The Gazette 1976

GAZETTE

AUGUST 1976

A MEETING OF A LOCAL AUTHORITY

Statute to publish certain matters, then the publication is privileged. In relation to any publication made pursuant to a legal duty, whether the duty be imposed by Statute or by some person exercising a legal power to impose it, the law of privilege applies (subject to the absence of malice on the part of the person pub- lishing it). There are three cases which illustrate the matters which have already been mentioned:— Andrews v. Nott Bower (1895) I Q.B. 888. The magistrates of a Borough, for the purpose of facilitating the business of the General Annual Licen- sing Meeting, ordered the defendant, who was Head Constable of the Borough, to issue to persons having business before the meeting copies of a Report made by him to the Magistrates stating the grounds of objections taken to the renewal of licences. Held, that publication by him of the Report in pursuance of the Magistrates' order was upon a privi- leged occasion, and therefore that, in the absence of actual malice on his part, an action was not main- tainable against him in respect of grounds of objection so published, which the plaintiffs alleged to be a libel upon them. De Buse & Ors. v. McCarthy & Ors. (1942) 1 K.B. 156 The defendants in this case were the Town Clerk of Stepney and the Borough Council. They had pub- lished a report, which was tabled for consideration at a forthcoming meeting of the Borough Council and they had, as was normal practice, circulated the Agenda and the business to be considered, including a copy of a Report, to the Public Libraries in their jurisdiction. It was found by the Court that their mandatory public duty was limited to giving notice by posting it on or near the door of the Town Hall and transmitting it by post to the members. Lord Greene, Master of the Rolls, pointed out that the mandatory duty did not include any obligation to post the notices of business in the public libraries. He further stated that the defence of a public duty did not bear examination so far as circulation to the public libraries was concerned since the material statutes imposed no obligation to do so. The defence of privilege of statutory obligation to publish is available, therefore only in respect of:— (i) Motions concerned with purposes, duties and powers of the local authority, and (ii) The limited publication of the Public Notice affixed to the City or Town Hall and the sending by Summons to the members. Adam v. Ward (1917) A.C. 309. This is a case that is invoked with regularity in a great variety of cases of defamation both of libel and slander. It treats of that element of privilege, said to protect him who, on a privileged occasion publishes defamatory matter in a situation where the person who publishes the defamatory matter has an interest or duty, legal, social or moral to make it to the person to whom it is made, and the person to whom it is made has a corresponding duty to receive it. This reciprocity is essential. The question as to whether the defence of privilege applies or not involves two considerations, (a) the subject matter of the motion, and (b) the persons to whom it is addressed, i.e. the 131

Part 1 Paper delivered by T. S. Smyth Esq., B.L., former Assistant Secretary of the Society, to the Society of Local Authority Solicitors in May 1975. Beginning with the assumption of entitlement and obligations of a local authority to hold meetings, I treat of "a local authority" as a municipal authority. BEFORE THE MEETING The Notice The statutory position is that by virtue of Section 92 of the Municipal Corporations Ireland Act, 1840 notice is required (which I will refer to as "the Public Notice") of the time and place of a meeting; but does not require that there be any notice of the business of the meeting. This is so where the meeting is sum- moned in the ordinary way. The Public Notice is to be signed by the Mayor Chairman and to be fixed on or near the door of the City or Town Hall at least three clear days before the meeting. The Section provides for an alternative summoning of a meeting on requisition of five members, and in the case of such a meeting, if the Authority refuses or fails to call the meeting and the five members exercise their own right to call the meeting, in such circumstances they must give public notice of the business proposed. The section further requires that a Summons to attend the Council or Board be delivered to each member, and such Summons shall specify the business of the meeting (to wit, the Agenda). Section 61 (1) of the Local Government Act, 1955 (No. 9 of 1955) provides that the Minister may by regulations make provision in relation to all or any local authorities with respect to (inter alia) the sum- moning and holding of meetings. However, regulations or standing orders (of which more anon) are limited in that they must be made pursuant to and for the purposes of the Act or Acts and they must (a) not be repugnant to any statutory provision in the Act or any Act incorporated by reference and (b) they must not be repugnant to the general law — whether Statute Law or Common Law or particularly Constitutional Law. THE AGENDA In relation to the Agenda, the only business a member has an actual legal right to set down is a motion in relation to business concerned with the purposes, duties and powers of the local authority as conferred or imposed on it by law. The only notice of motion which the Manager (Secretary or Town Clerk) is obliged to accept is a motion relating to a matter in respect of which a member has an actual legal right to set down. The use of a local authority meeting as a forum of debate for matters of public interest, however grave, urgent or praiseworthy which is completely dissociated from the purposes, duties and powers of the particular local authority is not compellable business. Neither Bye-Laws, Regulations, direction or Standing Orders can enlarge the duties of publication so as to confer protection outside the obligations of the Statute. When considering the legal position as to defamation the recognition of these limits is all important. Generally where there is a legal duty imposed by