9th January 2025
This post is about a “cease-and-desist” letter that has reportedly been sent on behalf of the former Prime Minister Elizabeth Truss to the current Prime Minister Keir Starmer.
For such a letter to be sent would be extraordinary.
And, as we will see, it is a glorious letter.
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The news report about the letter is here.
The lead journalist is highly regarded and presumably the newspaper’s lawyers approved the news report.
On this basis we can assume that the letter is not a hoax. Some publicised legal letters are too glorious to be true, and indeed are not actually real.
Another journalist has published on X (formerly Twitter) what appear to be pages of the letter to their 207,800 followers:
There is no obvious reason to believe that these published pages are fake. They look like part a legal letter and there is nothing on the face of the published pages to doubt they are real. We can therefore assume (unless contrary information comes to light) that these pages are from the letter reported in the Telegraph.
The main reason why these points need to be made here is that it really is a glorious letter – almost too glorious to be true.
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The letter appears to have six pages, though only five have been published on X/Twitter. Page 2 of the six page letter is missing. This may or may not be significant, but it is a point to remember in what follows.
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The letter was sent by a law firm representing Truss.
This blogpost will not mention or refer to the law firm.
This is because we simply do not know what Truss’s instructions were to the law firm nor what advice they gave her about sending this letter.
It may well be that that the letter was sent against legal advice.
It may even be that the letter was sent against emphatic legal advice.
We just do not know.
One should not visit the sins (or otherwise) of the client upon their lawyers.
Nothing in what follows suggests that this was not a letter open to a law firm to send on behalf of a client, given certain instructions.
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Now here is the letter (minus the second page):
This letter is published here for the purposes of criticism, review and news reporting under section 30 of the Copyright etc Act 1988. There is no other way of usefully commenting on this letter for the promotion of the public understanding of law without setting out the letter as fully as possible.
The letter is also marked as private and confidential, however the letter has now been circulated to hundreds of thousands of people, and it has been quoted extensively by the mainstream press. As such (and to the extent such a marking has any effect) the letter has lost any quality of confidentiality.
And in any case, any letter before claim should be capable of being placed before a judge and being referred to in open court, subject to any order of the court.
A letter before claim should always thereby be treated as ultimately being a public document.
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Now, let us look what the letter says.
It would appear that the letter is intended to be a letter before claim in respect of a claim in defamation.
As such the letter should be in accordance with the pre-action protocol for media and communications claims:
The five available pages of the letter do not refer to this protocol.
This is perhaps surprising, as the recipient – albeit the Prime Minister at his House of Commons email address – is nominally a litigant in person and so should be expressly referred to the protocol:
This is treated by the courts as an important, if not crucial, requirement – and it is a standard feature of standard defamation letters before claim to unrepresented individuals.
Perhaps Truss believed (no doubt rightly) that, as a KC, Starmer did not need to be expressly referred to the protocol.
But still, it is a curious omission.
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Another curious omission – at least in the five pages we have – is any explanation for delay.
The protocol requires that the Claimant “should notify the Defendant of his/her claim in writing at the earliest reasonable opportunity”.
Paragraph [2] refers to the period of May 2024.
The general election was in July 2024.
Paragraph [14] even states that that the facts were “clear” from May 2024.
The alleged damage – of Truss losing her seat – was in July 2024.
It is now January 2025.
Unless this point is dealt with on the missing second page, it is hard if not impossible to see how this letter was sent “at the earliest reasonable opportunity” given the “clear” facts in May 2024, the words complained of from May to July 2024, and the alleged damage being suffered in July 2024.
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A letter before claim in defamation has to set out the alleged defamatory statement(s) – what lawyers call “the words complained of”.
Here again we are missing the second page of the letter – and it would appear this page sets out most of the words complained of.
The one example we do have is here:
Presumably the other words complained of are of the same nature – about “crashing the economy”.
