London Borough of Bromley (20 004 816)

Category : Other Categories > Other

Decision : Not upheld

Decision date : 20 Nov 2020

The Ombudsman's final decision:

Summary: The complainant brought a complaint alleging defamation by the Council which he perceives has damaged his reputation. The Ombudsman does not have jurisdiction to consider a complaint for defamation and he cannot enforce a remedy associated with this. Further, the complainant complains the Council has unfairly restricted his contact with councillors and staff, though the Ombudsman cannot determine any fault in this regard.

The complaint

  1. The complainant, who I refer to as Mr D, is making a complaint that the Council allegedly made false statements about him, which he considers defamatory, following a planning application committee meeting. Specifically, Mr D complains that the Council alleged he interrupted a planning meeting by shouting at councillors and spoke with a Council attendant in a hostile and threatening manner and made personal threats of violence.
  2. In addition, Mr D alleges the Council threatened police action if his conduct continued and later placed restrictions on his ability to contact the Council.
  3. As a desired outcome, Mr D wants the Council reprimanded and for it to offer him an apology for making statements about him which he considers defamatory. Further, Mr D considers that all councilors and staff at the Council who were made aware of the statements about him should be contacted and the record corrected. As regards to the alleged restrictions on Mr D contacting the Council, he wants these lifted.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended).
  3. We investigate complaints of injustice caused by 'maladministration' and 'service failure'. I have used the word 'fault' to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended).

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How I considered this complaint

  1. I have reviewed Mr D’s complaint to the Ombudsman and Council, including his supporting documents. I have also had regard to the responses of the Council, its relevant policies and applicable legislation. Mr D and the Council received an opportunity to comment on a draft of this decision before I reached a final view.

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What I found

Background

Defamation of character

  1. Defamation is a legal concept and cause of action which relates to the publication of a statement that has caused, or is likely to cause serious harm to a person’s reputation. There is no statutory definition of defamation. The common law test for establishing whether a statement is defamatory is whether an allegation, which cannot be proved to be true, would lower the complainant in the estimation of right-thinking members of society generally. However, Section 1 of the Defamation Act 2013 introduced a threshold requirement that a statement is not defamatory unless its publication has caused, or is likely to cause, ‘serious harm’ to the reputation of the complainant.
  2. Following the Supreme Court's decision in Lachaux v Independent Print [2019] UKSC 27, the complainant bears a burden of proving serious harm to reputation.
  3. Claims for defamation are normally brought in the Queen's Bench Division of the High Court. The County Court, nor any other inferior body, does not have jurisdiction to hear and determine a claim for damages or other remedy for defamation. The limitation period for defamation claims is one year from the time the cause of action arose.

Habitual contact policy

  1. The Council have an established written policy concerning unreasonable, repeated, persistent or aggressive customer contact which may result in restrictive action by the Council. This can include, following a warning about unreasonable behaviour and where necessary, restrictions on a customer’s ability to contact the Council or its employees.

Chronology of events

  1. In July 2019, Mr D submitted a planning application to the Council.
  2. In mid-2019, Mr D’s planning application was discussed at a planning meeting. Subsequent to that meeting, the Council alleged in writing to Mr D that he disrupted this meeting through his poor conduct. Further, the Council claimed that Mr D spoke to one of the Council’s attendants outside of the meeting in an unpleasant, hostile and intimidating manner and made threats of violence. On this basis, the Council informed it would contact the police should Mr D’s conduct continue. It also required that Mr D no longer attend planning meetings, though confirmed it was satisfied for him to be represented by an agent.
  3. Also, in mid-2019, the Council refused the planning application. Mr D subsequently lodged an appeal to the decision which is currently under review and pending a decision by the Planning Inspectorate.
  4. In late 2019, Mr D instructed solicitors with respect to the Council’s allegations concerning his conduct. His solicitors rejected that Mr D interrupted the planning meeting or that spoke with a Council attendant in a hostile and threatening manner. Moreover, they put to the Council that by sharing the allegations among Council staff was defamatory and that this resulted in councillors and staff refusing to speak with Mr D. As a result, Mr D’s solicitors requested the Council meet Mr D’s legal costs, provide an apology and retract the allegations in full.
  5. The Council responded by denying that it had defamed Mr D. It withdrew its allegation that Mr D disrupted the planning meeting, but affirmed the encounter Mr D had with its attendant. In any event, the Council has rejected that Mr D suffered serious harm by reference to the provisions of the Defamation Act 2013

Assessment

Defamation of character

  1. By law, I cannot investigate a complaint in circumstances where the complainant could reasonably take his complaint to court. In my view, it is evident that Mr D’s complaint is, in effect, that the Council has defamed his character resulting in harm. Adjudication on questions of defamation usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only the High Court can decide if the Council has published defamatory information and what remedy is appropriate in the circumstances of the case. We cannot decide on the balance of probabilities whether the Council has defamed Mr D and we have no powers to enforce an award of damages or other remedy. On this basis, the restriction I describe in paragraph five generally applies to this element of the complaint and I cannot make a determination.
  2. In any event, Mr D has not provided any evidence of serious harm in compliance with Section 1 of the Defamation Act 2013 and, on the face of it, the limitation period to bring an action in defamation has expired.

Habitual contact policy

  1. In addition, Mr D complains the Council imposed contact restrictions on him and that the defamatory statements resulted in councillors and Council staff refusing to speak with him. The Council has subsequently informed me that the restrictions placed on Mr D were strictly limited to Mr D’s attendance at planning meetings for which he could be represented by an agent. Further, the Council confirmed that Council staff and councillors have not been told to refuse to speak with Mr D and that its habitual contact policy has not been applied in this case. In my view, the only restriction placed on Mr D is not to attend planning meetings and this decision was taken by the Council following what it perceived as poor conduct on the part of Mr D. I have not identified any fault by the Council and I therefore cannot question the merits of a decision in the absence of fault.
  2. In any event, the Council has confirmed that Mr D is free to contact the Council and its staff on any issues he may have and be represented at any future planning meeting. Therefore, even had I identified fault, I do not consider Mr D has suffered a significant enough injustice to warrant any action or remedy.

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Final decision

  1. I am not upholding Mr D’s complaint concerning perceived defamatory publications. This is because I do not have jurisdiction to consider this issue as defamation is exclusively reserved for the jurisdiction of the High Court. Further, I cannot determine fault by the Council for placing restrictions on Mr D’s ability to contact councillors and staff since, by law, I cannot determine fault and I cannot question the merits of a decision in the absence of fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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