronicle which was included in the article.

C alleged that the quote bore the meaning that his success in the appeal was a disappointing one because the original decision to ban him was the right one and by his conduct he had demonstrated he posed a risk to the safety and welfare of those he taught.

This was the trial of the defamation claim in relation to the quote in the website article. In an earlier decision, D had successfully obtained summary judgment in respect of a similar print article.

At the Court’s invitation, the party’s agreed that that central issues requiring determination at trial were meaning, serious harm and qualified privilege. D had also relied on defences of public interest and honest opinion which were not ruled on.

1. Meaning: The meaning of the words and whether there was sufficient reference to the Claimant. There had been a meaning capability ruling on the Claimant’s application by Nicklin J (see para 50  [2017] EWHC 2873 (QB))  but the actual meaning remained to be determined.
2. Serious Harm: Whether the words caused the Claimant serious harm
3. Qualified Privilege: Whether the words were published on an occasion of qualified privilege/ whether D succeeds on the qualified privilege defence.

1. The words complained of were not defamatory of the Claimant at all because the quote was primarily general observations in defence of NCTL’s policies and procedures. The first sentence which related to C’s case did not import sufficient reference to the Claimant to affect the meaning of the other sentences. There was no suggestion the C was guilty of the inappropriate conduct. The Court also made clear at [8] that there was no suggestion that C had acted inappropriately with a student under 16 years of age.
2.  The C had not suffered any serious harm to his reputation caused by publication of the words complained of. Any harm to his reputation came from the prior Court judgment and the publicity given to it making reference to the underlying findings that led to the Prohibition Order. The Court also noted that in a separate hearing, Mr Justice Warby had  described C’s success in the hearing before Mrs Justice Andrews as success on a “technicality”: see para 83 Alsaifi v Trinity Mirror [2017] EWHC 1444 (QB) (Warby J). C’s reputational problems stemmed wholly from the allegations made against him by Ms A, the fact that Mrs Justice Andrews concluded there was no basis to impeach the findings in respect of those allegations and Mr Justice Warby noting the technical nature of the successful appeal.
3. Applying Alexander v Arts Council of Wales [2001] 1 WLR 1840, D would also have succeeded in its qualified privilege defence had it been necessary, the Defendant and the NCTL had a general duty to respond to legitimate enquiry about the judgment of the High Court both in response to judicial and potential media criticism in order to account for and explain its policy and procedures and to defend the decision to contest the appeal at public cost.

There are three interesting legal aspects of this decision:

1. The claim related to a republication of a spokesperson’s quote by a newspaper. The original communication to the newspaper was not sued upon. The judgment sets out at paragraph 23, principles that should apply where a person (“a source”) gives a quote to a journalist for publication to determine meaning and source liability for later republication by the media.
2. The prior judgments of the Court  (Andrews J and Warby J) and the earlier reporting of Andrews J’s judgment were taken into account in assessing serious harm and the cause of any reputational damage. Nicklin J in the earlier strike out/summary judgment application concluded that Dingle v Associated Newspapers [1964] AC 371 (reliance on reputational damage occasioned by other publications is impermissible) applied  [§105 iii)] and declined to follow Waters v Sunday Pictorial Newspapers Ltd [1961] 1 WLR 967 (authority for the proposition that judicial strictures are an exception to the rule in Dingle) doubting the principle: [§105 iii)].  Having heard evidence at trial, the Court approached this matter on the basis of the cause of the reputational harm rather than considering Dingle & Waters (which were both cited at trial) & issues of mitigation of damage.
3. The qualified privilege analysis holding that there was a duty on the government to respond to a published attack in the form of judicial criticism and in reasonable anticipation of media criticism in order to account for its policies and defend a decision to contest an appeal at public cost is a useful decision that may assist defendants facing claims relating to press releases or spokespersons’ statements to journalists.