Reference:  EWHC 2438 (QB);  1 WLR 2880;  EMLR 139;  2 All ER 149; (2006) HRLR 8
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 8 Nov 2005
Summary: Defamation - Libel - Human Rights - Political Speech -Preliminary Issue - Qualified Privilege - Election communications - s.10 Defamation Act 1952 - s.3 Human Rights Act 1998
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Instructing Solicitors: Osmond & Osmond for the Claimant; Wragge & Co for the Defendants
In November 2002 C stood for election for the British National Party (BNP) at a by-election in the Downham ward in the London Borough of Lewisham. A year later she sued the Ds, the Liberal Democrat candidate and his agent, in respect of words contained in an election leaflet published by the Liberal Democrats during that campaign that she said libelled her. The Ds seek to defend the publication on the grounds that it did not refer to her and hence was not defamatory of her, was true and/or was fair comment and/or that the First D had an innocent dissemination defence and/or the words were published on an occasion of qualified privilege.
(1) The impact of s 10 Defamation Act 1952 upon the pleaded defence of qualified privilege and whether the section needed to be construed in a way to ensure that it complied with the Human Rights Act and certain articles of the ECHR, specifically arts 6 and 10.
(2) Whether the words complained of are protected by QP.
Allowing the application. If the Court was able to construe s10 from first principles it would hold that it meant no more than that a candidate could not acquire a special privilege for the publication of defamatory statements, not open to other citizens but it was bound by the CA decision in Plummer v Charman  1 WLR 1469 that the effect of s10 was to impose restrictions upon a candidate’s scope for pleading privilege. However, the Court was now required by s3 HRA 1998 to construe legislation in a way that is consistent with the ECHR. S10 was a restriction which was prescribed by law but it was not necessary or proportionate to achieving a legitimate aim if it was construed to mean that a candidate was precluded from relying upon a defence of QP where others could do so. S10 was not a statutory bar and a candidate can rely upon a defence of QP if the ingredients recognised at common law are present. (2) This would be a matter for trial.
This is an important decision for candidates in all elections. It recognises the importance of political speech at election time and demonstrates how s.3 of the HRA required the Court, even though it was bound by Court of Appeal authority, to construe primary legislation in a manner compatible with arts 6, 10 and 14.