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10.01.25

Could Liz Truss sue Keir Starmer for accusing her of crashing the economy?

Former Prime Minister Liz Truss is a keen supporter of the Musk brand of free speech, but not apparently when it comes to criticism of herself.

Yesterday it was reported that Ms Truss had instructed lawyers to send a legal ‘cease and desist letter’ demanding that the current Prime Minister Sir Keir Starmer refrain from accusing her of crashing the economy.  The Daily Telegraph have published a copy of the letter in full (albeit without footnotes and annexes).

The ‘legal threat’

Firstly, it is important to note that no legal claim is expressly threatened in the letter.  It explains, “The purpose of this letter is expressly to bring our Client’s concern to your attention and to seek an amicable basis on which you will agree to cease repetition of what is clearly a factually incorrect and defamatory statement about our client. This request is made in the context of the basic levels of civility which is due between senior politicians, and we trust that you will respond accordingly”.  Notwithstanding this, the language of defamation law is used throughout and is asserted that various defences would not be available.

As the letter is a ‘cease and desist letter’ rather than a ‘letter of claim’, there is no need for it to comply with the Pre-Action Protocol for Media and Communications ClaimsStarmer has already declined to ‘cease and desist’, which means that if Truss wishes to pursue the matter her lawyers would need to send a compliant letter of claim before suing.

Without seeing a properly particularised letter of claim, it is not possible to properly assess the merits of any claim.  However, the cease and desist letter runs to some six pages and much can be said about the issues likely to arise if a claim was pursued.

The letter states:-

Of particular concern are the false and defamatory public statements you made about our Client in the lead-up to the UK general election from late May 2024, at a time when you knew or ought to have known that: (i) those statements were false; and (ii) the statements were likely to materially impact public opinion of our Client whilst she was standing as the parliamentary candidate for the Conservative Party in South West Norfolk.”

Reliance is placed on three publications, although these are simply cited as examples of many similar statements.

“4 June 2024 - “I wish he [Rishi Sunak] had as much to say when Liz Truss was crashing the economy.”;[1]

 4 June 2024 - “Liz Truss crashed the economy.”;[2]

 13 June 2024 – “Liz Truss crashed the economy…”;[3]”

Frustratingly, as the footnotes/annexes are unavailable, we do not know the context in which Starmer is alleged to have made these statements, save that they “have been widely publicised and quoted in the news media.”  The context is important as it might give rise to particular defences, including common law qualified privilege/a ‘reply to attack’ defence.  The first, and possibly second, statement appear to have been made in one of the 2024 general election leadership debates.

Is the allegation of ‘crashing the economy’ defamatory at common law?

At first blush one might think that the allegation is defamatory at common law, i.e. that the words would tend to cause right-thinking people to think substantially less of Truss.  However, the court expects politicians to have thick skins when it comes to political debate.  In Crow v Johnson [2012] EWHC 1982 (QB), Truss’s prime ministerial predecessor Boris Johnson succeeded in having a claim brought against him by then RMT leader Bob Crowe struck out.  The claim was based on one of Johnson’s campaigning leaflets for the 2012 London Mayoral election which said:-

“Not Again: Ken wants to come back with his … Council Tax rises, Broken promises, cronies, scandals, waste Bob Crow. NotKenAgain.com”

In striking the claim out, Mr Justice Tugendhat said:-

[13]…the fact that Mr Crow holds the position of general secretary of the RMT together with the fact that the words complained of were published in an election leaflet, mean that a particularly wide latitude for freedom of expression has to be allowed…

[...]

[24]…in the context of a hotly contested election, these meanings could not in any event be held to be defamatory. In defamation context is crucial. In the context of an election, statements by one candidate about another candidate, or about a person associated with another candidate, are not capable of being understood as anything other than partisan.

Thus, a hypothetical claim by Truss could be susceptible to an application for strike out on similar grounds (without the need to consider any defence).

Have the statements caused serious harm to Liz Truss’s reputation, or are they likely to cause such harm?

Section 1(1) of the Defamation Act 2013 requires a statement to have caused, or be likely to cause, serious harm to a claimant’s reputation.  Truss attributes the loss of her parliamentary seat in the July 2024 election to Starmer’s statements.

On this point, potential causation issues seem to arise.  The charge that Liz Truss seriously damaged the economy is not a new one.  Indeed, it seems to be the reason why her Conservative parliamentary colleagues forced her resignation as prime minister in October 2022 after 45 days.  The allegation was made by politicians (including by her immediate successor Rishi Sunak), journalists, analysts and hundreds of thousands of social media users across the political spectrum.

Rightly or wrongly, Truss’s reputation seemed to have suffered serious harm at the time of her premiership.  If and insofar as Starmer made the allegation in 2022 such statements would have become statute-barred after a year.  Moreover, section 8 of the Defamation Act 2013 provides that the limitation clock for a statement made to the public (or a section of the public) which is the same or substantially the same as a previous statement starts at the time of the original statement (provided that the manner of the of the subsequent publication is not “materially different”).  Thus, one cannot normally be successfully sued for restating an alleged libel that they had made more than a year ago in a similar manner.  This could potentially be problematic for any claim.

