Waple v Surrey County Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,SIR BRIAN NEILL,NOURSE LJ |
| Judgment Date | 17 December 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1217-23 |
| Date | 17 December 1997 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBENI 97/0131/E |
[1997] EWCA Civ J1217-23
Lord Justice Nourse
Lord Justice Brooke and
Sir Brian Neill
QBENI 97/0131/E
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice French)Royal Courts of Justice
Strand, London WC2
MR T ATKINSON (instructed by Messrs Mundays of Claygate, Esher, Surrey) appeared on behalf of the Appellant Plaintiff.
MR F PANFORD (instructed by Messrs Hempsons of London WC2) appeared on behalf of the Respondent Defendants.
Wednesday, 17th December 1997
This is an appeal by the Plaintiff from an order of Mr Justice French dated 17th December 1996, which was drawn up and sealed on 8th January 1997, striking out the Plaintiff's writ and Statement of Claim as disclosing no cause of action, alternatively on the ground that the proceedings are frivolous and vexatious.
The Plaintiff and her husband are the adoptive parents of a boy J, who was born in May 1980. In 1992 problems developed in the relations between J and his parents, and on 22nd December 1992 the Defendant County Council placed J with foster parents. A problem arose as to the cost of the fostering, and the Plaintiff's husband declined to supply details of his means and his outgoings. As a result, on 7th January 1993 the council served on him a contribution notice pursuant to its powers under Paragraph 22 of Part III of Schedule 2 of the Children Act 1989 requiring him to contribute £77.56 per week towards J's maintenance with effect from 7th January 1993 until J reached the age of 16, or such earlier date as he ceased to be looked after by the council. The council made it clear that this was a provisional assessment, made in the absence of information about Mr Waple's financial circumstances.
In July 1993 the Waples' solicitor, Mrs Ison, had a meeting with the Council's solicitor, Mr O'Brien, and following this meeting she wrote him a letter dated 2nd August 1993 in which she articulated her clients' three main concerns, into which Mr O'Brien had undertaken to inquire. The second of these concerns related to a meeting the previous November when the Plaintiff was alleging that a doctor had told her in front of her son, and without any warning to her, that it was necessary for his emotional welfare and development that he should be removed from her household and moved to a new family placement. Mrs Ison reminded Mr O'Brien that he had undertaken to make inquiries to find out who had initiated J's removal into foster accommodation and who had first given these instructions to the council.
In his response dated 5th August 1993 Mr O'Brien referred towards the end of his letter to a telephone call by the Plaintiff to the council's social service office on 27th November 1992 suggesting that the doctor in question had indicated to them that J would need to be accommodated away from home. He said that this was the first time the council's social workers had acquired any knowledge of the Waple family. The paragraph of Mr O'Brien's letter to which exception is taken in these proceedings relates to the events of a planning meeting at the doctor's unit on 15th December. It reads:
"At the meeting on 15th December Mrs Waple took the lead in arranging for J to leave home and be looked after by the County Council. During this meeting Mrs Waple demanded unequivocally that J be removed from home by 23rd December. She threatened to lock him in his room if he was not removed, she said he was to go and she did not want the Social Workers to 'pussy foot around'. For the avoidance of doubt, Mrs Waple gave instructions/issued demands that J be removed."
On 17th November 1993 Mrs Ison wrote a letter before action telling the council that proceedings for defamation would be issued, and inviting it to withdraw the allegation that the Plaintiff had threatened to lock J in his room and to apologise. On 19th November 1993 Mr O'Brien withdrew the suggestion that the Plaintiff had threatened to lock J in his room and apologised unreservedly. He said he ought to have used the word "confine" rather than "lock".
The writ in these proceedings was issued on 13th April 1994. The Defence included a plea that the letter was written on an occasion of absolute privilege, and on the Defendants' strike-out summons, issued on 13th August 1996, the judge had to determine whether this plea was a good one. The judge ruled that it was, and the Plaintiff now appeals by leave of the judge. It did not appear to be seriously in issue that qualified privilege would attach to Mr O'Brien's letter, although Mr Atkinson wishes to keep this point open for argument at the trial.
It is necessary first to say something about the law relating to the contribution notice which was served in this case.
Part III of Schedule 2 to the Children Act 1989 creates a statutory scheme whereby if a local authority is looking after a child under 16, then in certain specified circumstances, it is given power to recover contributions towards the child's maintenance from each of his or her parents. If the local authority considers it reasonable to recover contributions from a parent, the scheme is triggered off by its serving what is called a contribution notice on the parent in question specifying the weekly sum which it considers he or she should contribute, together with arrangements for payment, the nature of which is spelled out in Paragraph 22(3) of the Schedule. Where agreement is reached as to both these matters, and the parent notifies the authority in writing that he or she so agrees, and any contribution subsequently becomes overdue and unpaid, the authority has the power to recover it summarily as a civil debt. If agreement cannot be reached, or if it is later withdrawn, the local authority has the power to seek what is called a contribution order from a court, and the scheme describes the type of contribution order that may be made, and the arrangements by which the authority may enforce it.
The judge described the events which followed the service of the contribution notice in the present case as "legal proceedings of a sort" but it will be seen that if the local authority reaches agreement with the parent as to the quantum and the arrangements for paying his or her contribution, there will be no need to involve a court so long as the parent keeps up the agreed payments.
The modern rules about absolute privilege extend the privilege to statements made in the course of judicial or quasi-judicial proceedings, and statements contained in documents made in such proceedings. It has been settled for over 100 years that the courts should be very slow to extend the scope of this privilege: see Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431, at p 451, when Lopes LJ rationalised the width of the privilege by reference to the requirement of public policy to ensure freedom of speech in a context in which it was essential that such freedom of speech should exist, "and with the knowledge that Courts of justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the will to check any abuse of it by those who appear before them".
It is instructive to consider the policy reasons given by the courts from time to time when fixing or refixing the limits of this type of absolute privilege. In Watson v McEwan [1905] AC 480 the House of Lords extended the scope of the privilege to statements made by a witness to the client and solicitor in preparing a case for trial. The Earl of Halsbury LC pointed out at p 487 that if this was not the case, witnesses would be very reluctant to give any such information for fear of a libel suit, and that it was very obvious that the public policy which rendered the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice —namely, the preliminary examination of witnesses to find out what they could prove. He referred in this context to the hardship which would arise if it were impossible to administer justice because people would be afraid to give their testimony.
In Lincoln v Daniels [1962] 1 QB 237 this court ruled that communications sent to the secretary of the Bar Council alleging professional misconduct by a barrister did not attract absolute privilege, since they were not a step in an inquiry before an Inn of Court. Devlin LJ accepted at p 259 that this was a matter of form rather than substance but he said:
"On such a point form is of the first importance; it is by form rather than by the substance of the complaint that a writ is to be distinguished from a letter before action."
At pp 257—8 he had identified three categories of the absolute privilege which covers proceedings in or before a court of justice. The first covers what is said in court and the second covers everything that is done from the inception of the proceedings onwards, such as the pleadings:
"The third category is the most difficult of the three to define. It is based on the authority of Watson v McEwan, in which the House of Lords held that the privilege attaching to evidence which a witness gave coram judice extended to the precognition or proof of that evidence taken by a solicitor. It is immaterial whether the proof is or is not taken in the course of proceedings. In Berrisford v White [1911] 30 TLR 591 the privilege was held to attach to what was said in the course of an interview by a solicitor with a person who might or...
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