Defamation again: Mrs Clift wins in the Court of Appeal

24 December 2010 by

Don't step on them

Last year I blogged about Mrs Clift winning a claim for defamation against Slough Borough Council. The facts are in the earlier post. Slough’s appeal was rejected by the Court of Appeal in Clift v Slough Borough Council [2010] EWCA Civ 1171.

While the point in issue was whether Slough could rely on a defence of qualified privilege against Mrs Clift’s claim, I think the decision has wider implications and is therefore relevant to housing practice. The court’s reasoning on Article 8 of the ECHR should be familiar to housing lawyers. In the court’s view, the publication of damaging allegations about Mrs Clift interfered with her rights under Article 8(1) and the council was therefore bound not to pass those allegations on unless in doing so Article 8(2) was satisfied – which it manifestly was not in Mrs Clift’s case. Via some relatively complex reasoning related to the ways in which qualified privilege has been analysed by the courts, this meant the council could not raise the defence and so their appeal was lost.

Two things of interest arise. First, Slough tried to argue that it was impermissible to rely on human rights to condition the way in which an existing common law right of action developed. The court rejected this point, there was no suggestion of changing the way in which the defence qualified privilege operated, but rather applying the pre-existing definition of qualified privilege without change to the facts, which included Slough’s duties as a public body, meant that it could not be relied on. Similar arguments may arise in future concerning other defences raised by a public body.

Second, in advising council tenants one does run across situations where councils have foolishly, incompetently or sadly in some cases maliciously (in the non-technical sense) passed on private and damaging information about tenants, their families or associates to a far wider audience than was strictly necessary. Mrs Clift’s case establishes quite clearly that this is likely to be in breach of the individual’s article 8 rights and that a simple plea of administrative impracticality (one of Slough’s argument’s amount to asking how would they check that the circulation list was relevant?) is unlikely to be enough to satisfy Article 8(2).

By the way the court took the view that general public law principles and the Data Protection Act 1998 were each likely to result in the same conclusion – that there should not have been such wide disclosure – even in the absence of Article 8.

This post first appeared on the Nearly Legal blog, and is reproduced with permission and thanks.

1 comment;


  1. drblighty says:

    Although not understanding the technical legal arguments I am none the less pleased that this Council has had its wings clipped.

    Interesting that the same conclusion would have been reached via the Data Protection Act, which statute, although mandated by the EU, gives effect to Artucle 8 of the ECHR.

    More power to individuals!

    Apologies for my lack of legal knowledge.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: