Tag Archive for 'Defamation'

On the naughty step

Published
by
NL
on 30/07/2009
in Various (non-housing)
. 0 Comments

naughty step badge For this Naughty Step, we’re going trans-atlantic. A warm welcome to the Step for Horizon Group Management, a property owner/management firm from Chicago.

Horizon cannot be said to lack a pioneering spirit (or, as we shall see, a snappy way with a soundbite, catastrophically counter-productive, but snappy). For Horizon are the first firm to bring a defamation claim against a tenant, for a tweet on Twitter.

what is twitterFor those of you looking puzzled or slightly anxious at this point, Twitter is the terribly au courant micro blogging service in which anyone can post a message of up to 144 characters, which will instantly be read by anybody ‘following’ them. Do try to keep up.

For the dedicated, the tweet archive – for yes, in a sickeningly cutesy way, these sub messages for the terminally short of attention span* are called ‘tweets’ – is searchable.

What had this tenant done in 144 characters or less? Amanda Bonnen, for it is she, had tweeted:

Who said sleeping in a mouldy apartment was bad for you? Horizon really thinks it’s okay.

This, it seems was enough for Horizon. No matter that Ms Bonnen had all of 30 followers at this time (her acccount has since been deleted). No, Horizon felt itself aggrieved, nay positively hurt, by the very idea that there might have been mould in the apartment.  As the company said:

no mould was ever found in her (Ms Bonnen’s) unit and was one of several that experienced an overnight leak during roof repairs in late March 2009

In view of that, they should probably consider themselves lucky that British Telecommunications plc v Sun Life Assurance Society plc [1996] Ch 69 and s.11 Landlord & Tenant Act 1985 doesn’t apply in Chicago.

But, rather than ask Ms Bonnen to delete the tweet, or even contact her about it, Horizon reached for its lawyers. As CEO Jeffrey Michael charmingly put it:

We’re a sue first, ask questions later kind of an organisation

Or perhaps a sue first, think later kind of trigger happy landlord. Consider that this was the tweet that at most 30 people saw, and that no-one else would see unless searching twitter archives for ‘Horizon’ when they meant ‘Horizon Group Management’ and being prepared to wade through the many thousand mentions of ‘horizon’ till they found that one and then have their view of the company significantly changed.

But now, by being the first to sue for a defamatory ‘tweet’ which allegedly contained injury in less than 144 characters, their name is everywhere, all across the interweb, mostly in connection with mould and all about suing their tenants. Top work chaps. Even if you get your $50,000, was it really worth it?

* The British law bloggers tweeting contingent excepted. Sometimes 144 characters worth of brevity is the soul of wit. Or follow Charon QC for a wine driven Verfremdungseffekt, where the answer to the question ‘what are you doing now?’ is as likely to be ‘invading France’ as ‘interviewing Lord Falconer’.

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Defamation and anti-social behaviour

Published
by
Francis Davey
on 14/07/2009
in ASB, FLW case note and Housing law - All
. 9 Comments

Clift v Slough Borough Council [2009] EWHC 1550 considers the extent to which a local authority has an interest or duty to pass on allegations about anti-social behaviour to its employees and contractors for the purposes of the defence of qualified to a claim for defamation. It is also an example of the all too common situation of a victim being targeted as a perpetrator.

Background

On the morning of 11 August 2005 Mrs Clift 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 threatened by one of the men. In addition he himself trampled the flower bed in response to her intervention.

Mrs Clift called the police and the parks department. She was referred to the council who she telephoned. The conversation “went badly” with the council officer threatening to terminate the call, although it was in fact ended by Mrs Clift. She wrote a letter of complaint explaining how upset she was about the handling matter. In the letter she said (referring the the council officer):

“…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….”

Rather than trying to address the underlying problem (the anti-social behaviour directed against C and her  unhappiness that it had not been properly addressed) the council’s Head of Public Protection (Mr Kelleher) investigated the incident itself and decided to enter Mrs Clift’s name in the “Violent Person Register”. She was rated as medium risk, her name to remain on the register for 18 months. The reason being noted as “threatening behaviour on several occasions” together with some inaccurate particulars of the incident.

