H v Tomlinson

An Article 8 claim is free-standing and may arise independently of defamation, but it must establish an actual invasion of privacy or material harm to reputation. It cannot succeed merely because defamation is unavailable. Information about criminal misconduct, arrest and removal by police is not ordinarily private merely because it concerns events at home. A claimant must also show that further disclosure materially diminishes reputation. Where reputation is already established by abundant evidence of similar violent conduct, additional allegations may make no material difference.

B, a child with Asperger’s Syndrome and behavioural difficulties, was permanently excluded from school after violent incidents. A statutory appeal panel found that the incidents had occurred but overturned the exclusion, while declining to reinstate him. The headmaster’s report included an allegation that B had been arrested for violent and dangerous behaviour at his father’s house. At the appeal hearing he said that two reliable parents had seen B led away in handcuffs.

B’s defamation claim was struck out and summary judgment was entered for the defendant because the words shared the sting of other allegations that were justified. The recorder permitted amendment to add Article 8 claims for misuse of private information and damage to reputation. The central issue was whether those claims could succeed notwithstanding the failure of the defamation claim.

1. Defamation. The court dismissed the appeal against striking out the defamation claim. The recorder was entitled to conclude that the words complained of had the same sting as the other allegations relied upon in justification. Since those allegations were not disputed, the claimant had no real prospect of defeating the defence of justification.
2. Article 8 privacy. The threshold question was whether B had a reasonable expectation of privacy in the particular circumstances. The court agreed with Eady J in A v B [2005] EWHC 1651 that public policy weighs strongly against concealing information about criminal misconduct, including domestic violence. Information about violent misconduct, arrest and removal by police was in the public domain and could reasonably be deployed in an inquiry into an unruly child. Procedural irregularities concerning the appeal hearing did not make public information private. The court noted the older rule in Gartside v Outram (1957) 26 L.J. Ch. (n.s.) 113 and the observation in Maccaba v Lichtenstein [2004] EHWC 1579, but left that broader debate unresolved.
3. Reputation. A claim under the Human Rights Act 1998 was free-standing and independent of any common-law claim arising from the same facts. However, B had to show that the disclosure diminished his reputation. His existing reputation was that of a disturbed child who was at times beyond control and violent. Knowledge of the further allegations would make no material difference, so the proposed reputation claim had no real prospect of success. The court distinguished W v Westminster City Council [2004] EWHC 2866, where there had been no well-founded plea of justification.
4. The appeal concerning permission to add the Article 8 claim was allowed. The proposed amendment was refused because the claim was inevitably doomed. The claim altogether was dismissed. The parties were invited to make written submissions on the form of order and outstanding costs.

• Court of Appeal (Civil Division) — [2008] EWCA Civ 1258. The appeal against dismissal of the defamation claim was dismissed. The appeal concerning permission to add the Article 8 claim was allowed, and the proposed amendment was refused.
• Queen’s Bench Division, Mr Recorder Moloney QC — The defamation claim was struck out and summary judgment entered for the defendant. Permission was granted to amend the claim to include an Article 8 claim, but refused for the Article 6 claim.