S v Newham London Borough Council

Absolute immunity from suit for communications to a child-protection information service should not be granted merely because the underlying public interest is important. The court must assess the nature and significance of the interest, the degree of risk to it, the breadth of immunity required, the applicable principle, and the balance between competing public interests.

Where statutory duties and qualified privilege substantially reduce the risk that reporting bodies will be deterred, the risk may be insufficient to justify removing an individual’s access to the courts. The wider the immunity sought, the greater the caution required. Immunity was therefore refused where it would substantially impair the ability to vindicate reputation, while the risk to the child-protection index was comparatively remote.

The claimant, anonymised as “S”, was employed by Newham London Borough Council as a social worker. Following inquiries into his treatment of a child, the council sent information about him to the Department of Health’s Consultancy Service, which maintained an index used to assist child-care employers.

“S” brought proceedings for defamation, alleging that the publication was malicious and false. The council relied on qualified privilege, justification and absolute privilege or immunity from suit. Popplewell J decided the preliminary issue in favour of “S” on 3 October 1997. The council appealed, raising whether the public interest in protecting children justified precluding the claim.

1. Appeal dismissed. The council had not established that immunity from suit was necessary to protect the effectiveness of the child-protection index.
2. The court identified five considerations: the nature and importance of the protected interest; the degree and seriousness of the risk to that interest; the breadth of immunity required; whether extension of immunity was principled; and the balance between the competing public interests.
3. The protection of children from harmful conduct was a public interest capable of protection. However, local authorities were subject to statutory duties and were unlikely to be deterred from reporting by the possibility of litigation. The occasions on which a defamation claim could succeed were likely to be rare because qualified privilege applied and malice by the publisher had to be proved.
4. The courts could manage unmeritorious litigation robustly. Where a claim disclosed no realistic prospect of proving malice, early witness statements could be required and the claim could be dismissed. Malice by an original informant would ordinarily be irrelevant if the publisher itself acted without malice.
5. Any effective immunity would need to protect information supplied to the council and references later given by it, thereby widening the immunity’s scope. That breadth was a reason for caution.
6. The court accepted that immunity could, in principle, be extended beyond the administration of justice, following the public-interest balancing approach illustrated by D v NSPCC [1978] AC 171, R v The Lewes Justices ex parte The Home Office [1973] AC 388 and Hasselblad (GB) Ltd v Orbinson [1985] QB 475.
7. In the assumed circumstances, the individual’s interest in vindicating reputation and retaining access to the courts outweighed the comparatively insignificant risk that the index would be impaired. Judgment for “S” was upheld. Appeal dismissed with costs to be taxed and paid forthwith.

• Court of Appeal (Civil Division) [1998] EWCA Civ 339: appeal dismissed and the preliminary judgment upheld.
• Queen’s Bench Division: Popplewell J decided the preliminary issue in favour of the claimant on 3 October 1997.