Clift v Slough Borough Council & Kelleher
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat,Re |
| Judgment Date | 06 July 2009 |
| Neutral Citation | [2009] EWHC 1550 (QB) |
| Court | Queen's Bench Division |
| Date | 06 July 2009 |
| Docket Number | Case No: TLJ/07/1122 |
[2009] EWHC 1550 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: The Honourable Mr Justice Tugendhat
Case No: TLJ/07/1122
Mr Hugh Tomlinson QC and Miss Christina Michalos (instructed by Simons Muirhead & Burton) for the Claimant
Mr John Beggs QC (instructed by Barlow Lyde & Gilbert) for the Defendants
Hearing dates: 15–19, 22–24 June 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Tugendhat
The Claimant (“Ms Clift”) was a resident of Slough. On 10 August 2005 she witnessed some anti-social behaviour in a park in Slough. Flower beds were damaged and she was herself threatened when she intervened. She called the police and the parks department of the First Defendant (“the Council”). Police officers and a Park warden attended. They recommended that she refer the matter to the Council, and she was given the direct line of the Council's Anti-Social Behaviour Co-ordinator, Ms Rashid. On 11 August Ms Clift telephoned Ms Rashid. The conversation went very badly. Ms Rashid threatened to terminate the call and Ms Clift did terminate it. On 12 August Ms Clift wrote a letter of a complaint about Ms Rashid's conduct to the Council. The Council in due course appointed the Second Defendant (“Mr Kelleher”) to investigate the complaint. He is Head of Public Protection. He held interviews with Ms Clift on 25 October and with Ms Rashid and other witnesses in the following days. On 30 November 2005 Mr Kelleher notified Ms Clift by letter of his decision. He rejected her complaints. He also referred to Ms Clift's letter of 12 August and their meeting of 25 October. He informed her that these (and something else she had said to another officer on 12 August) amounted to violent and threatening behaviour, and that a marker was to be placed against her name for 18 months and shared with other council departments and government agencies within the borough by electronic means. This decision was shared, or published, within the Council, and to some outside it, by e-mails. Ms Clift was affronted and has brought these proceedings for libel on those publications. She said they meant that she was a violent person who had engaged in threatening behaviour on a number of occasions.
The defences to the claim for libel included justification and qualified privilege at common law. The particulars of justification were the matters referred to in the letter of 30 November. The reply alleged malice. The only person alleged to have been malicious is Mr Kelleher. It is alleged that he knew the words complained of to be false, or in the alternative, that his dominant motive in writing the email and authorising the entry on the Register was not to promote the safety of employees of the Council or anyone else, but to dispose of Ms Clift's complaint and marginalise her.
At the close of the Defendants' case, and after hearing legal argument, I made three rulings: first that there was a case on justification to go to the jury; and second that there was a case on malice to go to the jury. The third ruling related to the defence of qualified privilege at common law. I ruled that there was such a defence in respect of publication to certain publishees, but not in respect of publication to others.
The ruling on whether the publications were made on an occasion of qualified privilege raises matters of general importance. The classic statement of the law on qualified privilege at common law is to be found in Adam v.Ward [1917] AC 309 at 334. Lord Atkinson said:
“A privileged occasion is …. an occasion where the person who makes the communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. The reciprocity is essential”.
The first set of publications was in an e-mail sent by Mr Kelleher to 54 addressees (to be forwarded to 12 others). He was acting in the course of his official duties. The second set of publications was also by e-mail in the form an attachment containing a Register (“the Register”). These publications were authorised by Mr Kelleher. The Register was entitled the Violent Persons Register, but it ought to have been entitled the Potentially Violent Persons Register.
The words complained of contain personal information relating to Ms Clift. That is data which is subject to the Data Protection Act 1998 (“ DPA”). This Act implemented in English law some of the rights recognised by Article 8 of the European Convention on Human Rights (“the Convention”). Later those rights were more fully incorporated into English law by the Human Rights Act 1998 (“ HRA”). The Council is a public authority. HRA s.6 (1) provides:
“It is unlawful for a public authority to act in a way which is incompatible with a Convention Right”.
