[View without highlighting]
[Printable RTF version]
||Neutral Citation Number:  EWHC 2482 (QB)
||Case No: HQ12X01766
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
SIR COLIN MACKAY
|| Mr Jean Dominique Melik Camurat
||- and -
||Thurrock Borough Council
Ed Williams and Rachel Barrett (instructed by NUT Solicitors) for the Claimant
Jonathan Auburn (instructed by Council Solicitor Thurrock Council) for the Defendant
Hearing dates: 2nd - 4th July and 8th July
HTML VERSION OF JUDGMENT
Crown Copyright ©
Sir Colin Mackay:
- This is a claim by Mr Camurat for damages flowing from an agreement to terminate his contract of employment with the defendant ("Thurrock") as Head of Languages at Belhouse Chase Specialist Humanities College with effect from 31 December 2008.
- The college, as it was then known, was maintained and controlled by Thurrock and the head teacher was Mrs Theresa Walker for whose acts and omissions it is agreed Thurrock is vicariously liable.
- He brings a claim for damages for misrepresentation and/or breach of contract and/or negligence and/or malicious falsehood. This trial is of the issues on liability only.
- The claimant started work at the school on 1 June 2003 and within three years was promoted to Head of Languages. From an early stage of employment there began a series of allegations relating to the inappropriate use of force by the claimant in respect his dealings with pupils. There is no suggestion, I should stress at the outset, of any sexual connotations or impropriety on his part. None of the incidents involved significant injury and they mainly consisted of holding grabbing or pushing pupils to restrain or control them.
- He was suspended in February 2005 after six such incidents and interviewed by police but no proceedings were taken. A disciplinary process took place the outcome of which was no sanctions but a letter of professional advice.
- In 2007 there was a second disciplinary process which related to two matters, mainly confrontational behaviour towards certain members of staff and the use of inappropriate language to a female pupil. Though the leadership of the school recommended dismissal the outcome of the hearing was, in respect of the matter concerning the pupil, a letter of professional advice which was given in January 2008.
- A third disciplinary process resulting from an incident on 23 November 2007 in which the claimant confiscated a mobile phone brought into a classroom by a pupil. The incident was captured on CCTV. Again the head teacher recommended summary dismissal but on 10 September 2008 a disciplinary panel of the governors of the school issued a final written warning and lifted the suspension to he had been subject since the allegation had been made.
- In October and November negotiations took place between the school and the claimant, who had the assistance of a union representative, as to his return to work on the expiry of the period of his suspension. That resulted in a document called "the compromise agreement" concluded on 25 November 2008 which is central to the issues in this case. The effect of that agreement was that the claimant agreed to terminate his employment with Thurrock as of 31 December 2008 in return for a termination payment of £28,000 and an agreed letter of reference, the terms of which were contained in a schedule to that agreement.
- Before he came to the end of his employment the plaintiff obtained an Enhanced Criminal Record Certificate ("ECRC") issued by the Criminal Records Bureau which then controlled such matters. It disclosed nothing to the disadvantage to the claimant.
- After the termination date Thurrock disclosed to the police another key document in the case, which has been called "the chronology", detailing the history of disciplinary problems that the claimant had encountered throughout the whole of his employment culminating in the mobile phone incident. The police thereupon issued a second ECRC which included in full all the matters covered in the chronology which the claimant says caused him to lose his employment at a school in Blackheath and which he says has caused him continuing loss thereafter.
- It was not until February 2014 that he took successful action to persuade the police to withdraw the matters set out in his ECRC. His claim is therefore for losses incurred throughout this period.
The Compromise Agreement
- This is a carefully drafted document and was the product of considerable negotiation between the parties.
- In Clause 2 the basis of the agreement is described in this way:
"The terms set out in the Agreement constitute the entire Agreement between the parties and are without admission of liability on the part of the employer".
At Clause 9 the parties agreed to keep confidential the circumstances leading to this inclusion of this agreement and the terms of it.
