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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> W v Westminster City Council & Ors  EWHC 2866 (QB) (09 December 2004)
Cite as:  EWHC 2866 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|Westminster City Council
Mr. Edward Faulks QC and Mr. Julian Waters (instructed by Barlow Lyde & Gilbert) for the Defendants
Hearing dates: 29TH November 2004 – 1st December
3rd December 2004
Crown Copyright ©
Mr Justice Tugendhat :
S is an 11 year-old young girl…
Due to the fact that S never discusses her difficulties with anyone and keeps all her feelings inside she is vulnerable and at risk… This especially includes risks like drug abuse, prostitution and teenage pregnancy…
Concerns increase if it's considered that there have been numerous reports of S's high level of sexual awareness…
S is also extremely protective of her mother and distrusts any professional related to social services. There is no particularly strong bond between S and [the Claimant] and it is reported that she dislikes him making visits to her school. It has been reported to Social Services that at one stage [the Claimant] regularly took S out for dinner at very expensive restaurants, as well as buying her loads of gifts. During the Core Assessment that was done last year professionals raised the concern that [the Claimant] might be grooming S for prostitution. S has very little contact with her biological father.'
"(1) admitted that there was 'no evidence' to support any ostensible concern that the Claimant 'might be grooming S for sexual abuse';
(2) conceded that 'no reference to this issue should have been included' in the Report.
Yet despite these admissions, Mr Thomas conspicuously failed to provide any explanation of why Ms Marks had nonetheless seen fit to include the defamatory allegations complained of in the Report. The Claimant has yet to receive any such explanation from Westminster or Ms Marks herself".
"3a The words complained of were written on an occasion of absolute privilege
The words were published in a report by Miss Marks and Mr Thomas, who were social workers employed by the First Defendant with responsibility for the B family, for the purposes of a Child Protection Case Conference in relation to S".
THE STATUTORY FRAMEWORK
i) The Children Act 1989 provides:
"17 Provision of services for children in need, their families and others
(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 is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children's needs. ….
(10) … a child shall be taken to be in need if—
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; ...
and "family", in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.
47 Local authority's duty to investigate
(1) Where a local authority—
(b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,
the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare".
ii) The Local Authority Social Services Act 1970 provides:
"7 Local authorities to exercise social services functions under guidance of Secretary of State
(1) Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State. "
"Working Together to Safeguard Children – A guide to inter-agency working to safeguard and promote the welfare of children (1999)"
"Framework for the Assessment of Children in Need and their Families (2000)"
"'The Child Protection Conference is an essential stage in each individual case. It brings together the professionals involved in that case and the family. It decides whether a child should be put on the child protection register and makes recommendations for action."
"First, in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk. As a result of the ministerial directions contained in "Working Together" the protection of such children is not the exclusive territory of the local authority's social services. The system is inter-disciplinary, involving the participation of the police, educational bodies, doctors and others. At all stages the system involves joint discussions, joint recommendations and joint decisions. The key organisation is the Child Protection Conference, a multi-disciplinary body which decides whether to place the child on the Child Protection Register. This procedure by way of joint action takes place, not merely because it is good practice, but because it is required by guidance having statutory force binding on the local authority. The guidance is extremely detailed and extensive: the current edition of "Working Together" runs to 126 pages. To introduce into such a system a common law duty of care enforceable against only one of the participant bodies would be manifestly unfair. To impose such liability on all the participant bodies would lead to almost impossible problems of disentangling as between the respective bodies the liability, both primary and by way of contribution, of each for reaching a decision found to be negligent.
Second, the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate. Legislation requires the local authority to have regard not only to the physical wellbeing of the child but also to the advantages of not disrupting the child's family environment: see, for example, section 17 of the Act of 1989. In one of the child abuse cases, the local authority is blamed for removing the child precipitately: in the other, for failing to remove the children from their mother. As the Report of the Inquiry into Child Abuse in Cleveland 1987 (Cm. 412) said, at p. 244:
"It is a delicate and difficult line to tread between taking action too soon and not taking it soon enough. Social services whilst putting the needs of the child first must respect the rights of the parents; they also must work if possible with the parents for the benefit of the children. These parents themselves are often in need of help. Inevitably a degree of conflict develops between those objectives."
