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||Neutral Citation Number:  EWHC 1900 (QB)
||Case No: HQ11D02677
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE TUGENDHAT
|| Vincent Desmond
||- and -
||(1) John Foreman
(2) Sue Shenton
(3) Stella Elliott
(4) Cheshire West and Cheshire Council
(5) Cheshire East Council
Mr Desmond appeared in person
John Samson (instructed by Weightmans) for the Defendants
Hearing dates: 2 and 3 July 2012
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Tugendhat :
- The Claimant describes himself as primarily a qualified law teacher in further education since 1997. He has also worked in three schools teaching mathematics and sociology. He was born in 1963 and has a number of higher education qualifications. These include his having taken the bar vocational course, although he has not practised as a barrister. He has presented this case in person. It is a claim for defamation and for breaches of duties under the Human Rights Act 1998 ("HRA") and the Data Protection Act 1998 ("DPA") against two local authorities, a headmaster, and two officials of the local authorities.
- The facts out of which this action arises are summarised by the Claimant in his Particulars of Claim as follows. From 26 January 2009 until 23 April 2010 he was employed at one of the Fourth Defendant's schools ("the W School") as a cover supervisor. The acting headmaster was the First Defendant. On 26 January 2010 the First Defendant informed him that an allegation of inappropriate conduct had been made by a sixth form student referred to as AM. She alleged that on the night of 23 and 24 January, outside a nightclub, he had tried to kiss her without her consent. The Claimant stresses that she was 19 years old at the time when the alleged assault occurred (and so not a child). This is not in dispute. He disputed the allegation in its entirety but was suspended by the First Defendant at the end of the day on 26 January 2010. The matter was investigated. A disciplinary hearing followed. He was dismissed.
- The allegation made by the 19 year old pupil was all the more serious for two reasons. First, she was a pupil at the W School. The second reason was an event that took place in 2001 ("the 2001 incident"), a complaint by a young woman referred to as SB. That event from 2001 was, in the period between 2007 and 2011, the subject of litigation ("the Nottinghamshire case") in which the Claimant in these proceedings was also the Claimant. Those proceedings were against the Chief Constable of Nottinghamshire Police. In that action the Claimant claimed damages for personal injury and loss of wages arising out of what he alleged to be the negligent and other tortious acts of police officers and civilian employees for whom the Chief Constable was responsible. The act complained of was the inclusion in 2005 in an Enhanced Criminal Record Certificate ("ECRC") of information about the complaint of indecent assault and attempted rape which SB had made against the Claimant, and about his arrest.
- The Claimant wanted the ECRC to facilitate his application for teaching posts. A similar certificate issued in 2004 had contained no information adverse to the Claimant. Following sustained complaints by the Claimant, further ECRCs issued as from March 2007 also disclosed no information adverse to the Claimant.
- On 1st October 2009 (that is just four months before January 2010) Wyn Williams J delivered a judgment in the Nottinghamshire case ( EWHC 2362 (QB)). The Judge allowed in part the Claimant's appeal against the decision of HHJ Inglis who had struck out the Claimant's claim against the Chief Constable. The facts relating to the incident in May 2001 are set out in that judgment in particular paragraphs 5 to 27. In brief, in the late evening of 25 May 2001 SB complained that she had been attacked in Nottingham by a man who attempted to rape her. The Claimant was arrested on the basis of the complainant's description, but never charged. The complainant had given only poor evidence of identification, and the CCTV evidence showed that the Claimant was elsewhere at the time of the assault. The police concluded that it was a case of mistaken identity.
- In his judgment Wyn Williams J said:
"12. Some of the steps taken by DC Kingsbury in furtherance of his investigation are recorded in paragraph 9 the judgment of HH Judge Inglis. It is also to be observed that one of the investigative steps taken by the officer was that he collected and viewed CCTV film from a bar which the Appellant [the Claimant] claimed he was visiting at the time of the alleged attack upon SB. The CCTV film apparently showed the Appellant within the bar. DC Kingsbury made a note to that effect in his pocket book. There came a point in time when the officer decided to close the file against the Appellant. He wrote:
"It is apparent Desmond is not responsible for the crime. The complainant [SB] has been visited and cannot state for certain if Desmond is responsible. Desmond refused charge and inquiries are continuing. All relevant paper work attached."
The decision to close the file as against the Appellant was probably made on or about 31 May 2001. The file was stored. It did not emerge again until after these proceedings had been commenced. At some point in time before the autumn of 2005 DC Kingsbury retired. His pocket books were kept despite his retirement in accordance with normal procedure. The pocket book in which the officer made his entry about viewing the CCTV film was stored. Just like the criminal investigation file, the pocket book came to light only after these proceedings had been commenced."
- Thus when the Claimant obtained the ECRC issued in December 2004, he was surprised to find that it included information about the alleged attack in May 2001. His case against the Chief Constable of Nottingham was that the information about the May 2001 incident should not have been included in the ECRC. He had indeed been arrested on suspicion, but he had never been charged or proceeded against. The Chief Constable applied to strike out the proceedings. In November 2008 in the Nottingham County Court HHJ Inglis struck out the claim in negligence. The Claimant appealed to Wyn Williams J, who allowed the appeal to a limited extent. That is how matters stood when the judgment was delivered in October 2009, and that remained the position in January 2010 when the 19 year old pupil made her complaint.
- It is right to say that the parties appealed and cross-appealed to the Court of Appeal and by judgment delivered on 12 January 2011  EWCA Civ 3 the Court of Appeal upheld the Chief Constable's cross appeal and restored the order of HHJ Inglis striking out the Claimant's claim. But this involved no inference adverse to the Claimant. Rather the contrary. The Court of Appeal expressed the view that the Claimant might have other causes of action, including under the HRA and DPA. The appeal turned solely on a point of law on the tort of negligence.
