Associated Newspapers Ltd v Burstein

JurisdictionEngland & Wales
JudgeLord Justice Keene,Lord Justice Dyson,Lord Justice Waller
Judgment Date22 June 2007
Neutral Citation[2007] EWCA Civ 600
Docket NumberCase No: A2/2006/2340
CourtCourt of Appeal (Civil Division)
Date22 June 2007

[2007] EWCA Civ 600





The Hon. Mr Justice Eady



Lord Justice Waller

Vice President of the Court of Appeal Civil Division

Lord Justice Keene and

Lord Justice Dyson

Case No: A2/2006/2340

Associated Newspapers Limited
Keith Burstein

Victoria Sharp QC & Sarah Palin (instructed by Messrs Foot Anstey) for the Appellant

Jonathan Crystal (instructed by Messrs Atkins) for the Respondent

Hearing dates: Monday 21 st May 2007

Lord Justice Keene

This is an appeal by the publisher of the Evening Standard newspaper against a decision of Eady J dated 13 October 2006. That decision was to refuse summary judgment under CPR Part 24 sought by the defendant publisher in libel proceedings brought against it by the composer and co-librettist of an opera performed at the Edinburgh Festival. The opera, called Manifest Destiny, was the subject of a review by Veronica Lee in the Evening Standard on 15 August 2005. The review read as follows:

“How horribly prescient; Keith Burstein's opera about suicide bombers receives its world premiere a few weeks after 7/7. What a pity it's such a trite affair. The heroine, Palestinian poet Leila (Bernadette Lord), leaves Daniel, a Jewish composer, to return to her homeland to become a suicide bomber. Her cell leader Mohammed falls in love with her, sees the error of his ways and, in order to save her, hands Leila over to the Americans. But it's all too much for her so she tops herself anyway.

The libretto by Dic Edwards is horribly leaden and unmusical and the music uninspiring, save for the odd duet, and full marks to the talented cast of four for carrying it off. But I found the tone depressingly anti-American, and the idea that there is anything heroic about suicide bombers is, frankly, a grievous insult.”

Both before Eady J and in this court the focus, certainly by the claimant, has been on the final passage in the review.


The alleged meanings set out in the Particulars of Claim at paragraph 4 are as follows:

“(i) The Claimant is a sympathiser with terrorist causes and actively promotes such belief in his artistic work;

(ii) The Claimant applauds the action of suicide bombers and raises them to a level of heroism.”


In its defence the defendant denied that the words bore or were capable of bearing those meanings. It also pleaded that the words were fair comment on a matter of public interest. In his reply, the claimant averred that the review misdescribed the content of the opera (presumably an allegation that the facts set out were not substantially true) and reserved his position as to whether the view expressed was “genuinely held.”


Eady J observed at paragraph 3 of his judgment that

“… the claimant wishes to argue in effect that the message of the piece was that a grievous insult was offered by him; that the critic went beyond commenting on the content of the artistic work and incorporated an allegation about his standpoint, and in particular a sympathy on his part for suicide bombers.”

The judge ruled that he could not hold that the words complained of were incapable of bearing the meanings pleaded by the claimant. He said this of those pleaded meanings:

“They are hotly disputed, but it seems to me that they are meanings which the words are at least capable of bearing. I can understand that one point of view is that there was no more than a comment about the opera and the inference which the critic drew about the treatment of suicide bombers in the opera. A jury may ultimately agree with that interpretation of the words complained of. But the use of the word “insult” is arguably to attribute a motive to the author or to those responsible for putting the production before the audience.”


Having made that ruling, he went on to find that it would not be perverse of a jury to conclude that the words complained of were a factual allegation. He also held that it would be open to a jury to conclude that one could not honestly hold the view that it glorified the act of suicide bombing or the behaviour of such bombers, though he suggested that that was unlikely. Indeed, in the final paragraph of his judgment he added this:

“… this is classic fair comment territory and it is, in my view, very likely that a jury will ultimately hold that the defence of fair comment succeeds, but I cannot say that it is so clear that I can come to a conclusion at this stage of the kind that I am invited to arrive at.”