This presumption would seem to be confirmed by paragraph [12] of the letter.
We can therefore assume that each of the statements complained of refer to Truss “crashing the economy”, else paragraph [12] would make no sense.
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And here we come to possibly the first serious problem with this letter.
It is not clear from the five published pages whether the words complained of are considered by Truss to be a statement of fact by Starmer or an expression of opinion by Starmer – or a mixture of both.
This is important for two reasons.
First, it goes to what defences would be available to Starmer.
Second, there is potentially an inherent problem with the phrase “crashing the economy”
This is because one may crash, say, a car – and an allegation of crashing a car is capable of being a statement of fact which, in turn, could perhaps be substantiated or not depending on the evidence.
But the economy is an inanimate object, an abstraction, and so it would appear that the accusation that one has “crashed the economy” is inherently a matter of opinion.
There are no universal or objective definition of “crashing” or “economy” to which a court could have regard.
The letter, however, appears to be predicated on the words complained of being statements of fact rather than opinion.
Unless this point is dealt with squarely on the missing second page (which is increasingly having to do a lot of work), then this is a weakness in Truss’s case.
For if it is a matter of opinion, then – unless Starmer can be shown to be treating the available evidence in bad faith or acting maliciously – then he has a full defence to a claim.
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And this brings us to the next possible problem with the letter.
On one hand, the letter states at paragraph [14] that the relevant facts about the economy were “clear” in May 2024.
But on the other hand, the letter relies on subsequent expert evidence of an economist which makes things “abundantly clear”.
This is confused.
Either the facts are “clear” or they require expert evidence so as to make them “abundantly clear”, but Truss cannot have it both ways.
If the economic facts were clear (to Starmer or otherwise) then no expert evidence is required, and a court is unlikely to admit such evidence as being relevant.
If the economic facts were not clear, and so require a subsequent expert report so as to set out the “abundantly clear” correct position, then Starmer cannot really be culpable at the time the statements were made, without the benefit of the report.
In insisting that the economic facts were “clear” but also in relying on a subsequent expert report making the facts “abundantly clear”, one gains the impression that Truss has really not thought through this letter.
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Paragraph [17] then states that on the basis of an expert report which Starmer did not and could not have had before the date of this January 2025 letter that it was not open to Starmer to have the views he expressed in the run up to the July 2024 election.
This, of course, makes no sense.
By this point, however, the letter seems hopeless.
Subject to the possibility that various points are all dealt with in the (infinitely expanding) missing second page, the letter has not addressed whether the allegations were fact or opinion, and if the latter why it was not open to Starmer without the benefit of the expert report to express those views.
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Furthermore, expert evidence is opinion evidence – and so no expert report can itself be conclusive.
If a court admitted such evidence for Truss it would be open to Starmer to put in his own expert evidence.
As such the expert evidence attached to the letter makes very little difference in respect of a matter on which experts would disagree.
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And then there is another weakness.
There is a further defence open to Starmer.
Even if the facts are wrong, and even if the opinions are misconceived, there is the public interest defence under the Defamation Act 2015.
Adverse statements by a political leader about the governmental record of a former prime minister would, on the face of it, be a matter of public interest.
Nothing in the letter engages with this possible defence – indeed there is nothing on the face of the five pages available to show that this potential defence was even considered.
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There seem many other problems with the letter (subject to the missing second page).
It sets no deadline.
It sets out no ultimatum.
It asks for no undertakings.
It does not set out what relief or remedies will be sought if Starmer does not comply.
It is a cease-and-desist letter that fails even to say what would happen if Starmer does not cease or desist.
It is a weak litigation letter – about as weak a letter as could be sent in the circumstances.
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Of course, regardless of the legalistic and technical points above, it would be open to Starmer to take the letter as complaining of statements of fact, and if Truss sues, he could then go to court to establish that Truss did indeed, as a matter of fact, “crash the economy”.
This would not be in Truss’s interests.
