derbyshire county council (appellants) v. times

8/11/2019 Derbyshire County Council (Appellants) v. Times

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Libertad de conciencia DERBYSHIRE COUNTY COUNCIL v. TIMES 1

DERBYSHIRE COUNTY COUNCIL (APPELLANTS) v. TIMES NEWSPAPERS LIMITED ANDOTHERS (RESPONDENTS).Lord Keith .Lord Griffiths.Lord Goff of Chieveley.Lord Browne-Wilkinson.

Lord Woolf.LORD KEITH OF KINKEL.My Lords,.This appeal raises, as a preliminary issue in an action of damaes for li!el, the "uestion whether a local

authority is entitled to maintain an action in li!el for words which reflect on it in its overnmental andadministrative functions. That is the way the preliminary point of law was e#pressed in the order of the$aster, !ut it has opened out into an investiation of whether a local authority can sue for li!el at all.Balcom!e L.%., ivin the leadin &udment in the Court of 'ppeal, summarised the facts thus( )The facts in the case are fortunately refreshinly simple. *n two issues of +The unday Times+newspaper on and /0 eptem!er 121 there appeared articles concernin share deals involvin the

superannuation fund of the 3er!yshire County Council. The articles in the issue of eptem!er wereheaded +4evealed( ocialist tycoons+s deals with a La!our chief and +Bi5arre deals of a council leaderand the media tycoon+( that in the issue of /0 eptem!er was headed +Council share deals underscrutiny.+ The council leader was $r. 3avid $elvyn Book!inder6 the +media tycoon+ was $r. 7wen7yston. *t is unnessary for the purposes of this &udment to set in any detail the contents of these articles(it is sufficient to say they "uestion the propriety of certain investments made !y the council of moneys inits superannuation fund, with $r. Book!inder as the prime mover, in three deals with $r. 7yston orcompanies controlled !y him.8#cerpts from the articles ivin the flavour of the alleations made will !e found in the &udment at firstinstance 911: 0 'll 8.4. 1; to which those interested may refer. The council is the +administerin

authority+ of its superannuation fund under the uperannuation 'ct 1/ and the Local Governmentuperannuation 4eulations 12< =.*. 12< >o. /0? made thereunder.) @ollowin the pu!licationactions of damaes for li!el were !rouht aainst the pu!lishers of The unday Times, its editor and thetwo &ournalists who wrote the articles !y 3er!yshire County Council =)the appellants)?, $r. Book!inderand $r. 7yston. $r. 7yston+s action was settled !y an apoloy and payment of damae and costs. Thestatements of claim in this action !y the appellants and in that !y $r. Book!inder are for all practicalpurposes in identical terms. That of the appellants asserts in pararaph < that there were written andpu!lished )of and concernin the council and of and concernin the council in the way of its dischare ofits responsi!ility for the investment and control of the superannuation fund) the words contained in thearticle of eptem!er, and pararaph 2 makes a similar assertion in relation to the article of /0

eptem!er. Aararaph 1 states()By reason of the words pu!lished on eptem!er 121 and the words and raph pu!lished on /0eptem!er 121 the plaintiff council has !een in&ured in its credit and reputation and has !een !rouhtinto pu!lic scandal, odium and contempt, and has suffered loss and damae.) >o special damae ispleaded. 7n %uly 11 @rench %. refused an application !y the appellants to amend the statement ofclaim so as to plead a certain specific item of special damae.The preliminary point of law was tried at first instance !efore $orland %. who on ; $arch 11 decidedit in favour of the appellants =11 0 'll 8.4. 1;?. owever, on appeal !y the present respondents his&udment was reversed !y the Court of 'ppeal =Balcom!e, 4alph Gi!son and Butler-loss L.%%.? on 1@e!ruary 11/ 911/: D.B. E. The appellants now appeal, with leave iven in the Court of 'ppeal, toyour Lordships+ ouse.There are only two reported cases in which an 8nlish local authority has sued for li!el. The first is$anchester Corporation v. Williams 921: D.B. 10(


