Wilson v Westney & Anor

Evidence given in employment tribunal proceedings attracts absolute privilege where the tribunal exercises judicial functions and acts in a manner similar to a court. A publication made in those proceedings therefore cannot found an action for defamation or malicious falsehood.

Where a claim is prima facie barred by the one-year limitation period, the discretion to allow it to proceed requires careful attention to the length and explanation of the delay, the likely effect on the evidence, and the prospects of success. Waiting for related employment or disciplinary proceedings does not ordinarily explain delay in bringing a separate claim concerned with damage to reputation.

The applicant sought permission to appeal against an order of Judge Heppel Q.C., sitting as a Deputy High Court Judge, which dismissed claims for defamation and malicious falsehood and granted summary judgment to the respondents.

The alleged statements were made by the first respondent during disciplinary investigations connected with the applicant’s employment by Sheffield City Council. The claim was commenced in June 2000, although the relevant oral statements and witness statement dated from July and August 1997. The applicant argued that the statements had been repeated before an employment tribunal and that the delay should be excused while employment proceedings were pursued.

The issues were whether the tribunal publication was privileged, whether the limitation discretion should be exercised, and whether the claims had reasonable prospects of success.

1. Permission to appeal dismissed. The associated application for disclosure was refused.

2. Publication of the witness statement before an employment tribunal would have been absolutely privileged. An employment tribunal operating under the Employment Tribunals Act 1996 exercises judicial functions and acts in a manner similar to a court of justice. The judge was therefore right to rely on Trapp v Mackie [1979] 1 W.L.R. 377 and Copartnership Farms v Harvey-Smith [1918] 2 K.B. 405 at 408.

3. The only potentially actionable publication occurred, at the latest, on 8 August 1997. The claims were consequently outside the one-year limitation period imposed by section 4A of the Limitation Act 1980.

4. The discretion under section 32A of the Limitation Act 1980 should not be exercised. The delay was substantial, there was no adequate explanation, and awaiting the employer’s disciplinary and employment proceedings was unrelated to bringing a separate civil claim for damage to reputation. The passage of time also weakened the likely cogency of the evidence.

5. The prospects of success were extremely slim. Statements made during an employer’s investigation were very likely protected by qualified privilege unless actuated by malice, and the particulars of claim did not adequately plead a factual basis for malice. Complaints about the conduct of the disciplinary proceedings, unequal litigation resources, and unavailable witnesses did not affect the limitation discretion or the merits of these claims.

• High Court of Justice: Judge Heppel Q.C., sitting as a Deputy High Court Judge, dismissed the claims for defamation and malicious falsehood, granted summary judgment for the respondents, and declined to exercise the discretion under section 32A of the Limitation Act 1980.
• Court of Appeal (Civil Division): Permission to appeal was dismissed. The associated disclosure application was refused.