But that would be the serious risk she would have to take if she sincerely wanted to litigate.
And then she would be likely to crash her own legal case.
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The letter is addressed to Sir Keir Starmer KC and ends, “Yours faithfully”.
Could drafting the letter have been an exercise or, in Civil Service speak, a development opportunity for a junior member of staff?
The copy shown on Twitter is unsigned.
Is an unsigned letter strictly legal?
Exactly!
So, Why on Earth?
I wonder if she had to pay for this letter. If she did, the idea of her ‘crashing the economy’ becomes far more believable.
What is the difference between this letter and an attempt at a SLAPP?
That is not a question I am in a position to answer.
Wait, so someone is *offended* by something *Keir Starmer* said?
And here I thought one of the main problems with Starmer was that he is generally way too *in*offensive.
Thanks David and the second page has appeared for example here
https://bsky.app/profile/davidheniguk.bsky.social/post/3lfd2myq5fc24
I have now seen what appears to be page 2 of the letter.
Nothing on that page affects my analysis of the letter’s weaknesses.
Indeed one paragraph somehow makes the letter even weaker.
I will do a follow-on postscript to my blogpost later.
A friends’ daughter is studying for her A levels, and said to me that although she was thinking of, and being encouraged to, study law, she feared it would be too dry – ‘dull’ was how she feared the rest of her life might turn out. I spent quite some time trying to disavow her of this view, but I have now sent her this post which will immediately make her complete her UCAS form, and choose her favourite law schools to apply to.
Indeed, David is a testament to the fact that law in the right hands can be poetry (in this case comedy too…).
Thanks!
Comedy, with a leaning towards farce.
I have seen a copy of page 2 on Twitter:
https://x.com/Con_Tomlinson/status/1877271961899855954
Liz Truss does seem to be implying that her South West Norfolk constituents or at least too many of them were unable to see through the misinformation and return her to Parliament.
Not quite up there with Dick Tuck’s, “The people have spoke – the bastards” after he was defeated in a California Senate primary in the early 1960s, but certainly getting there.
https://x.com/trussliz/status/1877334108453413020
I was reminded recently by Sir Keir’s puzzled reaction to opinion about his accepting hospitality of a box from the Arsenal football club of a poem by Robert Burns, “To a Louse, On Seeing one on a Lady’s Bonnet at Church”.
I think the poem is apt on this occasion, too.
https://x.com/trussliz/status/1877334108453413020
The particular lines are:
“O wad some Pow’r the giftie gie us
To see oursels as others see us!
It wad frae monie a blunder free us
An’ foolish notion”
I have now seen what appears to be page 2 of the letter.
Nothing on that page affects my analysis of the letter’s weaknesses.
Indeed one paragraph somehow makes the letter even weaker.
I will do a follow-on postscript to my blogpost later.
Maybe I’ve not seen enough legal letters, but to me (having received various letters from solicitors on small things) neither the first or last pages look real.
For one thing, wouldn’t we expect there to be a company header on the letter? Maybe someone has removed it, but why would they do that? If it does eventually become part of a defamation case, surely everyone will know who the law company is who sent it.
Second on the last page, would they really send out a letter without the signature of a named lawyer? Can they really hide behind “oh yeah this was from a law office, honest judge”?
Finally, one has to wonder who leaked this letter and why. Presumably the letter which was sent was better than this? It almost looks like something created by AI
I deleted the headers, for reasons set out in the post.
“Emphatic” legal advice. I presume that’s the kind of advice that, in Sir Humphrey’s parlance, it would be courageous to disregard.
I’m from the U.S. and really not versed in law. I just wanted to say I enjoyed reading this a lot. I’m always amazed when politicians or celebrities go on quixotic legal pursuits. It doesn’t speak well for the attorneys representing them.
Great slice and dice of the letter, David.
