Full case report
H v Tomlinson
Reference  EWCA Civ 1258
Court Court of Appeal (Civil Division)
Judge Ward, Sedley and Longmore LJJ
Date of Judgment 12 Nov 2008
Privacy – Human Rights Act claim for an Article 8 right to reputation – Defamation – Justification – Common sting
The Claimant was a 12 year old school pupil. He was permanently excluded from his school by his headmaster, the Defendant, because of his violent behaviour. At an Appeal Panel hearing the Defendant set out numerous instances of violent behaviour by the Claimant. This behaviour was admitted. However, the Defendant also stated that he had been informed that on one occasion the police had arrested the Claimant for violent behaviour at his father’s house. This was denied.
The Claimant sued in regard to the particular allegation of acting violently at his father’s house in defamation, for breach of his Article 8 right to reputation and for the misuse of his private information.
The appeals concerned three first instance decisions:
(1) The granting of summary judgment in the Defendant’s favour in the defamation claim because the sting of the words complained of was that the Claimant was violent and, given that he had admitted to numerous other acts of violence, there was no reasonable prospect of a justification defence failing.
(2) The decision to permit the Claimant to amend his Particulars of Claim in order to advance a case that, despite summary judgment being granted against him in his defamation claim, he was still entitled to advance a case based upon Article 8 to uphold his right to reputation.
(3) The decision to permit the Claimant to advance a case that his private information had been misused.
(1) The existing law on justification was applied and the decision to grant the Defendant summary judgment on the defence of justification was upheld.
(2) Whilst the claim regarding the Claimant’s Article 8 right to reputation was independent of the claim in libel, it was doomed to failure for the same reason: the admitted acts of violence meant that the Claimant could have no right to vindicate his reputation in regard to an accusation that he was violent. This case was distinguished from W v Westminster City Council where Tugendhat J found that even though a defamation claim failed, the Claimant still had a right to a remedy for the breach of his Article 8 right to reputation because in the instant case the sting of the allegation was true (whereas in W there had only been a finding that the allegation complained of was protected by qualified privilege).
(3) The allegation concerned wrongdoing and therefore was not private even though it occurred in the Claimant’s home.
This is the first Court of Appeal case to consider W v Westminster CC and the possibility that in certain circumstances there will be cases where, despite losing a defamation action, a claimant will still be entitled to a remedy because of a breach of his or her Article 8 right to reputation. Whilst W was not applied, because of the Defendant’s cast iron justification defence, the Court of Appeal implicitly accepted that there may be a cause of action for the breach of an Article 8 right to reputation which might succeed even where a claimant’s claim in defamation had failed.
5RB‘s Richard Munden also acted for the Defendant during the proceedings.
Claimant by his litigation friend; Attwood & Co. for the Defendant.
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.