- Clause 10 reads as follow:
"Any written reference which any third party may request the Employer to give in relation to the Employee will be in the terms set out in Schedule 2. Any reference given orally will be consistent with the terms and spirit of the agreed reference. This Clause is subject to the proviso that the employer will cease to be obliged to provide a reference, whether written or oral, in the agreed terms if after the signing of this agreement new facts come to the Employers attention which make the agreed reference substantially and materially incorrect"
- The agreement then continued to the effect that it was in full and final settlement of all claims against the Employer and it was signed by among others the Claimant's advisor Keith Bunting, NUT Eastern Regional Officer, who certified in Schedule 1 that he had given the Employee advice on the terms and effect of the agreement.
- Schedule 2 is a key part of the agreement and is described as a "Letter of Reference". It is on a single sheet of A4 and contains ten short paragraphs, eight of which are complimentary as to the claimant's ability as a teacher and the results his pupils had attained. It also praised his involvement in extra-curricular activities and parent's evenings, and his interaction with colleagues and others. The final paragraph reads "Mr Camurat has certainly a lot of offer any school or college and we wish him well".
- The two preceding paragraphs however read as follows:
"During his employment is has been necessary on occasions to provide Mr Camurat with additional advice as regards his interaction with some pupils.
In September 2008 a governors' disciplinary panel issued Mr Camurat with a first and final written warning for grappling with a pupil whilst trying to confiscate a mobile phone. This warning expires on 9 September 2010".
- Mrs Walker, who had played a part in the negotiations, and who plainly had insisted on the inclusion in the reference of the two paragraphs set out above, was not involved in any way in the production or preparation of this document. It was produced, within a matter of a few hours, by Mrs Brenda Stannard, a local authority designated officer, whose role was to provide advice to the Head Teacher on matters relating to the safety of children. She had been involved in the disciplinary proceedings and had some knowledge of the complaints that had been made against the claimant
- Mrs Stannard had referred to her an email from Mr Richard Jones at the vetting unit of Essex Police which related to the claimant and which read as follows:
"We have information relating to an incidents [sic] that he has been involved in while working as a teacher. The information relates to an alleged incident that occurred on 26 January 2005 it is alleged that whilst working as a teacher at the Aveley School he assaulted a 12 year old female pupil. There are also mentions of previous incidents involving Mr Camurat and pupils of the school… would you be able to supply the details of any enquiry or meetings that were held in relation to these allegations".
- There is no evidence as to who had given the vetting unit this "information" or made these "mentions".
- The incident on 26 January to which Mr Jones was referring was related to CB, whose allegation had been fully had investigated by police at the time.
- There was a conversation between Mrs Stannard and Mr Jones after she received his request and he told her what he wanted was a chronology. She already had such a document which had probably been prepared to assist the panel in the 2008 disciplinary procedure to which she had added the last two narrative entries.
- The chronology is in the typical format for such a document, a series of columns with headings and rows following a date order. She added after the final entry this statement:
"In is my opinion as the Local Authority Designated Officer that Melik Camurat should not be working with children and young people".
She added this at the request of Mr Jones. She had not volunteered this chronology to the police and said she would not have produced it if she knew that it would effectively be reproduced in the ECRC. She did not know that they had done that until the following December when she was shown it for the first time. Neither she nor anyone else in the Local Authority had been shown the ECRC in draft.
- After she sent it she had no further requests for information or any conversations with Mr Jones. She expected that it would be for the police to decide what use if any would be made of the information she provided. She knew that they had been involved in two of the more significant allegations (CB and KM), that they had from time to time attended management planning meetings and would have received minutes of all such meetings. That they had other information is strongly suggested by a letter from DCI Johnson of the Public Protection Unit to the claimant's representative in June 2010 that he had access to the files on the claimant and he "will say now that they are substantial". She said in evidence that her expectation was that the police would look at her chronology and tie it up with their own material and then decide what to put to the CRB.
- In fact comparing the certificate as drafted with the chronology itself it effectively reproduced the material from the chronology without alteration save that it expressed the information in it in a narrative rather than a tabular form. In relation to the CB and RL matter the ECRC adds the following:-
"There was no further action taken by Essex Police in relation to either incident as there was insufficient evidence and neither victim was willing to attend court".
That if anything was a more favourable description of the result than that which appeared in the chronology.