Next, if a liability in damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties. For example, as the Cleveland Report makes clear, on occasions the speedy decision to remove the child is sometimes vital. If the authority is to be made liable in damages for a negligent decision to remove a child (such negligence lying in the failure properly first to investigate the allegations) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts. Not only would the child in fact being abused be prejudiced by such delay: the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children.
The relationship between the social worker and the child's parents is frequently one of conflict, the parent wishing to retain care of the child, the social worker having to consider whether to remove it. This is fertile ground in which to breed ill feeling and litigation, often hopeless, the cost of which both in terms of money and human resources will be diverted from the performance of the social service for which they were provided. The spectre of vexatious and costly litigation is often urged as a reason for not imposing a legal duty. But the circumstances surrounding cases of child abuse make the risk a very high one which cannot be ignored.
If there were no other remedy for maladministration of the statutory system for the protection of children, it would provide substantial argument for imposing a duty of care. But the statutory complaints procedures contained in section 76 of the Act of 1980 and the much fuller procedures now available under the Act of 1989 provide a means to have grievances investigated, though not to recover compensation. Further, it was submitted (and not controverted) that the local authorities Ombudsman would have power to investigate cases such as these....
In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrongdoings of others."
"5.6 If somebody believes that a child may be suffering, or may be at risk of suffering significant harm, then s/he should always refer his or her concerns to the local authority social services department. In addition to the social services department, the police and the NSPCC have powers to intervene in these circumstances. Sometimes concerns will arise within the social services department itself, as new information comes to light about a child and family with whom the service is already in contact. While professionals should seek, in general, to discuss any concerns with the family and, where possible, seek their agreement to making referrals to social services, this should only be done where such discussion and agreement-seeking will not place a child at increased risk of significant harm…
5.16 The focus of the initial assessment should be the welfare of the child. It is important to remember that even if the reason for a referral was a concern about abuse or neglect which is not subsequently substantiated, a family may still benefit from support and practical help to promote a child's health and development…..
The Initial Child Protection Conference
5.53 The initial child protection conference brings together family members, the child where appropriate, and those professionals most involved with the child and family, following s.47 enquiries. Its purpose is:
- to bring together and analyze in an inter-agency setting the information which has been obtained about the child's health, development and functioning, and the parents' or carers' capacity to ensure the child's safety and promote the child's health and development;
- to make judgments about the likelihood of a child suffering significant harm in future; and
- to decide what future action is needed to safeguard the child and promote his or her welfare, how that action will be taken forward, and with what intended outcomes….
5.61 Social services should provide to the conference a written report which summarises and analyses the information obtained in the course of the initial assessment and s.47 enquiries, guided by the framework set out in the Framework for the Assessment of Children in Need and their Families…. Parents and children, where relevant, should be provided with a copy of this report in advance of the conference which should also be explained and discussed in advance of the conference itself,.
5.63 All those providing information should take care to distinguish between fact, observation, allegation and opinion….
The Child Protection Review Conference
5.91 The purpose of the child protection review is to review the safety, health and development of the child against intended outcomes set out in the child protection plan; to ensure that the child continues adequately to be safeguarded; and to consider whether the child protection plan should continue in place or should be changed. The review requires as much preparation, commitment and management as the initial child protection conference. Every review should consider explicitly whether the child continues to be at risk of significant harm, and hence continues to need safeguarding through adherence to a formal child protection plan. If not, then the child's name may be removed from the child protection register….
7.27 Research and experience have shown repeatedly that keeping children safe from harm requires professionals and others to share information: about a child's health and development and exposure to possible harm; about a parent who may need help to, or may not be able to, care for a child adequately and safely; and about those who may pose a risk of harm to a child. Often, it is only when information from a number of sources has been shared and is then put together that it becomes clear that a child is at risk of or is suffering harm.
