England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
(MR JUSTICE POPPLEWELL)

		Royal Courts of Justice Strand London WC2
		24 February 1998

LORD WOOLF, MR:

Introduction

This is the judgment of the court. The appeal is from a decision of Popplewell J. of 3 October 1997. Popplewell J. decided a preliminary issue in favour of the plaintiff. On the hearing of the issue Popplewell J directed that the plaintiff should be described as "S" and we direct that he should continue to be described in this way.

Since 1993, "S" has been employed by the London Borough of Newham ("the Authority") as a social worker. Until October 1995 he was working with a team assigned to deal 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 enquiries resulted in a decision which was critical of "S". He has remained in the employment of the Authority, but performing duties which do not involve children.

In accordance with guidelines issued by the Department of Health ("The Department"), the Authority sent a letter dated 20 September 1996 to the Department. In these proceedings "S" seeks damages for defamation based on the contents of that letter. In answer to a plea of qualified privilege by the Authority, "S" alleges the Authority was guilty of malice. In addition to relying upon qualified privilege the Authority relies on justification. The Authority also contends that the publication is an occasion of absolute privilege. In other words that in relation to the publication of the letter the Authority is entitled to immunity from suit. It is in connection with this last defence that the preliminary issue was ordered.

The terms of the preliminary issue are as follows:

"Whether the plaintiff's claim in respect of the publication complained of is contrary to the public interest such that it is a claim precluded at law and from which the defendant is immune from suit as pleaded in paragraph 10 of the Defence".

At the heart of this issue is a conflict between the right of an individual to bring an action for damages for defamation and the public interest in protecting children from conduct which could adversely affect their well-being or put them at risk.

Statutory Framework

For the purposes of the determination of the preliminary issue, the facts set out in paragraph 10 of the defence are deemed to be admitted. These facts include an account of the Authority's responsibility to provide information to the Consultancy Service of the Department ("the Service") and the importance and purpose of the Index which the Service maintains. This also appears in circular No. LAC (93) 17 which has an annex which relates to the Service.

The annex states that the Service operates on an advisory basis. It enables local authorities, private and voluntary organisations to check the suitability of those they propose to employ in a child-care posts. It keeps a record of convictions of those engaged in child-care work and those who have been dismissed. This assists prospective employers to check the records of those seeking this type of work with the object of making sure that, as far as possible, unsuitable people are not appointed to positions involving contact with children or given responsibility for them.

Paragraph 4 of the circular points out that the effectiveness of the Service depends upon local authorities and private/voluntary organisations submitting information to the Service where the welfare of children has been put at risk. The circular notes that Regulation 19(2)(b) of The Children's Homes Regulations 1992 already requires local authorities to notify conduct on the part of any member of staff of a community home which makes them unsuitable to be employed in work involving children. The circular recognises that ultimately, whether or not it is appropriate to notify is a matter for the judgment of the employing authorities or organisations. The general test which it is suggested is adopted is whether "the relevant organisation would refuse to re-engage the individual to work with children". If so the information should be referred to the Service so that it can be considered for inclusion.

Paragraph 7 of the annex identifies what information should be included when notifying the Service. If a person's details are inserted on the Index he is informed of this and given an opportunity to challenge the accuracy of the information and to make representations why his name should not be included. However, where there is disagreement about the accuracy of the information the person will be invited to pursue this with the provider of the information in the first instance. In this case "S" pursued an internal right of appeal but the appeal was dismissed. In this situation the Service in practice acts on the decision of the authority or other organisation providing this information.

The employer giving information to the Service is required to include a statement that the employer is content for reference to be made by the Service to the information provided in any correspondence they have with the person concerned; and that the employer is prepared to include information about the circumstances in which that person left their employment in any references provided by the employer to prospective employers.

Annex C ends with a summary which is in these terms:

"In order for the Consultancy Service to provide an effective service in helping to reduce the risk of children being harmed by preventing past abusers being engaged to work with them, it is vitally important that all employers make full use of its services. This applies equally to keeping the Service informed of cases of staff harming children when they arise, as to ensuring applications for checks against its records are made before any person is engaged to work with children."

Section 17 Children Act 1989 imposes a general duty on the Authority to safeguard children within its area. Section 17 provides:

"(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) -

(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) so far as it consistent with that duty, to promote the upbringing of such children by their families .....

