W v (1) J H (2) A County Council

JurisdictionEngland & Wales
JudgeMR JUSTICE TUGENDHAT,Mr Justice Tugendhat
Judgment Date05 March 2008
Neutral Citation[2008] EWHC 399 (QB)
Docket NumberCase No: IHJ/08/0081
CourtQueen's Bench Division
Date05 March 2008

[2008] EWHC 399 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Mr Justice Tugendhat

Case No: IHJ/08/0081

Between:
W
Claimant
and
(1) JH
(2) A County Council
Defendants

Mr Oliver Campbell (instructed by Girlings) for the Claimant

Mr Adam Wolanski (instructed by Berrymans Lace Mawer) for the Defendants

Hearing dates: 27 February 2008

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 Mr Justice Tugendhat
1

The Claimant is a qualified and registered social worker. Between 2000 and 2005 he had five short term contracts to work for a University (“the University”) as a practice assessor and teacher for students studying for a degree in social work. In or about July 2005 the claimant agreed with the University that he would be a Teaching and Learning Co-ordinator and/or Practice Assessor for Year 2 degree students on placement. This was confirmed by a letter from the University dated 22 nd July 2005. But by letter dated 14 September 2005 the University wrote to the claimant withdrawing their request that he act as practise assessor in the forthcoming round of placements. The reason given for this decision was that, following an event the previous week on 8 th September, the writer, R, who was the Practise Learning Co-ordinator, had been contacted by another Practice assessor, who has since been identified as the First Defendant. R wrote that the First Defendant felt that the University should be appraised of the circumstances under which the Claimant left a County Council (“CC”), the Second Defendant.

2

The Claimant had been employed by CC from 1971, when he first qualified as a social worker, until he was made redundant on or about 30 November 1996. He was initially employed as a social worker. In 1976 he was promoted to the position of principal social worker and team leader within the social services department. From June 1995 he was a project manager.

3

The Claimant brings this action for slander against both Defendants, in respect of what the First Defendant said to R. It is admitted that on a date between 8 September and 14 September the First Defendant spoke to R, in relation to the termination of the Claimants employment with CC, the following words:

“I am surprised that [W] is working as a practise assessor as he had been due to appear before a disciplinary hearing regarding an allegation of sexual harassment but had left in a hurry before the hearing”.

4

The claimant alleges that those words in their natural and ordinary meaning, meant and were understood to mean:

“a) the claimant quickly resigned from his job with the First Defendant when faced with disciplinary action against him for sexual harassment;

b) the claimant had been guilty of sexual harassment while working for the First Defendant; and/or

c) the claimant was not an appropriate person to work as a practise assessor for the University”.

5

The basis of the claim against CC is that they are vicariously liable for the First Defendant's slander. This is not admitted by CC, but for the purposes of the matters I have to decide at this interlocutory hearing, it is accepted that I must assume that CC would be vicariously liable. The claim for damages includes aggravated damages, and special damages. The special damage claimed is the loss of work from the University for the period offered to him in July 2005 and the loss of the opportunity to work for the University in the future. There are issues as to the meaning of the words complained of to which I shall return. There are defences of qualified privilege and justification.

6

Two issues that I have to decide arise out of an Application Notice dated 21 st September 2007. The defendants applied, pursuant to CPR Part 24, for summary judgment for the defendants, on the basis that the publication complained of was on an occasion of qualified privilege and there is no pleaded case of malice. Secondly the Defendants applied, pursuant to CPR Part 53, for a ruling that the words complained of are incapable of bearing the meaning alleged at paragraph 5(a) of the Particulars of Claim, and that the meaning pleaded at paragraph 5(c) is not arguably defamatory of the Claimant.

SUMMARY JUDGMENT – QUALIFIED PRIVILEGE.