- In addition the ECRC omitted the final entry in the chronology, the opinion which had been added, said Mrs Stannard, at the request of the police. The ECRC also changed and compressed the references to entries in the chronology referable to inter-staff disciplinary issues which did not involve children.
The Statutory Framework
- Duties were imposed on the defendant as the local authority as follows:-
A) By the Education Act 2002 Section 175 to ensure that
"…functions conferred on them as a Local Education Authority are exercised with a view to safeguarding and promoting the welfare of children".
B) By the Children Act 2004 Section 10(1) (b) and (4) (b), as a Children's Service Authority to make arrangements to promote co-operation between it and the Police Authority and the Chief Officer of Police.
C) By Section 11(1)(a) and (h), and (2)(a) both the Local Authority and the Police Authority -
"…must make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children".
Therefore the defendant in providing the disclosure it did was acting under the requirements of a statutory duty.
- So far as a reference to ISA is concerned that was required by Section 39 of the Safeguarding Vulnerable Groups Act 2006.
- Section 39 reads in its relevant parts
(1) A Local Authority must provide [ISA] with any prescribed information they hold relating to a person if the first and second conditions are satisfied.
(2) The first condition is that the Local Authority thinks - …
(c) That the harm test is satisfied.
(3) The harm test is that the person may -
(a) Harm a child…
(b) Cause a child … to be harmed
(c) Put a child … at risk of harm
(4) The second condition is that the Local Authority thinks –
(b)…That [ISA] may consider it appropriate for the person to be included in a barred list.
- The defendant is a Local Authority and "regulated activity provider" for the purposes of this statute therefore it was required to comply with Section 39 of the Act.
- Mrs Stannard was not optimistic about the chances of the reference resulting in a barring order, basing this on the statistics that she was aware of relating to the outcome of ISA references. But she was of the opinion that the claimant posed a risk to children if his forceful dealings with pupils continued to escalate. I believe she thought there was a chance of that happening therefore in my opinion the reference to ISA was also in obedience to the statutory duty and the argument by the claimant that it was otiose is not one which I accept.
- The issue therefore is whether the allegations of misrepresentation and/or breach of contract and/or negligence relied on by the claimant excluded or modified that duty by ensuring that at any response to the police or ISA would not materially differ from the terms of the reference agreed in Schedule 2.
- So far as the provision of an ECRC is concerned employers of those such as teachers working with children will require an ECRC, the content of which will go beyond a normal CRB certificate. It is obviously a key document for a teacher looking for work, certainly in a permanent post.
- Section 113E(4) of The Police Act 1997 requires [ISA] to ask any relevant Chief Police Officer to provide information which he reasonably believes to be relevant for the purpose described in the application for the ECRC and which in his opinion ought to be included in this certificate.
- In the case of R(L) v Commissioner of Police for the Metropolis  UKSC 3,  1 AC 410 the Supreme Court said that the Chief Police Officer is entitled to include information in the ECRC which does not cross the threshold of either criminal or civil standards of proof or even when no civil regulatory or disciplinary proceeding have been brought. See Lord Neuberger at 441
"…the threshold for inclusion in the ECRC is subjective and very low".
- So far as disclosures to ISA were concerned it is accepted in this case that Sections 35 and 39 of the SVGA require the defendant as a "Regulated Activity Provider" within the meaning of Section 6 of that Act to make disclosures to ISA if it thought that a teacher might harm or attempt to harm a child or put a child at risk thereof.
- Finally by virtue of Section 57 of the SVGA it was enacted that no claim for damages lies in respect of loss or damage suffered by any person in consequence of the provision of information pursuant to those Sections unless the information was "known to be untrue by the originator of the information".
- The main issue here concerns the disclosure to the police in response to their request. The reference to ISA did not result in the barring of the claimant from teaching so that no loss was sustained. There might, suggested Mr Williams, be a modest claim for injury to feelings at most.
Was the Chronology Misleading/Unfair/Partial?
- The party said to have been misled by the chronology was the police. It therefore seems to me instructive when considering the claimant's challenges to the fairness of the chronology to have for comparison the ECRC that was produced with the assistance of it on 7 May 2009.
