Human Rights Act 1998 - H v Tomlinson - Case Study Example

H v Tomlinson [2008] EWCA Civ 1258: Case Introduction The concept of a legally recognised right to privacy under UK law remains the of complex debate and this and has become further contentious as a result of the incorporation of the Human Rights Act 1998(“HRA”)1; which provides an express right to privacy (Article 8) and it was hoped that the HRA would readdress the imbalance in protecting an individual’s right to privacy. However, since implementation HRA, UK courts have struggled to strike a balance between the right to freedom of speech and protection of privacy and have failed to provide a consistent approach to clarify where the balance lies and what the extent of the privacy right is that is granted under the HRA. A recent case dealing with the issue of privacy and confidence under the HRA was H v Tomlinson2 and this paper provides a detailed case summary of the decision, along with an analysis of its implications regarding the interrelationship between the HRA and UK law in respect of individual rights. 2: Parties to the case The decision in H v Tomlinson was heard by the Court of Appeal on appeal from the Queen’s Bench Division. The parties to the case were the claimant Mrs H as litigation friend on behalf of her son, referred to the case as “B”, and the defendant Mr Tomlinson, who was appealing against the decision made in 2007 by Mr Recorder Moloney Q. C. at the High Court. 3: Judges Presiding The judges presiding in the case were the Right Honourable Lord Justice Ward, the Right Honourable Lord Justice Sedley and the Right Honourable Justice Longmore and the final judgment of the Court of Appeal was unanimous. 4: Material Facts The claimant B suffered from Asperger’s Syndrome and obsessive compulsive disorder and had significant behavioural difficulties. He was acknowledged as having special needs issues and was placed at a mainstream school where the defendant Mr Tomlinson was headmaster. B had been violent at the school and a series of violent conduct towards other students at the school resulted in B being permanently excluded from the school. The statutory appeal panel confirmed that B had committed the acts he was accused of but overturned the school’s decision to permanently exclude B from the school. Nevertheless B was not reinstated due to the school’s duty to act in B’s best interest and the best interests of the whole community. However, during the course of the enquiries leading to B’s exclusion, Mr Tomlinson had made a written report including various allegations regarding incidents pertaining to B’s violent conduct. In particular, Mr Tomlinson’s report claimed that the staff concluded B was mentally stable, had been violent to his mother and that B had been arrested by the police at his home for violent and dangerous behaviour. This report was read at the appeal hearing and B’s parents knew these allegations regarding B’s behaviour at home and the alleged arrest were not true. 5: Legal Issues in Contention The central legal issues in the claim were as follows: 1) Libel for the untrue statements made and read out loud at the appeal hearing regarding B’s behaviour and home life; 2) Breaches of the Human Rights Act with regard to the Article 8 right to privacy; 3) Breaches of the Human Rights Act with regard to the Article 6 right to a fair trial; and 4) The extent to which the defendant could rely on the defence of qualified privilege; While B’s parents eventually received an apology for the publication of the untrue statements regarding their home life, they instituted proceedings against Mr Tomlinson for libel and also for breaches of the HRA. In the High Court the Recorder refused to allow the defence of qualified privilege on the basis that the breaches of procedural requirements during the course of the hearing undermined the applicability and purpose of the qualified privilege defence. Furthermore, the High Court granted Mrs H leave to appeal against the order striking out the defamation claim due to the possibility of negating the justification of qualified privilege. With regard to the application to amend the claim on grounds of breaches of the HRA, the Article 6 claim was rejected. However on the basis that there were powerful arguments for the Article 8 claim, along with the fact that the case law in this area was continuing to evolve, leave to amend the claim for breaches of the HRA on the basis of Article 8 was granted. As a result, Mr Tomlinson appealed against the leave to amend the particulars of claim to include breaches of the HRA, which was the central issue before the Court of Appeal in H v Tomlinson. 