Clift v Slough Borough Council & Kelleher

Reference: [2009] EWHC 1550 (QB)

Court: Queen's Bench Division

Judge: Tugendhat J

Date of judgment: 6 Jul 2009

Summary: Defamation - Libel - Qualified privilege - Malice - Local Authority duties - Anti-social behaviour - Violent Persons Register - Necessity and proportionality of publication - Human Rights Act 1998

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Appearances: Christina Michalos QC (Claimant) 

Instructing Solicitors: Simons Muirhead & Burton for the Claimant; Barlow Lyde & Gilbert for the Defendants

Facts

C was a resident of Slough who witnessed some anti-social behaviour in a local park. She reported it to the Council’s anti-social behaviour co-ordinator (ASBO Officer). C was dissatisfied with the way the Officer responded to her report and subsequently complained to the Council. She wrote a letter of complaint to the Council in which she stated  “I am certain I would have physically attacked her if she had been anywhere near me.” She repeated a similar sentiment, also as a figure of speech in the past tense at a meeting with K, the Council’s Head of Public Protection who was investigating the complaint.

The Council placed C on its Violent Persons’ Register for 18 months with a risk rating of medium. The Register was circulated within the Council electronically to Council employees but also to four external partner organisations, which included 50 businesses in the Town Centre Business Initiative and others that would have no contact with C.

K also published an email stating that C had made repeated violent threats to staff to 66 employees of the Council.

C brought proceedings for libel against the Council and K based on publication of the Register and the email. The Defendants relied on defences of justification and qualified privilege. C alleged malice on the part of K.

The claim was tried before a jury.

 

Issue

(1) Whether the Defendants had a defence of qualified privilege at common law in respect of publications to the council employees and the partner organisations.

(2) Whether a public authority should only be entitle to rely on the defence of qualified privilege in respect of a defamatory publication if that publication was consistent with its public law duties (including under the European Convention on Human Rights and the Human Rights Act 1998).

Held

(1) The only publications subject to qualified privilege were those to “customer facing staff” in 3 named departments of the Council likely to have contact with C.

(2) In order for a public authority to claim it had the interest or duty required at common law for there to be a defence of qualified privilege, it needed to comply with its public law duties under the Human Rights Act 1998 (following Wood v Chief Constable of West Midlands and declining to follow Kearns v General Council of the Bar).  The only right engaged was C’s right to her reputation under Article 8.  Circulation to the other departments and to ther partner organisations was not proportionate or fair and so was not covered by the defence of qualified privilege.

Comment

This an important decision concerning the relationship between the qualified privilege defence to claims for libel and the public law duties of public authorities, in particular the duty imposed by section 6 of the Human Rights Act 1998 to act compatibly with Convention Rights. The judge held that a public authority should only be entitled to rely on the defence qualified privilege in respect of a defamatory publication if publication was consistent with its public law duties. Public authorities should only publish information for the purpose of and to the extent necessary for performance of its public duty and in accordance with its obligations under the HRA. If the information published affects an individual’s reputation, there is an interference with his or her rights under Article 8(1), and so, in order to be justified under Article 8(2), the publication must be necessary for a legitimate aim and proportionate to that aim.

The Defendants appealed this decision, and the appeal was heard by the Court of Appeal in June 2010.