(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2".

By section 4 of Schedule 2:

"Every local authority shall take reasonable steps, through the provision of services under Part III of this Act, to prevent children within their area suffering ill-treatment or neglect".

A more specific duty, requiring compliance with Departmental

Circulars, is imposed by:

By section 7 of the Local Authority Social Services Act 1970:

"Local authorities shall, in the exercise of their social services functions, including exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State."

The decision of the judge and the submission of counsel

Having examined the authorities in some detail, Popplewell J. points out that it is accepted that there is no previous case which is reported which allows a defendant to rely upon public interest immunity in the circumstances of this case. That being so the judge decided that the immunity is "not one which would be extended at the expense of a private individual unless there really is an overwhelming argument in its favour". The judge did not believe that such an overwhelming argument existed. He did not consider that the Authority were likely to be deterred from notifying the Society simply because of the fear of libel proceedings. He considered that such fears have "in a great number of cases .... been shown to be grossly exaggerated". (Judgment p.19A) The judge was also of the opinion that the notifying authority is sufficiently protected against proceedings for defamation by the defences of justification and qualified privilege (Judgment p.19F).

Mr Shaw QC who appeared on behalf of the Authority challenges the approach of the judge. Qualified privilege would be of no value if the Authority were sued for negligence; in an action based on Spring v Guardian Assurance PLC [1995] 2 AC 296. He stresses the undoubted importance of the interest of the children which the Authority was trying to protect. He submits that the judge had not made sufficient allowance for the limits on the human and financial resources of local authorities. He contends that while there is a public interest in permitting a person who perceives himself to have been wronged by a communication to obtain redress at law, here the subject of the notification to the Service has a number of safeguards. Such a person is able to challenge the initial decision of the Authority. He can exercise an internal right of appeal. If he is dismissed he can bring an action for wrongful dismissal and judicial review is always available. Although accepting that there is no previous decision directly dealing with this issue, it is his submission that what is required is the balancing of the public interests involved and, when this is done, the public interest in protecting children is so great that it far outweighs the interests of the person who has been the subject of the reference to the Service.

Mr Thrower on behalf of "S" contends that with the exception of one case, Hasselblad (GB) Ltd v Orbinson [1985] QB 475; previous decisions do not provide any support for the contentions of the Authority. As far as Hasselblad is concerned, this had been correctly distinguished by the judge. He argues that it is a fundamental principle, which public policy has always recognised, that the law should provide a remedy to a person whose good name and reputation is traduced by malicious falsehood uttered by another. Persons who seek to exercise such a remedy already lack legal aid and are subject to a short limitation period. They are also subject to the defences of justification and qualified privilege and no further limitations should be imposed except by Parliament. Here he relies particularly upon the very recent decision of this court of Waple v Surrey County Council, (17 December 1997) unreported in which Lord Justice Brooke stated (at page 10):

"If Parliament had wished to extend absolute privilege to communications by council officers acting in Children Act matters it would have been able to do so during the passage of the Bill. It appears to me that the balancing of the need to protect people's reputations from being harmed by malicious communications is very much a matter for Parliament and not for the court."

He submits that in reality no prospective informant about child abuse is likely to be deterred because of a lack of total immunity. It cannot be in the interests of the public that an authority should be able to make malicious defamatory statements free from all threat of a suit in defamation. He further submits that it cannot be helpful to deter the recruitment of able staff by making them vulnerable to be placed on a black list for improper and malicious reasons without a full opportunity to clear their names.

Mr Thrower also relied on the case of Daniels v Griffiths (27 November 1997) unreported (of which we were provided with a draft transcript). In that case Sir Brian Neill, in a judgment with which the other members of the court agreed, decided that there was no absolute privilege or immunity from suit in respect of communications to the Parole Board. The court decided this in the context of an application to strike out the plaintiff's claim for damages for slander in respect of a publication by the defendant to police officers. An application to strike out is not the most appropriate vehicle for testing questions of this sort. It is preferable for them to be dealt with as a preliminary issue, as here, since as Sir Brian Neill stated, an action can only be struck out "if it can be demonstrated conclusively that it is bound to fail" and the power to strike out "should be exercised with the greatest care".

