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Advise Alan Barnish MP over any claims in the tort of defamation

Examination Hall


This exam question is in the style of a GDL or LLB(Hons) question for the defamation topic in the tort law course.


The Canned Party and the Lobster Party have been involved in an acrimonious battle over who can run the NHS better over a number of years. There is a recent history of negative campaigning and smearing by the Canned Party.

The Lobster Party has been consistently several points in the lead in the opinion polls. In the mid 2000s, while the Lobster Party was in government, one English NHS Trust was suffering from poor performance.

Simon Berkeley MP, a local MP for the Canned Party near that NHS Trust, has a long history of campaigning on issues in his local area. Alan Barnish MP used to be Secretary for State for the Health in the Lobster Party.

Berkeley had published an article called, “The only way to cure the NHS is to change the way we police failures” in “The Telepole” on 27 March 2013.  “The Telepole” is a national newspaper, published daily, with a wide readership.

In response to a Freedom of Information request from Berkeley, the “We Care Commission”, a public body (“Regulator”), released internal emails on the handling of problems at the hospital.

According to Berkeley in various newspapers before 4 October 2013, Mr Barnish had said the following: “There was unacceptable pressure from Barnish on the regulator “to water down its concerns” regarding the Trust, when he was health secretary under the Lobster Party. Lobster tried to cover up failing hospitals before the last general election. Alan Barnish told the House of Commons in July there was no shred of evidence of political interference with the health regulator. But these emails show a clear paper trail of political meddling – leading back to him.”

Jimmy Punt, who now holds the post in the coalition Government which was held by Alan Barnham, seized on the emails in a tweet on 4 October 2013  “shocking revelations on Alan Barnish’s attempts to cover up failing hospitals”. Punt added that, “We’re legislating to make sure this can never happen again,” he wrote on Twitter. Punt, not his Special Advisor, is known to write all his own tweets.

On 5 October 2013, another newspaper Daily Maul published a article with the title, “Calls for former health secretary Alan Barnish to be  sacked over cover-up  of hospital care disaster”.

Both the Daily Maul and Telepole, known actively to support the Canned Party, claimed they needed to publish the stories in the public interest, and they had not been able to get in touch with Alan Burnish to give him a right to reply.

The actual emails tell a different story. The pertinent parts are paragraphs 10 and 11. They relate to a media briefing from the “We Care Commission” press office given without the authorisation of the “We Care Commission” leadership. As the release of information about any hospital failure is a serious matter, it needs to be handled in a considered manner and according to an agreed process. These emails suggest there was no ‘cover up’, there had been no interference with the Regulator, and Parliament was indeed issued with an updated statement at the earliest available opportunity.

The date is now 9th October 2013, and political reshuffles from both the Canned and Lobster Parties are expected imminently. Barnish feels quite distresed by recent events as he feels that these go further than the usual ‘rough-and-tumble’ of English politics.

 Advise Alan Barnish MP over any claims that he may have in the tort of defamation.

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