Ms Truss is simply saying ‘let us alone. Sir Keith should turn over a new leaf. He should know better; he’s not in his salad days. He should be given a good dressing down. I was bowled over by his comments. Totally unpalatable. He has clearly lost the toss. He’s peppered my reputations with insults.
What I really appreciate about this blog is that it can cast a serious eye over something inherently funny (well, funny to me) as well as occasionally provide light relief on more serious matters.
I thought this letter was bonkers when I first read about it (adding shades of the Streisand effect), but DAG shows how it actually strays into total ludicrousness if you take it seriously.
And a happy new year, if I’m not to late.
It is curious that Liz Truss believes her reputation was harmed not by the Daily Star’s depiction of a rotting lettuce (which went viral, globally), but by Keir Starmer’s comments that she “crashed the economy.”
All this performative letter appears to have achieved is that the phrase “Liz Truss crashed the economy” has gone viral. Move over Barbra Streisand.
According to the BBC, Truss’s lawyers claim that Starmer’s statements are ‘factually incorrect’, ie not a matter of opinion. Thanks for your analysis – I get the impression that you quite enjoyed writing it.
The letter appears to me to be an act of performance. It seems to bolster the right wing myth that what Truss tried to do would be effective, but failed only because of a political conspiracy by the establishment to prevent it.
It is interesting that Truss succeeded in getting the Cabinet Office to change their words. But politicians have greater licence to offer opinions than civil servants.
“Crash the economy” is not a good description of the unfortunate consequences of Truss’s announcement of unfunded tax cuts. Those consequences were sufficient to ensure what she announced never happened. She had no opportunity to crash the economy, if that would have been the consequence of going through with that policy. Clearing up the mess cost the Exchequer and many mortgage payers a lot of money. But the broader economy was largely unaffected by something that never happened. Case may have realised that, as a civil servant, he should describe the events in a more accurate way than others can get away with.
But there is no sign of the Conservative Party, or Truss herself, carefully describing things in accurate ways. Politicians of all hues continue to use polemic rather than accurate description.
If Truss succeeded in enforcing such accurate description on another politician, it could be a Pyrrhic in preventing her own polemic. But I think it unlikely she has any expectation of success.
I make no comment on your analysis relating to the law of defamation.
I do however have an observation on the discussion in the letter of the role of the Bank of England and LDIs. I agree entirely that the scale of the movements in the gilt market was caused by pension funds being forced to sell gilts so as meet obligations which they had incurred in their LDI contracts.
However there is no suggestion that the use of LDIs was so excessive that the financial regulators should have stepped in. In fact they seem to have been ignorant of what had been going on. A large part of the responsibility for the failure of regulation rests with the FCA and its predecessor the FSA. Some rests with the Prudential Regulation Authority, part of the Bank of England. Mr Andrew Bailey was chief executive of the FCA before being translated to Governor of the Bank or England. He was by all accounts an excellent chief cashier at the Bank of England. He appears to have been promoted into roles beyond his capabilities.
“one gains the impression that Truss has really not thought through this letter.”
Politely understated. She is hardly renowned for thinking anything through.
Or indeed for thinking?
Careful, or else you may receive a cease and desist letter. About something or other.
All very good, but, in these very ‘different’ times, common sense , good law, basic intelligence goes out the window.
Not that Starmer is unfamiliar with defamation law – he gave advice and at times acted for Morris and Steele in the infamous McLibel case before he became DPP.
Should this ever reach a courtroom, I wonder if Sir Keith might call Kwasi Kwarteng as a witness. Given how Truss tried to throw him under the bus, his testimony might be most amusing.
Thank you for that outstanding legal analysis of the extraordinary legal letter that this law firm has submitted. Given your absolutely devastating analysis, one is surely justified in asking how a professional firm of lawyers can put its name to such an absurdly indefensible argument. I have already read a number of other analyses which expose the hopelessness of her case. She is just making an ever- increasing fool of herself.
