There may be no typical cases in this area of the law, but Thompson v James epitomised the controversy which can surround libel litigation. The protracted and bitter nature of the dispute, the Claimant’s focus on local government transparency, and the issue of access to Council proceedings all made the action a subject of concern to a range of vociferous interest groups in the print media and online.
The case was even the subject of a Times editorial on the final day of the trial. The 423 paragraph judgment, handed down by Mr Justice Tugendhat at the High Court in London on Friday 15 March (Thompson v James & Anor ( EWHC 515 (QB)), found for Mr James and Carmarthenshire Council on both the claim and the counterclaim, and also provided significant context for the coverage.
Jacqui Thompson, who runs a blog called “Carmarthenshire Planning Problems”, is a long-standing critic of Carmarthenshire County Council and its Chief Executive, Mark James. In November 2011, in the aftermath of her arrest for filming at a Council meeting, another blogger published an “Open Letter to Mark James” on his “madaxeman” blog, which was critical of both Mr James and the Council. He urged Mr James to reply, as did Mrs Thompson on her own blog.
The Chief Executive did so by means of a letter posted as a comment on the “madaxeman” blog, and sent to councillors. Amongst other things, the letter said that
“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 that, in respect of the incident on 8 June 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…”
Mrs Thompson sued the Council and Mr James for libel, adding a free-standing Article 8 claim just before trial. Mr James and the Council defended the letter on the basis that its contents were true, were honest comment, and were protected by privilege. Mr James also counterclaimed for libel in respect of five posts about him on Mrs Thompson’s blog which referred to his having access to a slush fund, and being a liar in the context of his work as an Electoral Returning Officer. The trial took place over six days at the High Court in London before Tugendhat J. Both Mrs Thompson and Mr James gave evidence.
The Judge made extensive findings of fact about the history of Mrs Thompson’s dealings with the Council in the course of his judgment, relating both to her claim and Mr James’s counterclaim.
He found that the dispute arose out of a number of planning applications in which Mrs Thompson had been involved, both on her own behalf, and on that of her brother-in-law, Eddie Thompson. The later applications for Eddie Thompson were unsuccessful. Mrs Thompson subsequently accused the Council’s head of planning, Eifion Bowen, of misconduct and corruption.
Mr Bowen sued Mrs Thompson and her husband for libel in 2006, an action which they settled by means of a public retraction and apology for the false accusations against Mr Bowen, and an agreement to pay his costs. In the course of negotiation over costs, the Thompsons asked the Council to pay Mr Bowen’s costs and were refused. In spite of this refusal, when they later came into possession of an HMCS letter stamped by the Council they claimed it was proof that the Council had in fact unlawfully paid Mr Bowen’s costs. A High Court Judge found in 2008 that this was not the case, but the Thompsons did not accept his finding, and went on to allege perjury against Mr Bowen and others.
Mrs Thompson started her blog in 2009. On specific blog posts the Judge found as follows: Mrs Thompson published an allegation that Mr James was chauffeured around at a cost of £66,000 a year, knowing it was false, in order to damage his reputation; she effectively retracted her apology to Mr Bowen and repeated the earlier libel about him, her evidence at trial that she meant her apology was found to be a deliberate falsehood; she published the allegation that Mr James had been involved in an awkward bribery trial knowing it was false to suggest that there was anything awkward for him about the matter, in order to damage his reputation; and she intended to damage Mr James’s reputation with the public at large, including with anyone who might be minded to employ him in future.
Although she had been refused permission to do so, Mrs Thompson filmed Council meetings in the wake of a widely publicised letter from Mr Bob Neill MP urging local authorities to welcome those who wanted to bring local news stories to a wider audience. On 13 April a Council officer, Mr Davies, was asked to stop her. After he did so, and she left the public gallery, Mrs Thompson made an allegation to the Police that Mr Davies had assaulted her and attempted to steal her phone. The Judge found that this was false to her knowledge at the time, and an attempt to pervert the course of justice, observing:
“it is not the filming which I find to be part of her campaign of harassment and intimidation: what I find to be part of her campaign is her making the false allegation of assault and attempted theft against Mr Davies when he asked her to stop filming.”
A result of the false allegation of assault was that the next time Mrs Thompson was suspected of filming on 8 June, the police were called to escort her from the building. They arrested her as they believed she was about to commit a breach of the peace. This attracted national publicity in the media and online and led to the publication of the “Open Letter” and Mark James’s reply.
In relation to the Council’s defence of justification, the Judge found that Council officers such as Mr Bowen and Mr James would feel distressed and intimidated at being the subject of persistent allegations of misconduct, corruption, lying, perjury, and misuse of public funds made without evidence. Mrs Thompson was conducting a vindictive campaign against individuals at the Council for which there was no plausible explanation other than revenge for the refusal of her planning applications.
Although it was unnecessary to do so since the defence of justification succeeded, the Judge considered the availability of qualified privilege, and the nature of the HRA claim for the breach of Mrs Thompson’s Article 8 right to a private and family life. This was both a free-standing cause of action and was said to preclude there being the duty necessary for a defence of qualified privilege under the principle in Clift v Slough Borough Council ( EWCA Civ 1484).
