There is a long established principle that local authorities cannot sue for defamation: see Derbyshire CC v. Times Newspapers Limited [1993] AC 534. As Lord Keith explained in that case, ‘It is of the highest public importance that a democratically elected governmental body or indeed any governmental body should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech’. This principle will probably apply to Governing Bodies of maintained schools: they are public authorities, and so are akin to a ‘governmental body’. But, what about individual governors and head teachers. Can they sue for defamation with respect to how they have managed or governed a maintained school?
This question was recently answered by Tugendhat J. in the case of McLaughlin v. London Borough of Lambeth [2010] EWHC 2726 (QB). The case concerns a claim for defamation in respect of a number of emails sent by the local authority to the Department for Children, Schools and Families, and a local MP, concerning the affairs of a school in Lambeth (now an Academy). The emails were allegedly defamatory, in that they suggested that successive Head Teachers of the school and the Chairman of Governors were ‘culpably responsible’ for, among other things, ‘failing to implement proper training standards or provide proper support for’ newly qualified teachers; ‘unreasonably dismissing able teachers’; and ‘failing to comply with’ the Council following an audit of the school’s finances, leading to a concern that ‘there remains a lack of transparency’ in the arrangements between the school and a third party management company’, and that the school’s Director for Education and Development ‘is being allowed to benefit improperly and/or unfairly from these arrangements to the detriment of the school.’
The Defendant local authority sought to strike out the claim on the grounds that it contravened the principle in Derbyshire. The Court rejected this submission. It was noted that in Derbyshire itself, Lord Keith had observed that ‘If the individual reputation of any of [the councillors] is wrongly impaired by the publication any of these can then himself bring proceedings for defamation’. This was recognised by LB Lambeth, but the local authority argued that this was not a ‘genuine’ claim brought for the purpose of vindicating an individual’s right, but was in substance a claim brought on behalf of the Governing Body of the school itself. It was an attempt to get round the rule in Derbyshire.
Tugendaht J. rejected this argument. He explained that ‘There is no principle precluding individuals from suing in cases where what is impugned is their conduct in the carriage of business of a public body.’
So, those who wish to make complaints about Head Teachers or Governors should beware: they have no blanket protection from the law of defamation, even if what they are complaining about relates to the way in which the affairs of a school are being handled. Will this decision, and the risk of defamation claims, have a chilling effect on those who wish to make complaints? I doubt it.