School governors allowed to sue in libel

4 November 2010 by

McLaughlin & Ors v London Borough of Lambeth & Anor [2010] EWHC 2726 (QB) – Read judgment

The High Court has been asked to consider whether the rule which prevents public authorities from suing in libel – to allow uninhibited criticism of government institutions – has the effect of preventing libel actions being taken by individual managers and employees of those institutions.

This was a claim by the defendants to strike out a libel action on grounds of abuse of process.The claimants are respectively head teacher, director of educational development and chairman of the governors of a primary school in Lambeth. The school was maintained by the first defendant pursuant to its statutory obligations. Now it is an Academy it is maintained by central government.

They brought claims for libel and under the Human Rights Act (“HRA”) in respect of emails, widely published by the defendants, alleging financial and employee mismanagement at the school. The HRA claim was under the right to reputation protected by Article 8. The claimants sought a declaration of falsity in relation to the allegations and damages pursuant to the right to a remedy under Section 8 HRA. There was also a claim in malice and aggravated damages were sought.

The defendants’ grounds for the application to strike out were as follows:

  1. That the claim and its real purpose was to circumvent the rule in Derbyshire v Times Newspapers Limited [1993] AC 534 (“Derbyshire”)] which prevents the Governing Body of Durand School, as a governmental body, from suing for libel;
  2. That its effect was circumvent the rule which prevents the Governing Body of Durand School, as a public authority and hence a body without Article 8 ECHR rights, from suing for breach of such rights;
  3. That the claim was brought for the dominant purpose of vindicating the claimants’ individual reputations but rather for the dominant collateral purpose of putting pressure on the defendants as a tactical ploy to assist Durand in its long-running dispute with the First Defendant concerning the First Defendant’s carrying out of its statutory functions in regard to Durand
  4. And that the claim did not on its particular facts justify the expenditure of the Court time and costs which it entails (Jameel v Dow Jones [2005] QB 946 ).

The main question for the court therefore was whether the claimants, as managers of the school – which it was not disputed was a governmental body – were themselves prevented by the rule in Derbyshire from taking a libel claim or suing for breach of Convention rights under the Convention.

The defendants contended that the  reasons which led the House of Lords to formulate the Derbyshire rule in relation to a local authority were equally applicable to a school funded or maintained by a local authority or by central government. The words complained of in the present case related to the activities of the school, and referred to the claimants only in so far as they carried on the day-to-day management of the School’s affairs. Therefore, submitted the defendants, the principle established in Derbyshire must also mean that the claimants did not have the right to maintain an action for damages for defamation.

And there was an analogous argument in relation to the HRA claim. The school is a public authority. Alternatively it could not be a “victim” within the words of ECHR Article 34:

any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by [the United Kingdom] of the rights set forth in the Convention…

So the school could not be a rights-bearer under Article 8 or any other provision of the Convention.

There was some dispute as to whether the school was a “governmental body” for the purposes of the rule in Derbyshire, although Tugendhat J observed that their Lordships’ speeches in Derbyshire drew no distinction  between “a governmental body” such as is referred to at page 547E and a “public authority” such as is referred to at page 551D. Both phrases are used indistinguishably  in the ECHR.
The decision in another authority on this issue, R (on the application of Comninos) v Bedford Borough Council [2003] EWHC 121 (Admin), turned on whether it was an abuse of process for a local authority to indemnify its officers in order to enable them to take libel proceedings. According to a leading textbook on libel, if a governmental body indemnifies one of its officers in respect of libel proceedings in order  to assert its own reputation this is an unlawful circumvention of the rule that it has no right to commence such proceedings itself. Such a decision would therefore be liable to be quashed on public law grounds.

Interestingly, it was not in dispute in the present case that the school was funding the claimants’ action, although the defendants did, in correspondence, question the right of the school to fund the litigation. Tugendhat J concluded that this was not a hard and fast rule:

It does seem clear that the House of Lords [in Derbyshire] was contemplating that the right to sue of any individual who carried on the day to day management of the affairs of a governmental body was subject to no limitation other than the requirement that the words complained of should refer to, and be defamatory of, that individual. If this be the case, it would follow that the individual would always have a right to sue in defamation, provided that he can fund the litigation from his own resources, or obtain funding from the resources of someone other than the governmental body. Thus the effect of Derbyshire would be that everything turns on the choice of the right claimant, if there is an individual claimant referred to and defamed. There is no principle precluding individuals from suing in cases where what is impugned is their conduct in the carriage of the business of a governmental body.

Therefore the Derbyshire rule neither prevented the claimants from pursuing their claim in libel nor under Article 8; there was nothing in any authority that indicated that any limitation on an individual’s right to sue under Article 8 for breach of private life or reputation.

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