W v Westminster City Council
| Jurisdiction | England & Wales |
| Judgment Date | 2005 |
| Date | 2005 |
| Court | Queen's Bench Division |
Local authority – Children – Libel and slander – Defence – Privilege – Absolute privilege – Qualified privilege – Exercise of local authority of powers in relation to children – Report for child protection conference – Claimant arguing report libellous – Whether qualified privilege attaching to words complained of.
The action arose out of a report prepared by the social services department of the first defendant local authority in the exercise of its powers under the Children Act 1989 for the purpose of a child protection conference. The claimant issued proceedings in libel arguing that the words complained of meant or were understood to mean that there were serious grounds to suspect him of being a predatory paedophile who was grooming his one-time partner’s daughter with a view to abusing her sexually, and for prostitution and abusing her trust in him as a father figure. Publication of the words complained of was admitted. The defendants, inter alia, raised defences of absolute and qualified privilege. It had previously been decided that the matter was to be tried by judge alone (see [2004] EWHC 2812 (QB), [2004] All ER (D) 59 (Dec)). Although there had been two recent attempts by local authorities to establish a defence of absolute privilege in relation to communications made in the exercise of their powers under the 1989 Act, both of which had failed in the Court of Appeal, they had been decided before the coming into force of the Human Rights Act 1998, and the authority wished the matter to be reconsidered. As to qualified privilege, it was agreed that the publication was of a sort which could be protected by qualified privilege, and the dispute was concerned, inter alia, with the test for malice.
Held – (1) It was not necessary for there to be a defence of absolute privilege to protect communications made on the occasion of a child protection conference. Although the Court of Appeal authorities had been decided prior to the coming into force of the 1998 Act, it was clear that the court had had the Convention in the forefront of their minds in those cases. Moreover, although there had been some developments in the law since that time, none was such to render it necessary for absolute privilege to attach to publications of the sort complained of in the instant case. It followed that the words complained of were not published on an occasion of absolute privilege.
(2) The instant case fell into the category of an exceptional case where a person might come under a duty to pass on, without endorsing, defamatory
material made by some other person, and the publisher was not required to show an honest belief in what he published. Cases that came before social workers included ones where the adults were at loggerheads and serious allegations of sexual abuse might be made. A social worker might not know whether to believe the person making such an allegation, and in some cases might have a strong belief that such a person was lying. None the less, in all such cases, it might still be the duty of the social worker to raise those matters, in an appropriate manner, at a child protection conference. Such accusations, even if false, might have a relevance to decisions which had to be made about the child’s future. What was included in a report for a child protection conference was for publication in confidence to a small group of people with specific roles in the life of a child. Whilst the publication could still cause great harm, the extent of that harm could be mitigated by the subsequent actions of the defendants, and the denial of the claimant himself. In the instant case, the defendants had acted in good faith in the discharge of their duty and the claimant had failed to establish that they had acted from some other unjustifiable motive. It followed that the words complained of were published on an occasion of qualified privilege.
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ActionThe claimant issued libel proceedings. The defendants raised defences of absolute and qualified privilege. The facts are set out in the judgment.
Philip Shepherd QC and Manuel Barca (instructed by Kerman & Co) for the claimant.
Edward Faulks QC and Julian Waters (instructed by Barlow Lyde & Gilbert) for the defendants.
TUGENDHAT J.[1] On Monday, 29 November 2004 this libel action was listed for trial before myself and a jury. The defendants are Westminster City Council, who I will refer to as the council, Anca Marks, and, by amendment this week, James Thomas. The second and third defendant are both social workers employed by the council. The second defendant is supervised by the third defendant. In a judgment handed down on 3 December [2004] EWHC 2812 (QB), [2004] All ER (D) 59 (Dec) I set out the circumstances, in which the cases came before the court, my reasons for allowing a late amendment to the defence, and my decision to order that the trial should proceed by judge alone.
[2] Publication of the words complained of in this action is admitted. There is an issue on the meaning of the words, and there are defences of absolute and qualified privilege. A decision that there is a defence of absolute privilege would determine the case in favour of the defendant. For this reason, and because it seemed to me that there was need for clarification of the defences of privilege in this case, I decided to hear argument on the issue of absolute privilege. This is my reserved judgment on that issue.
[3] There have been two recent attempts by local authorities to establish a defence of absolute privilege in relation to communications made in the exercise of their powers under the Children Act 1989. Both failed in the Court of Appeal. So this issue might have been disposed of simply by my referring to those authorities as binding on this court. However, they were both decided before the Human Rights Act 1998 came into force, and Mr Faulks QC for the council had made clear that the council wished the matter...
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H v Tomlinson
...claim independent of any common law claim which may arise from the same facts. In W v Westminster City Council [2004] EWHC 2866, QBD; [2005] 1 F.L.R. 816, an allegation was made at a social services child protection case conference that W had groomed an 11 year old girl for prostitution. He......