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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
    1. Malone v United Kingdom (1984) 7 EHRR 14
    2. Laskey, Jaggard and Brown v United Kingdom (1996) 24 EHRR 39
    3. Lingens v Austria (1986) 8 EHRR 407
    4. Derbyshire County Council v Times Newspapers Ltd and others [1992] 3 All ER 65 (CA)
    5. Sunday Times v United Kingdom (1979) 2 EHRR 245
    6. Gay News and Lemon v United Kingdom (1982) 5 EHRR 123.
    7. Wingrove v United Kingdom (1996) 24 EHRR 1
    8. X Ltd and another v Morgan-Grampian (Publishers) Ltd and others [1990] 2 All ER 1
    9. Goodwin v United Kingdom (1996) 22 EHRR 123
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Derbyshire County Council v Times Newspapers Ltd and others [1992] 3 All ER 65 (CA)

BALCOMBE LJ. This appeal, with leave of the judge, from a judgment of Morland J given on 15 March 1991 (see [1991] 4 All ER 795), raises for the first time in the Court of Appeal the question whether a local authority which is a body corporate can sue for libel under the law of England and Wales....[T]he precise terms of the preliminary point of law upon which the judge made his ruling were:

whether the Plaintiff [Derbyshire County Council] can maintain an action for libel for any words which reflects [sic] upon the said Plaintiff as the County Council for Derbyshire in relation to its governmental and administrative functions in Derbyshire, including its statutory responsibility for the investment and control of the Superannuation Fund.

.... The facts in the case are fortunately refreshingly simple. In two issues of the Sunday Times newspaper on 17 and 24 September 1989 there appeared articles concerning share deals involving the superannuation fund of the Derbyshire County Council. The articles in the issue of 17 September 1989 were headed 'REVEALED: SOCIALIST TYCOON'S DEALS WITH A LABOUR CHIEF' and 'BIZARRE DEALS OF A COUNCIL LEADER AND MEDIA TYCOON'....It is unnecessary for the purposes of this judgement to set out in any detail the content of these articles: it is sufficient to say that they question the propriety of certain investments made by the council of moneys in its superannuation fund.....

The argument before the judge on the first question, whether a local authority can sue for libel in respect of its governing or administrative reputation when no actual financial loss is alleged, proceeded under two main heads. (1) Whether, apart from arguments based on the right to freedom of expression, a non-trading corporation has a sufficient reputation to sustain an action for libel even though it can establish no actual financial loss. The judge answered this question unequivocally in the affirmative sense. (2) Whether the right to free speech, whether as a right at common law, or under art 10 of the European Convention on Human Rights...led to a different result in the case of a non-trading corporation which was also a public authority.... The judge gave short shrift to an argument based on the right to free speech, and held that it did not affect his primary conclusion as stated above....

(1) The right of a non-trading corporation to sue for libel

I start, as did the judge, with the proposition that the raison d'Ítre of the tort of defamation is the protection of the reputation of a person. Where the person is a living human person no particular problem arises, but sometimes the personality is a legal fiction, as in the case of a corporation. Does such a fictitious person have a reputation which it can protect by the law of defamation?

It seems never to have been doubted that a corporation created by royal charter can sue for libel. Thus in Metropolitan Saloon Omnibus Co Ltd v Hawkins (1859) 4 H & N 87 at 90, [1843(60] All ER Rep 430 at 431 Pollock CB said:

"That a corporation at common law can sue in respect of a libel there is no doubt. It would be monstrous if a corporation could maintain no action for slander of title through which they lost a great deal of money. It could not sue in respect of an imputation of murder, or incest, or adultery, because it could not commit those crimes. Nor could it sue in respect of a charge of corruption, for a corporation cannot be guilty of corruption, although the individuals composing it may...".

The Metropolitan Saloon Omnibus case concerned the right of a trading company incorporated under the Joint Stock Companies Act 1856 to sue for libel. The court was unanimous in holding that it had such a right....