- The format of the chronology was that it was divided into columns. The first two were headed "date" and "incident", the third "pupil", the fourth "MPM" meaning Management Plan Meeting, an acronym the police would have understood. The next column covered police involvement and the final column outcome.
- The description of the first "incident" was in these terms -
"MC pushed and grabbed a pupil. Pupil was being disruptive. He was named and said to be known to be disruptive there was negative answers under MPM and police involvement and the outcome is described as "referred back to school".
- The criticisms of this entry are that it was a trivial incident with which I agree, subject to the rider that when there were other incidents following it Mrs Walker was entitled to form the view that she did that this was an escalating pattern of behaviour. It is said that it was merely an allegation and not something which had been proved, that the claimant denied it and the school took no action recording the position on the monitoring form as "no case to answer".
- So far as the first criticism is concerned the police were plainly aware that these were allegations and not proven events because each one is so described in the final ECRC. That being so it was necessarily to be understood that the claimant had made no admissions. "Referred back to school" said Mrs Stannard would have been understood by the police and meant effectively that no further action had been taken.
- The second entry relating to pupil NW raises much the same issues as does the third relating to SR. The MPM minutes record that there was no suggestion of a deliberate intention to cause injury and no disciplinary action was taken.
- The fourth entry relating to RF attracts the same criticisms and was misleading in that no disciplinary action was in fact taken.
- The next two entries related to the same occasion and the pupils were CB and RL. It was said that the claimant had grabbed the former's hand causing bruising and pushed the latter. This matter had been investigated in some depth by the police; they had a video interview with her and interviewed the claimant and had full notes of a summary of the evidence. The bruises on C had been photographed by the school and by the police. Police were evidently considering prosecution but the chronology records that her mother did not want her to go through a court case and that the "police would have pursued it".
- The police therefore had very full material on this matter, were aware of the context and the fact that the defendant denied the allegation. The linked case of RL is criticised in the chronology for not saying that that incident also was denied and no disciplinary action taken.
- There then appear a number of entries which are either repetitive or unrelated to child protection issues and this seems to me a fair criticism. It was probably caused by the fact that the chronology was originally prepared for use at a hearing which staff disciplinary issues were going to be on the agenda. From the ECRC the police only referred to eight complainants so they must have understood this.
- The penultimate entry of relevance is that of 3 July 2007 which stated that the claimant "was verbally abusive towards a Polish pupil, and in her own language referred to her as Miss Spanking". The criticism here is that this entry failed to give information or context or the fact that the governors found there was no misconduct. Mrs Stannard said that a colleague had called the police about an incident but she was not sure what they were told, and agreed that by including this reference she was going behind the governors' decision. There is force in these criticisms
- The final incident occurred on 23 November 2007 when the claimant was said to have "physically grappled with a pupil with the intention of removing a mobile phone from their hand". The pupil was KM and the chronology recorded that the police had been contacted and their advice had been sought; "police would investigate either as criminal damage or common assault depending on information provided if the parent wanted to pursue" and that the outcome was the suspension of the claimant.
- There then followed two narrative entries which are reproduced and Mrs Stannard's expression of opinion dated 20 February 2009 (the date on which she spoke to Mr Jones) that the claimant should not be working with children or young people. No reference was made to that in the ECRC.
- As to whether the police were misled by this document when as is suggested there is considerable evidence that they had knowledge of these matters had they chosen to investigate from their own records, so far as the complainant RF is concerned at the relevant MPM DI Deer of the Child Abuse Investigation Unit had attended and there had been discussion of other cases.
- The CB incident had resulted in a full police investigation with an interview of the complainant and the claimant and the case of RL was interlinked with if rather overshadowed by that of CB. As to the Polish girl NM when that matter was discussed at the MPM there was a recommendation that advice be sought from the police though it is not known whether that was followed up.
- The final episode records that the police were contacted about it and that the Child Protection Co-ordinator Miss Hudson contacted DS Henderson of the Child Abuse Investigation Unit by telephone. In the course of the meeting he was made aware that CCTV footage of this incident was available.
