Absolute privilege refused in child case

HRA 1998 may provide route to declaration of falsity

At the outset of the trial of a libel claim against Westminster City Council and two social workers employed by it, the Court struck out the defence of absolute privilege but ruled that qualified privilege would only be defeated if the claimant could prove that the social workers’ ‘sense of duty’ had played no significant part in their motives for publishing the allegations of which he complained.  However, the judge also mooted the possibility that the claimant might obviate this problem by seeking a declaration of falsity under ss. 7 and 8 of the Human Rights Act 1998.

The claimant is suing in libel over an allegation 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.  On W’s account the report meant that there were serious grounds to suspect him of being a predatory paedophile who was grooming S with a view to abusing her sexually.  The defendants advanced defences of absolute and qualified privilege.

At the outset of trial, Tugendhat J heard argument about the viability of a defence of absolute privilege and the apposite test for malice in the case (it not being in issue that the publication attracted qualified privilege).

The judge ruled out absolute privilege, following S v Newham LBC [1998] EMLR 583, holding that public policy did not require the social workers to be immune from suit in defamation in the circumstances at hand.  He also found, however, that in an exceptional case, of which W’s was one, where the defendant is under a duty to pass on a defamatory report irrespective of its truth or falsity, the claimant faces a serious challenge in establishing malice: see the stringent test referred to above.

Notably, though, at the conclusion of his judgment, and apparently unprompted by any submission by the parties, the judge observes that since the defendants were, respectively, a public authority and employees of a public authority, the claimant may be able to obtain the relief he seeks under the Human Rights Act 1998.  At para 108 of his judgment, Tugendhat J suggests that a declaration of falsity may be a remedy available to a claimant under s.8 of the Act.

Following the ruling, the trial was adjourned.

To read a case summary of this decision and to read the judgment, click here