The assertion by Pollock CB, quoted above, that a corporation could not sue for libel in respect of a charge of corruption, because a corporation cannot be guilty of corruption, appears to have been the foundation for the decision by a Divisional Court in Manchester Corp v Williams [1891] 1 QB 94. The Divisional Court held, on a preliminary point of law, that an action for libel was not maintainable by the municipal corporation of the City of Manchester. The leading judgment of Day J makes clear the basis for the decision in the following passage:

"This action is brought by the mayor, aldermen, and citizens of the city of Manchester to recover damages from the defendant in respect of that which is alleged by them to be a libel on the corporation. The alleged libel is contained in a letter written by the defendant to the editor of the Manchester Examiner and Times, which charged, as alleged by the statement of claim, that bribery and corruption existed or had existed in three departments of the Manchester City Council, and that the plaintiffs were either parties thereto or culpably ignorant thereof, and that the said bribery and corruption prevailed to such an extent as to render necessary an inquiry by a Parliamentary Commission. Now it is for us to determine whether a corporation can bring such an action, and I must say that, to my mind, to allow such a thing would be wholly unprecedented and contrary to principle. A corporation may sue for a libel affecting property, not for one merely affecting personal reputation. This does not fall within the class of cases in respect of which a corporation can maintain an action, but does fall within the second class commented on by Pollock, C.B. in his judgment in the case of the Metropolitan Saloon Omnibus Company v. Hawkins, with which I fully agree"....

Lawrance J was of the same opinion and for the same reasons.....

Bognor Regis UDC v Campion [1972] 2 All ER 61 raised the direct question whether a local authority could sue in libel. Browne J...said ([1972] 2 All ER 61 at 66):

Just as a trading company has a trading reputation which it is entitled to protect by bringing an action for defamation, so in my view the council, as a local government corporation, has a 'governing' reputation which it is equally entitled to protect in the same way(of course, bearing in mind the vital distinction between defamation of the corporation as such and defamation of its individual officers or members".

He found himself able to distinguish Manchester Corp v Williams, by which he was technically bound, on grounds which I have to say I find unconvincing, as did Morland J. Browne J said ([1972] 2 All ER 61 at 69):

The actual decision in the Manchester case can perhaps be supported, as counsel for the council suggested, on the argument that the libel there was not capable of referring to a corporation consisting (as the plaintiffs did) of the mayor, aldermen and citizens, and not, as here, of the chairman and councillors. I think that case is distinguishable from this on that ground, and also on the ground that in my view none of the statements in the leaflet in this case actually imputes corruption. But I hope that the Court of Appeal will soon have occasion to consider the Manchester case". (Brown J's emphasis.)

It is to be observed that in the Bognor Regis case Browne J did not consider whether his decision had any effect on the right to freedom of expression, doubtless because the point was not taken before him by the defendant, who appeared in person. This was one ground upon which Mr J A Weir in an article 'Local authority v Critical ratepayer(a suit in defamation' [1972A] CLJ 238 attacked the decision in strong, if not intemperate, terms.....

The Bognor Regis case...was also considered by the Committee on Defamation (the Faulks Committee), who in their report (see Cmnd 5909 (1975), para 334) took the view that the Bognor Regis case was 'rightly decided in accordance with the present law'.... This principle seems to me to be in accordance with good sense. Even a non-trading corporation may need to engage in various activities in pursuance of its objects. Thus it may need to borrow money, and its ability to do so may potentially be affected by an attack on its creditworthiness. Or it may need to employ staff, and a statement that it engages in discriminatory employment practices may potentially affect its ability to attract staff of the right calibre. These are only two examples of cases where it should be possible for a non-trading corporation, which asserts that its reputation is capable of being damaged by the defamatory statement, to sue for libel.

In so far as Manchester Corp v Williams is inconsistent with the principle to which I have referred it is wrong and is not good law.

(2) The right to freedom of expression

Article 10 of the European Convention on Human Rights is, so far as relevant in the following terms....

It has been stated on high authority that art 10 is in effect the same as the English common law. The passages below, taken from the judgment of Sir John Donaldson MR in the Court of Appeal, and the speech of Lord Goff of Chieveley in the House of Lords in A-G v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545 (one of the many 'Spycatcher' cases), although referring to a common law (or more strictly equitable) action to protect a right of confidentiality must also apply to the common law action of defamation to protect reputation.

Sir John Donaldson MR said ([1988] 3 All ER 545 at 596(597):

The starting point of our domestic law is that every citizen has a right to do what he likes, unless restrained by the common law, including the law of contract, or by statute....The substantive right to freedom of expression contained in art 10 is subsumed in our domestic law in this universal basic freedom of action. Therefore, both under our domestic law and under the convention, the courts have the power and the duty to assess the 'pressing social need' for the maintenance of confidentiality 'proportionate to the legitimate aim pursued' against the basic right to freedom of expression and all other relevant factors. In so doing they are free to apply 'a margin of appreciation' based on local knowledge t)f the needs of the society to which they belong: see Sunday Times v UK (1979) 2 EHRR 245 and Lingens v Austria (1986) 8 EHRR 407. For my part I can detect no inconsistency between our domestic law and the convention....".

