Council refused Supreme Court permission

Court of Appeal Article 8 decision in Clift v Slough BC to stand

The Supreme Court has refused Slough Borough Council’s application for permission to appeal in the claim brought against it by Jane Clift, which concerned the interaction of the defence of qualified privilege with Article 8 (right to private & family life) of the European Convention on Human Rights.

The Council sought to appeal against the Court of Appeal decision upholding Ms Clift’s claim for defamation in connection with the inclusion of her name on its Violent Persons’ Register, which was circulated to a broad range of employees and external groups.

On 13th April 2011, the Supreme Court ordered that permission to appeal be refused because the application does not raise an arguable point of law of general public importance which ought to be considered by Supreme Court at this time, bearing in mind that the case has already been the subject of judicial decision and reviewed on appeal.

Both the High Court and the Court of Appeal held that Ms Clift’s right to her reputation under Article 8 was clearly engaged.

At trial, Tugendhat J held that Slough Borough Council was not protected by the qualified privilege defence in regard to publication to certain groups because its had circulated it to more individuals and group than was necessary to achieve the objective of protecting the safety of its staff. A public authority must comply with its obligations under the European Convention on Human Rights and could not rely on the defence of qualified privilege if publication was contrary to its public law obligations.

Tugendhat J’s decision was upheld by the Court of Appeal in December 2010. The failure of the appeal to the Supreme Court means that in order to rely on the defence of qualified privilege, public authorities must show that their publications were justified under Article 8 of the European Convention on Human Rights.

5RB’s Christina Michalos (instructed by Simons Muirhead & Burton) was junior counsel for Ms Clift at first instance and in the Court of Appeal.