Council mulls defamation action in own name following Localism Act changes

Members of Rutland County Council will tomorrow (10 January) decide at a special meeting whether it should become the first authority to take legal action over alleged defamation since the introduction of the Localism Act 2011.

The option is one of a number of possible approaches set out in a report and supplementary report by law firm Bevan Brittan on the activities of the Rutland Anti-Corruption Party (RACP).

The main report was commissioned in October to examine the alleged impact of the actions of members of the RACP, which comprises three independent councillors.

The councillors concerned – David Richardson, Nick Wainwright and Richard Gale – have strongly denied any wrongdoing, arguing that they are holding the council to account.

The Bevan Brittan report said that in the firm’s view, a number of officers and members had been defamed by statements made by the RACP and would be entitled to issue libel claims.

It also said that the principle established by the Court of Appeal 20 years ago that a local authority was not entitled to issue a defamation claim in its own name in connection with statements that damage the reputation of the authority as a whole – rather than the reputation of its individual officers or members – had been overturned by the general power of competence (GPC) in the 2011 Act.

The GPC gives a local authority the power to do anything which an individual generally may do, such as issuing a defamation claim, and Bevan Brittan said there was no restriction in the Act preventing an authority from doing so.

The report said: “Given the extent to which a local authority is now dependent on its public reputation for its ability to secure external funding, to attract competitive tenders for the provision of services, or to recruit outstanding officers, it seems quite appropriate that the 2011 Act should now have brought the law up to date with commercial reality.”

The firm added that it was arguable that certain statements defamed the council and were therefore actionable.

The report pointed out that members of the RACP might seek to deploy a range of defences to any claim from officers, members or the council itself.

It added: “The council’s power to issue a defamation claim in its own name is…. untested and the case would be almost certain to attract media interest beyond a local level.”

The Bevan Brittan report also covers issues such as protection from harassment and malicious communications.

A report prepared for tomorrow’s special council meeting says the full list of options for councillors available is to:

  • “Authorise the authority to take legal action in respect of the defamation of the authority by the Anti-Corruption Group and its members;
  • Authorise the authority to take legal action to seek an injunction to prevent harassment of the Chief Executive and other officers by the Anti-Corruption Group and its members;
  • Resolve to grant an indemnity to, and support the Chief Executive and/or other officers, to take legal action in her/their own name(s) for harassment by the Anti-Corruption Group and its members;
  • Resolve to instruct the Chief Executive to make a complaint on behalf of the Council to the Police against the Anti-Corruption Group and its members in respect of: (a) criminal harassment of officers of the Council, and/or (b) breach of the Malicious Communications Act 1988 and the Communications Act 2003;
  • Resolve to seek the agreement of the Anti-Corruption Group and its members to participation in alternative means of resolution, e.g. Mediation;
  • Resolve that all communications to any part of the Council from the Anti-Corruption Group and its members be subject to a Single Point of Contact, subject to periodic report back from the Chief Executive;
  • Resolve to resume a wider independent review of the impacts of the actions of the Anti-Corruption Group and its members on the Council;
  • Resolve to take no further action in respect of the Anti-Corruption Group and its members, subject to further report from the Chief Executive if required.”

The RACP’s Richardson told the BBC that the group had not done anything wrong and said they had to ask questions to carry out their job.

He added: "The fact is, we are elected by the people, we are elected by them to represent them and to do the best for them. We can only do that if we have the proper information in front of us."