Lambeth fails to get libel claim thrown out

The London Borough of Lambeth and its chief internal auditor have failed to persuade a High Court judge to strike out a defamation claim brought by senior managers and a governor of a local school.

The claimants are Durand Primary School head teacher Mark McLaughlin, his predecessor and now the school’s director for education development Greg Martin, and chairman of the governors Jim Davies. The school was maintained, but is now an academy.

The libel claims relate to the contents of emails sent by Mohammed Khan, Lambeth’s chief internal auditor. Two were addressed to a civil servant in the school funding unit of the Department for Education, while the other email was sent to Mr McLaughlin but published to the local MP, Kate Hoey, and five employees of the council.

The claimants, who argue that Lambeth is vicariously liable, have also brought a claim under the Human Rights Act and the right to reputation under Article 8 of the European Convention on Human Rights.

The defendants argued at the High Court that the proceedings were an abuse of the process for the court. Their grounds were that:

• The claim’s effect and by inference its purpose was to circumvent the rule in Derbyshire v Times Newspapers Limited [1993] AC 534 which prevents Durand’s governing body from suing for libel, and/or
• Its effect and by inference its purpose was to circumvent the rule which prevents the governing body of the school, as a public authority and therefore a body without rights under article 8 of the European Convention of Human Rights, from suing for breach of such rights, and
• The claim was brought not for the dominant purpose of vindicating the claimant’s individual reputations but rather for the dominant collateral purpose of putting pressure on the defendants as a tactical ploy to assist the school in its long-running dispute with the council over the carrying out of its statutory functions in regard to Durand, and
• The claim does not on its facts justify the expenditure of the court time and costs which it entails.

These arguments did not succeed. Mr Justice Tugendhat said that it seemed clear that the House of Lords in the Derbyshire case “was contemplating that the right to sue of any individual who carried on the day to day management of the affairs of a governmental body was subject to no limitation other than the requirement that the words complained of should refer to, and be defamatory of, that individual”.

He added: “If this be the case, it would follow that the individual would always have a right to sue in defamation, provided that he can fund the litigation from his own resources, or obtain funding from the resources of someone other than the governmental body.

“Thus the effect of Derbyshire would be that everything turns on the choice of the right claimant, if there is an individual claimant referred to and defamed. There is no principle precluding individuals from suing in cases where what is impugned is their conduct in the carriage of the business of a governmental body."

Mr Justice Tugendhat said he was “quite satisfied” that this was not an appropriate case for him to strike out the claim on the basis that it was an attempt to circumvent the Derbyshire principle.

He said: “It is well established that the court should not strike out a claim save in circumstances where it is clearly and obviously right to do so, and that it should not do so where the applicable law is itself unclear.”

The judge added that it was “not possible to conclude that there is here no real or substantial tort, or that the pursuit of this action is a disproportionate exercise, or an abuse of the process of the court”.

Mr Justice Tugendhat said he was minded –on the grounds of case management and relevance – to strike out a paragraph from the plea for aggravated damages which alleged that a campaign had been waged against Durand for years.

A spokesman for Lambeth said it could not comment until the legal proceedings had concluded.