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Sunday, 12 April 2009

What Nadine Dorries Should Ask Her Lawyers

Nadine Dorries, one of the Conservative MPs smeared by the UK civil servant Damian McBride, has announced she will be consulting her lawyers.

She is not someone I support politically (and indeed I strongly oppose on social liberal issues), but the clear nastiness of McBride is sickening in its cynicism.

Already she is receiving comments on her (excellent) Blog site from well-wishers seeking to explain libel law.

But I really do hope she asks her solicitors about the rare - but potent - tort of malicious falsehood. It appears to me, from the outside, that this is one of the few cases where it would be more appropriate than libel.

The reputation of Ms Dorries has perhaps not suffered - as no one believes the allegations - but it appears she has been a victim of a deliberate attempt to promote a falsehood - and by a civil servant in 10 Downing Street to external persons.

And malicious falsehood is what English common law can provide for in such circumstances. It may be that McBride's lawyers will try to take a point on there being no damage; but perhaps that could be left for the court to decide. Moreover, unless McBride undertakes not to repeat the malicious falsehood, there could always be injunctive relief. The tort is actionable for both actual and potential damage.

In my informal view, McBride may be well advised to seek to quickly settle any claim with an apology, costs, a formal admission that it was a malicious falsehood, an equally formal undertaking that it will not be repeated, and perhaps even a payment of damages either to Ms Dorries or a charity.

Furthermore, I am sure neither McBride nor the Crown would enjoy the formal "disclosure" exercise of relevant materials (formerly known as "discovery"). The very strict obligations on parties to civil litigation in respect of providing the other party with "deleted" emails and metadata - see Paragraph 2A.1 of the relevant court Practice Direction - will be a real shock to those who complacently knock back or craftily evade Freedom of Information and Data Protection requests.

In any case, the circumstances of McBride's smear would surely not be an attractive fact situation for McBride to wish to be before an English High Court prone both to developing media law alternatives to libel (such as privacy and confidentiality) and to robustly checking abuses of public power and public office.


*Substance of above post elaborated for sense after being listed as a link on ConservativeHome. Also see disclaimer on right: as always, this Blog is journalism and not legal advice*

7 comments:

Anonymous said...

I suggest you consult the archives rather than Lawyers FYI Mad Nads blog is not that. It is a series of insults and smears without the right of reply.

No doubt you will dump this comment rather than get to the truth.

Gw

Dr John Crippen said...

To be fair to Nadine Dorries, against whose views on abortion and sex education I have railed frequently and with vitriol, she has now opened up the comments on her blog. I don't know if she is censoring them, but there are plenty appearing. So, it is no longer what I call a pseudoblog, but a real one.




John

Max said...

I thought exactly the same thing- libel is claerly not appropiate but malicious falsehood is. It is up to her to proove that it isnt true but I think that shouldnt be too difficult.

"Richard Keen" said...

I do agree that this is a case where malice would be established. I would plead malicious falsehood and defamation in the alternative.

There might of course be the issue as to what extent they were published though. If the plotters never mentioned the smears to people who might believe them, would this be actionable post Jameel?

Jack of Kent said...

Richard Keen,

It would be actionable, at least in respect of injunctive relief, if McBride didn't give an undertaking not to repeat the statements.

That said, there does appear to be evidence on Dale's page that newspaper editors were sufficiently impressed by these "rumours" so as to contact Ms Norries for her statements in response.

Jack

Robert Carnegie rja.carnegie@excite.com said...

Is it actionable if I do not give an undertaking not to repeat the statements? I am not involved in this at all and don't exactly know what the comments are, but unless the law decides that the naughty boys have some kind of case to answer, I would expect them to be let off altogether.

On the other hand, if - as seems to have possibly been the case - the statements were prepared deliberately for some kind of publication as facts, even though they weren't thus published, then there ought to be something in that.

Robert Carnegie rja.carnegie@excite.com said...

Oh, and I see no requirement for a "blog" to accept readers' comments, if you're so up yourself that you don't want any. One way traffic satisfies the definition.