Article 8 of the Convention reads, so far as material:
'Right to respect for private and family life
(1) Everyone has the right to respect for his private … life, ….
(2) There shall be no interference by a public authority with the exercise of this right except such is in accordance with the law and is necessary in a democratic society … for the prevention of disorder or crime… or for the protection of the rights and freedom of others”.
The question in this case is whether, and if so how, the Council must demonstrate that it has complied with its public law duties under HRA (and incidentally DPA) if it is to be able to assert that it has the interest or duty required at common law for there to be a defence of qualified privilege.
EVENTS LEADING TO THIS ACTION
As a responsible employer the Council has a policy to protect its employees from violence at work. The policy is set out in a document headed “Safe System of Work (Codes of Practice) H&NS/COP/1.14 Version 1.0 date issued 11/3/03 Violence at Work (Inc Potentially Violent Persons)” (“the Policy”).
The two documents containing the words complained of were circulated in purported pursuance of that Policy.
Ms Clift was a lady of about 40 years of age at the time in question. On the morning of 11 August 2005 she had witnessed a group of five people in the public park drinking. A child of about 3 years of age was pulling plants up from a flower bed and damaging other plants. Ms Clift protested at this behaviour and was herself threatened by one of the men. In addition he himself trampled the flower bed in response to her intervention.
Ms Clift was very angry indeed at what had happened in the park and by what, in her view, was the inappropriate response by Ms Rashid and the officer to whom she complained. Ms Clift is an articulate person. On 11 and 12 August she wrote down her account of what had happened in the park, and in the conversation with Ms Rashid, in a three page letter. The penultimate paragraph of the letter includes the following words:
“I did not want to give [Ms] Rashid the self satisfaction of terminating the call – I slammed my phone down so hard I broke it. I felt so affronted and filled with anger that I am certain that I would have physically attacked her if she had been anywhere near me. I truly am not of that nature and so, surely, this should act as a wake up call to the Borough as to the capacity she has for offending people…. “
Ms Clift also used forceful language in response to the suggestion by the first official to whom she complained, that she speak to Ms Rashid again. Ms Clift said “Right now I wish she would drop dead”.
The interview of Ms Clift by Mr Kelleher on 25 October 2005 took place in a room in the Council's offices. Only Ms Clift and Mr Kelleher were present. Mr Kelleher took a note of what occurred at that meeting. It includes the following:
“[Ms Clift] wants every avenue explored and feels that [Ms Rashid had no knowledge of legal options open to [the Council] stunned that [Ms Rashid] is in the post. Stated that she would have hit [Ms Rashid] if she could. Wants her out of the post. Threatened that she will take the matter to the Ombudsman”.
Mr Kelleher then conducted a number of other interviews. One was with Mr Gulfraz, a friend of Ms Clift. She was accustomed to helping him in making telephone calls and filling out official forms. She was at the time also helping him in a complaint he was making against the Council on a housing matter. He was present at the time Ms Clift made her call to Ms Rashid on 11 August. He heard the whole conversation over the speaker phone. Other witnesses were fellow employees of Ms Rashid. Ms Rashid did not have the phone on loud speaker but her colleagues sitting near her heard her side of the conversation. It was sufficiently unusual to attract their attention.
Having interviewed Ms Rashid and these other witnesses, and made other enquiries, Mr Kelleher wrote his letter of 30 November 2005. It covers four pages and also dealt with another complaint Ms Clift had made relating to a quite separate matter. She had asked the Council for help earlier in the summer about a noise nuisance at her home, and she complained about how the Council had dealt with that. Mr Kelleher rejected that complaint too.
Having set out in full his reasons for having rejected her complaints, Mr Kelleher gave four reasons why a marker was to be placed against Ms Clift's name:
- On 10 August 2005 you slammed the phone down on Ms Rashid
- In your subsequent letter dated 12 August 2005 you stated 'I am certain that I would have physically attacked her (Ms Rashid) if she...
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