7.28 Those providing services to adults and children will be concerned about the need to balance their duties to protect children from harm and their general duty towards their patient or service user. Some professionals and staff face the added dimension of being involved in caring for, or supporting, more than one family member – the abused child, siblings, an alleged abuser. Where there are concerns that a child is, or may be at risk of significant harm, however, the needs of that child must come first. In these circumstances, the overriding objective must be to safeguard the child. In addition, there is a need for all agencies to hold information securely.
The Legal Framework
7.29 Professionals can only work together to safeguard children if there is an exchange of relevant information between them. This has been recognised in principle by the courts (see comments by Butler Sloss LJ in Re G (a minor)  2 All ER 65 at 68)6. Any disclosure of personal information to others must always, however, have regard to both common and statute law.
…. 6. "The Working Together booklet does not have any legal status, but with the lesson of Cleveland CC V F in mind, the emphasis upon co-operation, joint investigation and full consultation at all stages of any investigation are crucial to the success of the government guidelines...The consequences of inter-agency co-operation is that there has to be free exchange of information between social workers and police officers together engaged in an investigation..."
"1.58 Practice is expected to be evidence based, by which it is meant that practitioners:
- use knowledge critically from research and practice about the needs of children and families and the outcomes of services and interventions to inform their assessment and planning;
- record and update information systematically, distinguishing sources of information, for example direct observation, other agency records or interviews with family members;
- learn from the views of users of services i.e. children and families;
- evaluate continuously whether the intervention is effective in responding to the needs of an individual child and family and modifying their interventions accordingly;
- evaluate rigorously the information, processes and outcomes from the practitioner's own interventions to develop practice wisdom.
1.59 The combination of evidence based practice grounded in knowledge with finely balanced professional judgement is the foundation for effective practice with children and families…
3.11 A core assessment is defined as an in-depth assessment which addresses the central or most important aspects of the needs of a child and the capacity of his or her parents or caregivers to respond appropriately to these needs within the wider family and community context. While this assessment is led by social services, it will invariably involve other agencies or independent professionals, who will either provide information they hold about the child or parents, contribute specialist knowledge or advice to social services or undertake specialist assessments. Specific assessments of the child and/or family members may have already been undertaken prior to referral to the social services department. The findings from these should inform this assessment. At the conclusion of this phase of assessment, there should be an analysis of the findings which will provide an understanding of the child's circumstances and inform planning, case objectives and the nature of service provision. The timescale for completion of the core assessment is a maximum of 35 working days.
3.37 Gathering information requires careful planning. However difficult the circumstances, the purpose of assessing the particular child and the family should always be kept in mind and the impact of the process on the child and family considered. It has to be remembered that:
- the aim is to clarify and identity the needs of the child;
- the process of assessment should be helpful and as unintrusive to the child and family as possible;
- families do not want to be subjected to repeated assessments by different agencies;
- if, during the assessment, the child's safety is or becomes a concern, it must be secured before proceeding with the assessment".
"…the rule of law is one which involves the balancing of conflicting public policies, one general: that the law should provide a remedy to the citizen whose good name and reputation is traduced by malicious falsehoods uttered by another; the other particular: that witnesses before tribunals recognised by law should, in the words of the answer of the judges in Dawkins v Lord Rokeby ((1875) LR 7 HL 744 at 753, [1874–80] All ER Rep 994 at 995), 'give their testimony free from any fear of being harassed by an action of an allegation, whether true or false, that they acted from malice'"
i) to prevent the use of subsequent actions to initiate collateral attacks on decisions made in the proceedings in the course of which the words complained of were published, and in which the same issues would be tried over again, and
ii) because the trial process itself provides safeguards against such statements, including a judgment in which findings as to the truth can be made.
"The reasons why immunity is traditionally (and for this purpose I accept the tradition) conferred upon witnesses in respect of evidence given in court, are in order that they may give their evidence fearlessly and to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again. Moreover, the trial process contains in itself, in the subjection to cross-examination and confrontation with other evidence, some safeguard against careless, malicious or untruthful evidence."
