Andrew Cooper v David Evans

For an injunction under section 106(3) of the Representation of the People Act 1983, the court must determine definitively whether the impugned statement is one of fact and whether it concerns the candidate’s personal character or conduct. Prima facie proof concerns only falsity. Statements about a candidate’s political position, including present or future political intentions, remain within political debate even if they imply untrustworthiness. The implication becomes personal where the allegation concerns egregious conduct such as corruption or terrorist violence. The application was refused because the advertisement concerned the candidate’s short-term political intentions, not his personal character or conduct.

The claimant, the Conservative candidate for a Tamworth by-election, sought an interim injunction under section 106(3) of the Representation of the People Act 1983. The defendants had promoted a social-media advertisement alleging that the claimant had made a private arrangement with a sitting Member of Parliament to stand down before the next general election in return for a taxpayer-funded payoff.

The claimant contended that the advertisement contained a false statement of fact concerning his personal character or conduct. The defendants disputed, among other matters, whether it related to the claimant and whether it was fact or opinion. The live issue was whether the allegation fell on the personal or political side of the distinction drawn in the authorities.

1. The application was refused. The claimant established prima facie falsity, but failed to establish that the statement related to his personal character or conduct.
2. The advertisement, read as a whole and by reference to the image and wording, conveyed that the claimant and Mr Hughes had agreed that the claimant would stand down before the next general election. That was a statement of fact, not opinion. The court applied the principles on meaning and fact-versus-opinion in Kousogiannis v Random House, which had been approved by the Court of Appeal in Corbyn v Millett.
3. Section 106(3) requires the court to determine definitively whether the statement concerns personal character or conduct. Prima facie proof is relevant only to falsity. The court declined to follow the approach in Swinson v The Scottish National Party insofar as it treated the issue as one requiring only a prima facie case.
4. The distinction in R (oao Woolas) v The Parliamentary Election Court is between statements about political position and statements about personal character or conduct. A political statement may imply that a candidate is untrustworthy without falling within section 106. It crosses the line where the allegation concerns egregious conduct, such as corruption or terrorist violence.
5. The advertisement’s sting was that the claimant had short-term political aspirations and had concealed them from the electorate. The allegation that he would accept the statutory payoff as part of that arrangement was not comparable with accepting a bribe or other grossly reprehensible conduct. It therefore remained political rather than personal.
6. The defendants gave an assurance that the advertisement would not be republished. The court expressed a preliminary view that such an assurance would ordinarily be sufficient, consistently with ERY v Associated Newspapers Ltd, but made no concluded ruling because the issue had become moot.