Janet Morrison v Buckinghamshire County Council and Another
| Jurisdiction | England & Wales |
| Judge | HIS HONOUR JUDGE RICHARD PARKES QC,HHJ Richard Parkes QC |
| Judgment Date | 20 December 2011 |
| Neutral Citation | [2011] EWHC 3444 (QB) |
| Date | 20 December 2011 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ09D05424 |
[2011] EWHC 3444 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Richard Parkes Qc
(Sitting as a Judge of the High Court)
Case No: HQ09D05424
Hugh Tomlinson QC and Caroline Addy (instructed by Withers LLP) for the Claimant
Adrienne Page QC (instructed by the Legal Department of Buckinghamshire County Council) for the Defendants
Hearing dates: 20–21 July 2011
THE APPLICATIONS
In this libel action, the claimant sues on two letters published to a small group of individuals. The first was published to three people; the second to two of those three and a further two, not including the claimant herself. So total publication of both letters was to five individuals. By her claim form, which was issued almost at the end of the relevant limitation period, she sets the value of her claim at a maximum of £15,000. As at 28th July 2010, she had incurred costs of £80,000 and her estimate of overall costs was £230,000. On 19th January 2011, by which time her costs totalled £103,000, the case came under close costs management under the Defamation Costs Management Scheme. A budget of just under £80,000 was approved for her future costs, bringing her likely total costs to a little under £200,000. Neither her current application, nor the defendants' cross-application, nor even the defendants' earlier application (issued on 24th February 2011) for summary judgment on the issue of qualified privilege, were foreshadowed in the costs budget submitted to the court in January. On the face of it, there is huge disproportion between the value which the claimant sets on her own claim and the sums spent in pursuing and, no doubt, defending it.
I have to decide two applications. The first in time is the claimant's application by notice dated 28th April 2011 for permission to amend her Reply. This was prompted by the defendants' application dated 24th February 2011 (now superseded) for summary judgment on the issue of qualified privilege, subject to malice. It raises difficult questions about the availability of qualified privilege as a defence to defamation claims against public authorities.
The second is the defendants' cross-application by notice dated 17th May 2011. By that application, the defendants seek summary judgment on the whole claim, or alternatively on the issue of malice, on the grounds that the claimant has no real prospect of succeeding on the claim or on the issue of malice, and that there is no other compelling reason why the case or the issue of malice should be disposed of at trial. Alternatively, the defendants seek an order that if the claimant succeeds in her application for permission to amend her Reply, the issues introduced by paragraph 27 of the draft amendment, and/or the issue of malice, should be tried as preliminary issues by judge alone. I should mention that the court has, on the claimant's application, ordered trial by jury. However, the claimant does not oppose trial of the issues raised by paragraph 27 as a preliminary issue by judge alone.
THE FACTUAL BACKGROUND
There is not a great deal of dispute about the facts. Just how much dispute there is, and how significant it may be, I consider below. However, there has been a considerable amount of change in the educational world since the relevant period (late 2008), and the facts set out below may well be, and I believe to a considerable extent are, out of date. In particular, I believe that the SIP and NCA programmes may now have come to an end. However, for the purposes of this action that does not matter: what matters is how the facts stood at the end of 2008.
The claimant ('Mrs Morrison') is a former head teacher and an OFSTED inspector. She was accredited as a 'School Improvement Partner', or 'SIP'. By s5(1) of the Education and Inspections Act 2006, each local authority was obliged to appoint a SIP to provide advice to the governing body and head teacher of each maintained school, with a view to improving standards at the school. The functions of SIPs were stated by the Department for Children, Schools and Families ('DCSF', later the Department for Education) as being "to challenge and support school leaders as they assess how well their schools are performing, plan for the future and identify the support their school needs to raise levels of achievement for all learners". In doing that, they were expected to "interrogate the school's performance and other data; challenge and support the school on its self-evaluation; identify a small number of key priorities for improvement from the self-evaluation; ensure the school adopts high-impact strategies to improve its priorities; broker support to assist the school in its improvement; and help the school monitor and evaluate the impact of its actions and the support it has engaged, or that has been engaged on its behalf by the local authority".