The Judge found that the letter did not interfere with Mrs Thompson’s right to a private and family life as she had already entered the arena of public debate through her previous behaviour. Mr James wrote about her public behaviour, not matters affecting only her private life. In the circumstances, Mr James and the Council had a sufficient interest in explaining why the police had been called and in defending the actions of the Council, its Members and officers which had been publicly called into question. The Council was pursuing a legitimate aim in explaining to the public at large actions which had been publicly called into question. Mr James acted responsibly in publishing the letter.
There were five publications complained of in the counterclaim, four of which reflected one particular focus of Mrs Thompson’s blog, which was the issue of a potential indemnity to fund the costs of libel actions by Council members and officers, which she referred to as a “slush fund”. On this point, the Judge found that: the statement that Mr James would do “everything in his power to protect the ‘officers club’ slush fund” was a defamatory comment made with no factual basis, only to blacken Mr James’s name; the statement that Mr James “and his cronies” had the foresight to finance deals before budget cuts, and that the Council had to “keep its slush fund nicely topped up” was a defamatory allegation of fact to which she had not defence.
Mrs Thompson was not liable for two further posts complained of in the counterclaim which also made comments about the “slush fund”: the first, meaning that Mr James might sue Mrs Thompson with the benefit of an indemnity was held to be an expression of opinion that an honest person could hold; the second was a statement of fact that Mr James was in a position to authorise public funds to be spent on libel proceedings together with the comment that such authorisation would be unlawful, this being a view that an honest person could hold.
The statement complained of in the counterclaim that Mr James in his role as returning officer might give a result preferred by the Council was a defamatory comment with no factual basis which was not honestly believed by Mrs Thompson.
The counterclaim succeeded, subject to an abuse of process argument. Although the Judge accepted the uncontroversial principle that those in public office should show a greater degree of tolerance to public scrutiny and criticism, there was no basis for an abuse argument relying on the Derbyshire County Council case: while public authorities themselves can’t bring libel claims, individuals who work for them can. To suggest that they could not would be “a serious gap in the law”. The Judge placed Mrs Thompson’s campaign of harassment and libel in the context of other recent cases, saying that such campaigns are commonly conducted on the internet. These included Cooper v Turrell ( EWHC 3269 (QB)) and ZAM v CFW ( EWHC 476 (QB)); The Law Society v Kordowski ( EWHC 3185 (QB)); Cruddas v Adams ( EWHC 145 (QB)); and London Borough of Lambeth v Pead ( EWHC 212 (QB)).
The Judge referred to the enacting in 1895 of what has now become the Representation of the People Act 1983 s.106 which aimed to prevent the campaigns of vilification which were commonly used in election campaigns. He also referred to the principle that protecting reputation is conducive to the public good. An inability for those who work for public authorities to defend themselves would mean the public were the losers, and this is the policy underlying the 1983 Act.
Damages were awarded on the counterclaim. Although the postings were made to a small number of publishees, there were two aggravating factors: the dominant motive of Mrs Thompson was to injure Mr James, and the nature of the cross-examination of Mr James. One award of £25,000 was made in respect of the three publications, of which £5,000 was aggravated damages.
The legitimacy of holding local government to account, or of campaigning to film Council meetings could never have been in doubt. But in relation to some of the coverage of the case, it is worth noting the Judge’s comments that “no one has to give an explanation or justification for maintaining a blog”, and that, with the exception of the false complaint of assault, the campaign of harassment Mrs Thompson undertook did not include the occasions on which she conducted a protest against the ban on filming.
As far as legal points of interest go, there are at least two notable aspects of the decision. The first relates to the question of when and to what extent individuals’ Article 8 rights may be engaged by public authority publications, and how this affects the availability of qualified privilege defences. The Judge here held that Mrs Thompson had herself entered the arena of public debate by widely publishing her complaints about the Council and its officers, and when she had informed the public that she would stand for election.
There is a clear contrast between her situation and that of the claimants in the line of cases culminating in Clift. Those all involved an element of disclosure of private information. One of the aspects of public authorities which makes the fact of their being subjected to duties under HRA s6 particularly significant is their accumulation and continuous use of information about private individuals. This decision underlines the principle first articulated in R. v Chief Constable of North Wales Police, ex p. Thorpe ( Q.B. 396) that it is the inappropriate disclosure of this information, not generally available, and acquired by public authorities in the course of performing their duties, which is sanctioned by the law. It is this kind of disclosure which may give rise to a claim under the HRA, and preclude the availability of qualified privilege. The privilege defence would, it was said here, have succeeded on all three heads, of duty and interest, of reply to attack and of Reynolds privilege; it could not have been wider.
Second, the Judge framed the rule that individuals employed by public authorities can in fact sue for libel by reference, amongst other matters, to the history of campaigns of vilification and their prohibition during elections. In outlining the public policy underlying the Act as a rationale for the ability of state employees to bring libel claims, the decision provides further support for those who take this unusual step. The reasoning, by rooting the modern phenomenon of online campaigns of harassment in the context of those which gave rise to legislation over 100 years ago, illustrates the extent to which the law continues to look squarely at the substance of publications rather than their internet form when online phenomena such as blog posts are the subject of litigation. As other recent claims and prosecutions have shown, online publishers need, if anything, to take greater care than their print counterparts.
Gervase de Wilde is a pupil barrister at 5RB and a former journalist at the Daily Telegraph. His pupil supervisor was counsel for the Defendants.