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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> H v Tomlinson [2008] EWCA Civ 1258 (13 November 2008) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2008/1258.html Cite as: [2009] ELR 14, [2008] EWCA Civ 1258 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR RECORDER MOLONEY QC
6BQ02399
Strand, London, WC2A 2LL |
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B e f o r e :
THE RT HON LORD JUTICE SEDLEY
and
THE RT HON LORD JUSTICE LONGMORE
____________________
H |
Appellant |
|
- and - |
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Tomlinson |
Respondent |
____________________
Mrs H appeared in person
Hearing date: 24th June 2008
____________________
Crown Copyright ©
Lord Justice Ward:
The issue
The facts
"10 am B was slapping U who is a disabled Year 8 boy with a walking frame (referred to as "happy slapping"). He then hit Mr B a learning support tutor hard on the back of the head.
10.45 am B punched and kicked U several times and damaged his laptop.
11.10 am B jumped in the lift with U. B kicked and punched U several times in the lift. U had physically been hurt, was marked and seemed very distressed. I then phoned Mrs H and asked her to come in to calm B down. We often used this strategy and at this stage B was not following commands or instructions. Mrs H could not get to school immediately because she was working but came as soon as possible.
11.30 am B stole a pencil case and damaged what was in it and the case itself. In Mrs M's (learning support tutor's) statement B had told her to "piss off" and she saw B trying to trip up Mr F (Year 8 teacher).
12.14 pm B tripped up Mr F who is a maths teacher.
12.35 pm B was swearing in front of Mr B.
12.55 pm B threw a punch at Mr B which he avoided and it was reported that he had shouted at Mrs W at lunchtime using an aggressive tone. All morning B had not followed any instructions from any teacher. If Mrs H had not arrived I was going to call the police."
"The staff at the Campus came to the conclusion that B was mentally unstable and with his violent behaviour he was a real danger to everybody at school. We also know on several occasions he has shown very violent behaviour towards his mother."
Then followed the words which found the libel claim:
"On one occasion we know for sure that the police had to arrest B at his father's house for violent and dangerous behaviour."
The claim
11. The particulars of claim are home-made and plead in paragraph 2 that:
"Mr Tomlinson in his capacity as headmaster of [the school] excluded B."
The allegations upon which the claim depended were these:
"6. At the Independent Appeal Hearing Mr Tomlinson read a statement that he said he had presented to the board of governors. Included in this statement was a paragraph, which did not appear in his previous statements: "On one occasion we know for sure that the police had to arrest B at his father's house for violent and dangerous behaviour." …
8. At the Appeal Hearing Mr Tomlinson when asked for details of the alleged incident, time, date, the name of the person who told him, replied that "Two very reliable parents had seen him being led away in handcuffs". …"
"9. The report and/or the words complained of are true in substance and in fact in so far as they bore or are understood to bear the meaning that:
the claimant has behaved in a violent and dangerous manner."
He relied on all the allegations which I have summarised above.
"The defendant had no right to use information that had nothing to do with the claimant's school life, and which was irrelevant to his exclusion and which was untrue and unrelated to his private home life."
Particulars of the breaches of the Human Rights Act
were given. It was alleged that the appeal tribunal, the school and the board of governors of the school were public authorities but of the defendant it was simply said that he carried out functions of a public nature and was being indemnified by the board of governors. The gist of the claim was pleaded in these terms:
"The alleged incident was outside the school grounds. The defendant is claiming that this alleged incident took place at the home of one of the parents of the claimant but the claimant was already subject to permanent exclusion. This was all in the private family life of the claimant. The claimant is entitled to his privacy and at the time of the alleged incident he would have been classified as a minor and therefore his name would have had to be excluded from any reports. This did not belong in the public domain and was information totally irrelevant to the claimant's permanent exclusion, and furthermore, there were never any arrests made."
The judgment
"precisely because it is novel and difficult and raises complicated considerations, it would be equitable in all the circumstances for me to permit that claim to be continued."
He gave leave to amend accordingly.
Discussion
As to misuse of private information
"Mrs H did not deny that these acts had taken place and on this basis the Panel found, on the balance of probabilities, that the acts had taken place."
One notes that among the matters referred to the panel was the fact that "on several occasions he has shown very violent behaviour towards his mother." Could he, therefore, fairly and reasonably expect that his being arrested at his father's home (the parents being separated) for violent and dangerous behaviour and being led away in handcuffs was information which should not be made public to a statutory panel set up to consider whether his behaviour justified suspension? The answer must be no.
"For public policy reasons, there would be powerful arguments against concealing, with the assistance of the court, information about one's criminal activities. … [It] would be hard to justify the concealment of information about (say) domestic violence or tax evasion simply because it has taken place behind closed doors. It could hardly be categorised as information in respect of which there would be a reasonable expectation of confidentiality."
"Iniquity is nowadays regarded as no more than one aspect of a broader defence of public interest or just cause,"
but we do not need to contribute to this interesting debate.
As for damage to the claimant's reputation
"However, it is possible, in an appropriate case, that a court might, in a claim under s.7 of the HRA, be willing to investigate the truth or falsity of words complained of, and to grant some declaration, even if the claim is clearly one to which a defence of privilege would be available, if brought in libel."
That, doubtless, was the inspiration for the amendment which was sought here. But is this an appropriate case for amendment?
Conclusion