Local authority fails in appeal over defamation claim

A local authority has failed to persuade the Court of Appeal to overturn a defamation claim on the grounds of qualified privilege.

In Clift v Slough Borough Council [2010] EWCA Civ 1171, Ms Clift had won a libel claim against the authority and its head of public protection, Patrick Kelleher, over the publication of the council’s Violent Persons Register, which named her as a person who posed a medium risk of violence.

The publication followed an incident in August 2005 in a public garden where a young child had been trampling through a flower bed and destroying some of the flowers. Ms Clift’s protests met with an abusive and threatening response from the companion of the child’s mother.

Ms Clift called for a park warden to attend and was told to call the council’s anti-social behaviour co-ordinator to find out what action would be taken against the couple.

However, her conversation with the co-ordinator went – in the words of Lord Justice Ward – “horribly badly”. A letter from Ms Clift to the council and a meeting with Mr Kelleher as part of Slough’s formal complaints procedure followed.

Mr Kelleher then wrote to Ms Clift announcing his decision to place her on the register, on the basis of her behaviour towards the co-ordinator. Mr Kelleher later sent an email about his decision to 54 individuals who were officers or employees of the council, and hard copies to 12 community wardens. The register was also sent to a number of Slough’s partner organisations.

At the High Court, Mr Justice Tugendhat ruled that Slough had a qualified privilege defence in the case in relation to publication to ‘customer-facing staff’ in certain departments such as trading standards and neighbourhood enforcement and community safety, but not in relation to employees (and their managers) in other departments such as licence, food and safety, children and education services.

The judge also ruled that there was no qualified privilege defence in relation to community wardens, trade union officials, or anyone in the partner organisations.

Tugendhat J explained that publication to the first set of employees was fair and proportionate but publication to the others was not.

The jury then rejected Slough’s defence of justification, but found that Ms Clift had not established malice against Mr Kelleher. It awarded her £12,000 in damages for those publications not protected by qualified privilege.

Slough then appealed on the rulings in relation to qualified privilege, but the Court of Appeal rejected its submissions – including one in relation to the impracticality of checking the relevance of the circulation list. Lord Justice Ward, who gave the lead judgement, said that, as a public authority, Slough was bound to act in a way that was compatible with Ms Clift’s right to protection of reputation under Article 8 of the European Convention on Human Rights.

Counsel for Ms Clift acknowledged that the protection of the safety of all council employees and those in the partner organisations was a “legitimate aim” sufficiently important to justify interference with her Article 8 rights and that the inclusion of her name on the register was rationally connected to that aim.

The question for the court, however, was whether publication of the words to the supernumerary employees was proportionate.

Lord Justice Ward said: “In my judgment it cannot be held to be disproportionate for a local authority to do what it is bound to do anyway whether in performance of its public law responsibilities, or its duty under the Data Protection Act 1997 or the Information Commissioner's Data Protection Act 1998 Compliance Advice used in the public sector, each of which is to all intents and purposes to the same effect.

“Ill-considered and indiscriminate disclosure is bound to be disproportionate and no plea of administrative difficulty in verifying the information and limiting publication to those who truly have the need to know or those reasonably thought to be at risk can outweigh the substantial interference with the right to protect reputations. In my judgment the judge's ruling on proportionality is beyond challenge. To publish as widely as the Council did was to breach Ms Clift's Article 8 rights.”