- The Court of Appeal remarked on the difficulties that may be faced by those providing an ECRC, in particular in cases where a person is arrested on suspicion of an offence, but not charged. In some such cases the basis for suspicion may remain, whereas in other cases the police investigations may have established positively that the applicant for the ECRC had not committed the offence on suspicion of which he was arrested. The Court of Appeal said at paras  and  of the judgment of the Court delivered by the President of the Queen's Bench Division:
"4. The functions of the Secretary of State under this legislation [Police Act 1997 Part V] are undertaken by the Criminal Records Bureau, who, upon receiving an application, search national computer records and other lists for records of convictions and the like and for information on a number of lists held under statutes relating to education and the protection of children and vulnerable adults. These are finite factual matters. Section 115(7) of the 1997 Act also provided that, before issuing an ECRC, the Secretary of State had to request the chief officer of every relevant police force (as defined by regulations) to provide any information which, in the chief officer's opinion might be "relevant" for the purpose for which the certificate was required and which "ought to be included in the certificate". By section 119(2) the chief officer was obliged to comply with the request "as soon as practicable". Responding to this request may not be a finite factual matter, but could, and very often would, require an exercise of judgment by the chief officer. Thus, an applicant may historically have been prosecuted for an alleged sexual offence, but acquitted; or, as in the present case, the applicant may have been arrested on suspicion of an alleged sexual offence, but never charged or otherwise proceeded against. The statutory question for the judgment of the chief officer would then be whether the matter was relevant for the purpose of an application for a certificate for consideration by a person deciding whether to offer the applicant a school teaching position, and whether it ought to be included in the ECRC. For the purpose of that judgment, the chief officer would, for instance, need to know how and why the applicant was acquitted, or how and why he was never charged. In the latter case, there could obviously be a spectrum of possibility. On the one hand, the evidence may have been on the face of it strong, but the complainant adamantly refused to proceed; on the other, police investigations may have established positively that the applicant had not committed the offence on suspicion of which he was arrested. In the first instance, the chief officer might judge the information to be relevant and that it ought to be included in the certificate. Although the applicant is legally innocent of the alleged offence, the protective policy of the Act could require discretionary disclosure. In the second instance, it is to be supposed that the chief officer would decide against inclusion on both statutory grounds. Indeed, it would appear to be unfair to include such information where it had been positively established that the applicant had not committed the offence, since the mere inclusion of wholly exculpatory material would tend to prejudice the applicant's prospects of obtaining the teaching post. It is a sensitive judgment for the chief officer to make, which plainly needs to be made upon full and proper information….
12. … [the information relating to the Claimant] in fact lay well towards the end of the spectrum which would strongly suggest that it ought not to be disclosed." (emphasis added)
THE CLAIMS AND THE DEFENCES TO THEM
- The claim form in the present action was issued on 20 July 2011. The dates of the publications complained of are given in the brief details of the claim. They are 10 February 2010, 23 June 2010, 15 July 2010 and 8 April 2011. In addition to the claims in defamation there are claims under the HRA in respect of alleged breaches of Article 8 of the Convention, and under the DPA, all of these being in respect of the words complained of as defamations, or the information contained in those words.
- On 10 October 2011 the Claimant served Particulars of Claim in two parts, Part A and Part B. Part A contains the claims against the First to Fourth Defendants in defamation and the claim against under the HRA. Part B contains claims under the HRA and the DPA against the Fourth Defendant and a claim under the HRA against the Fifth Defendant. The Particulars of Claim are very lengthy: fifty pages and seventy paragraphs in relation to Part A, and forty eight pages and one hundred and forty one paragraphs under Part B. It appears from paras 10.7(c) and 66 of Part A that one of the publications relied on occurred by an e-mail dated 27 July 2010. This date is significant, because it was less than 12 months before the issue of the claim form (although it is more than 12 months before the service of the Particulars of Claim).
- On 13 January 2012 a Defence was served on behalf of all the Defendants. It describes the Defendants as follows. The First Defendant was at all material times the Acting Head Teacher of the School and an employee of the Fourth Defendant. The Second Defendant is a Human Resources professional with over 20 years of school based course work and experience in safeguarding and suitable issues, and an employee of the Fourth Defendant. The Third Defendant is the Fourth Defendant's Local Authority Designated Officer ("LADO"), that is to say, the person responsible for co-ordinating all cases involving allegations against an adult who works with children. She qualified as a social worker thirty years ago and has worked in social work management roles since then. The Fourth and Fifth Defendants are unitary local authorities with wide statutory obligations for the provision of education and services to children and young people, including safeguarding and promoting their welfare.
- The Defence raises a number of defences. First, in relation to all the allegedly defamatory publications occurring more than twelve months before 20 July 2011 the Defendants rely on the Limitation Act 1980 s.4A. That prescribes a one year limitation period for claims in defamation. This twelve month period excludes some, but not all, of the publications complained of in this action.
- Second, the Defendants rely on qualified privilege at common law. They allege that all the publications relied on were made in the performance of the public duties of the Defendants, and only to the extent necessary for the performance of those duties, in particular the duty of safeguarding children. The alleged publishers and publishees had the reciprocal duties and interest in the publications which in law mean that the publications were on occasions of qualified privilege.
- Third, there is an issue between the parties as to what the words complained of meant. In substance it is the Claimant's case that the words complained of meant that he was actually guilty of, or actually had committed, various serious offences or acts (a Chase Level 1 meaning, actual guilt – see Chase v News Group Newspapers Ltd  EMLR 218,  EMLR 11,  EWCA Civ 1772 para ). It is the case for the Defendants that the meanings of the words complained of are no more than that there were concerns about the Claimant's suitability to be working with, or responsible for, children or young people, and there were grounds to investigate allegations made against him, alternatively that there were reasonable grounds to suspect that the Claimant might have acted inappropriately, or be unfit for responsibility for children (Chase Level 3, alternatively, Level 2).
- Fourth, the Defendants plead truth, or justification, to the meanings which they attribute to the words complained of. They do not plead that the words complained of are true in the meaning attributed to the words by the Claimant.
- The claim under the HRA against the Fourth Defendant is that the referral by the Fourth Defendant to the Fifth Defendant was malicious, that it was without basis in evidence and unlawful, and that it contained defamatory statements (being those relied in the claims in defamation). The claim under the HRA against the Fifth Defendant was that the conduct of the initial assessment conducted by it was a disproportionate interference with the Claimant's rights under Art 8 (right to respect for private life) because it was without any evidential basis and those conducting the assessment failed to inquire into or establish that fact before embarking upon it, and recorded false information about the Claimant. The Claimant claims damages for distress suffered during the period of the assessment exercise.
