So Dean Archer, a former Labour Councillor your author calls ‘disgraced’ because he was removed from office for non-attendance at council meetings, is upset with Grant Shapps MP. It appears that Mr Archer’s public libel apology to Mr Shapps, drafted by Shapps’ lawyers was in fact misleading. Archer now indicates that he intends to seek compensation from Shapps for stress.
Before continuing, the Witchfinder would like to point out that he still thinks Archer is a ‘constituent’ – only without the ‘onstit’ and the ‘e’. However it is irritating, to say the least, for a loyal Conservative blogger to have to ‘update’ a story due to an error by their own Conservative MP. So I thought it would be a nice legal exercise to speculate as to what causes of action might be arguable and how much Archer might get. This is of course only speculation and no substitute for a Court decision.
There is a legal subtlety here that needs to be highlighted firmly. The law distinguishes between accidental or negligent mistakes on the one hand and lies and malice on the other. The law also makes it very hard to prove lies. A common (and essential) legal tactic is to pick laws where mistake is all that is needed or where the burden of proof is reversed. Grant says it is all an innocent mistake so your author is going to run with that for the purposes of this article.
Based on the Guardian article, Shapps and Archer settled pre-action. Regardless of whether it was written on a big piece of paper with ‘Contract’ at the top or whether it was done in counter-party letters such agreements are generally contracts. Shapps agreed to offer consideration (payment) of forebearing from a legal action and Dean Archer offered consideration of a public apology. A contract was formed and performed.
Liability for Misrepresentation
In United Kingdom law, a contract can only be set aside in limited circumstances. One such circumstance is misrepresentation. A misrepresentation is a false statement of fact or law that induces someone to enter into a contract Bisset v Wilkinson  AC 177. To be clear, ‘false’ does not mean lies. A misrepresentation can be careless or innocent and you can still sue over it.
So Shapps sued Archer for accusing him of lying. More precisely, Shapps via his solicitors sent pre-action letters. These are representations. The cause of action was the allegation of dishonesty. If we accept the ‘mistake’ defence then that cause of action for libel still stands up. Grant was not being dishonest he was being careless.
Grant’s difficulty flows from the rules on misrepresentation by silence. As a general rule, misrepresentation by silence is not a cause of action – there has historically not been a pre-contractual duty of good faith, see e.g. Bell v Lever Bros Ltd (1932). However, in Dimmock v. Hallett (1866) it was held that a partial statement of fact is capable of being a misrepresentation. Once a potential party to a contract starts speaking on an issue they must be complete.
Grant represented that he was not lying. That still missed out that he was mistaken (albeit honestly) and had in fact worked as ‘Michael Green’ after his election as an MP. Your Inquisitor believes that this may be a partial statement. If Dean Archer had known that Mr Shapps had indeed worked as Michael Green he might have been more inclined to try to defend the allegation of dishonesty and might therefore not have entered into the contract.
Reversed Burden of Proof
S2 (1) Misrepresentation Act 1967 provides essentially that even an innocent misrepresentation will be treated as fraud for the purpose of damages unless the person making the representation, “unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true.”
Grant says he was mistaken and not lying and this loyal Conservative blogger takes him at his word. So he ‘did believe’ his statement. But was it ‘reasonable’? The Act reverses the burden of proof. Unless Grant can prove he had ‘reasonable ground’ to believe his factually erroneous remarks the law will treat it as fraud for the purpose of damages. That might be tough.
Assuming a Court chooses to treat Grant’s factual errors as innocent, careless but not founded on ‘reasonable ground’ damages will be calculated as for fraud. This can include any loss, even losses that would not otherwise be reasonably foreseeable.
Damages for injured feelings are not generally awarded for innocent mistakes but they can be awarded for deceit and if s2 (1) Misrepresentation Act applies then an innocent but not reasonable mistake must be treated as ‘fraudulent’.
Damages for hurt feelings can be very high. One area of law where this is common is discrimination. Under the guidelines for hurt feelings set out in the well known Vento case, they can be as high as £33,000. That leaves aside any costs incurred or actual medical injury (e.g. a formal diagnosis of ‘stress’ or anxiety). So with a doctor’s note Archer might get, say £50K?
Of course this is all speculation, but Grant Shapps’ ‘over-firm‘ denials may be prove to be financially very costly as well as embarrassing.