A close look at Truss's legal threat to Starmer

The former Prime Minister has sent a glorious but seemingly hopeless cease-and-desist letter

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.