Apart from the legal analysis, which shows that her case, were she to litigate, would be hopeless, the political absurdity of her arguments are very powerful.
Truss is apparently on the far right part of the believers in free speech, and she has frequently – and recently – supported Musk’s interventions in this area. So why is she decrying the criticisms by Starmer of her decisions? Why is he not entitled, according to Truss, to make what some might say were fairly mild comments on her decisions when Prime Minister? First Class hypocrisy in my book.
There were plenty of other reasons for the loss of her parliamentary seat. She was an absentee MP, and her electorate just simply saw through her for the charlatan that she is.
Perhaps the letter is timed to take advantage of Keir Starmer’s current unpopularity with certain billionaires and their friends.
“Look, I’m being persecuted by the woke Starmer conspiracy. My economic plans would have been fantastic for billionaires and their friends.”
Through-the-looking-glass logic is different to the world of logic that most of us live in.
The letter refers to comments made “on or about” 4 June 2024.
On 17 April 2024, at PMQs, Starmer referred to “his [Sunak’s] predecessor’s mistakes… that crashed the economy.” https://hansard.parliament.uk/Commons/2024-04-17/debates/0E01322F-6F82-4497-8A9C-099407574726/Engagements?highlight=crashed%20economy#contribution-BC5C25C7-6F6B-4006-B09F-99F43D25B882
As Starmer made these comments under parliamentary privilege, surely that is the end of the matter, as any repeating of them is simply reporting what was already in the the (privileged) public domain?
Pork markets.
This is absolutely begging for a reply referencing Arkell v. Pressdram.
It is interesting to note that the former Conservative MP, now in the Lords, Sir Edward Garnier KC, is Defamation Law chap. I wonder what he would make of all this.
I may be being overly charitable in my assessment of Liz Truss’ cognitive capabilities but I suspect this letter is a bit of “I is a victim of the establishment” performance art, the intended audience being the right wing fantasists wallowing in the victimhood of oppression by the global elite (not the global elite they’re actually part of, some other one that goes to a different school).
I dearly hope Starmer refers her to Arkell v Pressdram.
Liz Truss should be asked to give her own understanding of why her own party ditched her as leader after such an strikingly short period.
I don’t suppose it would be the done thing in an English court room to bring in a lettuce and place it conspicuously on the bar table.
Something else in Starmer’s defence if he had a Rumpole-like counsel (Rumpole clearly took the view that it is for counsel, not the client, to determine courtroom strategy): “my client couldn’t have caused damage to Ms Truss by what he said – no-one believes a word he says anyway”.
Very amusing. But I think Adam @ 19:10 touches on the real point. Truss is merely jumping on a pile-on bandwagon.
I see Starmer as something of a Don Quixote character. He has acquired some tatty armour and jumped on a rather tired old horse (UK economy) and has tilted at a few windmills to no useful effect. Meanwhile the Tory press is short of money and purpose and seeks amusement in sending yapping dogs to nip at Starmers heels.
Back at the camp I suppose there are those with money who will pay for this game to continue. Possibly they hope Starmer will fall off his horse in a clatter of rusty ironwork or his poor old horse will collapse. Everything to play (and pay) for.
Quite who plays the role of Sancho Panza is unclear. Rachael could do with a few more pies and a bit more humour to fill out the role. More amusing but useless games to follow.
A question. If the original letter is marked Private and Confidential, but a draft (which the recipient can of course check for any differences) is made public by journalists known to be friends or allies of the sender’s client, does that enable or justify the recipient publishing their response?
It makes no difference to what the recipient can choose to do with their response.
And marking a letter ‘private and confidential’ is not by itself determinative, for reasons set out in the post.
Your repeated use of the word “glorious” prompted me to look up the famous comment of Pierre Bosquet at the charge of the Light Brigade. When quoted the bit after the colon is usually omitted.
“C’est magnifique, mais ce n’est pas la guerre: c’est de la folie.”
