Tuesday, 25 January 2011

Clift v Slough Borough Council [2010] EWCA Civ 1171: I fought the law and…I won

There's a story that someone once rang one of those phone numbers on the back of a lorry under the question "how am I driving?"  Instead of being able to launch a tirade of complaints about said lorry's motorway menaderings, they got through to an operator who ended up trying to sell the haulier's product.  Remember: complaints departments are not necessarily there for your good...

Case in point.  Mrs Clift had a complaint.  She suffered a tirade of abuse from a drunk babysitter in a public park.  She contacted the Anti-Social Behaviour Co-ordinator at Slough Council.  One would have hoped that the Council would have re-considered the title, given that it suggested that the office incumbent was in charge of co-ordinating anti-social behaviour, but given the avalanche of apathy Mrs Clift received from said incumbent, culminating in Mrs Clift flinging her phone down so hard that she broke it, perhaps the description was accurate.

Mrs Clift now had two complaints.  Three, if one includes the brittleness of telephonic equipment.  So she wrote to the Council.  In somewhat vituperative terms.  “I felt so affronted and so filled with anger that I am certain I would have physically attacked her if she had been anywhere near me.”  Even though, as Mrs Clift said in the letter, she was not a violent person.  A threat better on the wind than in print, perhaps.  Because how did the Council respond?  By placing Mrs Clift on the Violent Persons Register.  And sending it out on a mass email.  To 66 members of the Council, a roadsweeping firm, a council housing repair firm, the local hospital and 50 businesses in the town centre.

So Mrs Clift sued for libel.  The Council defended on the basis that Mrs Clift WAS a violent person – she had threatened to use violence against a council worker – and, if that did not work, on the basis of qualified privilege.  The defence that protects the honest reference-giver or reporter-to-the-police.  You get it wrong, but you get it honestly wrong, and you don’t tell anyone you shouldn’t.  The Council’s defence on this looked quite decent.  It had sent the email out to a select audience, those who might deal with Mrs Clift and therefore might need to know of her apparent tendencies towards violence.

Thing is, it was a libel case, and so went before a jury.  The Court had to rule on whether the qualified privilege defence worked.  And the Court held that it did NOT.  Not fully, anyway.  Yes, it covered the emails to those who dealt with community safety; it did not cover the emails to the hospital, or the staff responsible for schools, or the roadsweepers and so on.  There was no need for those people to know about Mrs Clift’s burst of moral indignation.  They were never likely to meet her. 

The consequence of this was twofold.  Firstly, for Mrs Clift to win regarding the email being sent to those who needed to know, she had to show that the Council worker who drafted up the email was acting maliciously - malice beats qualified privilege.  She didn’t.  Secondly, for the Council to win on the email being sent to random rubbish-sweepers and stochastic store owners, it had to prove what it said was true - the only defence that would win in those circumstances.   If it could not, then Mrs Clift would win .  It couldn’t.  The jury, unlike the Council, did not see Mrs Clift as violent.  Mrs Clift was awarded damages of £12k.

The Council appealed.  Primarily on the basis that it was difficult for the Council to separate out those who had a need to know from those who did not.  And that its decision to send the Register to everyone was proportionate.  That argument didn’t work.  It wasn’t THAT hard to suss it out.  The Council ended up relying on the last refuge of the would-be damned – the Human Rights Act.  The Council had a human right to be on the safe side.  That argument didn’t work either.  Mrs Clift also had rights – the right not to have the Council wrongly paint her with a violent brush.  Appeal dismissed.

The big problem with this case, as ever, is not with libel itself.  The legal issues are quite clear; Mrs Clift may have been unwise in her choice of language, but does a truly violent person list in grammatical detail exactly how they would beat up their interlocutor?  Mrs Clift was complaining about the Council to the Council, and the Council decided to silence her by putting her on a list with the truly violent.  If Mrs Clift went off at the deep end, the Council was in the Marianas Trench.  A district judge could have reached that conclusion in perhaps half a day of seeing Mrs Clift in the witness box – and showing working for qualified privilege is the kind of thing you’d get in a law school exam.  Not difficult in the least.

No.  The problem is that of costs.  Estimates suggest the case – a twelve-grander, the sort of thing commercial lawyers would knock off in a few letters and which wouldn’t take up more than a day in Court – will set the Council back half a million quid.  Mrs Clift took advantage of a no-win no-fee arrangement – quite rightly, she had a good claim, as a jury found – but why should the case have cost so much and taken up so much time?  No wonder the Council appealed, even if it was just a negotiation tactic; but that appeal took up more Court time and maybe delayed another, more valid, appeal…

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