W v JH & A County Council Limited
Reference:  EWHC 399 (QB);  EMLR 11
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 5 Mar 2008
Summary: Libel – Summary judgment – Qualified privilege – ‘Off the peg’ privilege – Lapse of time - Data Protection Act 1998 - Criminal Justice Act 2003
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Adam Wolanski QC (Defendant)
Instructing Solicitors: Girlings for the Claimant; Berrymans Lace Mawer for the Defendants
The Claimant worked as a social worker for the Second Defendant. In 1994 a disciplinary panel found him guilty of sexual harassment, and gave him a final written warning. The Second Defendant assured the Claimant that after 18 months the written warning would be reviewed. In 1996 the Claimant was made redundant. In July 2005 the Claimant agreed to act as an assessor for a University. In September 2005 the First Defendant informed the University that the Claimant had “left in a hurry” before a hearing into allegations of sexual harassment. The Claimant sued the Defendants for slander. The Defendants applied for summary judgment.
(1) Did the Claimant have a reasonable prospect of success of defeating the defence of qualified privilege in the absence of a plea of malice?
(2)Were the words capable of bearing the meanings pleaded by the Claimant?
(1) The relationship between the parties was not such that it was clear that this was an ‘off the peg’ case where no investigation of the circumstances was required in order to determine whether publication was privileged; Kearns v General Council of the Bar applied.
(2) The historic nature of the information was a relevant factor in considering whether a duty to publish arose; Ley v Hamilton  153 LTR 384 considered. There may be no duty where an ex-employer had given the employee an assurance of the sort given in this case, or where it had held the information on file for an unreasonably long period of time. The provisions of Data Protection Act 1998, Criminal Justice Act 2003 and Article 8 ECHR may be relevant in this context.
(3) Given the pleaded context of publication, the words were capable of bearing the meanings pleaded by the Claimant.
Courts have rarely had to consider how the passage of time may affect the duty to publish. The judgment is interesting for its analysis of how the ECHR, the Data Protection Act 1998 and the provisions of the Criminal Justice Act 2003 as to the relevance of historic bad character evidence interact with the law on qualified privilege.