It appears from the judgment of Sir Brian Neill that the application to strike out was based primarily upon the recent case of Taylor v The Director of The Serious Fraud Office (22 July 1997) CA Transcript 97/1327. In Taylor, Lord Justice Kennedy stated that the immunity which was available in relation to what is being said or done in preparing the evidence for a trial "applied to prevent any form of parasitic litigation (other than an action like malicious prosecution which relates directly to criminal proceedings) where the statement or conduct relied upon is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution". In Daniels, counsel submitted that there was no satisfactory reason for drawing a boundary between sentencing functions of the criminal court and the role of the Parole Board. Both were engaged in the same sentencing process. Under modern practice, in a criminal court if a victim's statement is obtained for the purpose of sentence such a statement would clearly be immune from process. Similarly, a later statement made by a victim prepared for the consideration by a parole board should also be immune.

In relation to this argument Sir Brian Neill said:

"At first sight there is some attraction in the proposition that confidential communications to the Parole Board should be protected by absolute privilege. I have come to the firm conclusion, however, that to extend the immunity which attach to court proceedings communications to the parole board would be unwarranted."

Sir Brian Neill then went on to explain why. The fact that this court in that case was focusing on the immunity which attaches to court proceedings does not mean as Mr Thrower contends that in practice this is the only immunity which could be relevant in the situation which is being considered here. Inevitably, issues as to immunity which have come before the courts will have arisen in relation to protecting the processes of justice. But, while preventing contamination of the court process is a public interest of importance, it is not of unique importance. The purpose of the Index is to avoid children being the subject of conduct which could well be criminal. It is not intended that the Index should assist in achieving the prosecution of those guilty of such conduct. However, the prevention of crime cannot be given a lower status in the tariff of public interests than the prosecution of crime. The court of appeal in Daniels v Griffiths should not be regarded as suggesting otherwise. The processes of the court are but one of the situations which can attract immunity.

Resolving the Issue

This being the case where, as the parties accept, there is no previous authority which directly deals with this situation, we are of the opinion that it is most helpful to consider the issues by asking the following questions:

a. What is the nature and importance of the interest which the Authority is seeking to protect? (The Nature and Significance of the Interests.)

b. Whether the scale and risk of damage to that interest is sufficiently serious to create a pressing need to protect that interest? (The Degree of Risk).

c. What is the breadth of the immunity which will have to be granted in order to provide protection for that interest? (The Breadth of the Immunity)

d. As a matter of principle would it be appropriate to extend to this situation the immunity from suit which has been applied in other situations? (The Point of Principle).

d. Is the risk to the public interest which the Authority is seeking to protect so great that it should over-ride the public interest that a person should be entitled to have access to the courts to seek a remedy for a wrong which he alleges he has suffered? (The Balance Between The Competing Public Interests).

(a) The Nature and Importance of the Interests

The importance of safeguarding children from harm of the type against which the Index is designed to give protection cannot be exaggerated. It was the importance of this interest which caused the House of Lords in D v NSPCC [1978] AC 171 to extend to a private body privilege from having to disclose in civil proceedings the identify of those who gave them information. This is a privilege which had previously been available to police informers. While the proper functioning of the Index kept by the Service might be damaged, if immunity from suit was not available, as annex C makes clear the whole purpose of having the Index is to reduce the risk of children being harmed. We find no difficulty in accepting that there is here in play a public interest which can qualify for protection if this is necessary and appropriate.

b. The Degree of Risk

We recognise that there may be a few timid spirits who will be deterred from doing their duty if it is not clear that they cannot be sued for defamation. However, we find it difficult to accept that a local authority under the statutory duties to which the Authority is subject would be deterred from providing the appropriate information to the Service by the threat of litigation. We say this despite the straightened circumstances of local authorities.

We recognise that the position may not be so clear in the case of some voluntary organisations who have the same responsibility as the Authority, but who are not under corresponding statutory duties. However those supplying the information to the Service will be bodies who are responsible for caring for children, and we would expect them to recognise fully the importance of their fulfilling their responsibility. It is important to recognise that this is not a case where the informants, upon which the proper working of the Index depend, will be private individuals. A private individual is clearly more susceptible to being deterred from giving information than the type of bodies which will report to the service. None the less too much weight should not be attached to this point. Bodies which make reports can in turn be dependent on third parties to provide the information which is needed before they can initiate an enquiry.

