Morrison v Buckinghamshire County Council & Anor

A public authority cannot rely on an existing relationship with recipients as automatically establishing qualified privilege for defamatory communications. It must show a duty to communicate which is compatible with Convention rights, including the right to reputation under Article 8. The interference must pursue a sufficiently important legitimate aim, be rationally connected to that aim, go no further than necessary and strike a fair balance. Where information is unverified and damaging, the authority may need to investigate further, seek the subject’s explanation or communicate unresolved concerns rather than adverse conclusions. A serious allegation of malice requires evidence more consistent with malice than its absence.

The claimant, a former head teacher and school inspector, brought a libel claim concerning two letters sent by a local authority officer to persons involved in her proposed appointment as a National Challenge Adviser. The letters alleged inaccuracies in her professional pen portrait and questioned her credibility. The defendants pleaded qualified privilege and applied for summary judgment, principally on malice. The claimant applied to amend her Reply to rely on the Human Rights Act 1998 and Article 8, arguing that the publications were disproportionate and therefore outside qualified privilege.

The court considered whether the proposed amendment had a reasonable prospect of success and whether the pleaded case on malice could properly proceed to trial.

1. Amendment. The claimant was not shut out from advancing an argument that, because the Council was a public authority, publication had to comply with section 6 of the Human Rights Act 1998 and Article 8. Clift v Slough Borough Council demonstrated that an existing relationship between publisher and recipient did not automatically establish qualified privilege for a public authority.
2. The proposed pleading required reformulation because it improperly intermingled malice with necessity and proportionality. The claimant was to submit a narrower and clearer draft. The issues could appropriately be tried as preliminary issues by a judge alone.
3. For Article 8 purposes, the legitimate aims of securing suitable school advisers and protecting educational standards were sufficiently important, and the measures were rationally connected to those aims. The arguable issue was whether the defendants had gone further than necessary and failed to strike a fair balance by reaching adverse conclusions without first obtaining the claimant’s explanation, or by failing to confine the communications to unresolved concerns requiring investigation.
4. Malice. Qualified privilege is defeated if the defendant did not believe the words to be true, was indifferent to their truth, or was predominantly motivated by an improper purpose. The evidence must raise a probability of malice and be more consistent with its presence than its absence. Carelessness may be evidence of indifference, but is not itself malice.
5. The allegations concerning an unfair or rushed decision, failure to investigate, failure to contact the claimant, copying the second letter to head teachers and referral to the national body did not meet that threshold. The alleged distortion of the Ofsted reports was objectively arguable as a matter of construction, but could not reasonably support an inference that the officer acted maliciously. Summary judgment was therefore granted to the defendants on malice.