July 13, 2004
Law Commission Report on Local Authority Inquiries
Lillie & Reed case prompts defamation law reform proposals
The Law Commission’s Final Report on the publication of Local Authority Inquiry Reports was published today together with a draft Bill.
It makes major recommendations designed to enable local authorities to publish fair inquiry reports without fear of an action for defamation and to conduct an effective inquiry where there has been a serious failure to deliver a service.
The principal conclusions of the Commission were that the law of defamation, in particular the law of qualified privilege, should be amended.
Where there has been an ad hoc inquiry into a failure in the delivery of a local authority function, then so long as the inquiry has been conducted fairly, and neither the inquiry nor the local authority is motivated by ‘malice’, publication of the report, either in whole or in part, should be privileged.
The Commission considered that common law privilege without a test of fairness – to ensure that the inquiry had been conducted fairly and the conclusions were sustainable – was unfair to those defamed especially when the English law of malice (from Horrocks v Lowe  1 AC 135) was too narrow a concept. The Commission considered that the Appellate Courts should be alive to the developments in the definition of malice in other commonwealth countries, especially New Zealand.
The Commission’s consultation paper was published before Eady J’s decision in Lillie & Reed v Newcastle City Council & others  EWHC 1600 (QB). The Commission’s final views on the inter-relationship between qualified privilege and malice were re-considered in light of that case which featured five members of 5RB: Adrienne Page QC and Adam Speker for the Claimants; Gordon Bishop, Iain Christie and Sara Mansoori for the Defendants.