Again, a hypothetical claim by Truss could be susceptible to an application for strike out on similar grounds (again without the need to consider any defence).

Is the allegation substantially true?

If sued it would also be open to Starmer to argue that the defamatory imputation was substantially true.  The burden would be on him to prove truth.

Truss’s position on falsity is two-fold: (1) the economy did not ‘crash’ (“To use such an expression is to display ignorance of basic economics and common usage of the term ‘crash’”) and (2) any harm to the economy was not her fault.

Truss’s lawyers point to the fact that her policies did not lead to a fall in GDP or a rise in unemployment as particulars of falsity.  Critics of Truss might point to, amongst of things, the sharp rise in mortgage costs and inflation.  However, Truss’s lawyers claim that the prevailing economic turmoil was due to factors outside of their client’s control, including the Bank of England, and would have occurred in any event.  Truss’s lawyers rely on a report by Andrew Lilico of the Institute of Economic Affairs, a right-leaning think tank.

Such a defence may or may not succeed and presumably would be heavily reliant on expert evidence, but even then would seem to be open to interpretation.  One would have some sympathy for any judge having to make such a politically-charged decision.   In practice, there may be more efficient ways of seeking to defend the claim.

Is the statement honest opinion?

A complete defence to a libel arises under section 3 of the Defamation Act 2013 if a defendant can show that a statement was an honest opinion.  The conditions of this defence are:-

  1. that the statement complained of was a statement of opinion.
  2. the statement complained of indicated, whether in general or specific terms, the basis of the opinion.
  3. the third condition is that an honest person could have held the opinion on the basis of:—
    a. any fact which existed at the time the statement complained of was published;
    b. anything asserted to be a fact in a privileged statement published before the statement complained of.

The defence is defeated if the claimant shows that the defendant did not hold the opinion.  Notably, Truss’s lawyers suggest (perhaps somewhat optimistically) that Starmer made the allegations maliciously/knowing them to be false.

The viability of an honest opinion defence will depend on the precise publication (written or spoken) sued upon.  However, there is likely to be a good argument that allegations of this nature made in a political context are opinion.  The more interesting question is whether there will have been sufficient reference to the basis of the opinion.  The decision in Kemsley v Foot [1952] A.C. 345 suggests that this might be self-contained.  In other words, a reader would understand that ‘crashing the economy’ is a reference to Truss’s policies and performance as prime minister.

Publication on a matter of public interest

Section 4 of the Defamation Act 2013 significantly expanded the previous common law public interest ‘Reynolds’ defence.  For the defence to succeed, the Court must be satisfied that the answer to all three of the below questions is ‘yes’:-

  • Was the statement complained of on a matter of public interest, or did it form part of such a statement?
  • If so, did the defendant believe that publishing the statement complained of was in the public interest?
  • If so, was that belief reasonable?

The courts have interpreted the new defence broadly.  Whilst an analogous claim/defence has not yet been considered by the courts, it would certainly be open to a court to find that such a defence applied in the context of political debate.   It is difficult to think of many subjects that have a higher level of public interest than the handling of the nation’s economy.  One would also think that a court would be slow to restrain politicians from making statements on the subject during political debates.

Absolute privilege

Certainly, no claim could succeed based on anything said in parliament, where all statements are made on an occasion of absolute privilege and are not actionable.  Truss’s lawyers do not appear to be suggesting otherwise, albeit their request to cease and desist does not contain any carve outs.

Abuse of process?

It is not clear why this legal complaint has been threatened now, some seven months after the statements made during the general election campaign which Truss says damaged her reputation.  The Pre-action Protocol makes it clear that claimants are expected to assert claims promptly because the timing of vindication is of the essence.  In Reed Elsevier UK Ltd (t/a Lexisnexis) & Anor v Bewry [2014] EWCA Civ 1411 the Court of Appeal held “a claimant is expected to pursue his complaint promptly irrespective of the limitation period and whether he knows about it, for the simple reason that not to do so is inconsistent with a genuine wish to pursue vindication of his character promptly and vigorously, which is what the law requires.”

A claim that is brought for an ulterior purpose (e.g. political reasons) may be susceptible to strike out as an abuse of process.

Comment

Putting aside the merits of any hypothetical claim, 'legal threats' of this nature are generally ill-advised and can cause more reputational harm than that they seek to cure.  Whilst it is quite understandable for politicians assert or bring libel claims where they are alleged to have committed a crime, some other serious impropriety and/or acted dishonestly, the assessment of their political performance is generally a subjective matter which is best left to the public to decide.  Senior politicians should also be well-equipped to counter criticism through their own media and PR associates/connections.


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Articles are intended as an introduction to the topic and do not constitute legal advice.