The Supreme Court has refused to grant permission to appeal in Clift v Slough Borough Council.


The claimant, Jane Clift, brought a libel claim against Slough Borough Council and its head of public protection after she was named as a person of medium risk on the council's violent person register. The register noted that the risk assessment was the result of "threatening behaviour on a number of occasions". No instance of violence had taken place, but the claimant had made several comments about a member of council staff, which the council treated as a threat of violence. The head of public protection sent an email to 54 council employees and 12 hard copies to council community wardens, notifying them of the claimant's addition to the register. Furthermore, copies of the register were sent to external council partner organisations, such as refuse collection organisations and the NHS primary care trust. In all, the information was circulated to 150 people.

At first instance the council pleaded defences of justification and common law qualified privilege. The claimant, in response, pleaded malice, which would defeat the defence of qualified privilege. The judge rejected the justification defence and the malice plea. With respect to the common law qualified privilege defence, he decided that publication to customer-facing employees was protected, but the wider publication to recipients who had not come into contact with the claimant was neither necessary nor proportionate, as she posed no risk to them. The judge decided that of the 150 to whom the information was circulated, 36 were protected by qualified privilege. The jury awarded the claimant £12,000 in damages. The council appealed.


The issue on appeal was the way in which the qualified privilege defence interacts with an individual's rights under the European Convention on Human Rights. A common law qualified privilege defence exists where it is in the public interest to allow the exchange of information - for example, when providing information about an employee or, as in this case, someone who was alleged to pose a risk of violence. Such a defence is defeated if the claimant can show that communication was made with malice.

The council argued that it owed a duty analogous to that set out in Kearns v General Counsel of the Bar:(1) where parties share a common interest on a matter of public interest, the relationship between them is established and plainly requires free and frank mutual communication on relevant matters. The council argued that it had a relationship with the recipients of the information and that publication was relevant to the discharge of its functions. The claimant argued that the council should not be permitted to avail itself of the qualified privilege defence where this would be inconsistent with its public law duties. Rather, it should publish information only when relevant to its public duties and where compatible with obligations under the European Convention on Human Rights. As a public authority, the council was obliged to act in accordance with such obligations. The court found that as the claimant's Article 8 rights were engaged, the council could not act in a manner contrary to those rights unless doing so under Article 8(2) - that is, where such action is necessary and proportionate to a legitimate aim. Publication to those who were likely to come into direct contact with the claimant might be justified under Article 8(2), but wider publication was not.

The central question was whether, in order to avail itself of the qualified privilege defence, the council had shown that it had an existing relationship with the other parties so as to establish an interest in the flow of information between them (as according to Kearns), or whether there needed to be a public law duty to communicate the particular information in order for the qualified privilege defence to be effective.

The court chose to distinguish Kearns, as the Bar Council was not a public authority, and instead chose to follow the reasoning of the court in Wood v Chief Constable of the Westminster Police.(2) The judge noted that "the private interest in one's reputation is to be preferred to the public convenience of unfettered communication where there is no duty to communication at all". In other words, the council had to show a public law duty to communicate the specific information (or a public interest in doing so), not just in communicating generally with parties with which it had an established relationship - to act to the contrary would contravene rights under the European Convention on Human Rights.

The council attempted to argue that it would create practical difficulties if a local authority were required to assess the impact of convention rights on every communication. The court rejected this argument, noting that the council could not plead administrative difficulty in verifying information and limiting publication to those parties that truly needed to know, if failure to do so would represent a serious interference with a person's human rights. The council had been under no duty to publish the information so widely and its decision to do so was disproportionate.


This was a slightly unusual privacy case, as it involved a public authority which was required to act in compliance with convention rights, including Article 8. The courts, in line with Re Guardian News and Media,(3) found that Article 8 conferred a right to reputation on the claimant. Therefore, the defendant could derogate from its duty to uphold Article 8 only under the exceptions set out in Article 8(2), which justifies interference when necessary and proportionate in accordance with the aims. The council could not avail itself of the qualified privilege defence, as the court determined that primacy must be given to rights under the European Convention on Human Rights.

This decision serves as a warning to local authorities that they must carefully consider their obligations under the Human Rights Act before distributing potentially defamatory material. In particular, they should consider to whom it is necessary and proportionate to distribute it.

For further information on this topic please contact Kim Hardman at Reynolds Porter Chamberlain LLP by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email ([email protected]).


(1) [2003] 1WLR 1357.

(2) [2005] EMLR 20.

(3) [2010] UK SC1.