Protecting the reputation of the council

Athelstane Aamodt considers attempts by local authorities to protect their reputation and analyses a recent European Court of Human Rights ruling.

Local authorities cannot sue in defamation. This was not always the case however. There are in fact two reported incidences of local authorities prior to 1993 (when the law changed) suing in this fashion.

The first is Manchester Corp v Williams [1891] 1 QB 94 in which someone wrote to a newspaper stating that “in the case of two if not three of our Manchester City Council, bribery and corruption have existed and done their nefarious work.” The Divisional Court in that case held that the plaintiff had no cause of action as a corporation at that time could only sue in respect of a libel affecting its property but not its reputation.

The second is Bognor Regis UDC v Campion [1972] 2 All ER 61. In that case the defendant had distributed a highly defamatory leaflet at a meeting of the local ratepayers’ association. The judge, Browne J, found in favour of the Council, applying a case called National Union of General and Municipal Workers v Gillian [1945] 2 All ER 593 which held that a non-trading corporation could sue in respect of imputations on the way in conducts itself.

The law with respect to local authorities and their ability to sue for defamation was eventually settled in the House of Lords case of Derbyshire County Council v Times Newspapers Ltd [1993] 1 All ER 1011, which held that local authorities may not sue given that they are government bodies and should therefore be open to “uninhibited public criticism”. Permitting the plaintiff’s action would also, the House of Lords held, be incompatible with the United Kingdom’s obligations under the Article 10 of the European Convention on Human Rights (“Derbyshire” was decided before the Human Rights Act).

Things in reality weren't settled. This was for two reasons.

The first is that although “Derbyshire” dealt with the ability of local authorities to sue in defamation, it left the door open for the employees and officers of local authorities to sue for defamation in their owm right. In principle this is entirely unobjectionable; individuals should have a cause of action against those who defame them. However, the problems can start when local authorities pay for the legal fees of their defamed employees.

This issue was considered in the case of R (Comninos) v Bedford Borough Council [2003] LGR 271 in which the auditor sought judicial review of the council's decision to provide financial support for libel claims brought by three officers. The application for judicial review was dismissed and Sullivan J held that offering an indemnity with respect to such libel actions was lawful under Local Government Act 1972, ss.111 & 112, with a very large “but”:

“If a local authority’s true purpose is to sue for damage to its reputation, and it gives it's officers immunity in respect of the costs of defamation in order to circumvent the [“Derbyshire”] rule that it has no right to commence such proceedings itself, then it will have acted for an improper purpose and/or irrelevant consideration into account and it's decision will be liable to be quashed on normal public law principles.” (39)

To what extent the purpose is “improper” is going to depend on the circumstances. A good example would probably be when a council leader claims that their persona is bound up with the identity of the council, such as (historically) Ken Livingstone or Derek Hatton. A claim brought by such a person, on the basis that such a person and the council are indistinguishable, would presumably be seen as a stratagem designed to circumvent “Derbyshire”. Also, the merits of pursuing or defending a claim would also determine whether the process was “improper”. Some local authorities have attached a great deal of criticism by allegedly spending large amounts of money on defending libel actions, most recently in :

• South Tyneside Council v Ahmed (the "Mr Monkey" Twitter case in California) (2011)
• Thompson v Carmarthenshire County Council (2013)

Both cases have attracted the opprobrium of the media, mainly because of the very large legal bills that both councils are accused of having incurred in pursuing these cases during a time of austerity and redundancies (Carmarthenshire is rumoured to have spent up to £700,000). If a local authority spent a disproportionately high amount of money on one of these actions, there would be (as Comninos confirmed) the possibility of Judicial Review on the grounds of (among other things) Wednesbury unreasonableness. If a local authority is thinking of funding the claims of its officers, it will need to be very sure that it has considered all of these factors.

All of this has been made more intriguing by a recent case in the European Court of Human Rights (ECHR) called Pinto Pinheiro Marques v Portugal (25 January, 2015) which deals with a prosecution for criminal libel for comments made about a local authority. The ECHR held that the prosecution was an interference with Article 10 of the Convention. Where the case is interesting however, is here :

"... protection of the credibility and prestige [of the Council] and public confidence in this institution was a legitimate aim ..." under the Convention [my emphasis].

Derbyshire was decided with Article 10 in mind but this case seems at odds with their Lordships' speeches. It's not that simple of course: Pinto held that the applicant’s statements did not exceed the threshold of acceptable criticism established by article 10, but the fact that the ECHR sees the protection of a public institution as a legitimate aim under Article 10 does suggest that the foundations of “Derbyshire” aren't as firm as originally lawyers originally thought. The door isn't open again, but there has been a knock.

Athelstane Aamodt is a barrister at 4-5 Gray’s Inn Square. He can be contacted on 020 7404 5252.