- Although understandably the focus of much of the evidence was detailed in nature at the end of the day it is my function to take a broad view of the effect of this document on the recipient, bearing in mind who that recipient was and what Mrs Stannard reasonably might have believed was available to it from its own resources. It is an imperfect document and not easy to construe because it was not tailor made for use by a decision maker considering the issue of an ECRC. But to the extent that it dealt with what were plainly child protection issues and looking at the way in which it was reproduced in the ECRC I am satisfied that the police were not impeded in the exercise of the duties upon them by having been materially misled by it.
The Causes of Action: Contract, express term
- The interpretation of the terms of a contract is an exercise in establishing the common intention of the parties as expressed by them and in the context of the agreement as a whole and relevant background matrix.
- Clause 10 is to my mind quite clear. The reference to "any third party" must mean any potential future employer of the claimant. If such a person contacted the defendant orally, asking for example for further particulars of the other "occasions" in which it had been necessary to give advice to the claimant, the answer would have had to have been consistent with the "terms and spirit of the agreed reference" in Schedule 2. The concluding sentence of Schedule 2 makes it clear if it was not already that the reference here being considered relates to other schools or colleges who may find themselves in the position of potential employers of the claimant.
- Therefore in my judgment Clause 10 does not require the defendant to decline a request by the police or anybody interested in safeguarding issues or to limit itself to a mere repetition of what is in Schedule 2.
Contract: Implied Terms
- The claimant says that it was implied that the defendant would take reasonable skill and care when making statements to the police and ISA and that such statements would be "in the spirit of the reference." In practice this would have meant a denial of cooperation with those bodies. In so doing the defendant could not have explained itself by referring to Schedule 2 because the terms of the compromise agreement itself were strictly confidential – see Clause 9. It would therefore have required the defendant to say they could not give any help at all, one way or the other.
- It is material to note that Clause 2 said that the compromise agreement contained the entire agreement between the parties, but I believe that the claimant is right to argue that that does not of itself preclude implying a term in appropriate cases.
- A-G of Belize v Belize Telecom Ltd  UKPC 10 was an authority in which Lord Hoffmann giving general guidance on the implying of terms said-
"… The question for the court is whether such provision would spell out in express terms what the instrument read against the relevant background would reasonably be understood to mean".
He said that earlier cases on the implication of a term were -
"..best regarded not as a series of independent tests which must each be surmounted, but rather as a collection of a different ways in which judges try to express the central idea that the proposed implied terms must spell out what the contract actually meant… (paras 21 and 28)"
- The argument for the claimant is that the purpose of the compromise agreement was to give the claimant his best chance of continuing to work as a teacher. To that end he was prepared to suffer the disadvantage of the adverse comments in the schedule. But any disclosure differing from that reference even to a body such as the police with a duty to investigate would not reflect the parties' bargain. The defendant's counter argument is that the claimant wanted to leave the school and get the best terms he could extract in negotiation.
- That the defendant's position is correct is shown vividly by an exchange of emails between Sylvia Mitchell, the HR Senior Consultant for Thurrock who was running negotiations on their side, and Keith Bunting, Regional Officer of the NUT, who was acting for and advising the claimant. On the 20 October 2008 he wrote to Ms Mitchell that he had explained to the claimant the need to refer to the final warning and he had accepted it. He then sought to explore whether Thurrock would be able to re-deploy him elsewhere in its educational system or "find another post to enable him to more easily accept this CA offer". He continued
"I fear that without some certainty of continued appropriate employment he may have little option than to decline the CA offer and return to Belhouse Chase with all the subsequent outstanding issues within the school".
- The reply from Ms Mitchell gave him no comfort. She pointed out the difficulties in the way of re-deployment as an option and said that she did not want the claimant to get his hopes up about that. She was in effect adamant that the agreement as it then stood had to remain as it was, pointing out that discussion had been going on for some weeks, and the situation could not be allowed to drag on and in effect the school needed finality. She concluded with these words
"I understand the difficulties facing Melik but unfortunately he has to recognise and accept that these have been brought about as a result of his own behaviour".
That was the outcome of the negotiations. He was being told that he did have difficulties ahead of him due to the terms of the reference but that it had to remain in those terms and, as Mr Auburn put it, accurately if rather brutally, that the defendant's offer was "as good as it gets for him". All that seems to me to be entirely inconsistent with the implication of the term that the claimant proposes.