He did, however, strike out the claimant's plea of malice.


Those rulings, insofar as they were adverse to the defendant and resulted in the judge declining to conclude that the claimant had no real prospect of succeeding on the claim, are now challenged by the defendant. The issues which arise are threefold. The first is whether this court should interfere with Eady J's ruling on meaning. The second is whether the words are capable of being held by a jury to amount to a statement of fact rather than of comment. The third is whether the words, if comment, are capable of meeting the other requirements for the defence of fair comment which arise in this case, namely whether the comment was based on facts themselves sufficiently true and was objectively “fair”, that is to say it expressed a view which could honestly be held. Those requirements can be seen in the judgment of Lord Nicholls of Birkenhead in Tse Wai Chun Paul v. Cheng [2001] E.M.L.R. 777 at paragraphs 16 to 20, a decision of the Hong Kong Court of Final Appeal. A further requirement there set out, namely that the comment must be on a matter of public interest, was clearly satisfied in the present case, and does not give rise to any issue between the parties.


The order in which I have set out the three issues, beginning with that of meaning, does not accord with the defendant's approach on this appeal. Miss Sharp, Q.C., who appears on its behalf, argues that it is unnecessary to consider the issue of meaning first and that one can begin by considering whether the words used were fact or comment. In support she refers to reported decisions where that appears to have happened, albeit not as a result of any expressed decision that that was the right course to follow. I cannot accept that approach. Where more than one meaning of words is in play in libel proceedings, it is necessary to know to which meaning any defence of fair comment is being alleged to apply. As Nicholls LJ (as he then was) indicated in Control Risks Ltd v. New English Library Ltd [1990] 1 WLR 183 at 189 A-D, there is a parallel to be drawn between what is necessary in respect of the defence of justification and what is necessary where the defence of fair comment is raised. He noted that where justification is pleaded, a defendant was required to spell out the meaning of the words which he would seek to justify – the “Lucas-Box” particulars. Nicholls LJ went on to say at page 189 C – D:

“In my view by parity of reasoning, when fair comment is pleaded the defendant must spell out, with sufficient precision to enable the plaintiff to know what case he has to meet, what is the comment which the defendant will seek to say attracts the fair comment defence.”


This has given rise to the requirement in CPR 53 PD 2.6 that a defendant must specify the defamatory meaning he seeks to defend as fair comment. In the same way in the recent case of Lowe v. Associated Newspapers Limited [2006] EWHC 320; [2006] 3 All ER 357, Eady J at paragraph 15 of his judgment referred to the defence of fair comment and observed:

“As with any other defence, the first step is to identify the meaning of the words and then to consider whether the defence of fair comment has been made out.”

In fact, the defence pleaded in the present case put forward no alternative meaning of the words used in the review of the opera. It merely denied that they bore or were capable of bearing the meanings set out in the Particulars of Claim. It then went on to raise a defence of fair comment in respect of “the said words”.


It seems clear that the defendant's position is that, first, the words used are not capable of bearing the alleged meanings and, secondly, if they were, they were nonetheless still fair comment. In any event Mr Crystal, who appears on behalf of the claimant, accepts that, if the words used in the review are not capable of bearing one or other of the meanings set out in the Particulars of Claim, he must lose and the claim be summarily dismissed. He puts forward no other defamatory meaning. Consequently it makes good sense to deal with the issue of meaning first.



It is well-established that the test here to be applied is what the words would convey to the ordinary reader: Lewis v. Daily Telegraph [1964] A.C. 234. That is first and foremost a matter for a jury. The judge's role is confined to deciding whether the words used are capable of bearing the meaning or meanings contended for and, if so, whether any of those meanings is legally capable of being defamatory. That has to be determined in the temporal context in which the words were used, and Mr Crystal makes the point that in the present case the words were used in a review published only a few weeks after the London bombings on 7 July 2005.


The role of an appellate court is yet more confined than that of the first instance judge. It has been emphasised a number of times that this court will be slow to interfere with an interlocutory ruling on meaning by a first-instance judge, though...

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