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Clift v Slough Borough Council, Court of Appeal, 21 December 2010

22 December 2010
The issues

Human Rights Act 1998 – defamation – qualified privilege – whether Human Rights Act 1998 affects Local Authority’s Defence of qualified privilege in defamation cases.

The facts

On the 10th August 2005 Ms Clift was in a small public garden managed by the Council when she saw a child trampling through a flower bed, uprooting plants and plucking off the heads of flowers. She protested to the child’s mother. With the mother was a companion who had been drinking and who became abusive and threatening. The companion began trampling the plants himself. It was a frightening incident. She called for a park warden and was told that she should contact Ms Fozia Rashid, the Respondent’s Anti-Social Behaviour Coordinator. She spoke to Ms Rashid the next day. The conversation went badly. Ms Clift felt that she was being treated as the person who had done something wrong. The conversation ended abruptly.

She wrote to an administrator in the office of the Chief Executive who told her to take it up with Ms Rashid herself, which elicited the retort that she had no wish to speak to her and that she wished she would drop dead. She subsequently wrote a three page account of these events, including reference to her feeling affronted and filled with anger to the extent that she would have physically attacked Ms Rashid if she had been near her.

Subsequently a Mr Kelleher for the Council attended a meeting with Ms Clift and recorded in a note that Ms Clift said she would have hit Ms Rashid if she could. As a result Mr Kelleher wrote to Ms Clift to express concern about her “violent and threatening behaviour” toward Ms Rashid in slamming the phone down on her, stating that she would have physically attacked her on two occasions, and having said on the telephone that she said she wished she would drop down dead. Mr Kelleher told the Claimant that as a result of this behaviour a warning marker would be placed against her name for 18 months, the timescale to be increased by 3 times if she committed a further “offence” during this period and that the marker would be shared with other Council departments and Government agencies within the Borough. Her name was therefore entered on the violent persons register.

An email was sent on the 1st December 2005 to 54 office individuals who were officers of employees of the Council, the subject matter being “violent persons register – Ms Jane Clift”. A copy of the register was circulated with the email. Hard copies of the email were sent to 12 community wardens. In addition, the register was sent to a number of partner organisations, including the local Primary Care Trust, a building maintenance agency and the community safety partnership, including 50 businesses in the town centre business initiative. The evidence was that the register was circulated to no more than 150 people in all.

The Defendants pleaded justification and that the words complained of were published on an occasion of qualified privilege, having regard to the Council’s duty to protect the safety of its staff and the staff of its partnership individuals.

The Claimant denied that qualified privilege attached, contending that the Council as a Public Authority had to act in a way compatible with Ms Clift’s rights under the European Convention on Human Rights and that it was unlawful for the Defendant to publish information unless that publication was in accordance with the law and was necessary in a democratic society for a legitimate aim, such as the protection of the rights of others. The Claimant also alleged malice on the part of Mr Kelleher.

The matter went to Trial. The jury rejected the Defence of justification. It also found that Ms Clift had not established malice in respect of Mr Kelleher. The Judge found that publication in respect of members of the Council who are “customer facing staff” was rational and proportionate but that publication to other employees (the supernumerary employees) was not proportionate or fair. Accordingly, the publication to all but the first 66 people was not covered by qualified privilege. In relation to those publications the jury awarded damages of £12,000.

The Council Appealed.

The decision

Slough Borough Council was a Public Authority bound to act in a way compatible with a convention right. It had been conceded that the right to protection of reputation is a right which, as an element of private life, fell within the scope of Article 8. If Article 8 was engaged, the Council had to respect Ms Clift’s right to respect for her private life unless the interference could be justified under Article 8 (2).

Within the terms of Article 8(2) the Claimant accepted that the protection of the safety of all Council employees and employees of the partner organisations were legitimate aims sufficiently important to justify an interference with Ms Clift’s Article 8 rights and that the inclusion of her name on the register was rationally connected to that legitimate aim. The question for the Court was whether publication of the words to the supernumerary employees was proportionate. The Judge below had found that publication to them was not proportionate, essentially because they were not at risk of harm from her. It had been argued on behalf of the Defendant that the Judge was in error in his balancing exercise by failing to have any sufficient regard for the difficulties which confronted Local Authority officials in knowing to whom information could and could not be published. The Defendant argued that it was impractical for an officer to make an individual assessment of the propriety of each and every publication and that it would make life impossible for the Council and to impose such a duty would render the Council disproportionately vulnerable.

However, ill considered and indiscriminate disclosure was bound to be disproportionate and no plea of administrative difficulty in verifying the information and limiting publication to those who truly had the need to know or those reasonably thought to be at risk, could outweigh the substantial interference with the right to protect reputations. The Judge’s ruling on proportionality was beyond challenge. In publishing as widely as it had done, the Council had breached Ms Clift’s Article 8 rights. If the Council were in breach of Article 8 it would be unlawful to publish the information. If it was unlawful to publish then the Council’s duty was not to publish. If the duty was not to publish the Council could no longer claim to be under a duty to impart information to those who did not need to know it. Not being under a duty to publish, the foundation of the claim to qualified privilege fell away.

It had also been argued that the Judge had failed to take into account the Article 8 rights of the employees at risk. This argument failed because any risk to others was not significant enough to engage their Article 8 rights to their physical and psychological integrity.

The second argument related to a principle put forward in Van Colle v Chief Constable of Hertfordshire police to the effect that it was impermissible to deploy convention rights to create new Defences and that the common law should be allowed to stand on its own feet side by side with the alternative remedies, to use the words of Lord Hope of Craighead in that case. However, no new Defence was being created in this case. The Defence was the common law Defence of qualified privilege. To support the Defence the Council had to establish that it was under a duty to communicate information. The Court was equally under a duty to ensure that convention rights were respected. The duty to Ms Clift not to publish trumped the duty to the supernumerary employees to distribute the entry on the violent persons register.

It was also said for the Defence that Article 8 did not require the removal of the Defence of qualified privilege to libel because a Claimant could bring a free standing claim under the Human Rights Act. The Court did not accept that as a point. Damages awarded in defamation claims were bound to exceed damages for a breach of a party’s human rights. Since Section 6 of the Human Rights Act required the Court to act compatibly with the convention right, the Court was bound to give effect to Article 8 if the point arose, as it squarely did in this case. The Court could not duck it, rule it irrelevant or ignore its implications for qualified privilege.

Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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