Breach of Contract – Ultra Vires
- The defendant argues that even if there was any term express or implied inhibiting safeguarding disclosures it was void as contrary to public policy and beyond the powers of the defendant to agree to it. It would require the defendant to ignore or modify the duty it would otherwise have owed to the police and/or ISA on matters relating to the safeguarding of children. Reliance is placed on the case of Hughes v Statham 4B&C187, an authority of some antiquity but which suggests that inducing a public officer to neglect his duty or perform it in an unlawful way would be an agreement contrary to public policy.
- The claimant argues that this is a public authority relying on its own wrong doing as a defence to being bound by it contractual terms and points to the dicta in Gibbs v Maidstone  IRLR 786 and Archbolds (Freightage) Ltd v Spanglett  QB 374 but the defendant points out that not only would the agreement proposed by the claimant offend public policy it would be beyond the powers of the defendant as a statutory body to act in that way and relies on Birkdale District Electric Supply Co Ltd v Southport Corporation  AC 355 at 364.
- The argument here is well balanced but in my judgment, had I found for the claimant on the contract points, given the subject matter of this disclosure to have modified what would otherwise have been in the judgment of the defendant an appropriate response to the police or ISA to reflect a private agreement when what was at stake was potentially the safety of children; it would be a neglect of the defendant's duty and therefore void as such.
- The helpful list of issues defines the issues arising under this heading and reads as follows
"4. Did D…represent that (a) any safeguarding disclosure or (b) any disclosure to a third party, including the police and ISA would be in the spirit of the agreed reference
5. Was C induced to enter into the compromise agreement by such a representation?
6. If such a representation was made was it false. Did D … intend not to abide by any such representation?
7. Did any misrepresentation by D cause C loss?"
The claimant lay stress on the submission that this was a "relational contract" as defined in Yam Seng PTE Ltd v International Trade Corp Ltd  1AllER 1321 . Leggat J stated that under English law a duty of good faith was implied by law as an incident of certain contracts including contracts of employment, and he continued (at 142) -
"Such relational contracts as they are sometimes called may require a high degree of communication cooperation and predictable performance based on mutual trust and confidence and involved expectation and loyalty which were not legislated for in the express terms of the contract but are implicit in the parties understanding and necessary to give business efficacy to the arrangement".
He gave examples from the commercial field, such as joint venture agreements, franchise agreements and long term distributorship agreements and it has been held that an employment relationship is one such example. In Gibb v Maidstone and Tunbridge Wells  IRLR 786 it was stated that this heightened duty between employer and employee could apply to the pre- contractual negotiations of a compromise agreement.
- Misrepresentation is said to be implicit by the defendant's "words and conduct in the context of carrying out compromise agreement negotiations".
- On the particular facts of this case it is difficult to see that the claimant can prove this assertion. He accepted in cross examination that disclosures to safeguarding bodies were not in his mind prior to signing the compromise agreement and that he only wished to get on with his life.
- This was an arm's length negotiation with both parties represented, the claimant by an experienced union representative who had set the ball rolling by acknowledging that the relationship of employer and employee could not continue, therefore to resume work at the school was not an option. He was accepting in the exchange with Ms Mitchell cited above (and he must have shared this with the claimant) that even with the proposed schedule 2 agreed reference he was at risk of not getting another teaching job. That accords with the evidence Mrs Walker gave, that she would not have employed a teacher who produced such a reference. Though I heard no evidence from Mr Bunting I think what I have set out above is a reasonable inference from the rest of the evidence. The fact was that the only intention in the mind of the employer was to agree the wording of an employment reference which was hardly to be described as a favourable one in my judgment but was the best that he could expect. Nothing that the defendant said or did, argues Mr Auburn, in the course of the negotiations related to the issues of safeguarding disclosures. His attempt to obtain re-deployment had met with a polite but clear refusal to contemplate that possibility. The email from Sylvia Mitchell of 17 October 2008 to Keith Bunting is relied on by the claimant as suggesting that the defendant was agreeable to limit the extent of disclosure. I do not read this as including disclosure to the safeguarding authorities but rather to potential employers.