7

The basis of the plea of qualified privilege is said to be that the First Defendant had a social, legal and/or moral duty to publish the words complained of, and R had a corresponding and legitimate interest in receiving these words. That is said to arise out of matters pleaded in three sub-paragraphs of paragraph 9 of the defence as follows:

“9.1. The First Defendant was at all material times a senior practitioner within the Second Defendant's adult services department. [R] was at all material times the Claimant's students' tutor at the University…

9.2. On 8 September 2005 the First Defendant attended a meeting of practise assessors at the University. She noticed that the claimant was present.

9.3. The First Defendant had concerns about the Claimant working as a practise assessor at the University. She decided to raise these concerns, initially with [her team leader at CC] and with [R]. She raised the concerns with [R] during a telephone conversation by means of an oral publication of the words complained of”.

8

Following a request for Further Information the Defendants responded:

“The First Defendant cannot recall the exact words she used during the conversation with [R]. To the best of her recollection, at the beginning of the conversation she did express surprise that the Claimant was a practise supervisor, though she did not say this directly before referring to the disciplinary proceedings. She recalls mentioning the fact that allegations of harassment had been made by female members of staff against the Claimant, though she does not recall using the word 'sexual'. She made clear to [R] that she did not know the details of the allegations nor the outcome of the proceedings against the Claimant. In response to a question from [R] about what could happen in [CC] when allegations of this sort are made, the First Defendant said that there were a number of different possible outcomes, including that the Claimant may have left. The First Defendant suggested to [R] “that [R] contact [CC] to discuss her concerns about the claimant and to find out what in fact happened”.

9

In a Reply, the claimant did not admit that R had a legitimate interest in receiving the words, and he set out facts on the basis of which he contends that the First Defendant had no social, legal or moral duty to publish the words. These facts are not substantially in dispute (although their effect is). They are:

1

) The statement was volunteered by the First Defendant. She was not requested by the University to give a reference or comment about the Claimant.

2

) The First Defendant does not know the Claimant and as had no dealings with him.

3

) The First Defendant had no direct knowledge or involvement in the disciplinary proceedings taken by the Second Defendant against the Claimant in 1994 and 1995, or the complaints made by [the complainants]. Further the First Defendant knew she had no such knowledge or involvement.

4

) It was not part of the First Defendant's job description or role to pass onto the University information about disciplinary proceedings taken by the Second Defendant or complaints made to the Second Defendant.

5

) The information given by the First Defendant to the University was inaccurate, as the Second Defendant's insurers admitted in a letter to the Claimant's solicitors dated 6th June 2006.

6

) The First Defendant was acting officiously and without proper justification in publishing the words to R.

10

There is some measure of agreement between the parties as to what in fact happened in 1993 and 1994 when the Claimant was employed by CC. This emerges from the plea of justification, which is to the meaning pleaded at para 5(b), namely that the Claimant was guilty of sexual harassment while working for CC. For present purposes it is neither necessary nor desirable to set out matters of detail. I am not asked to make any decision on the plea of justification.

11

It is sufficient to say that certain allegations of sexual harassment were made by complainants who were working under the Claimant's management at the time. The Claimant admitted that some (but not all) of the events which formed the basis of the allegation had occurred, but he denied that they amounted to sexual harassment. There is no dispute that there were disciplinary proceedings.

12

The terms of the letter dated 13 September 1994 relating to the Disciplinary Hearing completed on 9 September 1994 are material. The letter records that the Claimant, in his final submission to the panel, admitted specific allegations. One, which he did not admit, the panel found proved. The panel took note of the character witnesses' submissions and the Claimant's long service before reaching their conclusion that the case was proved. After noting the Claimant's willingness to apologise, which the panel welcomed, it decided upon the following action.

“1. This letter constitutes a final warning which will be placed on your personnel file in accordance with County Disciplinary Procedures. This will be reviewed for removal after a period of eighteen months.

2. You will be redeployed in a position that does not require you to manage or supervise staff.

You have the right to appeal … Should your misconduct be repeated within the eighteen month period, it would be necessary to reconvene a Disciplinary Hearing and the likely consequence could include dismissal”.

13

The Claimant exercised his right of appeal. CC decided to...

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