England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		8 September 2017

Mr Justice Lavender:

1. On Wednesday 6 September 2017 I heard an application by the Claimant, the London Borough of Croydon, for the continuation of an injunction. I held the hearing in private. I made the injunction, but said that I would give my reasons in public. I now do so.
2. The Claimant's schools include Red Gates School, Farnborough Avenue, South Croydon CR2 8HD ("the School"). The First Defendant, Mia Dodsworth, was the headmistress of the School from 1 September 2016. She gave notice of resignation on 28 April 2017. She left the School premises on 30 June 2017. She was on "garden leave" until her employment ceased on 31 August 2017. The Second Defendant, Devika Pauline Lambert, is an educational advocate and provides consultancy services. The Third Defendant, Changing Lives Now Limited, is a company owned and controlled by the Second Defendant.
3. The First and Second Defendants had, and have, some concerns about aspects of the treatment of children at the School, relating to what are known as safeguarding issues. It is not relevant for me to go into detail or to express any opinion about the merits or otherwise of those concerns. The First and Second Defendants have spoken to the Claimant about their concerns. The Second Defendant, at least, was not satisfied with the responses received. Again, I express no opinion about the merits of that issue. The Claimant's position is that advice and additional support were provided to the School, that external safeguarding audits were conducted which did not make negative findings and that a further global review of safeguarding issues is currently under way.
4. I mention these issues because they form the context for the actions complained of by the Claimant. In July/August 2017, the First Defendant accessed her work email account, forwarded various emails to her personal email address, and then forwarded them again to the Second Defendant. By this means, and perhaps others, the First Defendant provided a number of documents to the Second Defendant. These documents contained confidential information about children and staff at the School.
5. This came to light at a meeting on 18 August 2017 attended by the Second Defendant and representatives of the Claimant, as well as others. On 21 August 2017 the Second Defendant spoke to the police about her concerns and also sent a copy of what she described as "all the evidence" to Ofsted. In addition, in emails dated 21 and 23 August 2017 the Second Defendant stated her intention to issue a press release. On 24 August 2017 the Second Defendant spoke to a journalist at a local newspaper, the Croydon Guardian. She has stated in general terms that she only provided background information and not confidential information, but she has not identified the information which she provided. However, when asked by the Claimant on 25 August 2017, she did not provide an undertaking that she would not disclose confidential information.
6. In the light of the First Defendant's conduct and the Second Defendant's stated intention to take matters to the press, the Claimant made an urgent application for an injunction, without notice to the Defendants. O'Farrell J heard the application and granted the injunction in a hearing in private on 30 August 2017. O'Farrell J made an order which, inter alia, prohibited the Defendants until 6 September 2017 from using, publishing or communicating or disclosing to any other person the information described therein as "the Confidential Information".
7. I was asked to make an order in the same terms. As I have said, I decided that it was necessary for the hearing to take place in private, pursuant to CPR 39.2(3)(a), (c), (d) and (g), given the nature of the information to which reference would have to be made.
8. The First Defendant did not attend the hearing before me. She indicated through her solicitors that she agreed to the order sought by the Claimant. The Second Defendant stated in an email that she "did not have an issue with the injunction", but she attended the hearing and produced a written submission in which she drew attention to: (i) the Freedom of Information Act 2000; (ii) section 175 of the Education Act 2002; (iii) sections 43C and 43G of the Public Interest Disclosure Act 1998; (iv) articles 5 and 7 of the European Convention on Human Rights; (v) articles 2, 3, 6, 12, 19 and 28 of the United Nations Convention on the Rights of the Child. Her oral submissions primarily addressed the merits of her concerns about safeguarding issues, but she accepted that it was not open to her disclose the Confidential Information.
9. In addition, my attention was drawn to a letter dated 4 September 2017 from Newsquest Media Group, the proprietor of the Croydon Guardian, which referred to section 12 of the Human Rights Act 1998 and to the public interest in the question whether the School was being properly run.
10. Section 12 of the Human Rights Act 1998 provides as follows:

"(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(2)…

(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

(a) the extent to which—

(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published;

(b) any relevant privacy code."

11. In terms of section 12(3), I am satisfied that the Claimant is likely to establish that publication of the Confidential Information by these Defendants should not be allowed, because:

(1) The information has the necessary quality of confidence. It includes, for example, photographs of children.

(2) The information was imparted in circumstances importing an obligation of confidence to the Claimant. The First Defendant owed such a duty to her employer, as the Second and Third Defendants were doubtless aware.

(3) Unauthorised use or disclosure of the information was threatened. The Second Defendant had obtained signed consent forms from some parents, but these did not extend to making the information about their children public. The provisions relied on by the Second Defendant in her written submissions would not authorise such disclosure.

12. As for section 12(4), I have had particular regard to the importance of the right to freedom of expression under the European Convention of Human Rights. It was not claimed, and it does not appear, that the Confidential Information was "journalistic material", but, in any event: (i) the confidential information has not and is not about to become available to the public; (ii) it would not be in the public interest for the Confidential Information to be published by these Defendants; and (iii) no relevant privacy code was identified.
13. As with any school, there is a public interest in seeing that the School is properly run and that the Claimant is properly carrying out its responsibilities in this regard. In the present case, this may lead those who are entitled to do so (e.g. parents of children at the school) to disclose some information either to the appropriate authorities or more widely. That is a matter for them.
14. It is possible that future legitimate disclosure of this nature may include information which my order prevents these Defendants from disclosing. That is provided for by an exception in my order, which states that it does not prevent the Defendants from publishing, communicating or disclosing such of the Confidential Information as comes into the public domain. In addition, in case any uncertainties or difficulties arise, it is open to the parties to apply to the Court for the variation or discharge of my order.