"For the purposes of the law of defamation, any statement (whether written or oral) made by a Local Commissioner in Wales in connection with the exercise of his functions under this Part shall be absolutely privileged".
"There is no doubt that the claim for absolute immunity in respect of statements made by one investigator to another (as in the case of the letter from the S.F.O. to the Attorney-General of the Isle of Man) or by an investigator to a person helping with the inquiry (as in the statements of Ms McKenzie recorded in the file note) or to an investigator by a person helping the inquiry who is not intended to be called as a witness (as in the remarks of Mr. Rogerson included in the file note) is a novel one…
In Mann v. O'Neill, 71 A.L.J.R. 903, 907 the judgment of Brennan C.J., Dawson, Toohey and Gaudron JJ. describes the rationale as one of necessity:
"It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is 'viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated.' Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged."
Thus the test is a strict one; necessity must be shown, but the decision on whether immunity is necessary for the administration of justice must have regard to the cases in which immunity has been held necessary in the past, so as to form part of a coherent principle…
I therefore agree with the test proposed by Drake J. in Evans v. London Hospital Medical College (University of London)  1 W.L.R. 184, 192:
"the protection exists only where the statement or conduct 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 a possible prosecution in respect of the matter being investigated."
This formulation excludes statements which are wholly extraneous to the investigation - irrelevant and gratuitous libels - but applies equally to statements made by persons assisting the inquiry to investigators and by investigators to those persons or to each other."
"Contributions towards a child's maintenance may only be recovered if the local authority have served a notice ('a contribution notice') on the contributor . . ."
"In my judgment, it is not open to us, when taking account of this line of authority, to extend the scope of the absolute privilege granted to statements made in connection with judicial proceedings to the statement made in Mr. O'Brien's letter…. This is the kind of exchange in which solicitors acting for a public authority often involve themselves, and although in the ordinary way their letters would attract qualified privilege, I can see no warrant for extending the scope of absolute privilege to cover a communication of this type. It is not the type of communication embraced in Devlin L.J.'s third category in Lincoln v. Daniels  1 Q.B. 237. Nor does it have an immediate link with possible proceedings of the kind the courts were considering in Evans v. London Hospital Medical College (University of London)  1 W.L.R. 184. … 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 that Bill. It appears to me that the balancing of the need to protect people's reputations from being harmed by malicious communications and the need to protect council officers from the worry of any form of litigation is very much a matter for Parliament and not for the courts ".
"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."
"(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. .... 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 straitened circumstances of local authorities….
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….
(c) The breadth of the immunity
[after citing cases including X v Bedforshire CC  2 AC 633, the Court concluded that] … The wider the protection required the greater should be the caution before granting immunity from suit.
(d) The point of principle
… [Counsel] also calls attention to the important comment of Brooke L.J., with which the other members of the court agreed in the case of Waple, … However notwithstanding these powerful submissions, if this was a case in 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 that 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…
(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  2 All ER 779 at 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, therefore, that the Authority has not established that it is necessary to protect the Index by providing immunity from suit."
"First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justification for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied in each case. For convenience I will call this the ultimate balancing test. This is how I will approach the present case."
"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"
77. The Court concludes that the parliamentary immunity enjoyed by the MP in the present case pursued the legitimate aims of protecting free speech in Parliament and maintaining the separation of powers between the legislature and the judiciary.
78. The Court must next assess the proportionality of the immunity enjoyed by the MP. In this regard, the Court notes that the immunity concerned was absolute in nature and applied to both criminal and civil proceedings. The Court agrees with the applicant's submission that the broader an immunity, the more compelling must be its justification in order that it can be said to be compatible with the Convention. However, it reiterates its analysis in Fayed (cited above, pp. 53-54, § 77), as followed by the Commission in Young, to the effect that, when examining the proportionality of an immunity, its absolute nature cannot be decisive. Thus, for example, in Al-Adsani, cited above, the Court stated that measures taken by signatory States which reflected generally recognised rules of public international law on State immunity could not in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 § 1 (see also Fogarty v. the United Kingdom [GC], no. 37112/97, § 36, ECHR 2001-XI, and McElhinney v. Ireland [GC], no. 31253/96, § 37, ECHR 2001-XI)….