- In relation to the claims under the HRA in respect of any act performed more than 12 months before 20 July 2011 the Defendants rely on HRA s.7(5), which contains a one year limitation period. They also contend that the case against them under the HRA is impossible to understand, but they deny any unlawful act. They rely on s.6(2) which provides that the requirements of s.6(1) (it is unlawful for a public authority to act in a way which is incompatible with a Convention right) does not apply where as a result of one or more provisions of primary legislation the authority could not have acted differently. They say that they could not have acted differently, by reason of the Children Act 1989 and the Safeguarding Vulnerable Groups Act 2006. Further they contend that all actions taken by them when necessary were proportionate for the protection of the rights and freedoms of others, in particular children.
- The claims under the DPA are that referrals to the Fifth Defendant and the ISA, including as they did the statements relied on as defamatory were also in breach of the data protection principles 1, 2, 3, 4 and 6. There is no suggestion by the Defendants that any claim under the DPA would be barred by any period of limitation.
- The Claimant has not served a Reply. The Claimant does allege malice, but his plea of malice is set out in the Particulars of Claim. However, the absence of a Reply means that there is nothing in the pleadings to indicate on what basis he contests the defences of qualified privilege and of truth.
EVENTS BEFORE AND SINCE THE ACTION WAS BROUGHT
- In order to understand how this action came to be brought in July 2011, and how matters stand today, it is necessary to record some events which occurred before and after the complaint made against the Claimant on 26 January 2010. I take these from the Particulars of Claim, from a Chronology prepared for some other purpose which the Claimant re-submitted to this court, and from my own reading of the bundles submitted by the Claimant to the court. What follows does not include every event relied upon by the Claimant. At this stage many matters are no more than allegations, and this judgment contains no findings of fact on any disputed matter.
- As already noted, the ECRC which the Claimant obtained in April 2009 for the W School contained nothing adverse to the Claimant. On 12 June 2009 a girl in year 8 (so about age 12 or 13) made a complaint against the Claimant in respect of his conduct in class (the complaint did not allege that he touched a pupil). The complaint was fully investigated. The Claimant said that what he had done had been misinterpreted, and the First Defendant wrote a letter dated 15 June 2009 referred to below. No further action was taken. In August 2009 the W School received an anonymous letter (see para 48 below). It appears that the writer was not content with the way that the W School had dealt with the complaint by the year 8 girl pupil, to which the letter referred. The letter mentioned the Claimant's claim against the police which the writer misdescribed as being one that he was "hoping" to bring "in respect of the Sex Offenders List" (the Claimant has never been on the Sex Offenders Register, nor made any complaint involving that). The First Defendant informed the Claimant of this letter and discussed it with him on 1 September 2009. No action was taken against him. The Claimant alleges that he also discussed with the First Defendant his case against the Chief Constable of Nottingham, and there is no dispute that the First Defendant had a copy of the judgment of Wyn Williams J which was printed out on 5 October 2010. That judgment was also the subject of a report in the Times Educational Supplement.
- Following the complaint by the 19 year old pupil, on 26 January 2010 the Claimant was suspended from employment at the W School. The complaint against him was then investigated, both on behalf of the school and by himself. On 10 February 2010 there was held the Strategy Discussion/Meeting at which he alleges he was slandered. On and between 22 February and 5 March the Third Defendant made enquires from the Claimant's previous employers and from the police. On 8 March 2010 there was held the Review Strategy Discussion / Meeting at which the Claimant complains he was libelled. On 23 April 2010 the Claimant was dismissed from his employment. On 21 May 2010 and 16 June 2010 his complaint of unfair dismissal and the Fourth Defendant's defence to that complaint were respectively accepted and filed by the Employment Tribunal. On 23 June 2010 the Fourth Defendant made the Referral to the Independent Safeguarding Authority ("ISA") in which the Claimant alleges he was again libelled, and which he claims was unlawful under the HRA and DPA.
- On 1 July 2010 an the Claimant alleges that an unrelated incident occurred at the W School in which an employee unlawfully accessed personal data, and about which the Claimant came to hear. On 6 July 2010 the ISA informed him of the referral of 23 June. On 12 July the Claimant reported the incident of 1 July 2010 to the police, and to the Guardian newspaper which on 21 July published an article about the incident. The Claimant contends that his report of this matter, and his claim in the Employment Tribunal, provided the motive (namely, retaliation: Particulars of Claim Part B para 42) for the subsequent actions of the Defendants which he alleges to be unlawful. He also notes that no referral had been made to the ISA within the one month period of his dismissal (see para 45 of Appendix 5).
- On 19 and 27 July 2010 the Third Defendant, in her capacity as LADO, wrote e-mails to Mark Stanley of the Fifth Defendant which the Claimant alleges was a request for an Initial Assessment (IA) under the Children Act 1989 s.47 in respect of the then current home situation of the Claimant and his 11 year old step daughter. She attached to the e-mail of 27 July 2010 the documents dated 10 February and 8 March and the undated Closing Summary described in para 36.iv) below. By this the Claimant claims he was libelled. On 28 July 2010 Mr Stanley responded that the Fifth Defendant would proceed with this assessment, and the Claimant was so informed on 2 August 2010. On 6 August 2010 Vanessa Layfield of the Fifth Defendant attended upon the Claimant's home for this purpose.
- On 8 November 2010 the ISA informed the Claimant of its decision that it was not appropriate to include him on the Children's Barred List or the Adults' Barred List, but that it would retain the information it held about him on file to be taken into account should further information come the ISA's attention in the future.
- The documents held and disclosed by the Fifth Defendant include references to the May 2001 incident, both indirectly (by reference to the documents sent by the Fourth Defendant) and directly. For example, in the Ics-Core Assessment at pages 2 and 5 of the print out dated 16 February 2011 includes:
"Brief Chronology ….
Mr Desmond advised during I.A allegation have been made against him relating to attempted rape…
Analysis of information gathered
… However there are significant risk factors relating to Mr Desmond based on allegation made against him by children. There have been allegations made against Mr Desmond relating to rape charge. The complexity is that Mr Desmond has not been charged with any of the allegations made against him…"
- That such a serious allegation as attempted rape should remain on any file concerning the Claimant is obviously a very serious matter for him. On the same day, 8 November 2010, the Claimant wrote his letter before action against the Fourth Defendant. He sought pre-action disclosure under CPR Part 31.16. On 4 March 2011 he wrote his letter before action to the Fifth Defendant. On 8 April 2011 he received redacted versions of the documents dated 10 February and 8 March 2010.