In fact, although as this case illustrates there will be employees, who if they are identified, will seek to bring defamation proceedings, the occasions on which they will have any prospect of success must be rare. There is no dispute that qualified privilege would be available in any event and so in order to succeed malice would have to be established on the part of the body responsible for the publication. Situations where the necessary malice can be established are likely to be rare.

Mr Shaw recognised the force of this, but contends that the Authority is not concerned so much with the risk of an action succeeding, but with the expense and hassle which it will be caused by an action even when the action is unsuccessful. Today this danger can and should be substantially reduced by court management of litigation. Where it appears doubtful that a plaintiff is going to be able to satisfy the onus which is upon him to prove malice, the court, mindful of the position of the defendant, should be prepared to require the plaintiff to deliver witness statements at an early stage of the proceedings so that the court can form an assessment as to whether the plaintiff has any prospect of successfully establishing malice. If the court is satisfied that the plaintiff has no prospect of success and is also satisfied there is no other reason why the action should be allowed to proceed then the action should be dismissed. (See the judgment of Sir Brian Neill in Daniels v Griffiths 27 November 1997 (unreported), transcript page 12). Where the position is clear, the court can be expected to be robust. After all the courts regularly give judgment under O.14 for the plaintiff where there is no defence and they should, especially in a case of this nature, be equally ready to give judgment for the defendant if the plaintiff has no prospect of success.

When considering whether an action should be dismissed, it is important that the court bears in mind that it is malice on the part of the publisher of the report to the Service which must be established in order to defeat the publisher's qualified privilege. Malice on the part of the informant, from whom the publisher has received the complaint which has led it to take action, is likely to be irrelevant.

It is of course possible that a plaintiff might seek to bring an action for negligence based on the decision of the House of Lords in Spring v Guardian Assurance Plc [1995] 2 AC 296. We were not addressed as to whether that case should be applied to the situation which arises on this appeal. However assuming, without deciding, that an action for negligence would be possible, the situations where an action for negligence would lie would again be rare. If an action was brought alleging negligence, which appeared to have no foundation in fact, the same course could be taken as has been suggested should be employed in the case of actions for defamation.

In our judgment the risk to the public interest in having an effective Index damaged if actions for defamation or negligence can be brought against those who supply information to the Service is fairly remote.

(c) The Breadth of the Immunity

If immunity of suit is to be extended to this situation, then to provide effective protection it would also have to extend to the information provided to the Authority which was the cause of the initial investigation by the Authority. It would also be necessary to protect the reference which the Authority would be required to provide to those who sought information as a result of the entry on the Index. If it is an appropriate case to provide protection, then the protection must be provided so as to protect the authority's "flanks". (See Evans v London Hospital Medical College [1981] 1 WLR 184 and X v Bedfordshire CC [1995] 2 AC 755). However the fact that the scope of protection will need to be enlarged in this way, is relevant in deciding whether protection should be extended. The wider the protection required the greater should be the caution before granting immunity from suit.

(d) The Point of Principle

Mr Thrower argued forcefully that it would be inappropriate to extend to the situation which this appeal raises the protection which has been recognised to be available in very different situations. He points out that LAC (93) 17 primarily covers the arrangements for checking with local police forces the background of those who apply to work with children. In the case of police the circular itself recognises that the police are entitled to require an indemnity before providing information. He submits that if it had been considered necessary a similar provision would have been made for immunity to be given where the Authority is required to provide information. He also calls attention to the important comment of Brooke LJ, with which the other members of the court agreed in the case of Waple, to which we have already referred. However not withstanding these powerful submissions, if this was a case which it was otherwise appropriate to extend protection, in our judgment it would be in accord with principle to do so.

We have already drawn attention to the fact the in D v NSPCC the House of Lords extended protection to a new situation without waiting for Parliament to act. Here, the approach should be not to grant a blanket immunity but to provide immunity on a case by case basis when a clear need is established. There are considerable advantages in the courts determining whether to provide protection in light of the specific circumstances of individual cases as and when they come before the court. This is what has happened hitherto. An example of this is provided by R v The Lewes Justices ex parte The Home Office [1973] AC 388. The same is true of Hasselblad which Mr Thrower vigorously seeks to distinguish from the present case. The law in this area has been under a constant state of development. The development need not necessarily be in one direction. Mr Shaw relied on 19th Century decisions to show that there is nothing novel in the plaintiff's claim for immunity here. In particular he relied upon the case of Dawkins v Lord Paulet [1869] LR 5 QB 94. But it is by no means clear that today a communication by a Major General to the Adjutant General about a fellow officer would attract immunity.