85 The absolute immunity enjoyed by MPs is moreover designed to protect the interests of Parliament as a whole as opposed to those of individual MPs. This is illustrated by the fact that the immunity does not apply outside Parliament. In contrast, the immunity which protects those engaged in the reporting of parliamentary proceedings, and that enjoyed by elected representatives in local government, are each qualified in nature.
86. The Court observes that victims of defamatory misstatement in Parliament are not entirely without means of redress….
88 The Court agrees with the applicant's submissions to the effect that the allegations made about her in the MP's speech were extremely serious and clearly unnecessary in the context of a debate about municipal housing policy. The MP's repeated reference to the applicant's name and address was particularly regrettable. The Court considers that the unfortunate consequences of the MP's comments for the lives of the applicant and her children were entirely foreseeable. However, these factors cannot alter the Court's conclusion as to the proportionality of the parliamentary immunity at issue, since the creation of exceptions to that immunity, the application of which depended upon the individual facts of any particular case, would seriously undermine the legitimate aims pursued."
"84 It follows that it will no longer be legitimate to rule that, as a matter of law, no common law duty of care is owed to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings. It is possible that there will be factual situations where it is not fair, just or reasonable to impose a duty of care, but each case will fall to be determined on its individual facts…
86 The position in relation to the parent is very different. Where the issue is whether a child should be removed from the parents, the best interests of the child may lead to the answer yes or no. The Strasbourg cases demonstrate that failure to remove a child from the parents can as readily give rise to a valid claim by the child as a decision to remove the child. The same is not true of the parents' position. It will always be in the parents' interests that the child should not be removed. Thus the child's interests are in potential conflict with the interests of the parents. In view of this, we consider that there are cogent reasons of public policy for concluding that, where child care decisions are being taken, no common law duty of care should be owed to the parents. Our reasoning in reaching this conclusion is supported by that of the Privy Council in B v Attorney General of New Zealand  4 All ER 833.
87 For the above reasons, where consideration is being given to whether the suspicion of child abuse justifies taking proceedings to remove a child from the parents, while a duty of care can be owed to the child, no common law duty of care is owed to the parents.
"102 We would add one reflection which occurred to us after the hearing had been concluded. On one view of the facts this claim has the elements of a claim for defamation. There are statutory defences to such a claim, including that of qualified privilege. It cannot be open to a claimant to bypass these defences by advancing a claim for defamation in the guise of a claim for negligence".
"58 It would have been open to the Government to argue that the statutory scheme in place satisfied the Government's positive obligation and that it was in the interest of the effective operation of the scheme that neither public authorities nor their employees should be subject to liability for shortcomings in relation to the decision of whether or not to take a child into care. Instead counsel for the Government submitted that after October 2000, when the Human Rights Act 1998 had come into force, a victim would be able to bring proceedings in the courts against a public authority for a breach of a substantive right and the courts would be empowered to award damages."
"The local authority's failure to submit the issue to the court for determination deprived her of an adequate involvement in the decision-making process concerning the care of her daughter and thereby of the requisite protection of their interests. There was in this respect a failure to respect their family life and a breach of article 8 of the Convention"
"This formulation excludes statements which are wholly extraneous to the investigation - irrelevant and gratuitous libels…"
"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  EMLR 488 at 495.) Where the position is clear, the court can be expected to be robust. After all the courts regularly give judgment under Order 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."
"1381. No doubt it could be argued that these false claims made in the Report betoken a cavalier approach to the evidence from which it would be fair only to infer recklessness (i.e. indifference to portraying an accurate picture of the evidence). …"
"It is clear that no reference to this issue should have been included in the Social Worker's report and I apologise for the distress that this has caused you"
"1388. Some of the statements made about the Claimants and about the evidence available to the Team were cavalier, in the sense that they disclose a perfunctory level of consideration when viewed "against the substance, gravity and width of the publication" (see the above citation from Lange v. Atkinson), so as to be consistent with a finding of indifference to truth. To take but one example, they claimed on page 41 of the Report that Child 14 alleged rape in her first video interview when she did nothing of the kind. This is surely not one of those cases where it could possibly be claimed that "a genuine belief in truth after relatively hasty and incomplete consideration may be sufficient to satisfy the dictates of the occasion" (see Lange at paragraph 48). By whatever standard, it seems to me that this statement was made recklessly. Yet, in the end, the case on malice succeeds because the Claimants have demonstrated, in the respects I have identified, knowledge on the part of each relevant Defendant that the material they were putting forward to support their conclusions was being misrepresented to their readers. Even if, therefore, Mr Bishop is correct (as I am assuming) in saying that I should not take the New Zealand decision into account at all when considering the notion of recklessness, as a matter of English law, it would make no difference to the outcome."
"Logically it might be said that such irrelevant matter falls outside the privilege altogether. But if this were so it would involve application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them to do so. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded. As Lord Dunedin pointed out in Adam v. Ward  A.C. 309, 326-327 the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive. Here, too, judges and juries should be slow to draw this inference."
"1089. There has sometimes been argument as to whether or not Lord Diplock's remarks at that point in his speech are in fact consistent with those of Lord Dunedin in Adam v. Ward  A.C. 309, but for many years that passage has been treated as definitive. Indeed, if and in so far as there is any inconsistency with the earlier House of Lords decision, it would now be necessary to resolve it by reference to the terms and aims of Article 10 of the European Convention on Human Rights. There is little doubt that Lord Diplock's test would be less restrictive (or "chilling") towards freedom of communication. I intend to approach the matter by asking whether any material within the Report that could be characterised as not being "really necessary to the fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded" provides evidence from which malice could be inferred. It would not be appropriate to regard such material as detracting from the prima facie privilege attaching to the Report as a whole or, indeed, as leaving some part or parts of the Report outside its protection".
"as a general rule English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbour. It supplies a temporal sanction: if he cannot prove that defamatory matter which he published was true, he is liable in damages to whomever he has defamed, except where the publication is oral only, causes no damage and falls outside the categories of slander actionable per se. The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue. With some exceptions which are irrelevant to the instant appeal, the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit - the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.
So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. "Express malice" is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.
The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person".
"Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, "honest belief." If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be "honest," that is, a positive belief that the conclusions they have reached are true. The law demands no more."
"If the occasion is privileged the plaintiff must prove malice in fact; the burden of proving this is on him, as was settled in Clark v. Molyneux (1877) 3 QBD 237. Malice, in fact, is not confined to personal spite and ill-will, but includes every unjustifiable intention to inflict injury on the person defamed, or, in the words of Brett, L.J., every wrong feeling in a man's mind: Clark v. Molyneux at p 247. There is no question here of the belief by the defendant in the truth of what he said. He did not say or intimate that the plaintiff had stolen a watch - he merely stated that the Edinburgh police suspected the plaintiff of having done so, which was true enough. This case illustrates the truth of the remark made by Lord Bramwell in Clark v. Molyneux at p 244. He said, "A person may honestly make on a particular occasion a defamatory statement without believing it to be true; because the statement may be of such a character as on that occasion it may be proper to communicate it to a particular person who ought to be informed of it. Can it be said that the person making the statement is liable to an action for slander?" What, therefore, has to be ascertained is whether the defendant acted bonâ fide in the discharge of that moral duty which he owed to Stanley or whether he acted from some other unjustifiable motive - from some motive other than a sense of duty. As Lord Bramwell said in Clark v. Molyneux at p 245, "If the defendant was actuated by some motive other than that which would alone excuse him the jury may find for the plaintiff." (See also page 246, per Brett, L.J.)"
