Last year I blogged about Mrs Clift winning a claim for defamation against Slough Borough Council. The facts are in the earlier post. Slough’s appeal was rejected by the Court of Appeal in Clift v Slough Borough Council [2010] EWCA Civ 1171.

While the point in issue was whether Slough could rely on a defence of qualified privilege against Mrs Clift’s claim, I think the decision has wider implications and is therefore relevant to housing practice. The court’s reasoning on Article 8 of the ECHR should be familiar to housing lawyers. In the court’s view, the publication of damaging allegations about Mrs Clift interfered with her rights under Article 8(1) and the council was therefore bound not to pass those allegations on unless in doing so Article 8(2) was satisfied – which it manifestly was not in Mrs Clift’s case. Via some relatively complex reasoning related to the ways in which qualified privilege has been analysed by the courts, this meant the council could not raise the defence and so their appeal was lost.

Two things of interest arise. First, Slough tried to argue that it was impermissible to rely on human rights to condition the way in which an existing common law right of action developed. The court rejected this point, there was no suggestion of changing the way in which the defence qualified privilege operated, but rather applying the pre-existing definition of qualified privilege without change to the facts, which included Slough’s duties as a public body, meant that it could not be relied on. Similar arguments may arise in future concerning other defences raised by a public body.

Second, in advising council tenants one does run across situations where councils have foolishly, incompetently or sadly in some cases maliciously (in the non-technical sense) passed on private and damaging information about tenants, their families or associates to a far wider audience than was strictly necessary. Mrs Clift’s case establishes quite clearly that this is likely to be in breach of the individual’s article 8 rights and that a simple plea of administrative impracticality (one of Slough’s argument’s amount to asking how would they check that the circulation list was relevant?) is unlikely to be enough to satisfy Article 8(2).

By the way the court took the view that general public law principles and the Data Protection Act 1998 were each likely to result in the same conclusion – that there should not have been such wide disclosure – even in the absence of Article 8.