W v JH & Anor

Qualified privilege cannot necessarily be established summarily merely because a communication concerns an employment relationship or contains some truthful information. Where information is volunteered between persons without a clear established relationship, the court may need to examine the circumstances, including the quality, age and source of the information, any assurance given by an employer, and obligations concerning fair and lawful handling of personal data. Potential interference with Convention rights may also require consideration of the balance between reputation and freedom of expression. Meaning applications have a high threshold: words should be assessed in their ordinary context, and an arguable defamatory meaning should be excluded only where a jury could not reasonably adopt it.

The claimant, a social worker, sued the first defendant and her employer in slander. The first defendant had told a university practice-learning co-ordinator that the claimant had been due to face a disciplinary hearing concerning sexual harassment but had left in a hurry before it took place. The claimant alleged meanings including that he had resigned to avoid disciplinary action, had been guilty of sexual harassment, and was unsuitable to act as a practice assessor.

The defendants applied for summary judgment under CPR Part 24 on qualified privilege grounds and sought rulings under CPR Part 53 that the words could not bear two of the pleaded meanings. The central issues were whether qualified privilege could be determined without a trial and whether the pleaded meanings were capable of being conveyed by the words.

1. Applications dismissed. The defendants had not shown that the claimant had no real prospect of defeating the defence of qualified privilege, and the pleaded meanings were capable of being conveyed by the words.
2. The relationship between the parties did not make privilege sufficiently clear-cut to avoid investigation of the circumstances. The communication was volunteered, the first defendant lacked direct knowledge of the historic disciplinary matters, the information was admitted to be inaccurate in material respects, and the parties’ relationship and corresponding interests required examination. The distinction discussed in Kearns v General Council of the Bar between established relationships and communications between strangers was relevant, but did not resolve the issue summarily.
3. There was a real prospect that an ex-employer’s assurance concerning removal of disciplinary information after eighteen months could affect whether it had a duty or interest supporting qualified privilege. Similar questions arose if information had been retained or disclosed contrary to the fairness and retention requirements of the Data Protection Act 1998. The age of the information also raised an issue that could not be resolved summarily.
4. Where disclosure may engage Convention rights under article 8, the claimant should have the opportunity to argue whether the defendant’s article 10 freedom of expression prevailed. The possible relevance of the approach in Re S (A Child) (Identification: Restrictions on Publication) was left for consideration.
5. For meaning, the court had to consider the natural and ordinary meaning conveyed to the ordinary reasonable hearer in the context of the whole communication, avoiding over-elaborate or excessively literal analysis. The threshold for excluding a meaning was high. The words were capable of bearing the pleaded meaning that the claimant had quickly resigned when faced with disciplinary action, and were also capable of bearing the meaning that he was unsuitable to work as a practice assessor and that meaning was capable of being defamatory.