W v Westminster City Council & Ors

Communications made for a child protection conference are protected by qualified privilege, but the occasion is not one of absolute privilege. Extending absolute privilege at common law requires demonstrated necessity, and the wider the proposed immunity, the greater the caution required. The court must balance the claimant’s reputation and family-life rights against the child-protection interests engaged by the communication. Where a social worker may have a duty to report an allegation despite uncertainty about its truth, qualified privilege is defeated by proof of an unjustifiable motive, rather than by mere carelessness or imperfect reasoning. Recklessness may be evidence of such a motive, but it is not itself equivalent to knowledge of falsity.

The claimant brought a libel action against a local authority and two social workers concerning allegations included in a report prepared for a Child Protection Case Conference. Publication and meaning were disputed, and the defendants relied on absolute and qualified privilege. The court dealt first with absolute privilege because success on that issue would determine the action in the defendants’ favour.

The defendants argued that the statutory child-protection framework, the public importance of safeguarding children and developments under the Human Rights Act 1998 justified reconsideration of earlier Court of Appeal decisions. The central questions were whether the occasion attracted absolute privilege and, if not, what test governed qualified privilege and malice.

The court held that the report was not published on an occasion of absolute privilege. The common law test for extending absolute privilege to a new situation is necessity. That necessity was not established across the wide range of child-protection communications and publishees contemplated by the statutory guidance.

1. The interests engaged were the claimant’s rights to reputation and family life under article 8 of the Convention, and the child’s corresponding article 8 interests. Article 10 was not engaged on the facts because the Council was not asserting a Convention right to communicate or receive the information.
2. The court applied the guidance in S v Newham London Borough Council, including its preference for case-by-case protection where a clear need is shown. Qualified privilege provided adequate and proportionate protection. The court also rejected reliance on D v East Berkshire: witness immunity and the absence of a negligence duty could not be converted into a blanket immunity in defamation, which attaches to the occasion rather than to the claimant.
3. The relevant qualified-privilege question was whether the social workers acted bona fide in discharging their statutory duty, or instead from an unjustifiable motive. In the exceptional situation where a person may have a duty to pass on an allegation without endorsing it, a positive belief in its truth is not required. Recklessness in that context concerns evidence of an improper motive; it is not automatically established by carelessness, haste or imperfect assessment.
4. The issue of absolute privilege failed. Argument was reserved on whether the claimant had pleaded or established sufficient malice to defeat qualified privilege, and no final determination of the libel claim was made.