- This was therefore an entirely adversarial situation, where all the parties were agreed that remaining at the school was not a possible option and the statements and conduct of the defendant were the reverse of any suggestion that they, if the agreement was signed, would ignore or modify what was otherwise their contractual duty.
- In my judgment the claimant fails to discharge the burden of proving that any such negligent misrepresentation was made by the defendant or that he was induced to enter into the compromise agreement as a result of it.
Duty of Care in Negligence
- The claimant asserts that there was a duty of care imposed on the defendant in relation to the information it provided. He relies on the familiar three stage Caparo requirements of proximity, foreseeability and fair just and reasonable as well as two cases in particular, Spring v Guardian Assurance Ltd  AC296 and McKie v Swindon College  EWHC 469 QB: IRLR 575. The first of these is high authority for the proposition that an employer providing a reference for a former employee owes that employee a duty to take reasonable care in the preparation of such a reference and that duty is not prevented by a public policy inherent in the supply of full and frank references between employers. The defendant contends that while that is a clear authority it does not lay down a universally applicable duty for all forms of references in all circumstances and whatever kind.
- As to McKie, in that case a former employer had volunteered information without any request for the same, and it was couched in highly unfavourable terms which the judge found to be on the facts entirely without foundation, saying it did not "stand up to any sort of scrutiny at all". There was no statutory duty in play in the case, no safeguarding issue in fact arose and the injured party had no alternative remedy for his losses. In those circumstances perhaps unsurprisingly the judge held that the defendant had brought about the relevant degree of proximity and all the factors in the case indicated that it was fair just and reasonable to impose a duty. He was at pains to stress (see paragraph 45), that this was not what he called "a reference case".
- The defence rely on Desmond v Chief Constable Nottingham Police  EWCA Civ 3:  PTSR 1369 in which the Court of Appeal held that the police owed no duty of care to a person seeking an ECRC when supplying information leading to its issue. The defendant here argues that, that being the case, the position of the person supplying information to the police for that purpose should be a fortiori. It is worth setting out the court's conclusions:
"48…The statutory context in which the Chief Officer was obliged to operate is important. The statutory purpose of ECRCs is to provide a degree of protection to vulnerable young people generally. The Chief Officer acts pursuant to a statutory duty. In so acting he does not assume a responsibility which the statute has not obliged him to undertake. He had no choice….There are no special facts in this case from which the court can conclude that, apart from the statutory duty, this particular Chief Officer is to be taken to have assumed responsibility to Mr Desmond in particular".
- The court went onto to stress that the structure and purpose of the statute strongly suggested that there should be no duty of care, which would if imposed give rise to plain conflict between the duty to the claimant and the statutory purpose, and that a common law duty owed to the claimant would conflict with and inhibit the performance of the statutory function.
- In my judgment substantially the same considerations arise here. There was no duty discernible from the statute and no assumption of duty by the defendant. The considerations of public policy are exactly the same.
- It is also worthy of note that the court in Desmond at paragraph 51 was fortified in its decision by the fact that the claimant in that case had other possible remedies potentially available. The same applies to the claimant in this case. Those included the statutory procedure under Section 117 to challenge the reference, and judicial review of any refusal to amend an ECRC (as was indeed successfully deployed in 2014, the rationale of the decision by police to accede to it being that the passage of time since the issue of the certificate without any further problems justified it being quashed.)
- There is no justification, therefore, in this case for imposing a duty of care on a supplier of information to police, which would discourage those who would in good faith provide assistance to the police on safeguarding issues.
- The ingredients of this tort are that there must have been a statement made which was false, maliciously published and calculated to cause the claimant pecuniary loss.
- "Malicious" means fraudulent in the sense that the statement was made by someone who knew it to be false or who was reckless as to whether it was false or not. In Horrocks v Lowe  AC 135 at 145H Viscount Dilhorne said -
"Gross and unreasoning prejudice may have led him to utter them recklessly whether they were true or false but if he believes the truth of what he said can he at the same time be said to be reckless of the truth or falsity of his statements? May be that others with more judgment and more wisdom would not have formed the same belief, but if, in fact, he believes what he said he cannot at the same time, in my opinion, be reckless whether it is true or false. But such recklessness falls short of deliberate falsehood. But such recklessness, not minding or caring whether it be true or false, whether it arises from anger or unreasoning prejudice or from some other cause, is not consistent with belief in the truth of the statement."
