W v Westminster City Council (No.2)
Reference:  EWHC 102 (QB);  4 All ER 96
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 10 Feb 2005
Summary: Defamation - libel - qualified privilege - malice - Human Rights - Article 8 ECHR - s. 7 & s. 8 Human Rights Act 1998
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W brought a libel action over defamatory allegations in a report prepared by social workers employed by Westminster City Council for use at a child protection case conference relating to S, the daughter of a woman with whom W was having a relationship. The court had <A
href=”https://www.5rb.com/5rb/casereports/detail.asp?case=309″ target=_parent>previously held that the defence of absolute privilege was not available to the Defendants. The remaining issues were whether the defence of qualified privilege was available and whether W had a claim under ss.7-8 Human Rights Act 1998. W contended that the publication was not pursuant to a duty and was not made within an established relationship.
(1) Whether the defence of qualified privilege was available; and (2) whether W had a claim under ss.7-8 Human Rights Act 1998.
Granting a declaration in W’s favour,
(1) The publication was made within an established relationship requiring free and frank communication. The privilege was not lost by the publishers’ failure to verify the allegations in question, but would be by deliberately publishing matters that ran contrary to official guidance (<A
href=”https://www.5rb.com/5rb/casereports/detail.asp?case=119″ target=_parent>Kearns v General Council of the Bar applied).
(2) There was no basis for a finding of malice. Had the action been tried by a jury, the issue of malice would have been withdrawn by the judge.
(3) The defence of qualified privilege succeeding did not mean that the claim under s.8 HRA 1998 would fail. The information was sensitive and damaging and its revelation gratuitous: the publication was an infringement of W’s Art 8 rights although no actual damage had occurred. Damage was not presumed and damages were not required to afford just satisfaction to W.
The prompt actions of the Council to remedy the mistaken publication constituted ‘just satisfaction’ within the context of Art 8. In making awards under s.8 of the Human Rights Act, different principles will apply to different articles of the Convention. It is, for example, the ordinary practice of the European Court of Human Rights to find that the declaration of a violation of Article 6 is just satisfaction in itself (see R (on the application of Greenfield) v Secretary of State for the Home Department  UKHL 14). The case is an interesting exmple of enforcing Article 8 rights directly (at least against a public authority).