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!ri!ery and corruption have e#isted and done their nefarious work.) ' 3ivisional Court consistin of 3ay%. and Lawrance %. held that the statement of claim disclosed no cause of action. The &udment of 3ay %.at p. 1< of the Dueen+s Bench report is in these terms(- / ()This is an action !rouht !y a municipal corporation to recover damae for what is alleed to !e a li!elon the corporation itself, as distinuished from its individual mem!ers or officials. The li!el complained of

consists of a chare of !ri!ery and corruption. The "uestion is whether such an action will lie. * think it willnot. *t is altoether unprecedented, and there is no principle on which it can !e founded. The limits of acorporation+s riht of action for li!el are those suested !y Aollock C.B. in the case which has !eenreferred to. ' corporation may sue for a li!el affectin property, not for one merely affectin personalreputation. The present case falls within the latter class. There must, therefore, !e &udment for thedefendant.) Lawrance %. said that he was of the same opinion.The Law Times report contains a somewhat loner &udment of 3ay %. in these terms( )This action is !rouht !y the mayor, aldermen, and citi5ens of the city of $anchester to recoverdamaes from the defendant in respect of that which is alleed !y them to !e a li!el on the corporation.The alleed li!el is contained in a letter written !y the defendant to the editor of the +$anchester

8#aminer and Times+, which chared, as alleed !y the statement of claim, that !ri!ery and corruptione#isted or had e#isted in three departments of the $anchester City Council, and that the plaintiffs wereeither parties thereto or culpa!ly inorant thereof, and that the said !ri!ery and corruption prevailed tosuch an e#tent as to render necessary an in"uiry !y a parliamentary commission. >ow it is for us todetermine whether a corporation can !rin such an action, and * must say that, to my mind, to allow sucha thin would !e wholly unprecedented and contrary to principle. ' corporation may sue for a li!elaffectin property, not for one merely affectin personal reputation. This does not fall within the class ofcase in respect of which a corporation can maintain an action, !ut does fall within the second classcommented on !y Aollock C.B. in his &udment in the case of the $etropolitan aloon 7mni!us Co. Ltd.v.

awkins, 0 . F >. 2, with which * fully aree 9a "uotation follows: The chare in the present case is oneof !ri!ery and corruption, of which a corporation cannot possi!ly !e uilty, and therefore, in my opinion,this action will not lie.) *t is likely that the Law 4eports version of his &udment was one revised !y 3ay %.,in which he omitted the sentence which ends the Law Times report, so that the true and only ratio of thedecision is that a corporation may sue for a li!el affectin property, !ut not for one merely affectinpersonal reputation.$etropolitan aloon 7mni!us Co. Ltd. v. awkins =2;1? 0 . F >.2 was an action !y a company incorporated under the %oint tock Companies 'ct 2;< in respect of ali!el imputin to it insolvency, mismanaement and - (dishonest carryin on of its affairs. The Court of the 8#che"uer held the action to !e maintaina!le.Aollock C.B. said at p. E, in the passae referred to !y 3ay %.()That a corporation at common law can sue in respect of a li!el there is no dou!t. *t would !e monstrousif a corporation could maintain no action for slander of title throuh which they lost a reat deal of money.*t could not sue in respect of an imputation of murder, or incest, or adultery, !ecause it could not committhose crimes. >or could it sue in respect of a chare of corruption, for a corporation cannot !e uilty ofcorruption, althouh the individuals composin it may. But it would !e very odd if a corporation had nomeans of protectin itself aainst wron6 and if its property is in&ured !y slander it has no means ofredress e#cept !y action. Therefore it appears to me clear that a corporation at common law maymaintain an action for a li!el !y which its property is in&ured.) *n outh etton Coal Co. Ltd. v. >orth-8astern >ews 'ssociation Ltd.9210: D.B. a newspaper had pu!lished an article allein that the houses in which the companyaccommodated its colliers were in a hihly insanitary state. The Court of 'ppeal held that the companywas entitled to maintain an action for li!el without proof of special damae, in respect that the li!el wascalculated to in&ure the company+s reputation in the way of its !usiness. Lord 8sher $.4. said at p. 2(

