Horrocks v Lowe

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date06 October 1972
Judgment citation (vLex)[1972] EWCA Civ J1006-1
Date06 October 1972

[1972] EWCA Civ J1006-1

In The Supreme Court of Judicature

Court of Appeal

Appeal by defendant from judgment of Mr. Justice Stirling given in London on 27th July, 1971.


The Master of the rolls (Lord Denning)

Lord Justice Edmund Davies and

Lord Justice Stephenson

Robert Horrocks
Plaintiff Respondent
Peter Lowe
Defendant Appellant

Mr. LOWE, the Appellant Defendant, appeared in person.

Mr. IAIN GLIDEWELL, Q.C., and Mr. J. PRIVETE (instructed by Messrs Henry Fallows & Co. of Bolton, Lancashire) appeared on behalf of the Respondent Plaintiff.


THE MASTER OF THE ROLLS; We will give judgment now. We need not trouble you, Mr. Lowe, to address us any more.


This is a very unfortunate dispute between two members of the Corporation of Bolton. Mr. Horrocks was a Councillor. He was a member of the Conservative Party, which was the party in power in the Council. Mr. Lowe was an Alderman. He had been at one time the Mayor. He was a member of the Labour Party, which was in opposition. Mr. Horrocks complains that at a Council Meeting on 5th November, 1969, he was slandered by Mr. Lowe.


At all material times the Corporation owned a piece of land in Bishops Road, Bolton. A Conservative club called the Great Lever Conservative Club wished to build a club house upon it. The Corporation agreed to grant the Conservative Club a lease of the land for 99 years. The Planning Committee gave planning permission for it. The Conservative Club employed contractors to erect a club house on the land. The contractor got as far as the roof when it was discovered that there were restrictive covenants prohibiting the land being developed for a club. The work had to be abandoned. The Corporation had to pay the Conservative Club compensation in the sum of £17,465. 1s.10d.


The Labour Party in the Corporation were very critical of the Conservative Party. They alleged that they had mishandled the affair. They concentrated their attack on Mr. Horrocks. He was not only a Councillor. He was Chairman of the Management and Finance Committee of the Council, That was the Committee concerned with this matter. He was also the chairman of a property company called the Land Development and Building Ltd. He held the majority of the shares. It was this company which had the benefit of the restrictive covenant. It was contained ina conveyance dated 16th November, 1961. Mr. Horrocks' company conveyed a piece of land to the Corporation, but stipulated that the Corporation should not erect any structure on the land but would reserve it as an open space or as portion of a road. Mr. Horrocks' company also owned some land the other side of Bishops Road, opposite this site. This company sold many plots to purchasers, telling them. that nothing could be built on the land in Bishops Road. There were two other restrictive covenants affecting the same piece of land, but these were in favour of other people.


In August 1969 one of the staff of Mr. Horrocks' company saw that the building was being erected on the land. It was by then nearly roof high. Mr. Horrocks' company wrote complaining that it was a breach of covenant. The Corporation's advisers looked at the deeds and realised that they had made a mistake. They had overlooked the restrictive covenants. They tried to negotiate for the release of the covenants. It looked as if they would. succeed in respect of two of them. But they did not succeed in obtaining a release by Mr. Horrocks' company, Its company was embarrassed because it had made promises to the purchasers of adjoining plots. These purchasers objected to any building on the land.


The members of the Council were much concerned. The matter was raised at meetings of the Management and Finance Committee. Mr. Horrocks took no part because of his Interest in the matter. He retired when it was being discussed. On 22nd September 1969 Alderman Telford, a Conservative Councillor, told the Committee that no difficulty was anticipated about release of the covenants. On 21st October, 1969, the Town Clerk told the Committee that Alderman Taylor (who is a Conservative and a business associateof Mr. Horrocks) had asked him to tell them that "Councillor Horrocks would not be prepared to release the covenant on any terms". On 31st October, 1969, Mr. Horrocks gave an interview with the local newspaper to explain his refusal. He said that Bolton Corporation had not dealt fairly or straightly with him over the site and that he had a responsibility to local house owners who had been promised that the site would remain as an open space. He told the newspaper and they put it in the paper; "If only the Corporation had had the common courtesy to ask me to discuss the club development with them, I would have approached the frontagers and offered to knock £5 a year off their ground rent if they would accept building on the site. I would have made sure they were happy.


