Desmond v Foreman & Ors

Safeguarding procedures may apply to allegations concerning an adult pupil where the alleged perpetrator works with children, because the relevant purpose is protecting other children. Information concerning an earlier allegation should not ordinarily be circulated where reliable material, including police investigation, positively exonerated the person. Information about previous conduct may nevertheless remain relevant if it bears on a later allegation or suitability to work with children.

On a meaning application, the court applies the perspective of a reasonable professional reader. Words alleging actual guilt cannot be established through strained or suspicious interpretation where lesser meanings are available. The court may rule that words are capable of bearing lesser defamatory meanings without deciding their actual meaning or whether they are in fact defamatory.

The claimant, a cover supervisor, sued two local authorities, a head teacher and two officials in defamation and under the Human Rights Act 1998 and Data Protection Act 1998. The claims concerned publications made after a 19-year-old sixth-form pupil alleged that he had attempted to kiss her without consent.

The defendants sought summary judgment and, alternatively, strike-out relief. The claimant applied for rulings on meaning, strike-out of justification, anonymity, permission to amend and disapplication of the defamation limitation period. The central issues were whether safeguarding procedures and disclosure of historic information were justified, and what meanings the publications were capable of bearing.

1. Summary judgment. The defendants’ application was refused. The claimant had a real prospect of establishing that publication of information concerning the 2001 incident was an unjustifiable interference with his Article 8 rights and breached the DPA. The same material could therefore defeat qualified privilege. The position between the initial allegation and the later review remained potentially different.
2. The safeguarding procedures were not inapplicable merely because the complainant was 19. They were directed to protecting other children with whom the claimant worked, and covered allegations indicating that a person might be unsuitable to work with children.
3. The claimant had no equivalent real prospect in relation to the year 8 allegation or reports that he had difficulty maintaining professional boundaries. Those matters could be relevant to assessing a later complaint and his suitability for work with children.
4. Applying the principles in Jeynes v News Magazines Ltd [2008] EWCA Civ 130, the court considered the words from the standpoint of a reasonable professional reader. The publications were incapable of conveying that the claimant had actually committed the 2001 assault or attempted rape, any other sexual offence, the conduct alleged by the year 8 pupil, or that he had been on the Sex Offenders Register. They were capable of bearing the lesser meanings advanced by the defendants. No ruling was made on the meanings actually borne or on whether the words were in fact defamatory.
5. The anonymity application was refused. Anonymity and private hearing would derogate from open justice, and the sensitivity of the material and interests of the claimant’s stepdaughter did not make those measures necessary. The applications to amend, to strike out justification and to disapply limitation were adjourned.

Not stated in the judgment.