Defamation – libel – absolute privilege – qualified privilege – malice – s.7 Human Rights Act 1998
W claims 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 tenability 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).
Whether the publication at issue took place on an occasion of absolute privilege; the test for malice appropriate to the type of “exceptional cases” recognised by Lord Diplock in Horrocks v Lowe [1975] AC 135, 150a where the defendants were “under a duty to pass on, without endorsing, defamatory reports made by some other person” irrespective of the truth or falsity of that report (para 67); relief the claimant might, alternatively, be able to obtain under s.7 Human Rights Act 1998.
(1) Applying S v Newham LBC [1998] EMLR 583 through the filter of <A
href=”https://www.5rb.com/5rb/casereports/detail.asp?case=295″ target=_parent>In Re S [2004] 3 WLR 1129 and other germane human rights jurisprudence, the occasion of publication did not attract absolute privilege. Absolute privilege was not necessary on public policy grounds.
(2) The test of malice applicable to such ‘exceptional’ cases was that posited by Lindley LJ in Stuart v Bell [1891] 2 QB 341, 251: did the defendant act in good faith in the discharge of his duty or “from some other unjustifiable motive – from some motive other than a sense of duty”.
(3) (obiter) W might be able to bring a claim against the defendants under s.7 Human Rights Act 1998, and thereby seek a declaration of falsity under s.8 of Act (see the discussion at para 99ff of the judgment).
In ruling out absolute privilege, Tugendhat J was effectively endorsing S v Newham LBC as Human Rights Act-compliant. The public interest demanded that only a qualified privilege defence attach to the publication in question. In defining malice as he has, the judge has set the claimant a stiff test: to succeed, he must establish that a desire to comply with duties with respect to S formed “no significant part” in the social workers’ motives for publishing what they did. The judge seems also to have pointed the claimant towards another possible ‘way home’, via the Human Rights Act.