McLaughlin & others v London Borough of Lambeth
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 02 November 2010 |
| Neutral Citation | [2010] EWHC 2726 (QB) |
| Docket Number | Case No: HQ08X04988 |
| Court | Queen's Bench Division |
| Date | 02 November 2010 |
[2010] EWHC 2726 (QB)
Before: The Honourable Mr Justice Tugendhat
Case No: HQ08X04988
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Justin Rushbrooke (instructed by Carter-Ruck) for the Claimants
Andrew Caldecott QC & Timothy Atkinson (instructed by Kennedys) for the Defendants
Hearing dates: 19, 20, 21 October 2010
Mr Justice Tugendhat:
The First Defendant is a local authority. It has various statutory responsibilities in respect of schools. The Second Defendant is the Chief Internal Auditor, Internal Audit and Corporate Fraud Division of the Finance and Resources Department of the First Defendant. In their Particulars of Claim the Claimants plead that at all material times he was acting for and on behalf of the First Defendant, which is accordingly vicariously liable for his acts complained of in this action.
The Claimants describe themselves in the Particulars of Claim as follows. The First Claimant is and has been since 1 January 2008 the Head Teacher of the Durand Primary School (“the School” or “Durand”). He has been a Governor of the School since about 1996. The Second Claimant is the Director for Education Development at the School. He was the Head Teacher from 1986 until 31 August 2007, when the First Claimant became acting Head Teacher until his appointment as Head Teacher. The Third Claimant is and has been for thirteen years the Chairman of the Governors of the School.
The School was until 1 st September 2010 a Foundation Primary School based in Stockwell, London SW9. That is within the London Borough of Lambeth. It was until 1 st September 2010 maintained by the First Defendant pursuant to its statutory obligations. The School is now an Academy. That means that it is no longer maintained by the First Defendant, but by central government.
The Defendants' application before me is for an order striking out the claimants' claim commenced by claim form issued on 15 December 2008. It is said that the proceedings are an abuse of the process of the Court. The claims are for libel, and under the Human Rights Act (“ HRA”). The application is solely under CPR 3.4(2)(b). There is no application under CPR 3.4(2)(a). CPR 3.4(2) reads:
“The court may strike out a statement of case if it appears to the court –
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings…”
THE LIBEL CLAIMS
There are three acts complained of in this action, each being the alleged publication of a libel. On 19 December 2007 the Second Defendant sent to Lucy Reynolds of the School Funding Unit at the Department of Children Schools and Families (“DCSF”) an email with an attachment. Ms Reynolds is a Civil Servant in the Department for Education. The attachment has been referred to as the Briefing Paper.
The second publication complained of is an email dated 3 January 2008 sent by the Second Defendant to the First Claimant. This email was published to Kate Hoey MP and to five employees of the First Defendant: Nilesh Jethwa, Verdal McGowan, Phyllis Dunipace, Chris Ashton and Mark Hynes.
The third publication complained of is an email dated 15 January 2008 sent by the Second Defendant to Ms Reynolds.
THE HUMAN RIGHTS ACT CLAIM
The HRA s.6 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. It is not in dispute that reputation is a right within Art 8 of the Convention (respect for private life). Under HRA s.8 the court may grant such relief or remedy within its powers as it considers just and appropriate. Damages may be awarded if the court is satisfied that an award is necessary to afford just satisfaction to the person in whose favour it is made. This claim is commendably brief and is as follows:
“16. Further or alternatively by reason of the matters aforesaid, the First Defendant is in breach of the Claimants' rights under Article 8 of the European Convention of Human Rights (ECHR), in particular the right to reputation embraced by Article 8.
Particulars
16.1 The First Defendant is a public authority within the meaning of the Human Rights Act 1998 and the ECHR;
16.2 By publishing and/or causing or permitting to be published and/or failing to withdraw the allegations complained of, which allegations are false, the First Defendant has acted and is acting incompatibly with the Claimants' rights under Article 8, contrary to Section 6 of the 1998 Act.