While the most common situations in which immunity has been extended by the courts are those where the immunity has been provided to protect the due administration of justice, immunity is not confined to that situation. In Hasselblad it was decided that immunity from action could extend to the European Commission acting in its investigatory role into possible infringements of European Union Law. Brooke LJ in Waple regarded the Hasselblad case as "a very special decision reached on its very special facts" and noted that May LJ dissented. He also recognised that the decision of the majority is binding on this court. What is important about the Hasselblad decision is that, as Brooke LJ pointed out, on special facts, the then Master of the Rolls extended the immunity against proceedings to a different situation from which it had been applied before and did so by balancing the public interests involved. Mr Hasselblad's potential cause of action based on libel was against the public interest because of the importance of "ensuring that the European Commission, as a primary authority of the Community shall not be frustrated in the duty imposed upon it by the EEC Treaty ...". Sir John Donaldson, MR pointed out that the:

"balancing operation is very similar to that which was performed by the House of Lords in R v The Lewes Justices, ex parte Secretary of State for the Home Department [1973] AC 388" (p.500 B/E).

In that case, as is argued in this case by Mr Thrower, it was suggested that immunity should be a matter for the legislature rather than the courts. However, as the then Master of the Rolls pointed out, "the same retort could have been made in the Lewes Justices case (P03 G)". Sir John Donaldson MR correctly recognised that the Lewes Justices case was a firm foundation upon which to build. While as in the NSPCC case, the question in the Lewes Justices case was one of disclosure, when the public interest privilege against disclosure was upheld, the result was very much the same as that which would be produced a successful claim for immunity from suit; in reality no action could succeed.

In the Lewes Justices case the House of Lords recognised the public interest in the proper functioning of the Gaming Board to prevent gaming establishments passing into the hands of undesirable people. In the NSPCC case, the House of Lords recognised the public interest in the Society being able effectively to protect children. In this case we acknowledge that there is a similar public interest which, if it is necessary and appropriate to do so, can be protected so that the Index will be available to provide information for safeguarding the welfare of children. However in determining whether it is necessary and appropriate to extend immunity from suit to the Authority the advantage of protecting the integrity of the Index has to be weighed against the disadvantage this would cause to "S".

(e) The Balance Between the Public Interests

There is a substantial public interest in "S" being able to vindicate his reputation. In R v Lord Chancellor, ex parte Witham [1997] 2 AER 779 at p.787, a citizen's access to the court was described as a common law constitutional right which could only be abrogated by specific statutory provision. That case was dealing with a very different issue from that under consideration here, but the judgment and the cases cited by Laws J. make self evident the importance of the public interest of "S" which the Authority is seeking to abrogate.

It is obvious that having his or her name placed upon the Index has serious repercussions for the individual concerned. If the individual's conduct justifies this being done, then the existence of the Index means that his interests must give way to those of the children the Index is designed to protect. For the purposes of the present appeal we have to assume that "S"'s contentions are correct, and the allegations which are made against him are not only untrue but were made maliciously as well. If this be the position, then justice requires that "S" should be able to establish his innocence. The practical consequence to "S" of his name being on the Index is that he will not be able to work in his chosen occupation. The internal appeal provided by the authority could have achieved his objective of establishing his innocence but this did not happen. As "S" has remained employed by the authority, he cannot achieve his aim by bringing an action for unfair dismissal, but even if he could, if the authority were entitled to immunity from proceedings for libel, it is arguable that the position should be the same in relation to an action for unfair dismissal.

The situation is, therefore, one in which the effect of granting an immunity from suit to the Authority will be a substantial infringement of the public interest in "S" having access to the courts. This infringement is, in our judgment greater than is justified by what we regard as the insignificant risk of the effectiveness of the Index being impaired by an action for defamation.

It follows, therefor that the Authority has not established that it is necessary to protect the Index by providing immunity from suit. Accordingly we dismiss this appeal and uphold judgment of Popplewell J.

Order: Appeal dismissed with costs to be taxed and paid forthwith.