(“It is magnificent, but it is not war: it is madness.”)
Is it not also true that if the claimant fails to comply with the Pre Action Protocol she puts herself at risk of costs?
And worse, depending on what happens in the litigation.
No doubt Sir Keir had a good hearty laugh before chucking the letter straight into the bin. Bin is too good for it, really. Shredded and lining a hamster cage would be more apt.
The Spectator Economics Newsletter today says: ” Ten-year gilts have risen to their highest levels since 2008; 30-year gilts are at their highest levels since 1998. Both figures surpass the peak of the fallout from Liz Truss’s mini-Budget: a point the former prime minister has been delighted to make this week, as she continues to push back on the narrative that she crashed the economy”.
Maybe producing a letter before action and leaking it has nothing to do with actually carrying out such action but is, as a previous commentator, Stephen Heywood, suggests, one move (good or bad) in a political campaign. Commentators, and Starmer himself, may mock but they are to some extent stuck to the tar baby.
Kate Andrew’s piece in the Spectator should have also pointed out that 30 year gilt yields also surpassed their peak under Liz Truss on 22 October 2023, obviously well before the election. The issue that faced pension funds with LDIs wasn’t and isn’t the absolute level of gilt yields rather the rapidity of the rise following the announcements in Kwasi Kwarteng’s budget. What should pension funds do? Sit tight and hope global bond markets are just having a bad day and gilt prices will return to normal and if they don’t risk collapsing the fund with pensioners losing out, or take action to protect the funds assets and thus pensioners? As a pensioner I expect the latter course of action. The paper in the following link not only shows why attempting to manage the bond yield effects on LDIs also contributed to the gilt prices falling conversely yields rising but also as ever the simplistic narrative that complex problems have simple explanations and/or solutions is simply dangerous to our democracy. Had no action been taken to deal with the rapid rise by the Bank of England and the LDI holders perhaps the economy would have indeed “crashed”. I’m not surprised Liz Truss and her supporters are attempting to exploit ignorance among the electorate.
https://bankunderground.co.uk/2024/07/26/what-caused-the-ldi-crisis/
Oh, what a sad stage our democracy has reached that a former prime minister could send such a letter, demonstrating as is widely accepted, whether grounded on fact or opinion, that she was quite unfit to be prime minister, or even a MP,
in the first place.
Glorious! HNY
I’m not a great fan of Starmer, but it does feel like he’s currently suffering some kind of coordinated attack that Liz Truss has decided she’d quite like to get in on. To me, the timing seems absolutely bizarre in any other context.
That
is
a
disgrace.
Would it be improper to reference a collapsed cheese souflee?
You may be interested in this debate from 2018 https://www.theyworkforyou.com/debates/?id=2018-02-27c.662.7
Wherein a speaker says “We need to find better ways of doing things and more efficiency, rather than wasting money and crashing the economy, as happened under the previous Labour Government.”
That speaker? The then Chief Secretary to the Treasury, Elizabeth Truss.
It is objectively true that the economy did crash in 2008 under the previous Labour government.
That was a global crash following exposure to uninsured credit default swaps, but she only said “under the previous Labour government”. She did not say, for example, “Gordon Brown crashed the economy”.
And yet, had she said something so direct it would have still been protected by Parliamentary Privilege. I assume she is aware of this.
She has weighed up the risks and decided that looking incredibly stupid to most is worth the payoff of damaging Starmer. Perhaps she is aware that her reputation leaves nothing to defend?
Page 2 is available on BlueSky. I’d attach it here if that were possible.
You will be stunned to hear that it resolves none of your concerns, and indeed adds to the general merriment.
Is this WagathaChristie for politics/law nerds?
Delightfully pithy and scathing. Reminds us that Truss never thought anything out beyond her book sales and tours (which to her credit have done very well among the ignoranti in the US).
Any luck in getting the missing page?