Griffiths v Newport County Borough Council

A claim in negligence may lie for an inaccurate, misleading or unfair employment reference. Permission to appeal should be refused where the proposed appeal has no real prospect of success and no other compelling reason supports it. An appellate court will generally be slow to interfere with a trial judge’s careful assessment of witnesses and evidence, particularly where no error of law or principle is identified. A reference may contain meaningful assessments of strengths and weaknesses where the nature of the employment requires them, provided its observations are factually accurate and fair.

Mr Mark Griffiths sued Newport County Borough Council in negligence, alleging that a reference supplied to prospective employers after his employment had ended was negligent, misleading and unfair. His defamation claim had been abandoned, so complaints about compliance with CPR Part 53 were no longer material.

Following a trial before His Honour Judge W Gaskell in the Cardiff County Court on 24 July 2001, the claim failed. The judge found that the references were factually accurate and fair, apart from an immaterial error describing the claimant as having worked in the Mental Handicapped Division rather than the Mental Health Division. The claimant applied to the Court of Appeal for permission to appeal, principally challenging the judge’s evaluation of the oral evidence and the fairness and accuracy of the reference.

Application dismissed. Lord Justice Rix refused permission to appeal.

1. The judgment recorded that, in principle, negligence may provide a cause of action for an inaccurate, misleading or unfair employment reference. The claimant’s application did not identify any error in that legal approach.
2. The trial judge had heard the witnesses, considered the claimant’s correspondence and evidence, and made a careful and sympathetic assessment of the reference and the witnesses’ credibility. The Court of Appeal had no proper basis to differ from that assessment. A challenge seeking only a different evaluation of the evidence did not give the proposed appeal a real prospect of success.
3. A meaningful employment reference need not be bland. Where the nature of the work requires particular qualities and abilities, a reference may fairly address both strengths and weaknesses, provided its observations are factually accurate and fair.
4. The isolated error in describing the claimant’s division was not shown to have caused loss or to have affected an employer’s decision.
5. The complaint under Article 5 of the ECHR was misconceived. Article 5 was not concerned with the alleged loss of employment or employment prospects. Even if it were engaged, no breach could arise absent negligence or unfairness by the Council, which had not been established.
6. Procedural complaints about late and allegedly inadequate further information did not justify permission. The information had been supplied seven months before trial and the material was before the judge. The applicable test was whether there was a real prospect of success on appeal or some other compelling reason for permission. That test was not met.

• Court of Appeal (Civil Division): Application for permission to appeal from the judgment of His Honour Judge W Gaskell in the Cardiff County Court dated 24 July 2001 dismissed.