The Jane Clift Case highlights.pdf

Neutral Citation Number: [2009] EWHC 1550 (QB)

Case No: TLJ/07/1122

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 06/07/2009

Before :

THE HONOURABLE MR JUSTICE TUGENDHAT

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Between :

Jane Clift

Claimant

- and -

(1)

Slough Borough Council

(2)

Defendants

Patrick Kelleher

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Mr Hugh Tomlinson QC and Miss Christina Michalos (instructed by Simons Muirhead &

Burton ) for the Claimant

Mr John Beggs QC (instructed by Barlow Lyde & Gilbert ) for the Defendants

Hearing dates: 15-19, 22-24 June 2009

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Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this

Judgment and that copies of this version as handed down may be treated as authentic.

.............................

THE HONOURABLE MR JUSTICE TUGENDHAT

THE HONOURABLE MR JUSTICE TUGENDHAT

Approved Judgment

Clift v. Slough Borough Council

Mr Justice Tugendhat :

The Claimant (“Ms Clift”) was a resident of Slough. On 10 August 2005 she

witnessed some anti-social behaviour in a park in Slough. Flower beds were damaged

and she was herself threatened when she intervened. She called the police and the

parks department of the First Defendant (“the Council”). Police officers and a Park

warden attended. They recommended that she refer the matter to the Council, and she

was given the direct line of the Council’s Anti-Social Behaviour Co-ordinator, Ms

Rashid. On 11 August Ms Clift telephoned Ms Rashid. The conversation went very

badly. Ms Rashid threatened to terminate the call and Ms Clift did terminate it. On 12

August Ms Clift wrote a letter of a complaint about Ms Rashid’s conduct to the

Council. The Council in due course appointed the Second Defendant (“Mr Kelleher”)

to investigate the complaint. He is Head of Public Protection. He held interviews with

Ms Clift on 25 October and with Ms Rashid and other witnesses in the following

days. On 30 November 2005 Mr Kelleher notified Ms Clift by letter of his decision.

He rejected her complaints. He also referred to Ms Clift’s letter of 12 August and their

meeting of 25 October. He informed her that these (and something else she had said to

another officer on 12 August) amounted to violent and threatening behaviour, and that

a marker was to be placed against her name for 18 months and shared with other

council departments and government agencies within the borough by electronic

means. This decision was shared, or published, within the Council, and to some

outside it, by e-mails. Ms Clift was affronted and has brought these proceedings for

libel on those publications. She said they meant that she was a violent person who had

engaged in threatening behaviour on a number of occasions.

The defences to the claim for libel included justification and qualified privilege at

common law. The particulars of justification were the matters referred to in the letter

of 30 November. The reply alleged malice. The only person alleged to have been

malicious is Mr Kelleher. It is alleged that he knew the words complained of to be

false, or in the alternative, that his dominant motive in writing the email and

authorising the entry on the Register was not to promote the safety of employees of

the Council or anyone else, but to dispose of Ms Clift’s complaint and marginalise

her.

At the close of the Defendants’ case, and after hearing legal argument, I made three

rulings: first that there was a case on justification to go to the jury; and second that

there was a case on malice to go to the jury. The third ruling related to the defence of

qualified privilege at common law. I ruled that there was such a defence in respect of

publication to certain publishees, but not in respect of publication to others.

The ruling on whether the publications were made on an occasion of qualified

privilege raises matters of general importance. The classic statement of the law on

qualified privilege at common law is to be found in Adam v.Ward [1917] AC 309 at

334 . Lord Atkinson said:

“A privileged occasion is …. an occasion where the person

who makes the communication has an interest or a duty, legal,

social or moral, to make it to the person to whom it is made,

and the person to whom it is so made has a corresponding

interest or duty to receive it. The reciprocity is essential”.

Draft 28 August 2009 09:53

Page 2

THE HONOURABLE MR JUSTICE TUGENDHAT

Approved Judgment

Clift v. Slough Borough Council

The first set of publications was in an e-mail sent by Mr Kelleher to 54 addressees (to

be forwarded to 12 others). He was acting in the course of his official duties. The

second set of publications was also by e-mail in the form an attachment containing a

the Potentially Violent Persons Register.

The words complained of contain personal information relating to Ms Clift. That is

data which is subject to the Data Protection Act 1998 (“DPA”). This Act implemented

in English law some of the rights recognised by Article 8 of the European Convention

on Human Rights (“the Convention”). Later those rights were more fully

incorporated into English law by the Human Rights Act 1998 (“HRA”). The Council

is a public authority. HRA s.6 (1) provides:

“It is unlawful for a public authority to act in a way which is

incompatible with a Convention Right”.

Article 8 of the Convention reads, so far as material:

‘Right to respect for private and family life

(1)

Everyone has the right to respect for his private … life, ….

(2) There shall be no interference by a public authority with the

exercise of this right except such is in accordance with the

law and is necessary in a democratic society … for the

prevention of disorder or crime… or for the protection of

the rights and freedom of others”.

The question in this case is whether, and if so how, the Council must demonstrate that

it has complied with its public law duties under HRA (and incidentally DPA) if it is to

be able to assert that it has the interest or duty required at common law for there to be

a defence of qualified privilege.

EVENTS LEADING TO THIS ACTION

As a responsible employer the Council has a policy to protect its employees from

violence at work. The policy is set out in a document headed “Safe System of Work

(Codes of Practice) H&NS/COP/1.14 Version 1.0 date issued 11/3/03 Violence at

Work (Inc Potentially Violent Persons)” (“the Policy”).