"In principle this extends to a case where the defendant in performance of a duty passes on a statement which he knows to be untrue but he would not be protected if he failed to include contradictory evidence in his possession".
"Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that "express malice" can properly be found."
"First there is the case of targeted malice by a public officer, i e conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful."
"47. What constitutes recklessness is something which must take its colour from the nature of the occasion, and the nature of the publication. If it is reckless not "to consider or care" whether a statement be true or false, as Lord Diplock indicated, it must be open to the view that a perfunctory level of consideration (against the substance, gravity and width of the publication) can also be reckless. It is within the concept of misusing the occasion to say that the defendant may be regarded as reckless if there has been a failure to give such responsible consideration to the truth or falsity of the statement as the jury considers should have been given in all the circumstances. In essence the privilege may well be lost if the defendant takes what in all the circumstances can fairly be described as a cavalier approach to the truth of the statement."
"1294 I do not believe, therefore, that Mr Bishop is construing the judgment correctly when he submitted that I was being invited by Miss Page to depart form Horrocks v. Lowe and conclude "that a test of reasonableness or responsibility should suffice to defeat the claim of qualified privilege". The New Zealand court was attempting to explain some of the factors that may need to be considered in deciding whether a case of recklessness has been made out. It was expressly stated that indifference to truth is not the same thing conceptually as failing to take reasonable care. Mr Bishop argues that "No amount of carelessness, prejudice or bias can turn honestly held beliefs into ones that are not honestly held. By an elision, the New Zealand court has turned the traditional subjective test of malice into an objective one". I do not believe that is a fair interpretation. No one can know what goes on in the mind of another except by examining the available evidence. Carelessness can never be equated to indifference to truth but, depending on the circumstances, it may be some evidence of it.
1295 Nevertheless, he rightly points out that in Loutchansky v. Times Newspapers Ltd (No.2)  1 All ER 652 (at para. 25) the Court of Appeal did refer to the New Zealand Court as having "redefined the concept of actual malice to provide a stronger safeguard against abuse". I should, therefore, steer clear of the New Zealand Court's terminology, however cogent and persuasive, lest I be thought in so doing to depart from Horrocks v. Lowe, within the confines of which I should look for the English law of malice.
1296 I understand that Miss Page would wish me to take the reasoning of the New Zealand Court into account in determining whether or not the Review Team had a genuine belief in some of the claims they were making in their Report for the evidence supporting widespread abuse, pornography and the participation of the Claimants in a paedophile ring. The effect of her submission would be that a perfunctory level of consideration in a situation where the allegations are of the utmost gravity, and intended to receive widespread publicity, can be taken into account as part of the evidence to be weighed in deciding whether to draw an inference of indifference to truth. While recognising that carelessness in itself is not to be equated with recklessness, it would have seemed to me that this proposition is unexceptionable as a matter of English law, if the matter were free from authority in England, but the Court of Appeal have approached the Lange decision as redefining the concept of malice and I should not therefore go down that road."
"49. A case at one end of the scale might be a grossly defamatory statement about a Cabinet Minister, broadcast to the world. At the other end might be an uncomplimentary observation about a politician at a private meeting held under Chatham House rules. It is not that the law values reputation more in the one case than the other. It is that in the first case the gravity of the allegation and the width of the publication are apt to cause much more harm if the allegation is false than in the second case. A greater degree of responsibility is therefore required in the first case than in the second, if recklessness is not to be inferred. "
"if I were to come to the conclusion that their primary purpose was … ultimately the protection of children, there would be no scope in this case for an adverse finding of "dominant motive""
"… where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justification for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied in each case."
"132. As Mr Rampton pointed out, the reasoning and guidance given in the appellate courts in England over recent years, including that in Reynolds itself, is supposed to be Convention compliant. This may be obvious, but it is fundamentally important. It is not, therefore, for individual judges in every case that comes along to apply and interpret the Convention afresh. If one applies the English law of defamation properly,
there should be no reason to think that the principles underlying the Convention are infringed: Branson v Bower  EMLR 800 at . This is more particularly so with regard to appellate decisions".