A  judge sitting in the High Court has taken judicial activism to new levels by effectively laying down the law on flirting at work. Or so you might think, after reading a report of one of his judgments in The Times. [Spoiler: he has done no such thing.]

In an article entitled “High Court judge hands down guide to flirting at work” the newspaper  reports that the judge (HHJ Moloney QC, sitting as a High Court judge) had been asked to consider the case of two governors at an NHS trust who had gone on a dinner date. The gentleman rounded off the evening by making a pass at the lady, which she rejected. After that, she claimed that he began bullying her at work, and so she issued a formal internal complaint. He denied her allegations.

Though the Times story is presented as one of those run-up-to-Christmas “do’s and don’ts of office party” type articles (all the more relevant in the current climate of fear over sexual harassment in the workplace), the case it refers to, David v Hosany [2017] EWHC 2787 (QB), was nothing to do with employment law or crime. It was actually a libel case, brought by the gentleman against the lady, claiming she’d been circulating malicious and defamatory stories about him at work by way of her complaint. The libel claims related to two written complaints she had issued, and an email. She admitted publication but relied on qualified privilege, viz. that she had a good reason to circulate the material in connection with her complaint. Qualified privilege is a defence to a libel claim in a situation such as a person answering police questions or taking a complaint to a professional body, where there is a reciprocal interest in passing on information.

Judge Moloney explains the defence of qualified privilege and its relationship to malice at para 4.2ff of his judgment:

4.2     One of the most commonly used defences is that of common-law qualified privilege. This focuses not so much on the content of the words complained as on the occasion on which they were published. Were the circumstances such that the publisher had a legal, social or moral duty or interest to make the publication, and the publishee a corresponding duty or interest to receive it? If so, the publication took place on an occasion of qualified privilege, the qualification being that the publisher must not be actuated by express malice. But unless the claimant can prove such malice, the defendant will have a complete defence …”

The judge ruled, inter alia, that it was

“5.5 … necessary for the Court to determine, as a factual matter, what if anything did happen between the parties that evening, because in the circumstances that will in practice determine whether and to what extent Ms Hosany honestly believed in the truth of her complaints.

5.14 On her case, the 20 January incident is necessary background to her real complaint, which cannot be understood without it. It follows that if her account of the incident is true (or is honestly believed by her, which in this case is likely to be the same thing), then it would plainly not be malicious for her to include it in her complaint. If on the other hand, her account is false/not honestly believed by her, then she will plainly be malicious whether or not the allegation was relevant.

In his findings of fact as to what happened, at para 5.34:

“f. I therefore conclude on the balance of probability that on the evening of 20 January 2015, at the end of a friendly evening together, Mr David did put his arms round Ms Hosany and ask her if she would like their friendship to go further. In doing so, he believed that she would or might consent. He did not try to kiss her or touch her intimately, and he let go as soon as she made her reaction clear. He even apologised at the next opportunity and Ms Hosany accepted his apology.

g…  I also find on the balance of probability that when Ms Hosany made her written complaints about Mr David, she did so honestly believing that they were true and fair.

The judge concluded that Mr David had failed to discharge the “heavy burden” of proving that Ms Hosany’s complaints were malicious and that, in the circumstances, she could rely on the defence of qualified privilege. That was because the main circulation of the words complained of was in connection with her complaint to proper authorities.

The Times reports none of this in any detail, but it cherry picks an earlier observation made by the judge in considering the question of defamatory meaning (ie what would tend to “lower [someone] in the estimation of right-thinking members of society generally”) in relation to what Ms Hosany said about the dinner date, and whether a reasonable reader would understand her account of the incident in a defamatory sense, “independently of the allegations about Mr David’s subsequent behaviour”. He said, at para 3.14:

In my judgment a reasonable, right-thinking member of a modern society would not consider is shocking or discreditable for a man, at the end of a social evening alone with a single women of equal status whom he found attractive and friendly, to put his arm around her waist and ask her if she would like them to become closer. Provided he did nothing positively indecent, and took ‘no’ for an answer, most right-thinking people would accept this as a normal part of life…”

To categorise this observation as “handing down a guide to flirting at work” is really to see the dog and only report the tail. The Times could have linked to the judgment which is freely accessible on BAILII, but it did not (contrary to the recommended practice under the Transparency Project’s Media Guide). Instead, it went off on a tangent to get a quote from an expert on etiquette on how best to pursue (or rebuff) workplace relationships.

If this gave the impression that the judge had somehow waded in and laid down the law on flirting with work colleagues then it was, shall we say, somewhat “extravagant” with the truth.