On 12 October 2023, Mr Justice Jay handed down judgement in Cooper v Evans & Anor [2023] EWHC 2555 (KB) in favour of the defendants. The Judge refused the claimant’s (Mr Andrew Cooper) application for an injunction under the Representation of the People Act 1983 (“the RoPA”), which sought to prevent the republication of a political advert published on West Midlands Labour social media pages regarding the claimant, who was at the time a Conservative candidate for the Tamworth by-election (held on 19 October 2023).
The defendants (David Evans and Harry Taylor), were supporters of the Labour Part who published an advert alluding to a “Dodgy Deal” between the claimant and another Conservative politician (Eddie Hughes, MP for Walsall North). The “deal” alleged that if the claimant won the by-election, he would later vacate the seat in the general election for Hughes, thereby entitling Cooper to the £29,000 sum afforded to retiring MPs.
This case provides useful commentary on the delineation between comments of a ‘personal’ and ‘political’ nature under the RoPA, expanding on the judgment in R (oao Woolas) v The Parliamentary Election Court [2010] EWHC 3169 (Admin)
Background
The claimant Andrew Cooper was the Conservative candidate for the Tamworth by-election. The defendants, David Evans and Harry Taylor, were sued in their capacity as promoters of materials on behalf of the West Midlands Labour Party.
While the claimant had been selected as the Conservative party candidate for the 19 October 2023 by-election, the Conservative party had already selected Mr Eddie Hughes MP to stand as the candidate for Tamworth in the general election (to be held in or before January 2025). This was due to Hughes’ existing seat (Walsall North) being abolished due to recent boundary changes.
The claimant submitted affidavit evidence (from himself and Mr Hughes) refuting the “dodgy deal” claim. It stated that if the claimant were to win the by-election, then Hughes would not seek to stand as the Conservative party candidate in the general election.
On 24 September 2023, an advert funded by the West Midlands Labour Party was placed on Facebook and Instagram. The advert was active on Facebook between 24 – 30 September 2023, and Instagram between 24 September –1 October 2023. One of the adverts was re-activated between 1-8 October 2023.
The claimant sought an interim injunction under section 106(3) of the RoPA. The key issues for the Judge was whether the advert was a statement of fact or opinion, whether it was prima facie false, and whether it concerned the claimant’s personal character or conduct and was thus within the scope of section 106 of the RoPA.
Judgment
Fact or opinion
In assessing whether the advert was a statement of fact or opinion, the Judge considered the five points outlined by Nicklin J in Kousogiannis v Random House [2019] EWHC 48 (QB). Nicklin J stated that
“(i) The statement must be recognisable as comment, as distinct from an imputation of fact.
(ii) Opinion is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.
(iii) The ultimate question is how the word would strike the ordinary reasonable reader. The subject matter and context of the words may be an important indicator of whether they are fact or opinion.
(iv) Some statements which are, by their nature and appearance opinion, are nevertheless treated as statements of fact where, for instance, the opinion implies that a claimant has done something but does not indicate what that something is, i.e. the statement is a bare comment.
(v) Whether an allegation that someone has acted “dishonestly” or “criminally” is an allegation of fact or expression of opinion will very much depend upon context. There is no fixed rule that a statement that someone has been dishonest must be treated as an allegation of fact.” [16]
The Judge understood the advert to mean that the claimant had struck a deal with Mr Hughes that if Mr Hughes was elected at the next by-election, the claimant would stand down before the next general election. In assessing the statement, the Judge considered context.
“It is right to point out that this interpretation could not be arrived at without reference to the photograph and the accompanying wording. However, seeing the two men together with speech bubbles should draw any reasonable reader to conclude that the “dodgy deal” has been made between them as members of the Conservative party.” [11]
The Judge held that the advert made it clear that the claimant would receive a £29,000 payoff from the taxpayer upon standing down. The deal was characterised as “underhand, dubious and lacking in frankness” [13]. The Judge concluded that the advertisement was a statement of fact [14].
Prima facie false
The Judge found that the claimant had sufficiently demonstrated through affidavit evidence that no deal existed between Mr Hughes and the claimant and that therefore the statement was prima facie false [8].
Personal character or conduct
Section 106(1) of the RoPA provides that it is illegal to publish a false statement about a candidate’s personal character before or during an election for the purpose of affecting the return of any candidate at the election. The real question in this case was whether the statement related to the personal character or conduct of the claimant and was therefore within the scope of section 106 of the RoPA or whether the statement related to the claimant’s political position and was therefore not within the scope.
In considering this, the Judge referred to the principles outlined by the Divisional Court in R (oao Woolas) v The Parliamentary Election Court [2010] EWHC 3169 (Admin); [2012] QB 1. In particular, he highlighted paragraphs 112-114 from the Woolas judgment.
“112. Statements about a candidate which relate, for example, to his family, religion, sexual conduct, business or finances are generally likely to relate to the personal character of a candidate. In our view, it is of central importance to have regard to the difference between statements of that kind and statements about a candidate which relate to his political position but which may carry a implication which, if not made in the context of a statement as to a political position, impugn the personal character of the candidate.
113. For example, a statement made simply about a candidate’s conduct as a businessman might imply he is a hypocrite (as in Bayley v Edmonds or Sunderland). As his conduct as a businessman relates to his personal conduct, such a statement is within s.l06, subject to possible issues of proportionality under Article 10 to be determined in relation to the seriousness of the allegation. However, a statement about a candidate’s political position may well imply that he is a hypocrite or untrustworthy because of the political position he is taking. That is not a statement in relation to his personal character or conduct. It is a statement about his political position though it might cast an imputation on his personal character. We do not consider that Parliament intended that such statements fall within s.l06, particularly bearing in mind the fact that criminal liability attaches for statements made negligently. It would be difficult to see how the ordinary cut and thrust of political debate could properly be carried on if such were the width of the prohibition. In any event it would also be difficult to reconcile such a broad construction with the balance that Article 10 mandates be achieved.
114. However, a statement about a political position can go beyond being a statement about his political position and become a statement that is a statement about the personal character or conduct of a candidate. A clear illustration is to accuse a candidate of corruption, even if that corruption involves the conduct of a public or political office. What is being said about the candidate is not a statement in respect of the conduct of a public office, but a statement that he is personally dishonest and committing a crime. The statement is not to be characterised as one about his political position, but one in relation to his personal character.”
The Judge held that the advert clearly asserted that the claimant’s political aspirations were short-term, at least in the constituency of Tamworth. While the advert also posited that the claimant was untrustworthy and less than open and frank, that was because of the political position he was taking (as outlined above in paragraph 113 of Woolas). Moreover, the advert did not allege corruption which can be distinguished from the “grossly reprehensible conduct” alleged in Woolas. The advert merely alleged that the claimant was prepared to accept taxpayer funds, which was his right upon standing down, to make way for Mr Hughes.
The Judge concluded that the statement was related to the claimant’s political position and not his personal character or conduct therefore the claimant’s application for an injunction was dismissed. The Judge acknowledged that while it was a moot point, undertakings that the Labour Party would not republish the advert would ordinarily be sufficient to rebut the need for an injunction.
Comment
This case provides useful analysis for determining whether a statement falls on the political rather than the personal side of the dichotomous line identified by the Divisional Court in Woolas. It highlights specific factual differences between this case and Woolas which in turn provides further guidance on applying section 106 of the RoPA.
Floyd Alexander-Hunt is an LLM candidate at Queen Mary University London and a research assistant at King’s College London.
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