Defamation: Case law update

Defamation: Case law update

09/12/2010

Adverse public comment about local authority actions is common, but occasionally strays into criticism of individual officers or employees.  Such criticism can be damaging for the individual concerned. The Derbyshire principle has previously established that a public authority cannot sue for defamation, although if the reputation of an individual officer is impaired by a publication attacking the activities of the authority, that individual can bring a claim for defamation. It has now been clarified that there is no limitation to an individual officer’s right to sue provided the comments refer to and defame the individual.   

The recent High Court decision in Mark McLaughlin and others v London Borough of Lambeth and Mohammed Khan [2010] EWHC2726 (QB) (“McLaughlin”) has brought clarity to the right to sue for libel of an individual who carries out the day to day management of the affairs of a governmental body even where that body is itself prevented from suing on the basis of the rule in Derbyshire County Council v Times Newspaper Limited and others [1993] AC 534 (“Derbyshire”). The decision demonstrates that individuals involved in the management of a governmental body who are defamed are entitled to sue for libel providing the words complained of do not solely impact on the individual’s official duties. A right to sue will arise if the comments attacking the authority or its activities also impact on an individual’s private reputation. 

In Derbyshire, a case concerning the propriety of certain investments made by the local authority of monies in its superannuation fund, the House of Lords determined that a democratically elected governmental body (including a local authority), and indeed any public authority or organ of central or local government, should be open to uninhibited public criticism and does not therefore have the right to maintain an action for damages for defamation. To allow otherwise would have an inhibiting effect on freedom of speech. The Court did, however, acknowledge that if the reputation of an individual councillor or executive carrying out the day to day management of the authority’s affairs is damaged as a result of the defamation, then that individual can himself or herself bring proceedings.

In McLaughlin, the question arose as to whether a libel claim brought by three individual officers of a primary school based in Stockwell, London (the Head Teacher, the Director of Education Development, and a former governor of the school) amounted to an attempt to circumvent the rule in Derbyshire which prevented the governing body of the school (as a governmental body) from suing for libel. The claim concerned a number of statements made by the defendants’ chief internal auditor relating to alleged poor management at the school. In rejecting the defendants’ application to strike out the claim, the Court stated that “the right to sue of an individual who carried out the day to day management of the affairs of a governmental body was subject to no limitation other than the requirement that the words complained of should refer to, and be defamatory of, that individual …….There is no principle precluding individuals from suing in cases where what is impugned is their conduct in the carriage of the business of a governmental body”. Importantly, in reaching its decision the court noted that whilst the words complained of related to the carrying out of the claimants’ functions, it could not be said that the words did not also engage the claimants’ private lives.

Comment

This decision is helpful clarification that an individual officer of a local authority is entitled to sue for defamation where adverse public comment about the authority also damages the individual officer’s private reputation. In those circumstances, the authority may wish to offer assistance to the individual in funding any action. However, this is not a straightforward decision and the authority’s position currently differs depending on whether the defamation relates to an officer or a member and whether the individual is a claimant or defendant. Advice should be sought on this issue. The authority will also need to carefully consider the likely cost of the claim, the potential adverse publicity, and stress on the individual concerned.

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