A November 2010 case provides a warning for journalists and others who think they are on totally safe ground criticising the workings of public bodies like local authorities.
Since the 1990s, it has been settled that a local authority or other unincorporated government body cannot sue for libel (in contrast, for instance, to a Limited Company which may start defamation proceedings).
This was the effect of the case of Derbyshire CC v Times Newspapers Ltd (1993) AC 534 HL which concerned reports about allegedly improper investments by Derbyshire County Council.
However, a High Court ruling in November 2010 highlights that individuals in a government organisation may nevertheless be able to sue for libel, if the allegations are such as to attack them personally.
In McLaughlin and others v Lambeth LBC and Khan (2010) [2010] EWHC 2726 (QB), the claimants were the former and current headteachers and governors of a school in Lambeth.
They sued for libel claiming that the defendant Khan (for whom Lambeth LBC was vicariously liable) had sent three emails which bore the defamatory meaning that the claimants were culpably responsible for the mistreatment of and failure to give proper provision to newly qualified teachers, and for arrangements between the school and a company belonging to one of the claimants whereby he was allowed to benefit improperly or unfairly to the detriment of the school.
They also claimed under the Human Rights Act 1998 on the basis that, under s.6 it was unlawful for Lambeth to act in a way which was incompatible with their right to protection of reputation under the European Convention on Human Rights 1950 art.8.
The defendants applied for an order striking out the claim, on the basis that it was an abuse of the court's powers because its effect, and by inference its purpose, was to circumvent (i) the rule in Derbyshire referred to above which prevented the governing body of the school, as a governmental body, from suing for libel; (ii) the general rule which prevented a governing body of a school, as a public authority and hence a body without art.8 rights, from suing for such a breach of rights.
The Judge held that there is no principle precluding individuals from suing in cases where what is criticised is their conduct in carrying out the business of a governmental body. The Derbyshire decision still allowed any individual who carried on the day to day management of the affairs of a governmental body to sue if he or she could show that the words complained of referred to, and were defamatory of, that individual personally
If that was the case, the individual would always have a right to sue in defamation, provided that he or she could fund the litigation personally, or at least separately from the governmental body.
The lesson: any item critical of local or other public authorities will need to be carefully scrutinised to check whether it carries any defamatory meanings against individuals within the authority, as well as being critical in more general terms of the authority as a whole
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