The first defendant ('the Council') is the local education authority for Buckinghamshire, and has an overriding statutory duty to promote high standards within its schools. It administers 234 schools, to each of which it was obliged to appoint a SIP.
The National Challenge Initiative was launched in 2008 under the aegis of a DCSF body called The National Strategies ('NS'), to assist schools which fell below a specified floor of examination performance. It required the appointment (supposedly by 1st November 2008) of an experienced SIP, known in this context as a National Challenge Adviser ('NCA'), to each secondary school in which fewer than 30% of the pupils achieved 5 'good' GCSEs (down to and including a 'C' grade) in subjects which included mathematics and English. The NCAs were to work with the school to which they were appointed to help improve performance, so that at least 30% of pupils would achieve the target results by 2011. They were in addition to perform the usual functions of a SIP. They were required to help the school "diagnose the causes of low performance, identify the key priorities for improvement, identify key high impact strategies to bring about improvement, (and) broker support to successfully achieve the improvement plan". They were to provide up to twenty days of support for each school (fifteen extra days on top of five SIP days already allocated) and conduct regular formal reviews with the local authority and NS about the progress of each school.
The NCA programme was funded by central government (formerly the DCSF, then the Department for Education) but local authorities selected their NCAs and paid them. The programme was directed by NS, which was headed in the region covering Buckinghamshire by Mr Jeff Lord, Senior School Improvement Adviser for the south- east. Its National Director, School Improvement, was Mr Adrian Percival. Its policy was that each NCA should normally work with at least three schools. NS held NCAs and local authorities to account by monitoring progress and reports and by holding termly meetings of the local National Challenge Board, which Mr Lord chaired. Each NCA reported on his or her work, as did each local authority. The local Board meetings were attended by DCSF officials, by Ms Louise Goll as the Council's senior representative, and by the second defendant ('Mr Edgar'), who was the Council's divisional manager for school improvement, and who seems to have been responsible for appointing the NCAs for Buckinghamshire.
Each SIP needed external accreditation. To that end, NS maintained a national database which contained the name, contact details and 'pen portrait' (in effect a brief curriculum vitae setting out relevant experience and achievements) of each SIP. Inclusion on the database showed that the SIP was accredited. The 'pen portrait' assumed particular importance in the selection and appointment of SIPs and NCAs: according to NS, "The application form for assessment to be a SIP and the pen portrait supplied to the National Strategies are key documents in the appointment of SIPs. Withholding or misrepresenting any information on either document in such a way that it materially affects decisions taken to appoint a SIP will be taken as misconduct and will result in removal of accreditation".
That warning reflects the fact that SIPs, once accredited, were liable to lose their accreditation if certain criteria were met, which included a criterion of conduct inappropriate for a SIP. There were elaborate procedures for their removal from the register in such circumstances. Those procedures entailed (at step 1) the raising of concerns about the SIP's work by (among others) one of the SIP's schools or the local authority; discussion of those concerns by the local authority and the regional SIP co-ordinator, who in Buckinghamshire's case would have been Mr Lord (step 2), followed (if they agreed that the concerns were sufficient to warrant removal of accreditation) by the individual ceasing work for the authority; the assembly of evidence by the local authority and the regional SIP co-ordinator and its production to a national official (Mr Adrian Percival); a review of the evidence by that official, and a decision whether or not to recommend removal of accreditation; and so on.
The Council, through Mr Edgar's PA, contacted Mrs Morrison on 6th October 2008, to ask if she was interested in working as an NCA for Buckinghamshire. It maintains (this is not admitted, but it can hardly be contentious) that it sought NCAs with a track record of...
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