Jacqueline Thompson v Mark James
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lady Justice Black,Lord Justice Underhill |
| Judgment Date | 14 May 2014 |
| Neutral Citation | [2014] EWCA Civ 600 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 May 2014 |
| Docket Number | Case No: A2/2013/1768 |
[2014] EWCA Civ 600
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
THE HONOURABLE MR JUSTICE TUGENDHAT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Longmore
The Right Honourable Lady Justice Black
and
The Right Honourable Lord Justice Underhill
Case No: A2/2013/1768
Ms Christina Michalos (instructed by Simons Muirhead & Burton) for the Appellant
Mr Adam Speker (instructed by Mr Mark James via direct access) for the Respondent
Hearing dates: 30 th April 2014
Introduction
Mr Mark James is the Chief Executive of Carmarthenshire County Council. Mrs Jacqueline Thompson is a private citizen who is aggrieved by certain planning decisions made by the Council in relation to applications made by her and her husband Mr Kerry Thompson and her brother-in-law Mr Eddie Thompson between March 2004 and October 2007. She and her husband have a small holding in Llanwrda where she is a community councillor, vice chair of the community council and chair of the Community Association. She stood unsuccessfully for election to the County Council in 2012.
In 2006 she (sometimes with her husband) wrote a number of letters accusing both the Head of Planning for the Council (Mr Bowen) and Mr James of corruption, although Mr James had no involvement in the planning decisions complained of by Mrs Thompson. Mr Bowen sued Mr and Mrs Thompson for libel. The Thompsons did not seek to prove the allegations of corruption and their defence of honest comment was struck out. The action was in due course settled by a public retraction and apology in October 2007, as well as by an agreement to pay £7500 towards Mr Bowen's costs.
Notwithstanding this defeat, Mrs Thompson started a blog in March 2009 under the title "Carmarthenshire Planning Problems and more". Her postings were highly critical of the Council. She made repeated false statements of fact for which the judge held that there was no foundation and made various allegations of corruption, lying, perjury and misappropriation of public money.
Mrs Thompson also started to film proceedings of the Council and posted the resultant clips on YouTube. On the 3 rd occasion of doing this on 13 th April 2011 a Council Officer, a Mr Davies, was sent up to the public gallery to ask her to stop. She did stop, left the public gallery and then made an allegation that, while they were in the public gallery, Mr Davies had assaulted her and attempted to steal her mobile phone. The judge found that this allegation was false and known by Mrs Thompson to be false. He also held that it was an attempt to pervert the course of justice.
On 21 st July 2011 a Mr Milan who maintained a blog under the name "Madaxeman" published an open letter critical of Mr James and the Council and urged Mr James to reply to this letter as did Mrs Thompson. Mr James did reply saying (among other things):-
"Mrs Thompson and her family … have been running a campaign of harassment, intimidation and defamation of Council staff and members for some considerable time … [and, in respect of the incident on 13 th April 2011]… the Council would have made a formal complaint of a deliberate attempt to pervert the course of justice to the Police by making false statements, but the [Council] officer concerned … did not want to make a fuss."
On 14 th November 2011, Mrs Thompson sued Mr James and the Council for libel in Mr James' reply letter. This action failed because Mr James had written what was true. Mrs Thompson has been refused permission to appeal and I need say no more about it.
Mr James, however, counterclaimed for libel and alleged that five of Mrs Thompson's postings in 2011 had defamed him by accusing him of corruption, misuse of Council funds and lying. That counterclaim was successful in respect of postings made dated 28 th February, 22 nd March and 6 th April. Mrs Thompson has been granted permission to appeal in relation to the second of these postings only and that is the subject-matter of this appeal. It is, however, necessary to be aware of the contents of each of the postings in respect of which the counterclaim was successful.
The first posting
On 28 th February 2011 Mrs Thompson posted the following:-
"News on how other front line services will fair (sic) in this afternoon's debate will soon emerge. I wonder if the Chief Executive will resign and save us all a few quid? Doubtful – he still has many "visions" to fulfil. Will he do everything in his power to protect the "officers club" slush fund? You bet he will. (See the column on right in red and here)."
On the right of (or below) the text was the column (or Side Bar, as it has been called) to which the text referred:-
"Mark James and the Council Slush Fund. Carmarthenshire County Council Chief Executive, Head of Law and Head of Resources now have delegated powers to commence and fund (with taxpayers' money) libel proceedings against the public and the press on behalf of themselves and other officers. The Council, as a governing body, has now enabled itself to bring and fund illegal actions under the cloak of a private claimant. This is the only Council in the UK to have granted themselves these powers. This is unlawful, open to abuse, a threat to free speech and a grave misuse of taxpayers' money. See many posts on this blog."
Mrs Thompson asserts that by reason of this "explanation", the term "slush fund" has a special meaning namely that, by virtue of a change to the Council's constitution on 15 th May 2008 known as "the Libel Costs Amendment", the Council had given authority to its officers to begin defamation proceedings at the Council's expense provided that the proceedings were supported by Counsel's advice. The fact that the Council agreed to pay for such proceedings meant that a fund existed for such purpose which could legitimately be called a "slush fund".
The judge held that the posting meant that Mr James would do everything in his power to preserve the power of the Council to grant indemnities to its officers and members for libel actions and that this is a corrupt and unlawful use of public funds.
The defence run by Mrs Thompson was a defence of honest comment. The judge accepted that the blog was comment on what Mr James would do in the future (rather than an allegation with regard to what he had done in the past) but rejected this defence on the basis (1) that she had not proved any fact supporting the comment that Mr James would act corruptly and (2) that, in any event, she had no belief that Mr James would so act. This counterclaim of Mr James therefore succeeded.
The second posting
On 22 nd March 2011 Mrs Thompson posted the following:-
"I also hear a rumour that Carmarthenshire Council staff are going to be asked to take a 10% pay cut. It wouldn't surprise me. Isn't it lucky that Mark James and his cronies had the foresight to finance various deals ( this for example), just before all this budget nonsense came along and, of course, the Council has to keep its slush fund nicely topped up …"
" This" provided a link to another post about the forgoing of interest on a loan made by the Council. The posting had the same Side Bar as before. The judge held that this posting was fact not comment and held further that the meaning of the posting was that Mr James was unlawfully and corruptly using public money for the benefit of himself and his cronies. It was not suggested that this was a true fact so the counterclaim succeeded. If the judge was wrong and it was comment not fact, the defence of honest comment would anyway have failed for the same reason as the first posting.
It is in relation to this second posting, and specifically the meaning attributed to it by the judge, that Mrs Thompson has been given permission to appeal. She submits that the meaning accepted by the judge that the posting accused Mr James of unlawfully and corruptly using public money for himself or his cronies is unsustainable or is, at any rate, not the true meaning of the posting in its context.
The third posting
On 6 th April 2011 Mrs Thompson posted this blog:-
"… typically the Council is back peddling and trying to avoid the clear conclusion that they have completely ignored public opinion and there (sic) own consultation although why we should be surprised at that I don't know. Its all a bit worrying, lets hope that the Chief...
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