W v Westminister City Council

Information disclosed by public authorities in an established child-protection relationship may attract qualified privilege even where it is unverified, provided it is communicated in good faith for the purpose of investigating a genuine concern. A breach of professional guidance does not itself establish malice.

That protection does not determine a claim under the Human Rights Act 1998. Disclosure of highly sensitive personal information may interfere with Article 8, even where it is made unintentionally and without malice. The court must assess whether the disclosure was necessary and proportionate, having regard to the particular circumstances and the interests of all affected persons.

The claimant sued Westminster City Council and two social workers in libel after a child-protection conference report stated that professionals had raised concern that he might be grooming a child for prostitution. The court had previously held that absolute privilege was unavailable and permitted amendment to add a claim under the Human Rights Act 1998.

The defendants denied the truth of the allegation and relied on qualified privilege. The claimant alleged that the publication was defamatory, malicious and incompatible with his Article 8 rights. The issues included the meaning of the words, the availability of qualified privilege, whether malice was established, whether the disclosure interfered with Article 8, and the appropriate remedy.

1. Meaning and libel. In its child-protection context, the words conveyed only that there was a possibility that the claimant might be grooming the child. They did not assert guilt, evidence of guilt or reasonable grounds to suspect that the child was likely to suffer significant harm. The words were nevertheless defamatory, and their falsity was presumed because there was no plea of justification.
2. Qualified privilege. The publication occurred within an established relationship between social services and the family, involving corresponding duties and interests in the free exchange of information relevant to child protection. Following Kearns v The General Council of the Bar [2003] EWCA Civ 331, lack of verification did not remove the privilege. The defendants had acted in good faith and were attempting to investigate a genuine concern. Their failure to follow the guidance carefully did not establish malice. The libel claim therefore failed.
3. Article 8. The qualified-privilege defence did not determine the Human Rights Act claim. The disclosure of highly sensitive and potentially damaging information at the conference, without warning the claimant or first investigating his relationship with the child, was an interference with his Article 8 right to respect for private life. It was neither necessary nor proportionate. The court distinguished a direct interference from a failure to discharge a positive obligation and applied an intense focus to the competing rights and interests.
4. Relief. The court declared that the disclosure unlawfully interfered with the claimant’s Article 8 rights. No damages were necessary to afford just satisfaction because the defendants had apologised, retracted the statement and offered a correction. The court assessed damages at £1,000 only in the alternative.

The judgment followed an earlier judgment in the same proceedings, in which the court held that absolute privilege was unavailable: [2004] EWHC 2866 (QB) . The present judgment determined the remaining libel and Human Rights Act issues at first instance.