17. The Claimants are entitled to and will seek at trial
A declaration of falsity pursuant to Section 8 (1) of the 1998 Act in relation to the said allegations; and/or
Substantial damages pursuant to Section 8 (1) of the said Act. For the avoidance of doubt the Claimants will contend that in all the circumstances, which include the facts and matters set out under paragraph 15 above, which demonstrated a wilful and flagrant disregard for the Claimants' rights an award of such damages [as are] necessary to afford just satisfaction to the Claimants”.
THE APPLICATIONS TO STRIKE OUT
The grounds for the application to strike out are set out in the Application Notice dated 10 September 2010. Referring to the claim the grounds are:
“(a) Its effect and, it is to be inferred, its purpose is to circumvent the rule in Derbyshire v Times Newspapers Limited [ [1993] AC 534 (“ Derbyshire”)] which prevents the Governing Body of Durand School, as a governmental body, from suing for libel; and/or
(b) its effect and, it is to be inferred, its purpose is to circumvent the rule which prevents the Governing Body of Durand School, as a public authority and hence a body without Article 8 ECHR rights, from suing for breach of such rights; and /or
(c) it has been brought not for the dominant purpose of vindicating the Claimants' individual reputations but rather for the dominant collateral purpose of putting pressure on the Defendants as a tactical ploy to assist Durand in its long-running dispute with the First Defendant concerning the First Defendant's carrying out of its statutory functions in regard to Durand [ Goldsmith v Sperrings [1977] 1 WLR 478; Lloyds Bank v Rogers CA unreported 20 December 1996]; and/or
(d) it does not on its particular facts justify the expenditure of the Court time and costs which it entails [ Jameel v Dow Jones [2005] QB 946].
The Defendants also made an application by the same Notice for summary judgment pursuant to CPR 24. The grounds for this application were that on the evidence the Claimants had no real prospect of succeeding on the claim and there is no other compelling reason why the case should be disposed of at trial. This alternative application has not been pursued.
Applications to strike out a claim as an abuse of the process of the court pursuant to CPR 3.4 (2)(b) are normally advanced on the pleadings. There is normally either no supporting evidence, or very little supporting evidence. Applications under CPR 24, on the other hand, are commonly supported by evidence. For the Defendants there have been submitted witness statements from each of the publishees of the three emails complained of other than Kate Hoey MP. These and the exhibits to them, consist of over three hundred pages. They are primarily directed to demonstrating that the publications complained of had no effect on the estimation in which the publishees held the Claimants.
For the Claimants there is evidence consisting of witness statements from each of the three of them. These are primarily directed to explaining that they are not circumventing or attempting to circumvent the rule in Derbyshire and are suing to vindicate their own individual reputations. These statements and their exhibits cover over three hundred pages. There is some duplication in the exhibits of the parties.
The Claimants have been available for cross-examination but Mr Caldecott has asked the court to proceed on the basis of the documents alone.
THE MEANINGS COMPLAINED OF
There is no application before me to determine the meaning of the words complained of. It is accepted on behalf of the Defendants that the Particulars of Claim disclose a cause of action. It is not therefore necessary to set out the lengthy words complained of. The meaning pleaded in respect of the email of 19 December 2007 is as follows:
“7. In their natural and ordinary and/or inferential meaning and in the context in which they were published, which context included defamatory complaints about Durand already sent to the DCSF and passed to Ms Reynolds by one Jeff Newall, the email of 19 December 2007 and the briefing paper attached thereto meant and were meant to understood to mean:
7.1 That there are a number of serious concerns regarding the running of Durand School which previous investigations have failed to put right and for which the Claimants as Head Teachers and Chairman of the Governors respectively are culpably responsible, in particular:
(a) failing to implement proper training standards or provide proper support for newly qualified Teachers [“NQTs”] who start their careers at Durand,
(b) unreasonably dismissing able teachers before completion of their induction year simply because they do not fit into the way the school works,
(c) giving a false and/or misleading explanation to Lambeth Council,...
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