Qualified privilege provides no protection in nursery workers' libel action

The recent libel action brought by Chris Lillie and Dawn Reed against Newcastle City Council and others provided an unusual example of the defence of qualified privilege being defeated by malice, write Elaine Gilchrist and Katherine Rimell.

They were two young council nursery workers who were suspended and then dismissed from their positions following allegations of child abuse. They were also charged with criminal offences but, at their trial at Newcastle Crown Court, the judge concluded that there was no evidence upon which a reasonable jury could convict and they were accordingly acquitted.

Newcastle City Council was unhappy with the outcome of the trial and decided to set up an independent review team to investigate what had happened at the nursery.

It comprised four professionals experienced in child protection and social work. Originally, the team’s task was to respond to complaints made by the parents and their children and report on the running of the nursery. They were told they could not make any finding on matters dealt with by the criminal court.

Over a three-year period the review team carried out what the judge in the libel action described as an "impressionistic" investigation that shifted their focus towards the area they had been told to avoid. The resulting report in 1998 was a public pronouncement of the guilt of Lillie and Reed. It concluded that they had physically, sexually and emotionally abused the children and involved them in the making of pornography. Hundreds of copies of the report were published and it received enormous publicity. The effects were devastating for Lillie and Reed.

They sued the council, the review team and the Evening Chronicle, Newcastle, for libel, who pleaded truth and qualified privilege in their defence. Qualified privilege protects the maker of a defamatory statement where he has a legal, moral or social duty to communicate it and its recipient has a similar interest in receiving it. This has been extended to protect publication of material in the public interest by the media, providing the journalist in question acted responsibly. Qualified privilege can only be defeated by malice, which is notoriously difficult for claimants to prove. Malice is established where it is shown that the defendant had no honest belief in the statement or was indifferent to its truth or falsity.

The newspaper settled halfway through the trial (which lasted 79 days). The judge concluded the allegations were not true. The only defence left to the council and the review team was qualified privilege.

This succeeded in the case of the council but not for the review team. The judge decided that their conclusions were based on "gossip" and "prejudice" and noted that they had included in their report a number of fundamental claims which they must have known to be untrue and which could not be explained on the basis of incompetence or mere carelessness. This met the malice test.

The review team was ordered to pay £200,000 to Lillie and Reed, the highest level of damages permitted for libel.


Elaine Gilchrist is a trainee solicitor and Katherine Rimell a partner in the intellectual property department of Theodore Goddard

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