10.

The two documents containing the words complained of were circulated in purported

pursuance of that Policy.

11.

Ms Clift was a lady of about 40 years of age at the time in question. On the morning

of 11 August 2005 she had witnessed a group of five people in the public park

drinking. A child of about 3 years of age was pulling plants up from a flower bed and

damaging other plants. Ms Clift protested at this behaviour and was herself

Draft 28 August 2009 09:53

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THE HONOURABLE MR JUSTICE TUGENDHAT

Approved Judgment

Clift v. Slough Borough Council

threatened by one of the men. In addition he himself trampled the flower bed in

response to her intervention.

12.

Ms Clift was very angry indeed at what had happened in the park and by what, in her

view, was the inappropriate response by Ms Rashid and the officer to whom she

complained. Ms Clift is an articulate person. On 11 and 12 August she wrote down

her account of what had happened in the park, and in the conversation with Ms

Rashid, in a three page letter. The penultimate paragraph of the letter includes the

following words:

“I did not want to give [Ms] Rashid the self satisfaction of

terminating the call – I slammed my phone down so hard I

broke it. I felt so affronted and filled with anger that I am

certain that I would have physically attacked her if she had

been anywhere near me. I truly am not of that nature and so,

surely, this should act as a wake up call to the Borough as to

the capacity she has for offending people…. ”

13.

Ms Clift also used forceful language in response to the suggestion by the first official

to whom she complained, that she speak to Ms Rashid again. Ms Clift said “Right

now I wish she would drop dead”.

14.

The interview of Ms Clift by Mr Kelleher on 25 October 2005 took place in a room in

the Council’s offices. Only Ms Clift and Mr Kelleher were present. Mr Kelleher took

a note of what occurred at that meeting. It includes the following:

“[Ms Clift ] wants every avenue explored and feels that [Ms

Rashid had no knowledge of legal options open to [the Council]

stunned that [Ms Rashid] is in the post. Stated that she would

have hit [Ms Rashid] if she could. Wants her out of the post.

Threatened that she will take the matter to the Ombudsman”.

15.

Mr Kelleher then conducted a number of other interviews. One was with Mr Gulfraz,

a friend of Ms Clift. She was accustomed to helping him in making telephone calls

and filling out official forms. She was at the time also helping him in a complaint he

was making against the Council on a housing matter. He was present at the time Ms

Clift made her call to Ms Rashid on 11 August. He heard the whole conversation over

the speaker phone. Other witnesses were fellow employees of Ms Rashid. Ms Rashid

did not have the phone on loud speaker but her colleagues sitting near her heard her

side of the conversation. It was sufficiently unusual to attract their attention.

16.

Having interviewed Ms Rashid and these other witnesses, and made other enquiries,

Mr Kelleher wrote his letter of 30 November 2005. It covers four pages and also dealt

with another complaint Ms Clift had made relating to a quite separate matter. She had

asked the Council for help earlier in the summer about a noise nuisance at her home,

and she complained about how the Council had dealt with that. Mr Kelleher rejected

that complaint too.

17.

Having set out in full his reasons for having rejected her complaints, Mr Kelleher

gave four reasons why a marker was to be placed against Ms Clift’s name:

Draft 28 August 2009 09:53

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THE HONOURABLE MR JUSTICE TUGENDHAT

Approved Judgment

Clift v. Slough Borough Council

- On 10 August 2005 you slammed the phone down on Ms

Rashid

- In your subsequent letter dated 12 August 2005 you stated ‘I

am certain that I would have physically attacked her (Ms

Rashid) if she had been anywhere near me’

- During our meeting on 25 October 2005 you again stated that

you would physically attack Ms Rashid if you could, and

repeatedly demanded that the local authority sack her

- During a telephone call to our corporate team on 12 August

you are reported to have said that you ‘wished [Ms Rashid]

would drop down dead’.

18.

He concluded the letter saying that:

“The local authority will continue to provide you with your

normal range of services, but you can anticipate that suitable

arrangements will be put in place to ensure the safety and

wellbeing of our staff.”

19.

The following day Mr Kelleher sent the email to 54 individuals who were officers or

employees of the council. The subject read, “Violent Person Register - Ms Jane

Clift”. The text of the email is the first of the words complained of:

“I have requested that Jane Clift’s name be added to the register

of violent persons following repeated threats of violence

towards a member of staff

Whilst we will continue to provide her with our normal range

of services, I would ask that any officer making a site visit, or

conducting a face to face interview with Ms Clift does so in the

presence of an accompanying officer. Equally, any member of

staff receiving a telephone call from Ms Clift should make a

full note of that conversation including Ms Clift’s manner”.

20.

Mr Kelleher requested that a hard copy of that email be provided to each of the

council’s community wardens. There were twelve such. Accordingly there were 66

publishees of the email.

21.

Also on 1 December 2005 Mr Kelleher filled out a standard form prepared in

accordance with the Policy. It is known as a Violent Incident Report Form. Against

the printed question, “Was the incident classified as (please tick all that apply)” there

is entered “shouting and threats”. In the box for details of the incident, there is a

reference to the paragraph of the letter of 30 November containing the four reasons

cited above. The staff member said to be involved is identified as Ms Rashid. The

witnesses identified are Mr Kelleher himself and the complaints officer to whom Ms

Clift had spoken on 11 or 12 August. The form is signed by Ms Rashid and Mr

Kelleher. This form was completed on the advice of Mr Satterthwaite.

Draft 28 August 2009 09:53

Page 5

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