- On 5 January and 21 March 2011 the Employment Tribunal in Liverpool had heard the Claimant's claim for unfair dismissal. On 11 April 2011 the Employment Tribunal delivered its reserved judgment that the claimant was not unfairly dismissed and his claim for unfair dismissal was itself dismissed. The Tribunal accepted the evidence for the Fourth Defendant (in effect the witnesses from the W School) rather than the evidence of the Claimant. On 28 April 2011 the Claimant requested a review of that judgment (made outside the 14 day time limit) and the Tribunal dismissed that request also.
THE APPLICATIONS BEFORE THE COURT
- The Claimant has issued five Application Notices which are now before the court. They are as follows:
i) 28 February 2012 an application in accordance with CPR PD 54 for an order that the words complained of are capable of bearing the defamatory meanings attributed to them by the Claimant;
ii) 28 February 2012 to strike out the Defendant's pleas of justification.
iii) 16 May 2012 for an order that he be granted anonymity;
iv) 16 May 2012 for and order that he be permitted to amend the parts of the Particulars of Claim containing the claims under the HRA and the DPA.
v) 7 June 2012 pursuant to the Limitation Act 1980 s32A to disapply the 12 month limitation period insofar as that period would otherwise apply to his claims in defamation.
- The Defendants have also issued an Application Notice which is before the court and is dated 27 March 2012. The Defendants seek an order that there be summary judgment in favour of the Defendants pursuant to CPR 24.2, on the ground that the Claimant's claims have no real prospect of succeeding and there is no other compelling reason why the claims should proceed to trial. Alternatively they seek an order that the claims against the Second Defendant be struck out pursuant to CPR 3.4(2) on the grounds that the Particulars of Claim disclose no reasonable grounds for bringing the claim, that the claim is an abuse of the process of the court and is totally without merit.
- On 2 July I heard argument from Mr Samson for the Defendants and from the Claimant on the Defendant's application for summary judgment. This argument focussed on the issues of qualified privilege and malice. On 3 July I heard argument from the Claimant on each of his remaining applications, other than the application to strike out the defence of justification. At the end of his submissions I did not find it necessary to hear from Mr Samson. I indicated that I would rule on meaning before I ruled on the Claimant's application to strike out the defence of justification, and I adjourned that one application. I then reserved judgment.
- In support of the Defendants' application there are two witness statements from Mr Cooper, the solicitor having conduct of this case on their behalf. The first is dated 27 March 2012, the date of the application notice itself, and the second is dated 26 June 2012. The Claimant has not submitted any witness statement or evidence other than the brief grounds set out in his own Application Notices. The second witness statement of Mr Cooper was made because there are related proceedings with which the Claimant has made allegations, assertions and admissions which are related to the present claim and Mr Cooper wished to draw these to the attention of this court, together with the Defendants' responses.
- The related proceedings are claim number HQ11D04861, and the causes of action are defamation and breach of the HRA. The Third and Fourth Defendants in the present action are respectively the fifth and sixth defendants in action HQ11D04861. The other defendants are Stoke on Trent Council and Staffordshire County Council who were previous employers of the Claimant, and employees of those two authorities. The claims are in respect of information given to the Fourth Defendant in the present action in response to the enquiries that were made for the purposes of the investigations and Strategy discussions in February and March 2010. The previous employers were recorded as saying that the Claimant was someone who had difficulty in recognising and and/or maintaining boundaries. In a detailed reserved judgment delivered on 29 June 2012 (the working day preceding the hearing before me) Master Cook held that the claim had no reasonable prospect of success (CPR Part 24) and was an abuse of the process of the court.
- The two witness statements of Mr Cooper together with their exhibits make up some five hundred pages or one complete lever arch file. The pleadings and application notices also make up some four hundred and sixty pages. The Claimant has prepared separate bundles which contain a small number of documents which are not in the bundles prepared for the Defendants.
THE WORDS COMPLAINED OF IN DEFAMATION
- The words complained of in this libel action are contained in four separate documents, but there are other relevant documents, as follows:
i) A form headed "Allegations Against An Adult Who Works With Children" dated 10 February 2010 recording a "Strategy Discussion/Meeting".
ii) A form with the same title dated 8 March 2010 recording "Review Strategy/Discussions/Meeting".
iii) A document dated 23 June 2010 headed "Referral to Independent Safeguarding Authority for Inclusion on the Children's Barred List".
iv) A document headed "Closing Summary Form" which is undated but which (together with the documents dated 10 February and 8 March) was attached to an e-mail to the Fifth Defendant dated 27 July 2010 at 10:41 (Mr Cooper states was drafted on 20 July 2010);
v) An undated document headed "Vincent Desmond – Contact with his former employers".
- The document dated 10 February 2010 records that the meeting was attended by five professionals, three of them from the School. These included the First Defendant, Ms Williams, the acting deputy head, and Mr Duncalf, the business manager. The other two persons attending were Ms Shenton and Ms Elliott.
- So far as material the document included the following (the underlining is added to identify the words alleged to be libels or slanders):
"RECORD OF THE MEETING/DISCUSSION:
This meeting was originally convened to be an information sharing meeting as Sue Shenton – Education HR [the Second Defendant] was concerned that an investigation into an allegation against an adult employed at [the] School was in process. It soon became apparent this was the case and it was agreed by all present that the meeting would become a formal strategy meeting as per Working Together To Safeguard Children 2006 procedures.
A 19 year old 6th form pupil at … [the W] School made an allegation that at the weekend of 23/24 January 2010, Mr Desmond, a cover supervisor at [the] School acted inappropriately towards her. The pupil, [AM] stated that at [a nightclub] Mr Desmond attempted to kiss her, even when she pointed out she was a pupil at [the W] School.
[AM] was seen by Jo Williams … on 28 January 2010 and gave a statement. The school then proceeded to undertake their own investigation into the incident. They wrote to Mr Desmond on 2 February and asked him to attend a disciplinary hearing on 23 February 2010.
Vincent Desmond is known to have been in post for over a year as a Cover supervisor for lessons. He came from [P] College … and has also worked at … [C school] in Staffordshire. He is also known to have worked in Nottinghamshire where apparently he claims he was wrongly accused of sexual assault and his name placed on the sex offenders register [these words are complained of in para 10.1 of the Particulars of Claim]. Vincent Desmond has been pursuing his claim of wrongful arrest/on sex offenders register at the High Court. [These are the words complained of in para 10.2 of the Particulars of Claim] whilst in Nottinghamshire Vincent Desmond was training to be a Barrister.
It is also known that Vincent Desmond married last year and that his wife has an 11 year old daughter.
Vincent Desmond had allegations made about him last year by several Year 8 female pupils that … [he acted inappropriately in class]. This allegation was investigated by Jane Bailey, [the] School safeguarding lead – not substantiated and N[o] F[urther] A[action] was taken. [These are the words complained of in para 21 of the Particulars of Claim].
Vincent Desmond is currently on Stage 1 monitoring as he had several periods of sick leave since joining the school. He has also used inappropriate language on several occasions.
Once this information had been shared and that "safer recruitment" procedures could not be fully confirmed with regard to Mr Desmond the following was agreed:
- The Disciplinary Hearing would be deferred and all proposed actions postponed until a clearer picture of Mr Desmond's background could be established.
- The Cheshire Police be approached to gather all available information/intelligence relating to Vincent Desmond from his past addresses in the UK.
- That Vincent Desmond be removed from any duties involving contact with children until the investigation was completed.
The document dated 8 March is the record of the Review Strategy convened in accordance with the conclusion of the meeting of 10 February. It too was attended by five people, four of whom were those who had attended the 10 February meeting. Ms Williams did not attend. Another employee of the Fourth Defendant also attended. The record of this meeting contained the information obtained as a result of the enquiries which it had been agreed would be made.
- A Review Strategy be convened as soon as police records have been accessed."
The Principal of P College reported that the Claimant had been employed in about 2008 for a number of months and that his Criminal Records Bureau Record was clear. The Principal of the C School reported that the Claimant's contract had not been renewed when he left in 2005. There had been some concerns regarding the degree of familiarity and his difficulty in recognising boundaries but there had never been any formal proceedings. The head teacher of a third school expressed concerns about his boundary keeping. She had not prolonged his contract, he had taken her to a tribunal and had lost. (These are the allegations which were the subject of the action dismissed on 29 June 2012).
The Police Protection Unit confirmed that Cheshire Police and the Police National Computer recorded no knowledge of the Claimant. However, "there is some intelligence at Staffordshire and Nottinghamshire forces where an investigation for assault had taken place but no formal convictions had been made".
The document records a conversation with the Claimant himself in which he made the point that the complainant was over 18 years of age. It is recorded that there was agreement at the meeting that there needed to be a broader investigation. The document ends with the following:
"At the next meeting consideration to be given to [the Claimant's] stepdaughter and whether there are any implications. There is no evidence of any issues of concern at this stage. Stella Elliott [the Third Defendant] to sensitively discuss concerns with [Cheshire] East [the Fifth Defendant] LADO to alert them that something may come up in the future."
The 23 June 2010 Referral to Independent Safeguarding Authority document records that at that date the Claimant had been dismissed at a disciplinary hearing on 23 April 2010. The reason for the referral is stated to be that the Claimant "kissed a 6th form student and failed to adhere to her pleas to let go". Further details of the incident are recorded.
This document also contains an entry headed "Details of any past disciplinary action taken whilst within organisation". There are then the following words:
"Letter on file formalising outcome of a meeting following and incident involving year 8 girls where… [and the allegation is set out]. Girl complained he makes her feel incomfortable [sic]… police were not informed about this incident. However, an anonymous letter was received by the school stating that [the Claimant] was going to sue police due to him wrongly being placed on sex offenders register. He did win the case. [These words are complained of in paras 35.1 and 35.2 of the Particulars of Claim]. Advised by LADO that there was soft intelligence from Staffordshire and Nottingham police".
Appended to that document are a number of other documents. One of these is a statement taken from the year 8 girl on 12 June 2009. The statement includes the following:
"… 'The girl' has said that Mr D makes her feel uncomfortable. The very first lesson [the girl] had with [Mr D]… [she and three other girls] were sat in a group. Mr D … ".
The statement is on two sheets of paper, and immediately after the end of the statement on the second sheet there are two other records. One of these is of a meeting with the Claimant on 12 June 2009.
Also appended to the document is the letter from the First Defendant dated 15 June 2009 addressed to the Claimant which includes the following:
"I am writing to formalise the outcome of our meeting on Friday following on from the pupil statement regarding yourself.
I anonymously read through the contents of the statement and we discussed each point in turn. In relation to the incident involving several year 8 girls you said you had no specific recollection and that it could have only have been innocent actions in the classroom being misconstrued by pupils. …
May I reiterate the need for you to uphold the highest standards of professionalism in particular with regard to pupil relationships and actions involving pupils".
Also appended to that document is the anonymous letter referred to, which includes the following:
"On the run up to the school hols a complaint was put to the head in the respect of teacher [the Claimant] the girl pupil feels it was dismissed, however being her friend I have gained the following info: the said teacher has a past, he's hoping to sue the police rightly or wrongly in respect of sex offender list. Details unknown…".
There is also attached a note of a conversation with the Claimant dated 1 September 2009 relating to that anonymous letter.
The undated document headed Closing Summary recounted the meetings of 10 February and 8 March. What is written about the meeting of 8 March 2010 includes the following bullet points:
"- Accounts taken from previous employers indicated that [the Claimant] had had a number of contracts not renewed on the basis of his inability to maintain boundaries" [Those words are complained of in para 62.1 of the Particulars of Claim]
- Police Intelligence indicated that an earlier investigation into a sexual assault was unable to be progressed due to omissions in the investigation [This intelligence not to be shared with any other party]" (the square brackets in this passage are original).
