Local Authorities and Libel Again

Published date01 September 1993
DOIhttp://doi.org/10.1111/j.1468-2230.1993.tb01902.x
Date01 September 1993
AuthorAdam Tomkins,Brian Bix
fie Modem Law Review
[Vol.
56
investigated. At worst, the Court has unwittingly sent a message to police officers
that they can be as careless as they wish in the investigation of crimes in the sure
knowledge that no liability can result. This can only be detrimental to the public
welfare.
In this light, it is unfortunate that the Court in
Osman
was not reminded of the
words of Phillimore
W
in the Court of Appeal in
Dorset Yachtz9:
How
can it be public policy that Government servants should be free from liability if they
exercise their duties negligently? It is public policy that they should exercise them with
proper care.
Local Authorities and Libel Again
Brian
Bix*
and Adam
Tomkins**
In
Derbyshire County Council
v
Times Newspapers,’
the House of Lords ruled
that local authorities may not sue in libel. This decision affirmed a decision of the
Court of Appeal,z but on a significantly different basis. The Court of Appeal had
held that the common law was ambiguous as to whether local authorities may sue
for libel, and that therefore recourse to the European Convention
on
Human Rights
was justified. After consulting the Convention, the Court of Appeal decided that
such suits should not be allowed. The House of Lords noted the approach of the
Court of Appeal, but concluded that recourse to the Convention was not necessary.
Lord Keith, giving the only ~peech,~ stressed that he was basing his decision
‘upon the common law of England, without finding any need to rely upon the
European Convention.’4 This note will first consider the arguments used by Lord
Keith in the House of Lords, and will then go on to discuss the issues raised by the
Court of Appeal that have been left unresolved by the Lords. This discussion will
illustrate four key mysteries which have been left unresolved by this case.
Inhibiting Speech
The House of Lords cited two American cases5 as authority for the proposition
that allowing civil suits for comments critical of a governing body would create a
‘chilling effect,’ inhibiting free debate on political matters.6 The Lords also noted
29
*School of Law, King’s College London.
**School of Law, King’s College London.
[1969] 2 QB 412, 435G.
1
2
3
[I9931
1
All ER 1011.
[I9921 QB 770 (CA). See B. Bix and A. Tomkins, ‘Unconventional Use of the Convention?’ (1992)
55
MLR 72
1.
Lords Griffiths, Goff, Browne-Wilkinson and Woolf agreed with Lord Keith. It is interesting to note
that despite their widely known views on these matters, Lords Browne-Wilkinson and Woolf chose not
to take what would have been a fine opportunity to authorise more widespread domestic use of the
Convention.
[1993] 1 All ER 1011, 1021.
City
ofChicago
v
Tribune
Co
(Ill,
1923) 139 NE 86;
New
York
Times
v
Sullivan
(1964) 376 US 254.
The Lords also cited a Privy Council case,
Hecror
v
Attorney-General
of
Antigua
and
Barbuda
[1990]
2 AC
312,
to make a similar point about a statute which criminalised ‘the printing
or
distribution of any
false statement likely to undermine public confidence in the conduct of public affairs’: [1993]
1
All
ER 1011, 1018.
4
5
6
738
0
The
Modern
Law Review Limited
1993

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