By way of comparison, another entry on the register of medium risk referred to someone who had prevented a council representative from leaving premises for a period of 2 hours.

Mr Kelleher had circulated an email to 54 individuals stating:

“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”.

A hard copy was also sent to 12 council community wardens. The Register itself was circulated – though precisely how and to whom was unclear to the court. Evidence from Slough suggested that there would not have been more than 150 recipients of the Register but the exact number was not an issue left to the jury.

Mrs Clift was, unsurprisingly, unhappy about this and eventually brought proceedings under the Data Protection Act in the county court and a further claim for libel. The DPA claim was stayed pending the determination of the libel action.

Mrs Clift alleged that the register entry meant that she was a violent person who had engaged in threatening behaviour on a number of occasions. Slough defended on two grounds: (1) justification, that is that Mrs Clift was a violent person etc; and (2) qualified privilege. Mrs Clift replied by alleging malice on behalf of Mr Kelleher.

The jury found in favour of Mrs Clift, awarding her £12,000 in damages, but found that there was no malice.

Qualified Privilege

The most interesting part of the case concerned the defence of qualified privilege. For those readers who do not regularly deal with claims of defamation, some explanation is in order. “Qualified privilege” is a defence to defamation on the basis that the defendant had a duty or interest to make the statement to someone who had a duty or interest in receiving it.

Slough defended: justification (i.e. was true – C was a violent person etc) and qualified privilege – on which more later. C replied alleging malice (on which more too). In the words of Lord Atkinson in Adam v.Ward [1917] AC 309 at 334.

“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”.

Qualified privilege is not an absolute defence. It is defeated if the claimant is able to show “malice” which has a rather technical meaning, namely that the maker of the statement had no honest belief in the truth of the statement made, or that it was made for an improper motive.

The question the court had to consider was the extent of the defence. In other words: with whom was the council under a duty to communicate?

In Kearns v General Council of the Bar [2003] EWCA Civ 331, the Court of Appeal contrasted a situation where there was a recognised existing relationship between the parties, in which case the qualified privilege question of duty/interest would not be fact sensitive from a situation where there was no such recognised relationship in which case the particular circumstances surrounding the individual publication would have to be investigated.

The judge had followed Kearns in W v Westminster City Council [2005] EWHC 105 concerning the publication of words contained in a report made for the purposes of the Children Act which, employees of the council admitted, should not have been published but that publication had occurred because of a mistake and misunderstanding on their part. The judge had ruled that whether or not the publication should have taken place was irrelevant because there existed a recognised existing relationship which engaged qualified privilege irrespective of the factual details of a publication.

Although the defamation claim failed in Westminster City Council there was a separate claim under the Human Rights Act 1998. In the human rights claim, the judge found that there was an interference with the claimant’s Article 8 rights because the information was highly sensitive and potentially very damaging to him.

A decision of the Court of Appeal that was not cited in Westminster was Wood v Chief Constable of the West Midlands Police [2003] EWHC 2971 (QB). In Wood Lord Bingham CJ said:

the police, as a public body, ought not generally to disclose information which comes into their possession relating to a member of the public, being information not generally available and potentially damaging to that member of the public, except for the purpose of and to the extent necessary for the performance of their public duty. The principle rests on a fundamental rule of good public administration which the law must recognise.

…

The question is whether the occasions of publication were privileged. That said, a decision to publish information which may be untrue may well call for even greater care than a decision to publish information which is known to be true.

Wood concerned information that had been published before the coming into force of the Human Rights Act or the Data Protection Act. The judge thought that it indicated that different principles applied, even at common law, to the consideration by a public body to publish potentially damaging information. Of course Kearns did not concern publication by a public body, but the judge thought that if there was a contradiction between Kearns and Wood he would be bound to follow Wood.