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)* have considered the case, and * have come to the conclusion that the law of li!el is one and the sameas to all plaintiffs6 and that, in every action of li!el, whether the statement complained of is, or is not, ali!el, depends on the same "uestion - vi5., whether the &ury are of opinion that what has !een pu!lishedwith reard to the plaintiff would tend in the minds of people of ordinary sense to !rin the plaintiff intocontempt, hatred, or ridicule, or to in&ure his character. The "uestion is really the same !y whomsoeverthe action is !rouht - whether !y a person, a firm, or a company. But thouh the law is the same, the

application of it is, no dou!t, different with reard to different kinds of plaintiffs. There are statementswhich, with reard to some plaintiffs, would undou!tedly constitute a li!el, !ut which, if pu!lished ofanother kind of plaintiffs, would not have the same effect.) e went on to say that certain statementsmiht have the same effect, whether made with reard to a person, or a firm, or a company, for e#amplestatements with reard to conduct of a !usiness, and havin ela!orated on the "uestion whether or not aparticular statement miht reflect on the manner of conduct of a !usiness, continued at p. 1()With reard to a firm or a company, it is impossi!le to lay down an e#haustive rule as to what would !ea li!el on them. But the same rule is applica!le to a statement made with reard to them. tatements - 0 (may !e made with reard to their mode of carryin on !usiness, such as to lead people of ordinary senseto the opinion that they conduct their !usiness !adly and inefficiently. *f so, the law will !e the same in

their case as in that of an individual, and the statement will !e li!ellous. Then, if the case !e one of li!el -whether on a person, a firm, or a company - the law is that the damaes are at lare. *t is not necessaryto prove any particular damae6 the &ury may ive such damaes as they think fit, havin reard to theconduct of the parties respectively, and all the circumstances of the case.) *n >ational nion of Generaland $unicipal Workers v. Gillian 910


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Libertad de conciencia DERBYSHIRE COUNTY COUNCIL v. TIMES

)3ay %. seems to put his &udment on two rounds6 first, that a corporation may sue for a li!el affectinproperty and not for one merely affectin personal reputation. *f this was ever riht, it has in my view !eenoverruled !y outh etton Coal Co. v. >orth-8astern >ews 'ssociation Ltd. 9210: D.B. , 0, ;=where su!stantially this arument was used !y the defendants? and !y >ational nion of General and$unicipal Workers v. Gillian =where the $anchester Corporation case 921: D.B. 10 was cited?. Theother round seems to have !een that a corporation cannot !e uilty of corruption and therefore it cannot

!e defamatory to say or write that it has !een uilty of corruption. This was !ased on the o!iter dictum ofAollock C.B. in $etropolitan aloon 7mni!us Co. v. awkins 0 .F >. 2 and was repeated later !y Lopes L.%. in outh etton Coal Co. v. >orth-8astern >ews'ssociation Ltd. 9210: D.B. , 0.The $anchester Corporation case is severely criticised in pencer Bower on 'ctiona!le 3efamation=1E2?, pp. /1 and /2E6 in @raser on Li!el and lander, th ed. =1


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Libertad de conciencia DERBYSHIRE COUNTY COUNCIL v. TIMES !

defamation must inevita!ly have an inhi!itin effect on freedom of speech. *n City of Chicao v. Tri!uneCo. =1/? 1 >.8. 2< the upreme Court of *llinois held that the - (City could not maintain an action of damaes for li!el. Thompson C.%. said at p. 1E()The fundamental riht of freedom of speech is involved in this litiation, and not merely the riht ofli!erty of the press. *f this action can !e maintained aainst a newspaper it can !e maintained aainstevery private citi5en who ventures to critici5e the ministers who are temporarily conductin the affairs of

