S. v Newham London Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 24 February 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0224-7 |
| Date | 24 February 1998 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBENF 97/1460/C |
[1998] EWCA Civ J0224-7
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
(MR JUSTICE POPPLEWE11)
Royal Courts of Justice
Strand
London WC2
The Master Of The Rolls
(Lord Woolf)
Lady Justice Butler-Sloss
Lord Justice Chadwick
QBENF 97/1460/C
MR G SHAW QC and MR H STARTE (Instructed by Messrs Sahota, London, WC2R 3JF) appeared on behalf of the Appellant
MR S THROWER and MR R MONDAIR (Instructed by Messrs Barlow Lyde & Gilbert, London ECJA 7HY) appeared on behalf of the Respondent
LORD WOOLF, MR:
Introduction
This is the judgment of the court. The appeal is from a decision of Popplewell J. of 3 October 1997. Popplewell J. decided a preliminary issue in favour of the plaintiff. On the hearing of the issue Popplewell J directed that the plaintiff should be described as "S" and we direct that he should continue to be described in this way.
Since 1993, "S" has been employed by the London Borough of Newham ("the Authority") as a social worker. Until October 1995 he was working with a team assigned to deal with children up to the age of 11. In May 1995 the Authority initiated inquiries into incidents involving the manner in which "S" had dealt with a particular child. The enquiries resulted in a decision which was critical of "S". He has remained in the employment of the Authority, but performing duties which do not involve children.
In accordance with guidelines issued by the Department of Health ("The Department"), the Authority sent a letter dated 20 September 1996 to the Department. In these proceedings "S" seeks damages for defamation based on the contents of that letter. In answer to a plea of qualified privilege by the Authority, "S" alleges the Authority was guilty of malice. In addition to relying upon qualified privilege the Authority relies on justification. The Authority also contends that the publication is an occasion of absolute privilege. In other words that in relation to the publication of the letter the Authority is entitled to immunity from suit. It is in connection with this last defence that the preliminary issue was ordered.
The terms of the preliminary issue are as follows:
"Whether the plaintiff's claim in respect of the publication complained of is contrary to the public interest such that it is a claim precluded at law and from which the defendant is immune from suit as pleaded in paragraph 10 of the Defence".
At the heart of this issue is a conflict between the right of an individual to bring an action for damages for defamation and the public interest in protecting children from conduct which could adversely affect their well-being or put them at risk.
Statutory Framework
For the purposes of the determination of the preliminary issue, the facts set out in paragraph 10 of the defence are deemed to be admitted. These facts include an account of the Authority's responsibility to provide information to the Consultancy Service of the Department ("the Service") and the importance and purpose of the Index which the Service maintains. This also appears in circular No. LAC (93) 17 which has an annex which relates to the Service.
The annex states that the Service operates on an advisory basis. It enables local authorities, private and voluntary organisations to check the suitability of those they propose to employ in a child-care posts. It keeps a record of convictions of those engaged in child-care work and those who have been dismissed. This assists prospective employers to check the records of those seeking this type of work with the object of making sure that, as far as possible, unsuitable people are not appointed to positions involving contact with children or given responsibility for them.
Paragraph 4 of the circular points out that the effectiveness of the Service depends upon local authorities and private/voluntary organisations submitting information to the Service where the welfare of children has been put at risk. The circular notes that Regulation 19(2)(b) of The Children's Homes Regulations 1992 already requires local authorities to notify conduct on the part of any member of staff of a community home which makes them unsuitable to be employed in work involving children. The circular recognises that ultimately, whether or not it is appropriate to notify is a matter for the judgment of the employing authorities or organisations. The general test which it is suggested is adopted is whether "the relevant organisation would refuse to re-engage the individual to work with children". If so the information should be referred to the Service so that it can be considered for inclusion.
Paragraph 7 of the annex identifies what information should be included when notifying the Service. If a person's details are inserted on the Index he is informed of this and given an opportunity to challenge the accuracy of the information and to make representations why his name should not be included. However, where there is disagreement about the accuracy of the information the person will be invited to pursue this with the provider of the information in the first instance. In this case "S" pursued an internal right of appeal but the appeal was dismissed. In this situation the Service in practice acts on the decision of the authority or other organisation providing this information.
The employer giving information to the Service is required to include a statement that the employer is content for reference to be made by the Service to the information provided in any correspondence they have with the person concerned; and that the employer is prepared to include information about the circumstances in which that person left their employment in any references provided by the employer to prospective employers.
Annex C ends with a summary which is in these terms:
"In order for the Consultancy Service to provide an effective service in helping to reduce the risk of children being harmed by preventing past abusers being engaged to work with them, it is vitally important that all employers make full use of its services. This applies equally to keeping the Service informed of cases of staff harming children when they arise, as to ensuring applications for checks against its records are made before any person is engaged to work with children."
Section 17 Children Act 1989 imposes a general duty on the Authority to safeguard children within its area. Section 17 provides:
"(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) -
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as it consistent with that duty, to promote the upbringing of such children by their families …
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2".
By section 4 of Schedule 2:
"Every local authority shall take reasonable steps, through the provision of services under Part III of this Act, to prevent children within their area suffering ill-treatment or neglect".
A more specific duty, requiring compliance with Departmental Circulars, is imposed by:
By section 7 of the Local Authority Social Services Act 1970:
"Local authorities shall, in the exercise of their social services functions, including exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State."
The decision of the judge and the submission of counsel
Having examined the authorities in some detail, Popplewell J. points out that it is accepted that there is no previous case which is reported which allows a defendant to rely upon public interest immunity in the circumstances of this case. That being so the judge decided that the immunity is "not one which would be extended at the expense of a private individual unless there really is an overwhelming argument in its favour". The judge did not believe that such an overwhelming argument existed. He did not consider that the Authority were likely to be deterred from notifying the Society simply because of the fear of libel proceedings. He considered that such fears have "in a great number of cases …. been shown to be grossly exaggerated". (Judgment p.19A) The judge was also of the opinion that the notifying authority is sufficiently protected against proceedings for defamation by the defences of justification and qualified privilege (Judgment p.19F).
Mr Shaw QC who appeared on behalf of the Authority challenges the approach of the judge. Qualified privilege would be of no value if the Authority were sued for negligence; in an action based on Spring v Guardian Assurance PLC [1995] 2 AC 296. He stresses the undoubted importance of the interest of the children which the Authority was trying to protect. He submits that the judge had not made sufficient allowance for the limits on the human and financial resources of local authorities. He contends that while there is a public interest in permitting a person who perceives himself to have been wronged by a communication to obtain redress at law, here the subject of the notification to the Service has a number of safeguards. Such a person is able to challenge the initial decision of the Authority. He can exercise an internal right of appeal. If he is dismissed he can bring an action for wrongful dismissal and judicial review is always available. Although accepting that there is no...
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