- The false statement is said to be the chronology. I am satisfied that Mrs Walker played no part at all in its creation or production. She was not consulted about its terms. She was unaware of the ECRC until the claimant sent it to her on 14 October 2009 asking her to acknowledge that the information was factually incorrect. He said he would seek legal advice about his remedies if necessary. She reacted to that by referring the letter to the legal department without making a personal response. Likewise she was not a party to making the referral to ISA on 25 June 2009.
- Though the investigations that related to the eight complainants in the chronology were conducted by her or with her knowledge I am satisfied that as soon as the termination agreement was signed she drew a line under the problems with the claimant and did not turn her mind to him at all.
- As for the allegation that she bore him ill will she freely acknowledged that she was deeply upset when the governors failed to dismiss him at the final disciplinary process and even said she was "horrified" by it. She reflected those views in an email to Mrs Stannard on 11 September 2008.
- In early July 2007 Philip Allsop, who was Head of Business Studies at the school, said that he had a conversation with Mrs Walker in her office about a new lesson planning policy. Mr Allsop had helped the claimant draft a letter to her about this and that letter, she said, had affronted her as she thought it extremely rude that she had not been consulted before being presented with the demands it contained.
- In his meeting with her Mr Allsop said Mrs Walker expressed those feelings to him and said something to the effect that she would "get him this time".
- I was not impressed by Mr Allsop's evidence. He himself was in difficulties in that Mrs Walker had earlier raised with him questions as to his capability in the classroom, which had caused him to go off work with stress and his position at the school was under threat. As Mrs Walker said she was very unlikely to have said such a thing to him in those circumstances knowing him to be a close associate of the claimant.
- The burden of the charge against her is that she is trying to build a case against the claimant concerning child protection issues by deliberately exaggerating incidents. She was a difficult witness to handle being both voluble and emotional but I can see that she must have been an effective head of this school which moved in her time from special measures to achieving academy status. I have no doubt that she was glad to see the back of the claimant as a teacher but having seen and heard her I am satisfied that she would not have been a party to deliberate exaggerations or falsification of allegations. I believe that everything that she did, whether it was right or wrong, was driven by a genuine belief that the claimant was a risk to children.
- So far as Mrs Stannard is concerned she is also made the subject of this charge of malice. She shared Mrs Walker's assessment of Mr Camurat as a risk. The staff issues incorporated in the chronology, I find, were there because the document had been prepared for the last set of disciplinary process which did also cover these issues. The personal opinion she expressed at the end of it was I am satisfied included at the request of the police, and was sincerely and honestly held. She had been involved in the investigations into the pupils' complaints and had formed her opinion as a result. She genuinely believed, as I accept, that the police would carry out their own investigations and look at what they had before producing the ECRC. Her email three days after she had forwarded the chronology to Mr Jones saying "will his CRB reflect our concerns" does not cause me to consider that she was acting maliciously in the sense defined above.
- She was responsible for making the referral to ISA on 25 June 2009. She delayed doing this initially because she mistakenly believed that such a reference could not be made where there had been a mutually agreed termination as opposed to a dismissal. It was not until she attended a conference that on vetting and barring that she was disabused of this notion and was led to understand that if she held the views she held then a referral to ISA was appropriate.
- The claimant says that this was effectively a malicious reference because as she herself conceded the strong likelihood was it would fail. She said that because she knew that only a small percentage of references for barring orders resulted in such an order being made. I consider that in making the reference she was motivated by what she had been told and was reflecting a sincerely held belief that the claimant posed a risk to children, again whether that opinion was right or wrong.
- In those circumstances in my judgment the claim under this heading must fail and has not been made out to the required standard described in Khader v Lyons  EWHC2027 at 31 as "a stringent test". That has not been passed in this case.
- For the reasons that I have endeavoured to set out above these claims must all fail and are dismissed. I am most grateful to all counsel on both sides for their skill and industry in this case.
Copyright Policy |
Donate to BAILII