Lord Goff said ([1988] 3 All ER 545 at 660, [1990] 1 AC 109 at 283):

Finally, I wish to observe that I can see no inconsistency between English law on this subject and art 10....This is scarcely surprising, since we may pride ourselves on the fact that freedom of speech has existed in this country perhaps as long as, if not longer than, it has existed in any other country in the world. The only difference is that, whereas art 10 of the convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather on an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.....".

So art 10 does not establish any novel proposition under English law. Nevertheless, since it states the right to freedom of expression and the qualifications to that right in precise terms, it will be convenient to consider the question by reference to art 10 alone.

Article 10 has not been incorporated into English domestic law. Nevertheless it may be resorted to in order to help resolve some uncertainty or ambiguity in municipal law (per Lord Ackner in Brind v Secretary of State for the Home Dept [1991] 1 All ER 720 at 734). Thus (1) art 10 may be used for the purpose of the resolution of an ambiguity in English primary or subordinate legislation (see Brind's case). (2) Article 10 may be used when considering the principles upon which the court should act in exercising a discretion, eg whether or not to grant an interlocutory injunction (see A-G v Guardian Newspapers Ltd [1987] 3 All ER 316. (3) Article 10 may be used when the common law (by which I include the doctrines of equity) is uncertain...

Even if the common law is certain, the courts will still, when appropriate, consider whether the United Kingdom is in breach of art 10. Thus in R v Chief Metropolitan Stipendiary Magistrate, ex p Choudhury [1991] 1 All ER 306, where the issue was whether the common law offence of blasphemy is restricted to Christianity, Watkins LJ delivering the judgment of a strong Divisional Court said ([1991] 1 All ER 306 at 320):

[Counsel for the respondent publishers] accepted that the obligations imposed on the United Kingdom by the convention are relevant sources of public policy where the common law is uncertain. But, he maintained, the common law of blasphemy is, without doubt, certain. Accordingly, it is not necessary to pay any regard to the convention. Nevertheless, he thought it necessary, and we agree, in the context of this case, to attempt to satisfy us that the United Kingdom is not in any event in breach of the convention". (My emphasis.)

This approach of English law to art 10 is wholly consistent with the jurisprudence of the European Court of Human Rights. That court has, on more than one occasion, held that a decision of the English courts has violated a litigant's rights under art 10 and this on occasion has led to Parliament having to change the substantive law. Thus Sunday Times v UK (1979) 2 EHRR 245 was in part responsible for the Contempt of Court Act 1981. Of more immediate relevance to the present case the European Court of Human Rights has held in Lingens v Austria (1986) 8 EHRR 407 that the prosecution and conviction, under the Austrian law of criminal defamation, of a magazine publisher in Vienna for printing two articles critical of the Austrian Chancellor, was a violation of art 10.

In my judgment, therefore, where the law is uncertain, it must be right for the court to approach the issue before it with a predilection to ensure that our law should not involve a breach of art 10...

The judge dealt very briefly with this argument (see [1991] 4 All ER 795 at 806). He accepted Lord Ackner's statement in Brind... but said:

I do not find any uncertainty or ambiguity in relation to the ambit of English law in relation to the extent to which local authorities may sue for libel".

With all respect to the judge, I do not agree with his finding that there was no uncertainty in the English law on this point....

The law on this very important point is, in my view, uncertain. The issue is whether a civil action for defamation lies at the suit of a corporate authority. This court is in a position to define the extent of this common law tort in such a way as not to require a positive amendment of the law by Parliament. In my judgment we both can and should consider the effect of art 10. This I now proceed to do.

Article 10(1) in terms expresses an absolute right, that of freedom of expression. That right to freedom of expression includes freedom to impart information and ideas without interference by public authority. Prima facie that right will be interfered with by a public authority if the maker of the statement is sued for defamation. In the normal case the interfering public authority is the court which entertains the suit for defamation. (Here the interference by public authority is twofold since the council, which has initiated the suit, is itself a public authority.) That an action for defamation is a prima facie interference with the right is recognised by art 10(2) which provides that the exercise of the freedoms referred to in art 10(1) may be subject to such restrictions 'as are prescribed by law and are necessary in a democratic society' for the protection of the reputation of others.