No Human Rights claim was brought by Mrs Clift, but her Reply was amended so as to rely on the Human Rights Act to counter the defence of qualified privilege. The judge thought that, in particular as a result of the guidance in Huang v Home Secretary [2007] 2 AC 167, the Human Rights Act did require that the court engaged in a factual enquiry to consider whether the extent of each publication by the defendant was proportionate, despite the existence of a recognised existing relationship which, on the authority of Kearns would normally preclude such an investigation.

The judge found that qualified privilege did exist in the publication to  customer facing staff and managers in Trading Standards, Neighbourhood Enforcement and Community Safety but not in Licencing, Food and Safety, Children and Education Services nor to Community Wardens, Trade Union Officials and anyone in the four partner organisations outside the council. That exclusion had an effect on damages since publications on occasions of qualified privilege would be excluded except where malice was shown.

Conclusion

I think this case does have some relevance to housing law. It touches on a situation that (in my experience anyway) comes up in practice where a client has information about them, possibly highly prejudicial to them, shared between organisations. The case requires an authority to consider the proportionality of that distribution lest it be vulnerable to a claim for defamation. No HRA claim was brought, so this decision is, strictly speaking, confined to a claim for defamation, but in my view the reasoning on the duty of public bodies has wider application.

In practical terms it means that public bodies should be rather more careful about keeping records of alleged criminality or anti-social behaviour and about any distribution of those records. That, in my view, can only be a good thing. Calling a document a “Violent Persons Register” if you know full well that some of those persons have never used violence.

On a very personal note: I think this case sadly illustrates a trend in official behaviour which emphasizes the protection of staff to the detriment of its service to the community. Where officials behave badly, incompetently or insensitively they often provoke angry and vigorous responses from members of the public. This is unsurprising, it is far easier to stay calm when dispensing (in)justice than when trying to obtain it. I suspect most readers will at some time or another have wished the person they were speaking to would drop dead but that does not make us all murderers.

What went wrong here was that Mrs Clift was a victim. She appears never to have had any useful official action concerning the criminal acts she witnessed and that were directed against her. If (and the evidence does not suggest this was the case) she had been impolite to the council employee she spoke to, that does not disentitle her to the protection of the law. Slough ought to have considered whether the way it manages complaints of this kind contributed to what happened and done something about it. The mantra of protection of staff should not excuse all.

I would like to think lessons have been learned but I suspect they have not.

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Blowing yourself up. Parts 1 and 2

Published
by
NL
on 05/04/2009
in Various (non-housing)
. 0 Comments

There have been a couple of acts of explosive self destruction this week, one literal and one metaphorical.

At the literal end is the more than somewhat sad story of Donald Joyce (Guardian, Daily Mail) and his apparent response to facing eviction. We reported the proceedings here.

At the metaphorical end are the actions of Marc Beaumont, a barrister.

I’m not concerned with the allegations of a creative billing technique. Those have been widely reported. [Edit 1 July 09: the proceedings brought by Ms Sheikh were struck out, with costs against her, on 25 June 2009. So the allegations have been held to not give rise to a viable claim]. Rather I am concerned with what Mr Beaumont did next.

John Bolch (who is a long standing friend of NL) at Family Lore linked to the story on the Daily Telegraph website, noted the allegations (as being just that – allegations) and included a link to Marc Beaumont’s Chambers’ website and a photo that was used in the Telegraph story. Here is John’s post.

Mr Beaumont then emailed John, saying:

“Please immediately remove reference to me on your website as well as my photograph and the link to my website”

When John replied, asking if it was true that allegations were being made against Mr Beaumont as reported in the Telegraph, and offering to take down the post if it was not true, Mr Beaumont threatened to join him as a party to future defamation proceedings.

There is no legal basis for Mr Beaumont’s threat, as explained in Geeklawyer’s detailed but not exactly safe for work post. There is no defamation in John’s report of a newspaper report of legal proceedings, or if there is, there is an absolute defence. There is no basis for Mr Beaumont to demand that a link to his publicly available website be removed. Further, it does not appear that Mr Beaumont has copyright in the photo used and so has no right to constrain its use.

