Law Report: Authority could not claim absolute privilege

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S v London Borough of Newham; Court of Appeal (Lord Woolf, Master of the Rolls, Lady Justice Butler-Sloss and Lord Justice Chadwick) 24 February 1998

A LOCAL authority could not claim absolute privilege in an action for defamation brought by an employee in respect of information about him sent by the authority to the Department of Health for inclusion in its index of persons unsuitable for work with children.

The Court of Appeal dismissed the appeal of the London Borough of Newham against the decision of Mr Justice Popplewell on a preliminary issue in defamation proceedings brought against it by the respondent.

The respondent, S, had been employed by the authority as a social worker since 1993, and until October 1995 had worked 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 inquiries resulted in a decision critical of S.

In accordance with guidelines issued by the Department of Health the authority sent a letter to the department, and S sought damages for defamation based on the contents of the letter. The authority contended that the letter was subject to absolute privilege, but the judge had decided, as a preliminary issue, that that defence was not open to it.

Geoffrey Shaw QC and Harvey Starte (Barlow Lyde & Gilbert) for S; Simeon Thrower and Rashpal Mondair (Sahota) for the authority.

Lord Woolf MR said that at the heart of the appeal was a conflict between the right of an individual to bring an action for defamation and the public interest in protecting children from conduct which could adversely affect their well-being or put them at risk.

The authority had a responsibility to provide information to the department, which maintained an index of the details of persons engaged in child-care work who had convictions, had been dismissed, or whose conduct made them unsuitable for work with children.

The importance of safeguarding children from harm of the type against which the index was designed to give protection could not be exaggerated, but it was difficult to accept that a local authority would be deterred from providing appropriate information to the department by the threat of litigation.

Although, as the present case illustrated, there would be employees who would seek to bring defamation proceedings, the occasions on which they would have any prospect of success would be rare. In such proceedings the defence of qualified privilege would be available, requiring a plaintiff to establish malice on the part of the body responsible for publication. Where a plaintiff clearly had no prospect of success, the court could be expected to be robust and to dismiss the action.

In the present case there was a public interest in that the index should be available to provide information for safeguarding the welfare of children, but, in determining whether it was necessary and appropriate to extend immunity from suit to the authority, the advantage of protecting the integrity of the index had to be weighed against the disadvantage that would cause to S.

There was a substantial public interest in S's being able to vindicate his position. In R v Lord Chancellor, ex p Witham [1997] 2 All ER 779, a citizen's access to the court had been described as a common law constitutional right which could only be abrogated by specific statutory provision.

It was obvious that having his or her name placed on the index had serious repercussions for the individual concerned. If the individual's conduct justified inclusion in the index, then the existence of the index meant that his interests must give way to those of the children the index was designed to protect.

If the allegations against S were, as he alleged, not only untrue but made maliciously, then justice required that he should be able to establish his innocence. The practical consequence of his name being on the index was that he would not be able to work in his chosen occupation.

The infringement of the public interest in S having access to the courts was greater than the necessity to protect the index from the insignificant risk of impairment of its effectivness by an action for defamation.