Ann-Marie Janice Smith v Pastor John Charles Surridge & Ors

A reference publisher may rely on qualified privilege where the publication answers a specific employment-related duty and interest. Malice requires proof of bad faith, disbelief in the truth, or recklessness amounting to indifference to truth; inaccuracy, carelessness or inadequate investigation is insufficient.

For the truth defence, the court must determine whether the defamatory sting is substantially true, rather than defer to the publisher’s characterisation. Safeguarding conduct may include placing a child at risk of harm, even where no harm materialises. A misuse of private information claim must identify the information, the basis for privacy, the specific misuse, the competing rights and the alleged detriment. A lawful, privileged publication made without malice will not ordinarily constitute misuse of private information.

Two teachers brought claims in libel, negligent misstatement and misuse of private information after their former school sent an employment reference stating that there had been safeguarding issues during their employment. Their prospective employer withdrew their conditional job offers.

The court had previously determined that the reference conveyed a Chase level 1 meaning: each claimant had done something causing harm to a child or placing a child at risk of harm. The trial issues included the identity of the proper defendants, serious harm, qualified privilege and malice, truth, breach of duty, and privacy. The central questions were whether the reference was privileged, whether malice defeated the privilege, and whether the defamatory meaning was substantially true.

1. Proper defendants. The school was not a separate legal entity but formed part of the British Union Conference of Seventh-day Adventists, an unincorporated association. The first to third defendants were therefore properly sued as its trustees, together with the fourth defendant as publisher.
2. Libel. The publication caused serious harm, inferred from the words and the withdrawal of the employment offers. It was made on an occasion of qualified privilege because the recruitment consultant requested employment dates and information about safeguarding issues. The claimants failed to prove malice. Mr James authored and honestly believed the reference, while Mrs Papaioannou acted as a scribe. Inaccuracy, poor investigation or an unreasonable belief would not, without bad faith, defeat the privilege. The libel claim was dismissed.
3. Truth. Under Defamation Act 2013, section 2(1), the defendants had to establish the substantial truth of the sting of the reference. The attack issue and examination-and-medication issue did not satisfy that test. The Muskah issue did: the inappropriate language, followed by failure to undertake recommended anger-management training, constituted a safeguarding issue. The Parliament visit issue also satisfied the test. Teachers who knew that a vulnerable child was present had a duty to check how he would return home and, where possible, offer transport or personally ensure his safe return. That duty was not displaced by the private travel arrangement or parental disclaimer. The child was placed at risk of harm.
4. Negligent misstatement. The reference was true and Mr James had acted conscientiously in gathering and assessing the available information. There was therefore no actionable breach.
5. Misuse of private information. The claim failed both for inadequate pleading under Practice Direction 53B, paragraph 8.1, and because a lawful publication in a classic duty-and-interest privileged situation, made without malice, could not ordinarily be an unlawful misuse of private information. All claims were dismissed.