High Court: Woman who accused former tenants of child abuse covered by qualified privilege

About this case:

• Judgment:
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Finding that the woman could rely on qualified privilege and also the statutory protection under the Protections for Persons Reporting Child Abuse Act 1998, Mr Justice Barr was satisfied that the woman had made the allegations in good faith.

Background

The defendant, BK, was landlord to the plaintiffs, RP and JP, from January 2014 to July 2015. When BK regained possession of the property in July 2018, she discovered extensive damage and informed their former tenants that they would not have their €1500 deposit returned to them.

In August 2015, the plaintiffs instituted proceedings in the Private Residential Tenancies Board in order to claim the return of their deposit, and a hearing before the PRTB was held on the 16th September 2015. On 22nd September it was held that the landlords were entitled to retain the deposit due to the damage to the property, which was ultimately appealed and found that the landlords were only entitled to retain €731 and return the balance to the plaintiffs.

In the meantime, BK had made complaints to the Early Intervention Team and to Tusla that damage done to the doors etc. gave rise to concerns that there was “aggressive behaviour by some of the occupants of the house”. BK also reported that “a vent had been inserted into the door of the hot press for no apparent reason”, which led her to suspect that the plaintiffs’ autistic child may have been confined there for discipline purposes.

On 23rd September 2015, the plaintiffs were contacted by the EIT, and were told thereafter that an investigation would be carried out on the basis of the aforementioned allegations. On 15th October 2015, the plaintiffs were informed that the investigation had concluded, and that they had no case to answer.

The plaintiffs sought to sue BK for allegedly defamatory statements made to the EIT, which they said were made with malice and were therefore not covered by qualified privilege under the Defamation Act 2009, nor did they benefit from statutory protection under the provisions of the Protections for Persons Reporting Child Abuse Act 1998.

High Court

In the High Court, Justice Barr was satisfied that BK had informed those who she spoke to at EIT that she did not have any direct evidence and that these were merely her concerns arising from what she found at her property. Furthermore, Justice Barr was satisfied that she had been clear with the EIT that she had an ongoing dispute with the plaintiffs before the PRTB. It was also significant that the calls were made prior to the hearing before the PRTB.

Justice Barr also accepted evidence from BK’s doctor, who stated that BK did not want to report the matter, but that she had encouraged BK that she had a moral duty to report it when she spoke to her about it in August 2015.

Justice Barr said that the statements made by BK to EIT were undoubtedly defamatory statements within the meaning of the Defamation Act 2009, but rejected the submission that qualified privilege was lost “due to the fact that the defendant made these statements, either knowing them to be untrue, or reckless as to whether they were true or untrue and did so out of malice”.

Justice Barr accepted that the plaintiffs had never asked permission to insert a vent into the door, and had not offered any explanation for the damage done to the doors of the property – which had clearly been caused by considerable force. In the circumstances, Justice Barr said that it was understandable for BK to come to the conclusion., “albeit mistaken” that the damage was consistent with violent actions.

As per Horrocks v. Lowe 1 All E.R. 662, Justice Barr said that “the law gives considerable latitude to persons who make various concerns known to the appropriate authorities” – and Justice Barr was satisfied that BK acted honestly and in good faith when she made her report to the EIT.

Accordingly, BK was entitled to rely on the defence of qualified privilege, and on the provisions of s. 3 of the Protections for Persons Reporting Child Abuse Act 1998 (as amended).

Emphasising that the plaintiffs had been found to be very good parents to their children, and that they only failed in their action due to the fact that the law allows protection to those who make reports due to genuine concerns for the safety and welfare of children, Justice Barr allowed BK’s appeal against the finding of the Circuit Court, and dismissed the plaintiffs’ action.