6: Principles of Law Discussed in Case and Analysis As highlighted above, the area of law regarding the extent of the Article 8 right under UK law as a result of the HRA has remained unclear. For example, in Naomi Campbell –v- Mirror Group Newspapers Ltd3 Mr Justice Morland stated that “there would be some merit in recognising that the original concept of breach of confidence has in this particular category of cases now developed into something different from the commercial and employment relationships with which confidentiality is mainly concerned”. Although this hints at a right to privacy, it suggests that whether or not one is protected ultimately depends on the facts of each individual case and it discusses breach of confidence, which is completely distinct from a separate actionable right to privacy. In addition to fuelling uncertainty, it is also notable that only a privileged minority have the funds to test cases before the UK courts in order to determine whether or not a particular right qualifies as a breach of privacy, which is clearly unacceptable in a jurisdiction where everyone should be equal before the law. Further, in the case of A v B & Anor sub nom Gary Flitcroft v Mirror Group Newspapers4 Lord Woolf suggested that a restrictive approach to Article 8 by commenting that it was necessary to restrict the scope of Article 8 to preserve the freedom of expression right under Article 10. Accordingly, it would appear that the courts prefer to maintain the rights of the media and their freedom of expression. On the other hand, one decision that has been cited as an example that the pendulum may be swinging back in favour of the individual’s right is the case of Douglas v Hello5 where the right of privacy under the HRA was held to prevail where it could reasonably be expected. However, arguably this is a pyrrhic victory as the case was distinguished again on the facts of the case and was influenced by the notion of personality rights and breach of confidence, which does not provide guidance to the general notion of a right to privacy. If we consider the Court of Appeal’s judgement in the H v Tomlinson decision, in light of the fact that B’s reputation was already bad as a result of the violent conduct, it was commented that “the sad an inescapable fact is that his reputation was already such that the additional allegations make no difference”. On this basis, the Court of Appeal found the recorder’s decision wrong and that permission should not be granted for the amendment. On this basis the Court of Appeal held that the claim failed and as a result Mr Tomlinson’s appeal was granted. Therefore, on the basis of the facts the Court of Appeal arguably avoided having to address the exact scope of the privacy right. Nevertheless, the Court of Appeal provided an interesting view on the Article 8 right and claims under the HRA. It was held that there were two aspects to a claim under Article 8; namely invasion of privacy and damage to reputation. With invasion of privacy it was commented that this depended on whether an individual had a reasonable expectation of privacy and this would depend on the facts of each case. Additionally, if the misconduct alleged to have taken place was in the home, the Court of Appeal followed Ealy J’s dictum in A v B6 that this would not constitute sufficient grounds for a human rights claim. With regard to the reputation element of Article 8, it was acknowledged by the Court of Appeal that a separate claim could arise under the HRA irrespective of any common law claim from the same facts7. However, again it was highlighted that the very nature of reputation required a case by case approach and on this basis B’s leave to amend the claim was made in error. Therefore, whilst overall there has been a lack of clarity and dependency on ad hoc judicial decisions in relation to the privacy issue under the HRA; it is submitted that the Court of Appeal’s rationale in H v Tomlinson is welcome in undertaking a pragmatic approach to the application of human rights claims. This not only goes further to preserve the objectives of the HRA; it simultaneously moves towards preventing abuse of the system. Bibliography Tugendhat, M., and Christie, I (ed.) The Law of privacy and the media, (Oxford University Press, 2002). Cases A v B & Anor sub nom Gary Flitcroft v Mirror Group Newspapers [2002] EWCA Civ 337 A v B [2005] EWHC 1651 Douglas v Hello [2005] EWCA Civ 106 H v Tomlinson [2008] EWCA Civ 1258 Naomi Campbell –v- Mirror Group Newspapers Ltd [2002] EWHC 499 (QB) W v Westminster City Council [2004] EWHC 2866 Legislation & Websites Human Rights Act 1998 Available at www.opsi.gov.uk accessed December 2010 Read More