Law Report: Authority could not claim absolute privilege

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.

News
Russell Brand was in typically combative form during his promotional interview with Newsnight's Evan Davis
peopleReports that Brand could stand for Mayor on an 'anti-politics' ticket
News
The clocks go forward an hour at 1am on Sunday 30 March
news
Arts and Entertainment
The Doctor finds himself in a forest version of London in Doctor Who episode 'In the Forest of the Night'
TVReview: Is the Doctor ever going stop frowning? Apparently not.
News
Voluminous silk drawers were worn by Queen Victoria
newsThe silk underwear is part of a growing trade in celebrity smalls
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebooksAn unforgettable anthology of contemporary reportage
Sport
footballMatch report: Real fight back to ruin Argentinian's debut
News
Candidates with surnames that start with an A have an electoral advantage
newsVoters are biased towards names with letters near start of alphabet
Arts and Entertainment
Isis with Lord Grantham (Hugh Bonneville)
TV
Arts and Entertainment
Jay James
TVReview: Performances were stale and cheesier than a chunk of Blue Stilton left out for a month
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Maths Teacher

£110 - £200 per day: Randstad Education Leeds: Secondary Maths Teacher for spe...

Business Analyst - Surrey - Permanent - Up to £50k DOE

£40000 - £50000 Per Annum Excellent benefits: Clearwater People Solutions Ltd:...

***ASP.NET Developer - Cheshire - £35k - Permanent***

£30000 - £35000 Per Annum Excellent benefits: Clearwater People Solutions Ltd:...

***Solutions Architect*** - Brighton - £40k - Permanent

£35000 - £40000 Per Annum Excellent benefits: Clearwater People Solutions Ltd:...

Day In a Page

Wilko Johnson, now the bad news: musician splits with manager after police investigate assault claims

Wilko Johnson, now the bad news

Former Dr Feelgood splits with manager after police investigate assault claims
Mark Udall: The Democrat Senator with a fight on his hands ahead of the US midterm elections

Mark Udall: The Democrat Senator with a fight on his hands

The Senator for Colorado is for gay rights, for abortion rights – and in the Republicans’ sights as they threaten to take control of the Senate next month
New discoveries show more contact between far-flung prehistoric humans than had been thought

New discoveries show more contact between far-flung prehistoric humans than had been thought

Evidence found of contact between Easter Islanders and South America
Cerys Matthews reveals how her uncle taped 150 interviews for a biography of Dylan Thomas

Cerys Matthews on Dylan Thomas

The singer reveals how her uncle taped 150 interviews for a biography of the famous Welsh poet
DIY is not fun and we've finally realised this as a nation

Homebase closures: 'DIY is not fun'

Homebase has announced the closure of one in four of its stores. Nick Harding, who never did know his awl from his elbow, is glad to see the back of DIY
The Battle of the Five Armies: Air New Zealand releases new Hobbit-inspired in-flight video

Air New Zealand's wizard in-flight video

The airline has released a new Hobbit-inspired clip dubbed "The most epic safety video ever made"
Pumpkin spice is the flavour of the month - but can you stomach the sweetness?

Pumpkin spice is the flavour of the month

The combination of cinnamon, clove, nutmeg (and no actual pumpkin), now flavours everything from lattes to cream cheese in the US
11 best sonic skincare brushes

11 best sonic skincare brushes

Forget the flannel - take skincare to the next level by using your favourite cleanser with a sonic facial brush
Paul Scholes column: I'm not worried about Manchester United's defence - Chelsea test can be the making of Phil Jones and Marcos Rojo

Paul Scholes column

I'm not worried about Manchester United's defence - Chelsea test can be the making of Jones and Rojo
Frank Warren: Boxing has its problems but in all my time I've never seen a crooked fight

Frank Warren: Boxing has its problems but in all my time I've never seen a crooked fight

While other sports are stalked by corruption, we are an easy target for the critics
Jamie Roberts exclusive interview: 'I'm a man of my word – I'll stay in Paris'

Jamie Roberts: 'I'm a man of my word – I'll stay in Paris'

Wales centre says he’s not coming home but is looking to establish himself at Racing Métro
How could three tourists have been battered within an inch of their lives by a burglar in a plush London hotel?

A crime that reveals London's dark heart

How could three tourists have been battered within an inch of their lives by a burglar in a plush London hotel?