Defamation – Education – Local government – Privacy – School exclusions

H v Tomlinson: CA (Civ Div) (Lords Justice Ward, Sedley, Longmore): 13 November 2008

The appellant head teacher (T) appealed against a recorder’s decision to grant leave to the respondent schoolboy (B), acting by his mother and litigation friend (H), to amend a defamation claim to include claims for breach of article 8 of the European Convention on Human Rights 1950.

B suffered from Asperger’s Syndrome, had an obsessive compulsive disorder and had behavioural difficulties. He was excluded from school by T after he behaved in a violent manner. The school governors upheld that exclusion, which was then reviewed by the statutory appeal panel. T provided a report to the panel that included a statement that he knew that B had been arrested outside his father’s home for violent and dangerous behaviour because two parents had seen him taken away in handcuffs. B began proceedings for libel and slander on the basis that the statements were untrue. In his defence T pleaded justification on the basis that his report in general, which had detailed numerous instances of B’s violent behaviour at school, was in substance true. The recorder accepted T’s plea of justification and struck out the defamation claim, but gave permission to B to add claims under article 8 for invasion of privacy and damage to reputation. B argued that T had had no right to use information that had nothing to do with B’s school life.

Held: (1) There was no invasion of B’s privacy. With a history of violence, including violence towards H, B could not fairly and reasonably expect that the information about his arrest was information that should not have been made public to a statutory appeal panel set up to consider whether his behaviour justified exclusion. Whether the information was public or private in nature could not change because T refused to reveal his sources.

Further, it could not be transformed into a human rights claim because the misconduct was, wrongly, alleged to have taken place within the home, A v B [2005] EWHC 1651 (QB) applied. The instant case extended beyond disclosing information of misconduct that took place in the home. It recorded the arrest for that misconduct and B’s public removal from the scene by the police. They were not private matters in respect of which B could claim confidentiality. They were matters in the public domain reasonably capable of being deployed in an enquiry to decide what to do with an unruly boy. The recorder had misdirected himself. B had no real prospect of establishing a breach of article 8 through the misuse of the information and the amendment should not have been allowed.

(2) The catalogue of B’s misbehaviour established that his reputation was that he was a disturbed child, at times beyond control and violent. The sad and inescapable fact was that his reputation was such that the additional allegations made no difference.

Appeal allowed.

William Bennett (instructed by Attwood & Co) for the appellant; In ­person for the respondent.