The document headed Closing Summary goes on to refer to the disciplinary hearing on 23 April 2010, and the Claimant's dismissal on the grounds of inappropriate behaviour and of bringing the school into disrepute. The document then refers to subsequent discussions. It records that
"a referral to ISA was agreed, despite [the Claimant]'s stated aim to appeal against the finding. This was based on a collection of factors, over time, there would appear to indicated on the balance of probabilities, that he could be was [sic] a risk to children on the basis of inappropriate boundary keeping" [these words are complained of in para 62.2 of the Particulars of Claim] … N[o]F[urther]A[ction]. Case to be closed".
The last of the words complained of is an extract from the document headed "Vincent Desmond – Contact with his former employers". It was disclosed to the Claimant on 1 June 2011 pursuant to a subject access request made by him under the DPA (mistakenly disclosed, so Mr Samson submits, but that point was not pursued at this hearing). The document records the enquiries which are referred to in the document dated 8 March 2010, and other matters, the last being on a date in July 2010. In addition to the results of those enquiries, which are also recorded in the document dated 8 March 2010, this document contains the following words which the Claimant complains of:
"On 22/2/2010 Cheshire Police confirmed that [the Claimant] had been previously charged with sexual assault whilst living in Nottinghamshire, but there had been 'insufficient evidence to proceed'". [These are the words complained of in para 62.4 of the Particulars of Claim].
THE ALLEGED PUBLISHEES
In relation to the meeting held on 10 February 2010 there are allegations of slander as well as libel. The slander is alleged to be the communication by the First Defendant to the other persons at the meeting of the words complained of in paras 10.1 and 10.2 of the Particulars of Claim.
The allegation of libel in relation to the document dated 10 February is pleaded in para 10.7 sub paras (a) to (g). The publishees are said to be (a) those attending the meeting of 8 March 2010, (b) five individuals at the Independent Safeguarding Authority on 25 June 2010, (c) the Principal Head of Cheshire East Social Services (in an email dated 27 July 2010) and thereafter to the other members of the Social Services team, (d) the General Teaching Council for England (by republication by the ISA on 11 January 2011), (e) and (f) various unidentified members of staff at the Fourth and Fifth Defendant, and (g) the staff at the ISA Data Protection Department in the course of responding to the Claimant's subject access request. The publication on 27 July 2010 was within the 12 months before the issue of the claim form, and the publication alleged to have been on 11 January 2011, was within 12 months of the service of the Particulars of Claim.
The words complained of in para 21 of the Particulars of Claim are alleged to have been published to the same publishees (para 22.3 of the Particulars of Claim). So, again, the publication on 27 July 2010 was within the 12 months before the issue of the claim form, and the publication alleged to have been on 11 January 2011, was within 12 months of both the issue of the claim form and the service of the Particulars of Claim.
The words complained of in para 35 of the Particulars of Claim are alleged to have been published to the same publishees as are identified in para 10.7(b), (d), (e), (f) and (g) - see para 35.9 of the Particulars of Claim. The publication in para 10.7(d) is the one alleged to have occurred on 11 January 2011, and so within 12 months of both the issue of the claim form and the service of the Particulars of Claim.
The words complained of in para 62.1 and 62.2 are alleged to have been published to the individuals identified in para 66 (a) to (g). All of these are members of the staff of the Fourth or Fifth Defendant. The words complained of in para 62.4 of the Particulars of Claim are said to have been published to the same publishees, as pleaded in para 66.1 of the Particulars of Claim. Although no date is pleaded in para 66.1, I understand the publications referred to includes the e-mail of 27 July 2010.
QUALIFIED PRIVILEGE AND BREACHES OF HRA AND DPA
The basis of the plea of qualified privilege is that the Defendants were acting pursuant to the statutory duties of the Fourth and Fifth Claimants, and pursuant to the guidance issued in the document "Working Together to Safeguard Children - A Guide to Inter-Agency Working to Safeguard and Promote the Welfare of Children". That is a lengthy document issued by HM Government. It sets out how organisations and individuals should work together to safeguard and promote the welfare of children. In Appendix 1 it summarises the statutory framework. This includes references to the Education Act 2002. The Claimant refers to this to emphasise that a child is a person under the age of 18 years. The Appendix sets out the provisions of the Children Act 1989, which imposes upon every local authority a general duty to safeguard and promote the welfare of children within their areas who are in need. It also refers to the duty to co-operate under s.27(3) and under s.47 of that Act.
Appendix 5 includes the following (emphasis added):
1. "The framework for managing cases set out in this guidance applies to a wider range of allegations than those in which there is reasonable cause to believe a child is suffering, or is likely to suffer significant harm. It also caters for cases of allegations that might indicate that the alleged perpetrator is unsuitable to continue to work with children in his or her present position, or in any capacity. It should be used in respect of all cases in which it is alleged that a person who works with children has:
- Behaved in a way that has harmed, or may have harmed, a child.
- Possibly committed a criminal offence against, or related to, a child; or
- Behaved towards a child or children in a way that indicates she or he is unsuitable to work with children….
9. It is important that employers keep a clear and comprehensive summary of any allegations made, details of how the allegations were followed up and resolved, and of any action taken and decisions reached. These should be kept in a person's confidential personnel file and a copy which should be given to the individual. Such information should be retained on file, including for people who leave the organisation, at least until the person reaches normal retirement age, or ten years if that is longer. The purpose of the record is to enable accurate information to be given in response to any future request for a reference. It will provide clarification in cases where a future CRB Disclosure reveals information from the police that an allegation was made but did not result in a prosecution or conviction. It will also prevent re-investigation, as sometimes happens, allegations re surface after a period of time…
13. Procedures need to be applied with common sense and judgment. Some allegations are so serious as to require immediate referral to social care and the police for investigation. Others are much less serious and at first sight may not seem to warrant consideration of a police investigation or enquiries by children's social care however, it is important to ensure that even apparently less serious allegations are seen to be followed up, and that they are examined objectively by someone independent of the organisation concerned. Consequently the designated officer should be informed of all allegations that come to the employer's attention and appear to meet the criteria in paragraph 1, so that he or she can consult police and social care colleagues as appropriate the LA Designated Officer should also be informed of any allegations that are made directly to the police (which should be communicated via the police force's designated officer) or to children's social care.