Thus art 10 requires a balancing exercise to be conducted: the balance in this case is between the right to freedom of expression and such restrictions as are necessary in a democratic society for the protection of the reputation of a non-trading corporation which is also a public authority....

The law reports, both of this country and of other jurisdictions, contain many statements emphasising the importance of the right, in a democratic society, to be able to criticise freely the conduct of affairs by public authorities....

In Hector v A-G of Antigua and Barbuda [1990] 2 All ER 103 at 106 Lord Bridge of Harwich said:

In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind".

In the United States of America it has long been held that a municipal authority cannot sue in the tort of libel. While this rule depends upon the provisions of the Federal and state constitutions, the reasoning has universal application. In City of Chicago v Tribune Co (1923) 307 Ill 595 at 606(610 Thompson CJ of the Supreme Court of Illinois in the course of a long judgment, all of which is of great interest, said:

The fundamental right of freedom of speech is involved in this litigation and not merely the right of liberty of the press. If this action can be maintained against a newspaper it can be maintained against every private citizen who ventures to criticise the ministers who are temporarily conducting the affairs of his government. Where any person by speech or writing seeks to persuade others to violate existing law or to overthrow by force or other unlawful means the existing government he may be punished but all other utterances or publications against the government must be considered absolutely privileged. While in the early history of the struggle for freedom of speech the restrictions were enforced by criminal prosecutions, it is clear that a civil action is as great, if not a greater, restriction than a criminal prosecution. If the right to criticise the government is a privilege which, with the exceptions above enumerated, cannot be restricted, then all civil as well as criminal actions are forbidden. A despotic or corrupt government can more easily stifle opposition by a series of civil actions than by criminal prosecutions [for which he then gives a number of convincing reasons. He continues:] It follows, therefore, that every citizen has a right to criticise an inefficient or corrupt government without fear of civil as well as criminal prosecution. This absolute privilege is founded on the principle that it is advantageous for the public interest that the citizen should not be in any way fettered in his statements, and where the public service or due administration of justice is involved he shall have the right to speak his mind freely. Municipal corporations, however, exist primarily for governmental purposes, and they are permitted to enter the commercial field solely for the purpose of subserving the interests of the public which they represent. A city is no less a government because it owns and operates its own water system, its own gas and electric system and its own transportation system. It is manifest that the more so-called private property the people permit their governments to own and operate, the more important is the right to freely criticise the administration of the government. As the amount of property owned by the city and the amount of public business to be transacted by the city increase so does the opportunity for inefficient and corrupt government increase and the greater will be the efforts of the administration to remain in control of such a political prize. The richer the city the greater the incentive to stifle opposition. In so far as the question before us is concerned, no distinction can be made with respect to the proprietary and the governmental capacities of a city".

This judgment, which demonstrates the 'chilling effect' which the ability to sue for libel may have on the right to criticise a public authority, was cited with approval by Brennan J delivering the opinion of the United States Supreme Court in New York Times Co v Sullivan (1964) 376 US 254 at 277.....

If a corporate public authority is unable to sue for libel it is, however, by no means without remedy. First, and probably of most practical significance, its actions will necessarily be those of its members or officers since, being a legal fiction, it can only act through the instrumentality of human beings. They, if defamed, will have the right to sue for libel and, in the case of a libel upon the authority's officers acting in the course of their duties, it may be that the authority will subvent their actions....Then in an appropriate case the public authority may be able to secure the institution of a prosecution for criminal libel. Where, as here, the alleged libel has been published in a newspaper, the prosecution may not be commenced without the leave of a judge under s.8 of the Law of Libel Amendment Act 1888, a very important safeguard when the freedom of the press is in issue. Finally, the authority may have an action for malicious (sometimes called 'injurious') falsehood. The distinction[s] between the torts of defamation and malicious falsehood...are: (1) the shift in the burden of proof: in defamation the defendant has to prove that the defamatory words were true; in malicious falsehood the plaintiff must prove that the words are false; (2) in an action for malicious falsehood the plaintiff has to prove malice as part of his cause of action; this is not so in the case of defamation; (3) damage is not presumed in the case of malicious falsehood as it is in libel....

Bearing in mind the words of art 10(2), in my judgment the right to sue for malicious falsehood gives to a corporate public authority all such rights as are 'necessary in a democratic society'....It does not need, for that protection, to have the right to sue in defamation and thereby be able to stifle legitimate public criticism of its activities....