H v Tomlinson
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward |
| Judgment Date | 13 November 2008 |
| Neutral Citation | [2008] EWCA Civ 1258 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2007/2473 |
| Date | 13 November 2008 |
[2008] EWCA Civ 1258
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
MR RECORDER MOLONEY QC
6BQ02399
ON APPEAL FROM QUEEN'S BENCH DIVISION
The Rt Hon. Lord Justice Ward
The Rt Hon Lord Jutice Sedley and
The Rt Hon Lord Justice Longmore
Case No: A2/2007/2473
William Bennett (instructed by Messrs Attwood & Co) for the appellant
Mrs H appeared in person
Hearing date: 24th June 2008
This is the judgment of the court.
The issue
This is a rather sad and unfortunate case to reach the courts. In the way the case was presented to us, the issue is essentially this: where a claim for damages for libel and slander is dismissed because the sting of the defamation is defeated by the defence of justification, can the same remarks nonetheless found a claim for breach of the claimant's Article 8 right to respect for his privacy and reputation? On 31st July 2007 Mr Recorder Moloney Q.C., sitting as a judge of the High Court, decided that the human rights claim was arguable and he gave leave to amend the particulars of claim to include it. The defendant now appeals with permission granted by Keene L.J.
The facts
The claimant who sues by his litigation friend, his mother, is a boy born on 22nd August 1992. There is an order which we have continued that his identity and the identity of the school he attended should not be revealed. I shall therefore refer to him simply as B and to his mother as Mrs H. Unfortunately B suffers from Asperger's Syndrome, has an obsessional compulsive disorder and has behavioural difficulties which led to a statement of his special educational needs being made by his local authority. He was placed in mainstream education at a Campus school, which was a pilot school to promote curriculum choices for students to meet the needs of the national curriculum. On 22nd March 2005 he behaved in a violent manner and he was permanently suspended from the school by his headmaster, the appellant in this appeal. That exclusion was later upheld by the school governors and the matter was then reviewed by the statutory appeal panel which conducted an oral hearing on 7th June 2005.
On 9th June 2005 the statutory appeal panel decided that the pupil had committed the acts complained of by the headmaster on the date in question but nonetheless overturned the decision permanently to exclude him. Despite that, the panel refused to reinstate him in the exceptional circumstances that reinstatement would not be in his best interests nor in those of the whole community. Alternative arrangements were put in place for his future education.
The headmaster had prepared a written report for the purpose of these enquiries into the pupil's suspension. It included the following record of the events of Tuesday 22nd March 2005:
“10 am B was slapping U who is a disabled Year 8 boy with a walking frame (referred to as “happy slapping”). He then hit Mr B a learning support tutor hard on the back of the head.
10.45 am B punched and kicked U several times and damaged his laptop.
11.10 am B jumped in the lift with U. B kicked and punched U several times in the lift. U had physically been hurt, was marked and seemed very distressed. I then phoned Mrs H and asked her to come in to calm B down. We often used this strategy and at this stage B was not following commands or instructions. Mrs H could not get to school immediately because she was working but came as soon as possible.
11.30 am B stole a pencil case and damaged what was in it and the case itself. In Mrs M's (learning support tutor's) statement B had told her to “piss off” and she saw B trying to trip up Mr F (Year 8 teacher).
12.14 pm B tripped up Mr F who is a maths teacher.
12.35 pm B was swearing in front of Mr B.
12.55 pm B threw a punch at Mr B which he avoided and it was reported that he had shouted at Mrs W at lunchtime using an aggressive tone. All morning B had not followed any instructions from any teacher. If Mrs H had not arrived I was going to call the police.”
The report then gave an account of his mother's arriving at the school, being asked to take B home but leaving without him. B was very distressed and the school contacted the social services department. B continued to walk around the school swearing to himself and not wanting to talk to anyone. He went outside the school and was swearing at members of the public in a violent and aggressive manner. The school continued to attempt to contact the social services department. B walked off and the headmaster contacted the police.