14. The LA Designated Officer should first establish, in discussion with the employer, that the allegation is within the scope of these procedures (see paragraph 1) and may have some foundation…
15. The employer should inform the accused person about the allegation as soon as possible after consulting the LA Designated Officer. …
16. If there is cause to suspect a child is suffering, or is likely to suffer significant harm, a strategy discussion should be convened in accordance with para 5.5.4. Note: in these cases the strategy discussion should include a representative of the employer (unless there are good reasons not to do that) and should take account of any information the employer can provide about the circumstances or context of the allegation.
17. In cases where a formal strategy discussion is not considered appropriate – because the threshold of "significant harm is not reached" – but a police investigation might be needed, the LA officer should nevertheless conduct a similar discussion with the police, the employer, and any other agencies involved with the child to evaluate the allegation and decide how it should be dealt with…
The Claimant submits that the procedure set out in Appendix 5 had no application in the present case because the complainant, albeit a pupil at the W School, was aged 19 and therefore not a child. It is true that she was not a child. But the Claimant is a person who worked with children, that is to say the other pupils at the W School. Paragraph 1 of the Appendix 5 specifically states that it caters for cases of allegations that might indicate that the alleged perpetrator is unsuitable to continue to work with children in his present position, or in any capacity.
23. In the initial consideration at a strategy discussion or joint evaluation, agencies concerned – including the employer – should share all relevant information they have about the person who is the subject of the allegation and about the alleged victim".
It follows in my judgment that the Claimant has misunderstood the purpose of the procedures that were undertaken and which are recorded in the documents set out above. The Defendants were not concerned with the protection of the complainant aged 19 but with the protection of the other children in the W School and any other school in which he might work in the future.
The Claimant also submits that there should have been no mention of the 2001 incident. On this point he is on much stronger ground, for the reasons which are expressed in the citation from the judgment of the Court of Appeal cited in para 9 above. In 2009 he had provided the W School with a clean ECRC, and the school had a copy of the judgment of Wyn Williams J, in which at para  it is made clear that the police were satisfied on CCTV evidence that the Claimant was not responsible for the alleged assault. A clean ECRC should obviously not be issued to a person whose name has been put on the Sex Offenders Register.
In these circumstances the question is raised as to how anyone who had had an opportunity to review and consider these matters (as the First to Fourth Defendants had had no later than 8 March 2010) could have supposed that the so called 'soft intelligence' or any other information relating to the 2001 incident, or the inaccurate anonymous letter, were of any further relevance to any question relating to the Claimant. The Claimant must have a real prospect of establishing that the words of the Court of Appeal in relation to the ECRC apply in relation to the Working Together procedures (including to paras 9 and 13 of that document), and that in this case the two procedures were for the same purpose, relating as they do to the suitability of a person for a position with responsibility for children. So the Claimant has a real prospect of establishing that the information relating to him and the 2001 incident "in fact lay well towards the end of the spectrum which would strongly suggest that it ought not to be disclosed" after 8 March 2010 (the position may be less clear between 26 January and 8 March 2010, but nothing turns on that at this stage of these proceedings).
Although the judgment of the Court of Appeal is later in date than the publications complained of in this action, there is a real prospect of a court finding that the reasoning of the Court applied with equal force in early 2010, and that it was not necessary to have read the decision of the Court of Appeal to adopt that reasoning. As Wyn Williams J stated in his judgment at para , when the Assistant Chief Constable had reviewed the matter, he had declined to authorise the disclosure of the information about the 2001 matter. It is true that Wyn Williams J also said that there was no duty on the police to remove the information (see paras  and ), but that was said in the context of the duties in tort upon which the Claimant was then advancing his case. The Chief Constable had argued that the Claimant had alternative remedies under the DPA (as the Court of Appeal also remarked), but there had been no argument about that before HHJ Inglis or Wyn Williams J, as he wrote in para  of his judgment.
Indeed it appears on one reading that the writer of the Closing Summary may have understood the need not to republish information about the May 2001 incident, because there are words to that effect in that document in the second bullet point cite in para 50 above.
The position with regard to the allegation of the year 8 girl and the reports from the Claimant's previous employers is different. Although that allegation led to no further action in June 2009, it could be said that, if another complaint was later made about the Claimant, then any similarity with the earlier complaint could arguably lead an investigator to infer that the 2009 allegation may have greater credibility than it did when originally made. I do not accept that the Claimant has a real prospect of establishing that the allegations from the Claimant's previous employers about his lack of respect for boundaries could not be thought to be similar to those of the year 8 girls, or that this allegation was irrelevant in 2010.
It follows in my judgment that (subject to the other points considered below) the Claimant has a real prospect of succeeding on his argument that the publication of the words complained of in paras 10.2, 35.2 and 62.4 (but not the words complained of relating to the year 8 girl and the keeping of boundaries) was an unjustifiable interference with his rights under Art 8 and under the DPA, and so not pursuant to any duty of the Defendants. To that extent (that is in relation to references to the 2001 incident) and for the same reasons he has a real prospect of succeeding in his claim against the Fourth Defendant as pleaded in Part B para130.
It would follow that he also has a real prospect of defeating the defence of qualified privilege in respect of the references to the 2001 incident: Clift v Slough Borough Council  EWCA Civ 1484.
There is an aspect of this case which is a matter for concern. As noted above, there are in the documents prepared for the Fifth Defendant a number of references to the 2001 incident. The section of the Claimant's bundles headed "Cheshire East Social Services documentation 12 August 2010 to 8 February 2011" also contains numerous references to that incident. There are over 30 pages of closely typed documents in that section. In addition to the reference cited at para 27 above, the allegation of attempted rape is referred to in the first document, dated 10 August. The last reference appears to be the one in the document dated 25 March 2011 under the heading "Details of Information Shared … Police, Julie advised: … 2001 Arrested on suspicion of indecent assault; because he fitted description, this went no further".
