High Court confirms Trade Unions are capable of bringing claims in defamation

Prospect v Evans [2024] EWHC 1533 (KB)

The High Court has confirmed that a trade union does have the right to sue another party in defamation in its own name, in the decision of Mrs Justice Steyn DBE in Prospect v Evans [2024] EWHC 1533 (KB) (the “Judgment”).

Background

The proceedings arose out of a dispute between Prospect, a trade union, and one of its former members, Mr Evans. Mr Evans had published various allegations in respect of the trade union on social media, which Prospect believed to be defamatory. Prospect subsequently commenced proceedings in defamation and malicious falsehood against Mr Evans (the “Proceedings”).

Positions of the Parties

Mr Evans’ position was that a trade union was not capable of bringing an action in defamation in its own name. He relied on two legal authorities in support of this contention:

1. Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] 1 QB 585 (the “EETPU Case”); and
    
2. s2(1) of the Trade Union and Labour Relations Act 1974 (the “1974 Act”). S.2(1) of the 1974 Act provided that:
   
   A trade union which is not a special register body shall not be, or be treated as if it were a body corporate, but –
   
   (a) it shall be capable of making contracts;
   …
   
   (c) subject to section 14 below, it shall be capable of suing and being sued in its own name, whether in proceedings relating to property or founded on contract or tort or any other cause of action whatsoever;

The EETPU Case had determined that s.2(1) of the 1974 Act provided that trade unions were not, and were not to be treated as, a body corporate, and therefore had no distinct legal personality from its members. The Court held that order to commence a claim in defamation, the Claimant would require its own separate personality. Accordingly, in that case the Court’s determination was that, as a result of the 1974 Act, trade unions were incapable of bringing a claim in defamation.

The 1974 Act was subsequently updated and repealed by the Trade Union and Labour Relations (Consolidation) Act 1992 (the “1992 Act”). S.10(2) of the 1992 Act provides that:

“Quasi-corporate status of trade unions.

1. A trade union is not a body corporate but –
   1. it is capable of making contracts;
   2. it is capable of suing and being sued in its own name, whether in proceedings relating to property or founded on contract or tort or any other cause of action; and
2. A trade union shall not be treated as if it were a body corporate except to the extent authorised by the provisions of this Part.”

The argument put forward by Mr Evans was that the 1992 Act simply consolidated the 1974 Act, and the meaning of s.10(2) of the 1992 Act was therefore the same as s.2(1) of the 1974 Act. Continuing his reliance on the EETPU Case and the 1974 Act, Mr Evans argued that Prospect could not bring a defamation claim against its members, since it was not a body corporate and had no separate legal personality to its members. Mr Evans’ position was that this had not changed under the 1992 Act.

Prospect’s response was that the 1992 Act should be interpreted without reference to prior case law (such as the EETPU Case) or legislation (such as the 1974 Act). Prospect asserted that while s.10 of the 1992 Act stated that trade unions were not body corporates, it did expressly provide that trade unions had the ability to sue and be sued in their own name, including for actions in tort (such as defamation). Accordingly, there was nothing to prevent Prospect from bringing a defamation claim in its own name.

Mr Evans raised an additional contention that the court should strike out the Proceedings, since it would be contrary to public interest for a trade union to be entitled to bring defamation claims against members on the basis that it would potentially stifle members from attempting to hold trade union officials to account. Mr Evans’ arguments were primarily based on the Court’s decision in Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 (“Derbyshire”), which determined that it would be contrary to public interest for local authorities to have a right to bring claims in defamation. Prospect asserted that the court’s decision in Derbyshire clearly distinguished between trade unions and governmental institutions, such as local authorities.

Decision

In reaching her decision, Steyn J held that the starting point for determining whether Prospect, as a trade union, had standing to commence the Proceedings was s.10 of the 1992 Act. No reference to the EETPU Case or the 1974 Act was deemed necessary by the Judge.

The Judge concluded that when the attributes of trade unions were considered, it was clear that they did have reputations distinct from their members. Steyn J also explained that, until the EETPU Case, trade unions had always had the right to bring libel proceedings in its own name. While Steyn J agreed with Mr Evans that the 1992 Act determined that a trade union is not corporate body, this did not affect the fact that s.10 entitled a trade union to commence defamation proceedings in their own name.

The Court therefore dismissed the Claimant’s application to strike out the Proceedings, and found that Prospect did have standing to bring its claim in defamation. Steyn J concluded that the court would have reached the same conclusion if considering the 1974 Act (and explained that the EETPU Case had been decided erroneously).

The Judge subsequently turned to the argument that Prospect should not be permitted to bring a claim in libel as a matter of public policy. Steyn J rejected this argument, finding principally that trade unions were not “an organ of government” in the same way as local authorities were. Steyn J therefore stated that there was no public policy reason requiring such a prohibition for trade unions.

Accordingly, the Judgment determined that Prospect was entitled to bring the Proceedings in its own name, and Mr Evans’ application to strike out the Proceedings was rejected.

Comment

This decision provides useful clarity in an area of law which had been subject to considerable academic discussion and debate following the EETPU Case, which many commentators considered had been wrongly decided. The present case re-establishes the position prior to the 1974 Act that trade unions can, in fact, bring defamation claims in their own name.

Having overcome this initial issue, a further question in any defamation action may be the application of section 1(2) of the Defamation Act 2013, which provides that in order to bring such an action, “a body that trades for profit” must show that the statement complained of has caused or is likely to cause the body serious financial loss. This is a high threshold and one which case law demonstrates is challenging for corporates to satisfy. However, a trade union is unlikely to be “a body that trades for profit” so this provision is unlikely to apply.  That means that a trade union may well in fact be in a better position than a company in terms of bringing such an action.