On the following day the decision was taken to exclude B. The report recorded that:
“The staff at the Campus came to the conclusion that B was mentally unstable and with his violent behaviour he was a real danger to everybody at school. We also know on several occasions he has shown very violent behaviour towards his mother.”
Then followed the words which found the libel claim:
“On one occasion we know for sure that the police had to arrest B at his father's house for violent and dangerous behaviour.”
At the appeal hearing the headmaster read his report and was asked for details of that incident and the name of the person who had given the information to which he replied: “Two very reliable parents had seen him being led away in handcuffs”. This is the second statement of which complaint is made.
B's parents knew these allegations were untrue and they were and have remained deeply upset and offended. They repeatedly requested Mr Tomlinson and his solicitors, who, it should be noted, were acting on the instruction of the school's insurers, to produce the evidence to support his allegations or to withdraw them. They were rebuffed. That response was a serious misjudgement by those advising him or the insurers standing behind him. The word “Sorry” seems to be missing from insurers' vocabulary which is a shame since an apology may frequently be enough to assuage wounded feelings. As G. K. Chesterton pointed out: “The injured party does not want to be compensated because he has been wronged; he wants to be healed because he has been hurt.” Having received no satisfaction, B issued his claim on 5th May 2006 B, suing by his mother, his litigation friend, “for writing a libellous statement about him, then repeating it in public and adding further slanderous remarks”.
In his judgment the recorder expressed his wholly understandable concern at the prospect of this litigation continuing. He imposed a two month stay “for mediation or conciliation, in the hope that some conversations may take place between the parties in the light of my judgment that will lead to a fruitful resolution without the need of further litigation”. That was endorsed by Keene L.J. when giving permission to appeal. Sadly such attempts as were made bore no fruit but we persisted in the exploration of compromise. Under considerable pressure from us, Mr Bennett, counsel for Mr Tomlinson, was finally able to obtain instructions on the telephone to apologise on his client's behalf for reporting to the appeal panel that he had good information that B had been arrested for violence at his father's house. He told us that the headmaster had reported this information in good faith but accepted that it was incorrect. We are glad to say that apology was accepted. It is a great pity it was not proffered much earlier.
The claim
The particulars of claim are home-made and plead in paragraph 2 that:
“Mr Tomlinson in his capacity as headmaster of [the school] excluded B.”
The allegations upon which the claim depended were these:
“6. At the Independent Appeal Hearing Mr Tomlinson read a statement that he said he had presented to the board of governors. Included in this statement was a paragraph, which did not appear in his previous statements: “On one occasion we know for sure that the police had to arrest B at his father's house for violent and dangerous behaviour.”…
8. At the Appeal Hearing Mr Tomlinson when asked for details of the alleged incident, time, date, the name of the person who told him, replied that “Two very reliable parents had seen him being led away in handcuffs”. …”
By his amended defence the defendant set out the circumstances leading to B's exclusion on that day as we have already summarised them. He pleaded that there was a history of some 59 other incidents between 13th October 2003 and 22nd March 2005 and gave particulars of 12 assaults on members of the staff and fellow students. He admitted that he prepared the report including the allegation of the police arresting B at his father's house but relied upon the whole of the report for its true meaning. The defence did not deal with the allegation of B's being led away in handcuffs because it was not appreciated that it formed a separate claim. It did set out the defence of qualified privilege pleading that in his capacity as the claimant's headmaster the defendant had a duty to supply all information to the appeal panel which had an interest in receiving it. He also pleaded justification as follows:
“9. The report and/or the words complained of are true in substance and in fact in so far as they bore or are understood to bear the meaning that:
the claimant has behaved in a violent and dangerous manner.”
He relied on all the allegations which I have summarised above.
The defendant issued an application to strike out the claim under CPR 3.4(2)(a) as disclosing no reasonable grounds for bringing the claim, alternatively for summary judgment under CPR 24.2(a)(i) on the ground that the...
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