Not one of these documents refers to the explanation for why the case against the Claimant in 2001 went no further (namely because the police had seen CCTV footage of him in another place at the time of the alleged incident) although this information had been in the public domain since Wyn Williams J delivered his judgment, and it had been repeated in the public judgment of the Court of Appeal. There is no reference in any of the Fourth or Fifth Defendants' documents to that public exoneration of the Claimant, first by the police in private (when DC Kingsbury wrote that in his notebook), and then in 2010 and 2011 in the court's public judgments citing that notebook. If references to the 2001 incident needed to be included to at all after the judgment of Wyn Williams J in October 2010 (and I express no view on that), then there must obviously be a question as to why the findings of the police set out in para  of that judgment were not also mentioned in the same documents prepared on behalf of the Fourth and Fifth Defendants. If those acting for the Fourth or Fifth Defendants had reasons for taking a different view from that expressed in the judgment of the Court of Appeal (and again I express no view on whether they did or not), then it might be expected that those reasons would be recorded. As noted above, the Fourth Defendant was aware of the judgment of Wyn Williams J: it had a copy.
The Claimant also submits that there should have been no reference to the ISA, because the conditions set out in the ISA Referral Guidance were not met. The ISA is established under the Safeguarding Vulnerable Groups Act 2006 to help prevent unsuitable people from working or volunteering with children and vulnerable adults. According to that Guidance, it is a condition of referral that the individual to be referred has "(i) engaged in relevant conduct; or (ii) satisfied the Harm Test; or (iii) received a caution or conviction for a relevant offence". These tests are defined in the Guidance. The Claimant submits that there was in 2010 no evidence that had endangered or harmed any child, or that he was likely to do so. The Defendants had had no notice of this point, since the Claimant has not served a Reply. Before I can consider this matter further, it should be pleaded by the Claimant and the Defendants should have an opportunity to respond to that pleading. There is no application before me for permission to make such a plea, and I express no view as to whether permission would be granted if applied for.
RULING ON MEANING
Practice Direction 53 para 4.1 provides:
"4.1 At any time the court may decide –
(1) whether a statement complained of is capable of having any meaning attributed to it in a statement of case;
(2) whether the statement is capable of being defamatory of the claimant;
(3) whether the statement is capable of bearing any other meaning defamatory of the claimant."
The Claimant has pleaded over 50 meanings in a way that is very hard to understand. But as stated in para 15 above, the real dispute between the parties is as to whether the words complained of are capable of bearing any meaning at Chase Level 1 (actual guilt), as the Claimant contends, or some lesser meaning, as the Defendants contend, that is to say a meaning at no more than Chase Level 3, alternatively 2.
The principles to be applied by the Court in a ruling given under Practice Direction 52 para 4 are well established and are conveniently set out by Sir Anthony Clarke MR in Jeynes v News Magazines Limited  EWCA Civ 130 at paras 14 and 15. They are as follows, so far as is relevant to this action:
"The legal principles relevant to meaning … may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…" … (8) It follows that "it is not enough to say that by some person or another the words might be understood in a defamatory sense". (emphasis added)
The publishees identified in the Particulars of Claim are all professional people employed by one or other local authority defendant. So I must consider what a reasonable professional person could understand the words complained of to mean. I have no hesitation in rejecting the meanings attributed to the words complained of by the Claimant in so far as they are at Chase Level 1 and the following allegations. The words complained of are incapable of meaning that he actually committed the assault or attempted rape in 2001, or any other sexual offence, or that he actually did what the of the year 8 girl alleged that he did in 2009, or that he was ever on the Sex Offenders Register as alleged in the anonymous letter of 2009, or at all. All the words complained of relating to these matters are capable of bearing the meanings attributed to them by the Defendants, that is a Chase Level 3 meaning and a Chase Level 2 meaning.
Not having heard argument for the Defendant on the meaning which the words complained of in para 62.1 of the Particulars of Claim (para 50 above) are capable of bearing I make no further ruling in respect of the meaning of these words.
I make no ruling as to what meanings any of the words complained of actually bear. All the words complained of are capable of being defamatory. I make no ruling as to whether they are in fact defamatory.
OTHER APPLICATIONS AND DIRECTIONS
At the start of the hearing the Claimant asked that the matter be heard in private. I declined to make that order and I have declined to make the anonymity order he seeks. Each of those orders would be derogations from the principles of open justice, and can only be made when it is necessary to do so for one of a number of specified reasons. The reason relied upon by the Claimant in this case is the sensitivity of the information in question and the interests of his young stepdaughter. I indicated that I proposed to address these concerns by limiting the information that would be made available in this judgment. On that basis I am not satisfied that it is necessary to take any other measure in derogation of open justice.
Having reached these conclusions on the basis of the submissions described in para 32 above, I decided to hand down the judgment after circulating it in draft in the usual way.
The Claimant's application for permission to amend his Particulars of Claim is adjourned.
How and why it is that the references to the 2001 incident came to be recorded, but recorded without mentioning the public judgments of the court containing the police's explanation for not charging the Claimant, is a question for which the proceedings under the DPA may provide the most appropriate form of investigation (as the Court of Appeal suggested in para 51 of their judgment). It is for consideration whether claims under the HRA or in defamation would add any benefit to the Claimant over an above a claim under the DPA. And as noted above, a claim under the DPA appears to raise no issues of limitation.
I invited the parties to consider why the Court should not direct that the claim under the DPA proceed first and separately from the other two claims, and give directions as to the filing of evidence (or agreed statements of facts) so that the matter could be determined in accordance with the overriding objective, and in particular with the objective of allotting to the case an appropriate share of the court's resources.
The preparation of this summary of the claims and the other facts set out in this judgment has been a time consuming exercise, and one which the court would normally expect to be carried out by a claimant, and even by a litigant in person who has the educational and legal qualifications of this claimant. The prolixity of the Claimant's Particulars of Claim, the absence of any Skeleton argument or Chronology prepared for this hearing, and the submission of the Claimant's bundles too late for any pre-reading, have all made this hearing more onerous for the Claimant as well as for the court. It is in the interests of both parties and the court that the litigation be limited to matters properly in issue.
1. In summary the Defendants application dated 27 March 2012 for summary judgment is refused;
2. The words complained of are not capable of bearing any of the defamatory meanings attributed to them by the Claimant, but are capable of bearing defamatory meanings as set out in para 75 of the judgment;
3. the Claimant's application to strike out the Defence of justification is adjourned;
4. the Claimant's application for anonymity is refused;
5. the Claimant's application for permission to amend the Particulars of Claim is adjourned;
6. the Claimant's application under the Limitation Act 1980 s.32A is adjourned.
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