Full case report
Donnelly & Others v Young & Another
Court Queen's Bench Division
Judge Eady J
Date of Judgment 5 Nov 2001
Defamation – Libel – Qualified Privilege – Election Communications – s.10 Defamation Act 1952 – Malice – Striking Out – CPR 3.4(2)
This dispute concerned campaign literature published by rival factions of the Conservative party in the Brentwood Borough Council elections in May 2000. The Claimants were part of a breakaway group from the Brentwood & Ongar Conservative Association. The Defendants were party agents acting on behalf of the official Conservative candidates. The Claimants had published a leaflet claiming that the local party had been infiltrated by the Peniel Church. In response, the Defendants published a leaflet stating that the allegations were false and were a breach of s.106 Representation of the People Act 1983 (which prohibited false statements about candidates in elections). The Claimants claimed the leaflet suggested they had broken the law by making false statements. The Defendants pleaded justification, fair comment and qualified privilege. The Claimants pleaded malice. On the first day of the trial, the Defendants applied for a ruling on qualified privilege and to dismiss the case on malice.
(1) Whether the Defendants’ leaflet was protected by qualified privilege; (2) Whether s.10 Defamation Act 1952 prevented any qualified privilege arising; (3) Whether the Claimants’ malice plea disclosed a case fit to go forward to jury trial.
(1) The leaflet was a classic case of reply to attack and was protected by qualified privilege, Fraser-Armstrong v Hadow & Nelson considered  EMLR 140; (2) s.10 Defamation Act 1952 operated so as to prevent any blanket defence of qualified privilege arising simply by reason of the communications being between candidates and the electors at an election. If the privilege arose for some other reason, s.10 did not rob a defendant of that defence – Plummer v Charman  1 WLR 1469 considered. (3) The malice plea did not disclose a proper case that the Defendants lacked a belief in what they published or were reckless as to the truth/falsity of the information, and would be struck out. Judgment for the Defendants.
“Freedom of speech is, if anything, more important than ever in a democratic society at times when candidates are submitting themselves for election to their fellow citizens. Free and frank discussion is vital. [Section 10] cannot be construed, in my judgment, as imposing a more ‘chilling’ environment for the free communication of ideas and information at such times than generally applies. That would be absurd. The occasion of and background to its enactment demonstrates that it was simply intended to make clear that candidates and their supporters should not expect to defame people with impugnity under cover of an election campaign” – per Eady J.
Penningtons for the Defendants
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