Moreover, it does not appear that Mr Beaumont has made an attempt to have the story and photo removed by the Telegraph, the Sun or other papers that have reported it. If he has made such an attempt, it has clearly failed.

In making the demand of John Bolch, let alone threatening to join him to legal proceedings, when he must have known (being a self described ’senior barrister’) that he had no basis to do so, Mr Beaumont has engaged in bullying and threatening behaviour against a fellow lawyer. One can only imagine that he thought he might get away with it against a solo blogger, when he clearly wouldn’t against a newspaper. If so, that is disgraceful behaviour.

The affair is also Mr Beaumont’s introduction to the Streisand effect and the counterproductive effects of such bullying behaviour. Charon QC, Geeklawyer and Head of Legal have each posted to condemn it.

All Marc Beaumont has achieved is to add another layer of unflattering google reputation baggage to his name, and to ensure that those of us who hadn’t bothered with the story of the allegations against him now write about his attempt to bully a law blogger instead. Carl at Head of Legal suggests Marc Beaumont apologise to John Bolch. That sounds like a good idea and the only possibility for a graceful exit.

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Gentoo in the news (again)

Published
by
Dave
on 14/10/2008
in Various (non-housing)
. 4 Comments

Gentoo Group Ltd and Peter Walls v Hanratty [2008] EWHC 2328 (QB) is the latest case in the unfortunate saga which comes from the LSVT of Sunderland’s entire housing stock to Sunderland HA, now known as Gentoo. When Gentoo took the housing stock, they did so in the knowledge that it was in substantial need of re-development and the price paid for the stock reflected that. Subsequently, Gentoo engaged in a much wider programme of housing and urban renewal than had previously been planned but the renewal has potentially left Sunderland with a social housing stock deficit because of the number of homelessness applications and more general demand for social housing (Sunderland accepted 418 households as statutorily homeless in 2007/08; and until 2005 at least CLG stats show that there were around 16,000 households on the waiting list, although by 2007 this fell to 1799). Additionally, around the time of the transfer, Sunderland were one of the pioneers of choice-based lettings.  Some locals – tenants and owners – have not been particularly happy about Gentoo’s management of the process.  A BBC report can be accessed here.  A December 2005 Audit Commission inspection, by contrast, was positive about the improvements to the stock, and potential for further improvements (access and customer care, as well as its capital programmes were said to be strengths, at paras 27 & 60).

Now, the case: it is the latest in a line of cases in which Gentoo and their CE (who also transferred from the council) are seeking damages and an injunction against Mr Hanratty (and others, but they had compromised a settlement of damages) for defamation and harassment. Over a few years, it is alleged that Mr Hanratty contributed to a website, Dadsplace and its associated chatroom, which has given rise to the claim.  Mr Justice Eady earlier exercised his discretion to disapply the statutory limitation period in respect of such claims broadly because it now appeared that Mr Hanratty, who had previously denied all responsibility (and had his costs paid by Gentoo), may have been at least partly responsible (judgment here).  Mr Justice Eady noted that “It has proved difficult, time-consuming and expensive for the Claimants to pin down responsibility for the relevant activities, which were carried on anonymously over a period of approximately two years between the summer of 2004 and the summer of 2006.”(para 3). Hanratty was represented at that hearing. This new judgment concerns an application by the Claimants to dispense with jury trial. They are represented by a QC and a junior (as they were at the earlier hearing).  Mr Hanratty is now representing himself. Mr Justice Eady accepted the Claimant’s submission, given the nature and scale of the evidence, as well as the fact that Mr Hanratty is representing himself and could be assisted by the judge in shaping his case, and that a reasoned judgment would assist in formulating grounds for appeal. The trial is listed for 5-8 days.

And here’s the rub. The Claimants are unlikely to see any cash from this application; there apparently haven’t been any website allegations for a while; and the evidence against Mr Hanratty is circumstantial at this stage; so what’s the point? I can readily understand why the organisation and its CE would wish to defend their reputation and halt wrongful publications, of course, but is this the best way to do it?

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