Full case report
Thompson v James and Carmarthenshire County Council
Reference  EWHC 515 (QB)
Court Queen's Bench Division
Judge Tugendhat J
Date of Judgment 15 Mar 2013
Libel – justification – honest comment – qualified privilege – malice – public authorities – Article 8 HRA – Derbyshire v Times Newspapers – Part 20 claim – damages
C is a resident in Carmarthenshire and D2 is her local county council. D1 is D2’s Chief Executive. C had been involved in a number of planning applications, both on her own behalf, and on that of her brother-in-law, ET. The later applications for ET were unsuccessful. Since 2009, C has run a blog under the title Carmarthenshire Planning Problems which is highly critical of D1 and D2. In February 2011 C asked for and was refused permission to film Council meetings. C filmed proceedings on three occasions arguing that there were no provisions in D2’s constitution to stop her. On 13 April, she appeared to D2 to be filming. A council officer was asked to go up to the public gallery to stop her. After she left the public gallery C made an allegation to the police that the officer had committed a criminal offence.
On 8 June, C filmed proceedings and was asked to stop. She refused relying on what she said was a lack of a written prohibition. Because of the incident on 13 April, the police were called to escort her from the building. They arrested her as they believed she was about to commit a breach of the peace. This attracted national publicity in the media and online.
Another blogger published an “Open Letter” to D1 which was critical of both Ds. He urged D1 to reply, as did C on her blog. D1 did reply on the blog in a letter and to councillors and was sued for libel by C. She added by amendment before trial a claim under s7 of the HRA 1998 for a breach of her article 8 rights. The Defence raised defences of justification, honest opinion and qualified privilege and included a Part 20 claim by D1 alleging that five postings on C’s blogs had defamed D1, accusing him of corruption, misuse of Council funds and lying. C pleaded that the Part 20 claim was unlawful or an abuse of process because he was a public figure, had an indemnity from D2 and was using the claim to put pressure upon her. She also said that the words complained of were not defamatory, or that they were honest comment. C’s plea of D1’s malice was struck out in the course of the trial in relation to both D1’s defence of honest comment and that of qualified privilege.
On C’s claim:
1. Were the words complained of true?
2. Were they protected by qualified privilege?
3. Did an alleged unlawful interference with C’s article 8 rights preclude the availability of the privilege defence, or give rise to a free-standing cause of action?
On D1’s Part 20 claim:
In relation to each of the posts complained of
1. Were the posts defamatory of D1? And if so, were there any defences?
2. Was the claim an abuse of process?
3. If successful, what amount of damages should be awarded?
Dismissing C’s claim
1. The words complained of were factual save for the word ‘vindictive’ and were true in that the court found that C had conducted and continues to conduct an unlawful and vindictive campaign of harassment, intimidation and defamation against Council staff and members, which had included targeting individual staff and Council members. It was held that C had made false statements to the Police about the conduct of a Council officer and that the allegation of, attempting to pervert the course of justice was justified. Hence, the defence of justification succeeded.
2.If the Ds had not proved the truth of the words complained of, they would have had a good defence of qualified privilege on each of the bases advanced.
3. C’s Article 8 rights were not interfered with unlawfully when D1 wrote the words complained of. She had entered the arena of public debate when publishing her complaints about the Council, and D1 wrote about her public behaviour, not about matters affecting only her private life. The Ds were pursuing a legitimate aim in explaining to the public at large actions which had been publicly called into question, and did no more than what was necessary and proportionate. D1 had direct knowledge of what he was writing about, unlike a reporter or journalist writing about information communicated to him by others and he consulted appropriately qualified colleagues before publication.
On D1’s Part 20 Claim, entering judgment for D1 in respect of three of the postings:
The postings were defamatory. They meant D1 was corruptly using public money for the benefit of himself and his cronies and was a liar. Only defences of honest comment were pleaded. Three of the posts were indefensible as either comment or fact. Of the three, one was factual. The other two had defective Control Risks meanings and no facts about D1 were pleaded to support any comment meaning. Further, C’s dominant motive was to injure D1 and she had no belief in the truth of what she had published. The defence of honest comment succeeded in respect of the remaining two postings. The claim was not an abuse. Public officials could sue for libel; the claim was not being advanced for a collateral purpose; and the argument that the claim was an abuse because D1 was in receipt of an indemnity from D2 was without foundation.
This judgment shows how a public authority can succeed in establishing a qualified privilege defence to the world at large even where a claimant’s Article 8 rights are in play. Such rights may be modified by the actions of a claimant where, as here, they have chosen to enter the public arena. A public authority’s publication about a claimant, even where couched in the strongest terms, may be held to be necessary and proportionate, and made in pursuit of a legitimate aim.
It also identifies that there have been a number of cases coming before the courts in recent years which are campaigns of vilification. As the Judge said, such campaigns have existed throughout history but are made easier by the internet. The interesting question is how best to address them. The Judge recognised that whilst there is always a risk that a libel action might chill free speech which the courts must guard against, where a person maliciously spreads false and defamatory allegations about individuals holding public offices, a libel action may be the best means of establishing the truth and preventing repetition.
Simons, Muirhead and Burton for C, Slater & Gordon for Ds
More from 5RB
“Commentators note the set’s “great strength and depth” and praise it for its skill in a wide range of media specialisations.” – the lowdown here.
New 3rd Edition of The Law of Privacy and the Media, published by OUP. Further details here.