his overnment. Where any person !y speech or writin seeks to persuade others to violate e#istin lawor to overthrow !y force or other unlawful means the e#istin overnment, he may !e punished !ut allother utterances or pu!lications aainst the overnment must !e considered a!solutely privileed.While in the early history of the strule for freedom of speech the restrictions were enforced !y criminalprosecutions, it is clear that a civil action is as reat, if not a reater, restriction than a criminalprosecution. *f the riht to criticise the overnment is a privilee which, with the e#ceptions a!oveenumerated, cannot !e restricted, then all civil as well as criminal actions are for!idden. ' despotic orcorrupt overnment can more easily stifle opposition !y a series of civil actions than !y criminalprosecutions.) 'fter ivin a num!er of reasons for this, he said()*t follows, therefore, that every citi5en has a riht to criticise an inefficient or corrupt overnment without

fear of civil as well as criminal prosecution. This a!solute privilee is founded on the principle that it isadvantaeous for the pu!lic interest that the citi5en should not !e in any way fettered in his statements,and where the pu!lic service or due administration of &ustice is involved he shall have the riht to speakhis mind freely.) These propositions were endorsed !y the upreme Court of the nited tates in >ewJork Times Co. v. ullivan =1


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Libertad de conciencia DERBYSHIRE COUNTY COUNCIL v. TIMES "

interest favourin the riht of orans of overnment, whether central or local, to sue for li!el, !ut that it iscontrary to the pu!lic interest that they should have it.*t is contrary to the pu!lic interest !ecause to admit such actions would place an undesira!le fetter onfreedom of speech. *n 3ie poor!ond v. outh 'frican 4ailways =10


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Libertad de conciencia DERBYSHIRE COUNTY COUNCIL v. TIMES #

T! "o#"$%s&o# '%s !, 'y o*&o#, + %#d!r ! "o''o# $+ o- E#$+#d + $o"+$ +%or&ydo!s #o +v! ! r& o '++ +# +"&o# o- d+'+!s -or d!-+'+&o# . That was the conclusionreached !y the Court of 'ppeal, which did so principally !y reference to 'rticle E of the 8uropeanConvention on uman 4ihts, to which the nited Kindom has adhered !ut which has not !eenenacted into domestic law. 'rticle E is in these terms(). 8veryone has the riht to freedom of e#pression. This riht shall include freedom to hold opinions

and to receive and impart information and ideas without interference !y pu!lic authority and reardless offrontiers ... /. The e#ercise of these freedoms, since it carries with it duties and responsi!ilities, may !esu!&ect to such formalities, conditions, restrictions or penalties as are prescri!ed !y law and arenecessary in a democratic society, in the interests of national security, territorial interity or pu!lic safety,for the prevention of disorder or crime, for the protection of health or morals, for the protection of thereputation or rihts of others, for preventin the disclosure of information received in confidence, or formaintainin the authority and impartiality of the &udiciary.) 's reards the words )necessary in ademocratic society) in connection with the restrictions on the riht to freedom of e#pression which mayproperly !e prescri!ed !y law, the &urisprudence of the 8uropean Court of uman 4ihts has esta!lishedthat )necessary) re"uires the e#istence of a pressin social need, and that the restrictions should !e no

more than is proportionate to the leitimate aim pursued. The domestic courts have )a marin ofappreciation) !ased upon local knowlede of the needs of the society to which they !elon.=The unday Times v. nited Kindom =11? / 8..4.4. /;06 Barthold v.Germany =12;? 8..4.4. 2( Linens v. 'ustria =12


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Libertad de conciencia DERBYSHIRE COUNTY COUNCIL v. TIMES $

My Lords,.* have had the advantae of readin in draft the speech prepared !y my no!le and learned friend LordKeith of Kinkel, and for the reasons he ives, *, too, would dismiss the appeal.LORD /OFF OF CHIE0ELEY.My Lords,.* have had the advantae of readin in draft the speech prepared !y my no!le and learned friend Lord

Keith of Kinkel. and for the reasons he ives, *, too, would dismiss the appeal.- / (LORD BROWNE1WILKINSON.My Lords,.*, too, would dismiss the appeal for the reasons iven in the speech of my no!le and learned friend LordKeith of Kinkel.LORD WOOLF.My Lords,.*, too, would dismiss the appeal for the reasons iven in the speech of my no!le and learned friend LordKeith of Kinkel.

UK

derbyshire county council (appellants) v. times

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