Unconventional Use of the Convention?
| Author | Adam Tomkins,Brian Bix |
| Published date | 01 September 1992 |
| Date | 01 September 1992 |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb02846.x |
September
19921
Unconventional Use
.f
the Convention
Y
Unconventional Use
of
the Convention?
Brian Bit* and Adam Tomkins”
In
Derbyshire County Council
v
Times Newspapers Ltd,‘
the question of whether
a local authority can sue for libel was raised
in
the Court of Appeal for the first
time. The court considered two separate, but closely related, questions: first, whether
a local authority is precluded from suing
in
libel by its status as a corporate body;
and second,
(if
not) whether such an action is precluded by the right of freedom
of expression provided for in Article
10
of the European Convention for the Protection
of Human Rights and Fundamental Freedoms (ECHR).*
In
the media’s reports
about this case,3 most of the attention was focused on the conclusion reached
unanimously by the Court of Appeal that local authorities cannot sue, but as the
judgments
in
the case themselves note, this conclusion
will
probably have only
marginal practical significance. The more important aspect of the case is the court’s
use
of
the ECHR, which could well have significant consequences for future cases.
It
is this element of the decision with which we are primarily concerned here, but
before turning to consider this aspect of the case, an outline of the substantive issues
involved needs to be briefly set out.
The ‘refreshingly ~imple’~ facts
in
Derbyshire
were that in September
1989
two
articles
in
the
Sunday Times
criticised share deals involving Derbyshire County
Council’s superannuation fund. The Council, its leader, and a businessman alleged
to have been involved
in
the deals all brought actions for defamation against
the newspaper. The suit by the businessman was settled after an apology
in
open
court and the payment of damages and costs. The actions by the Council and its
leader were stayed pending the present appeal.
At
first instance, Morland
J
held
that at common law the authority did have the right to sue for libel. He rejected
the ECHR argument on the basis that he found no ambiguity
in
the relevant English
law.
In
relation to the question of the local authority’s ability to sue
in
libel, the Court
of Appeal considered a series of nineteenth-century cases, of which two were
particularly important. In
Metropolitan Saloon Omnibus Company
v
H~wkins,~
it
was decided that a trading company incorporated under the
1856
Joint Stock
Companies Act could sue. Pollock CB, however, stated
obiter
that there were certain
allegations about which a corporate body could not sue. His argument had been
that as certain crimes could only be committed by individuals, allegations that
corporations had committed such crimes could not be actionable. Such crimes were
said to include incest, murder and corruption. These dicta were apparently the basis
for the decision
in
The Mayor, Aldermen and Citizens
of
Manchester
v
Williams,6
where the Divisional Court held that a municipal corporation could not sue for libel
*School
of
Law, King’s College London.
I
Decided by the Court
of
Appeal (Balcombe, Ralph Gibson and Butler-Sloss
LJJ)
[
19923
3
WLR 28.
2 Some consideration was
also
given, especially by Balcombe
U,
to
s
222(
I)
of
the Local Government
Act 1972.
3
See, for example, reports by Adam Sage in
The
Independent
and by Frances Gibb in
The
Times
on
20 February 1992.
4
per
Balcombe
U.
5 (1859)
4
H
&
N
87.
6
[I8911
1
QB 94; (1891)
63
LT 805.
72
1
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