Morrison v Buckinghamshire County Council
Reference:  EWHC 3444 (QB)
Court: Queens Bench Division
Judge: HH Judge Richard Parkes QC sitting as a Judge of the High Court
Date of judgment: 20 Dec 2011
Summary: Libel – public authority defendant – qualified privilege for public authority – amendment – malice – summary judgment
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Adrienne Page QC - Leading Counsel (Defendant)
Instructing Solicitors: Withers for C; Peter Johnston, Buckinghamshire County Council, for Ds
C, a former head teacher, OFSTED inspector and accredited School Improvement Partner (SIP), sued for libel in respect of two letters written by D2, who was employed by D1, a local education authority, as school improvements manager. The letters were written to National Strategies (NS), the arm of the Department for Children, Schools & Families responsible for school improvement programmes and for accrediting SIPs. They concerned D2’s decision to terminate C’s contract as the SIP for two local schools.
In the initial round of statements of case, Ds relied on qualified privilege at common law and C alleged malice in response. C, having conceded qualified privilege at common law, now sought permission to amend her Reply to plead interference by a public authority with her right to reputation under Article 8(1) of the ECHR. Ds cross-applied for summary dismissal of the malice plea.
(1) Whether C should have leave to amend her Reply to allege an interference with her Article 8 right by a public authority.
(2) Whether C’s malice plea should be summarily dismissed.
(1) (a) In principle, C had a reasonable prospect of success in the argument that D2, as an officer of a public authority, before communicating to NS his own adverse conclusion about C’s conduct, should first have sought C’s own explanation of her conduct. D2 having failed to do so, it was arguably neither necessary nor reasonable for him to communicate his conclusion to NS.
(b) However, permission was refused to amend in the terms proposed owing to the form of the draft amendment, which intermingled matters said to be relevant to malice with matters relevant to questions of necessity and proportionality.
(2) Although the trial was to be with a jury, applying the principles established in Alexander v Arts Council of Wales  1 WLR 1840 and Blackwell v News Group  EWHC 3098 (QB) , the malice plea was summarily dismissed, the supporting particulars failing to disclose any case probative of malice.
There is an urgent need for more exploration of the impact of the Human Rights Act on qualified privilege for public authorities. This follows the decision of the Court of Appeal in Clift v Slough Borough Council  1 WLR 1174, in which the facts were very different to this case, and the statement of Tugendhat J in Lewis v Metropolitan Police Commissioner  EWHC 781 (QB) at  that the law of qualified privilege so far as it relates to communications made by a public authority is difficult and developing. The Judge approved and C did not oppose Ds proposal that the issue raised by the amendment should be tried as a preliminary issue by judge alone.