Warsama v Foreign and Commonwealth Office

The Court of Appeal held that the report of a non‑statutory inquiry which was published to Parliament under the "Motion for an Unopposed Return" procedure constituted "proceedings in Parliament" and was consequently protected by Parliamentary privilege under Article 9 of the Bill of Rights 1689 and by the Parliamentary Papers Act 1840. The court concluded that privilege prevents the parties in subsequent litigation from relying on, or impeaching, the content of such a report in order to found or defend claims for damages. The court also held that the inquiry panel members were "public authorities" for the purposes of section 6(3) of the Human Rights Act 1998 because they were performing functions of a public nature on behalf of the Government. Applying those principles to the pleaded case, the court found that the claimants’ particulars effectively sought to impugn the Report’s conclusions and therefore could not survive; the pleadings were insufficiently particularised to sustain any distinct non‑privileged procedural article 8 claim and the proceedings were struck out.

The appellants (the Foreign and Commonwealth Office and Ms Sasha Wass QC) appealed from the orders of Master McCloud in which she had held that the Wass Inquiry Report was a proceeding in Parliament but nevertheless allowed some parts of the claimants’ article 8 claims about inquiry procedure to proceed. The inquiry had been appointed by the Foreign Secretary to investigate allegations of child sexual abuse and related failings on St Helena; the inquiry produced a lengthy Report in December 2015 which criticised the claimants (former social workers on St Helena) and others. The FCO arranged for the Report to be laid before the House of Commons by the Unopposed Return procedure and the Report was published by Parliament.

The claimants issued civil proceedings alleging the Report contained inaccuracies and unfair professional criticisms and that procedural defects in the inquiry had violated their article 8 rights, relying on section 6 HRA for damages. The FCO pleaded that Article 9/Bill of Rights privilege prevented any challenge to the content of the Report; Ms Wass relied, among other things, on the contention that she was not a public authority under section 6(3) HRA. Master McCloud held that (i) the Unopposed Return procedure attracted Parliamentary privilege so the claimants could not challenge the content of the Report, but (ii) some non‑privileged claims about pre‑publication procedures might survive, and (iii) Ms Wass was a public authority for HRA purposes. She refused to strike the claims out in their entirety and ordered costs against the FCO and Ms Wass.

The Court of Appeal considered (i) whether reports published to Parliament under the Unopposed Return procedure are "proceedings in Parliament" for Article 9 purposes, (ii) whether any part of the claimants’ case could survive that privilege, and (iii) whether Ms Wass was a public authority under section 6(3) HRA. The court concluded that the Unopposed Return is a proceeding in Parliament and that the Report is therefore absolutely privileged: neither party may rely on or impeach its content in subsequent litigation. The court accepted the Master’s view that privilege does not extend to decisions and procedural acts taken before the Report was published, but held that on the factual pleadings in this case the claimants’ pleaded case impermissibly sought to challenge the Report’s conclusions; the pleaded loss was caused by the Report’s content and not by a free‑standing procedural wrong. The court further held that the inquiry panel were performing public functions and were therefore public authorities for HRA purposes. The Article 8 loss‑of‑chance argument did not salvage the pleaded case and, applying the domestic approach to fact‑finding and causation, the claims were struck out. The appeal by the FCO and Ms Wass was allowed and the claimants’ cross‑appeal dismissed.

Appeal allowed; the Court of Appeal held that the Wass Inquiry Report published by an Unopposed Return was a proceeding in Parliament protected by Article 9 of the Bill of Rights 1689 and by the Parliamentary Papers Act 1840, and that privilege barred reliance on or attack of the Report's content in civil proceedings. The court accepted that privilege does not extend to pre‑publication decisions about the conduct of the inquiry but found that, on the pleadings, the claimants’ case depended on impeaching the Report’s conclusions and so no viable non‑privileged claim remained. The court also held that the inquiry panel (including Ms Wass) performed public functions and were "public authorities" for the purposes of section 6(3) Human Rights Act 1998. Consequently the claims were struck out.

Appeal from Master McCloud, Queen's Bench Division, High Court of Justice: Main Judgment [2018] EWHC 1461 (QB) and Supplementary Judgment [2018] EWHC 3393 (QB); appeal heard in the Court of Appeal resulting in [2020] EWCA Civ 142.