Such was the position up to the Council Meeting with which we are concerned. It took place on 5th November, 1969 Unfortunately Mr. Horrocks was away at the time. But the Labour members decided that he should be attached over his conduct and that an effort should be made to have him removed from the Management and Finance Committee. They deputed Mr. Lowe to speak for them. They chose him because it was largely his idea, Mr. Lowe went to the Town Clerk's office to obtain information. He was given a timetable giving the dates of the letters that had passed between the Borough Solicitor and Mr. Horrocks' solicitor; he was not shown the actual letters; nor was he told their contents. He was only given the dates. He used this material to prepare notes for his speech.


At the Meeting Mr. Lowe kept closely to his notes. Most of his speech was factually accurate. But he used words which were defamatory of Mr. Horrocks. I will not read it all, but these were the word chiefly complained of don't know howto describe his attitude whether it was brinkmanship, megalomania or childish petulance. I suggest that he has misled the Committee, the Leader of his party and his political and club colleagues some of whom are his business associates. I therefore request that he be removed from the Committee to some other where his undoubted talents can be used to the advantage of the Corporation".


The local paper reported the meeting in their issue of 6th November, 1969. They omitted, however, the words which were especiallydefamatory of Mr. Horrocks.


On 10th November 1969 there was a reception at which both Mr. Horrocks and Mr. Lowe were present. They shook hands public, but Mr. Lowe never expressed any regret for what he had said.


On 10th Decembers 1969, Mr. Horrocks' solicitors wrote requesting a withdrawal and apology. On 17th December, 1969, Mr. Lowe replied saving that he did not consider that anything he said at the Meeting was defamatory.


On 6th February 1970 Mr. Horrocks issued a writ against Mr. Lowe claiming damages for slander at the meeting; of 5th November 1969 and for libel in the newspaper report of it. At the trial the Judge held that the newspaper report was not defamatory. So he dismissed the claim for libel. There is no appeal on that point. But the Judge held that the words spoken by Mr. Lowe at the Meeting were an actionable slander on Mr. Horrocks. He awarded him £400 damages and costs. We are told that the costs come to some £4,000. Mr. Lowe tells. us that his; own costs come to more than that figure. So that his total bill is £9,000.


He appeals to us today. He is not a rich man. He cannot get legal aid because it is an action for defamation. So he has comein person and argued his own case before us. He has put his points sensibly and concisely.


In the defence Mr. Lowe pleaded that the occasion was privileged. He also pleaded justification and fair comment. In the reply Mr. Horrocks alleged that Mr. Lowe was actuated by express malice. He gave particulars saying that he relied upon the language of the words spoken by Mr. Lowe and upon the full terms of the letters referred to in his speech at the Meeting. That allegation was shown at the trial to be erroneous. It is clear that Mr. Lowe did not see those letters. we was only given a timetable giving the dates of them.


The Judge found that the words spoken by Mr. Lowe were defamatory. He held that they were not justified. He held that the occasion was privileged; but he found that Mr. Lowe was guilty of express malice. it is that finding which is challenged here today. He did rule on fair comment, but that would be defeated by express malice also.


It is accepted that the occasion was privileged. It is of the first importance that the members of a local authority should be able to speak their minds freely on a matter of interest in the locality. So long as they honestly believe what they say to be true, they are not to be made liable for defamation. They may be prejudiced and unreasonable. They may not get their facts right. They may give much offence to others. But so long as they are honest, they go clear. No Councillor should be hampered in his criticisms by fear of an action for slander. He is not to be for ever looking over his shoulder to see if what he says is defamatory. He must be allowed to give his point of view, even if it is hotly disputed by others. This is essential to free discussion.


The one qualification upon his freedom is that he must not be actuated by malice. But what constitutes malice for this purpose? I would emphasise that a refusal to withdraw is not evidence of malice. Nor is a refusal to apologise. As the Judge said, it may point to the honesty an sincerity of his belief, even though it be obstinate and irrational. Malice is usually to be found when there is personal spite or illwill or when the defendant does not honestly believe what he says to be true. The Judge did not find any of these. But he found that Mr....

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