Branson v Bower (No.1)
| Jurisdiction | England & Wales |
| Judge | SIR PHILIP OTTON,LORD JUSTICE LATHAM |
| Judgment Date | 24 May 2001 |
| Neutral Citation | [2001] EWCA Civ 791 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2001/0289 |
| Date | 24 May 2001 |
[2001] EWCA Civ 791
Lord Justice Latham
The Rt Hon Sir Philip Otton
Case No: A2/2001/0289
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
EADY J
James Price, QC, & Heather Rogers (instructed by Harbottle & Lewis for the Appellant) Michael Tugendhat, QC (instructed by Reynolds Porter Chamberlain for the Respondent)
This is an interlocutory appeal in libel proceedings brought by the appellant against the respondent. With the permission of the judge, Eady J, the appellant appeals against so much of the order that the judge made on the 18th December 2000 whereby he declared that words complained of by the appellant were comment and were not capable of being statements of fact.
The dispute arises out of the bid which was made by the appellant in the name of The Peoples Lottery to run the National Lottery. In a speech on the 13th December 1999, the appellant asserted that all the profits made by The Peoples Lottery would go to good causes so that the beneficiaries of the National Lottery were the public. At the end of his speech, he said:
"Finally, I feel I should address a point that I know a lot of people will be thinking: What's in it for me? Well, firstly, the bid is completely separate structurally, legally, organisationally from Virgin. Its a Peoples Lottery Bid, put together by me, not a Virgin bid. Secondly, I am not looking for any advantage. I saw the wonderful affect the Irish Lottery was having back in 1988 and I wrote to Mrs Thatcher, the then Prime Minister, suggesting that the UK should start one too. Every other country in Europe had one including Albania, so it was hardly radical thinking. But I believed then that it could be a huge force for good and a little harmless fun and I still believe that today. Happily, I am in a position to do something about it. If run properly, it can be a force for good and a little harmless fun. It doesn't need shareholders making huge profits to incentivise them. The incentives of doing it well and in generating huge sums for good causes, which benefit everyone, would seem to me to be incentive enough"
The Evening Standard then commissioned an article from the respondent who was completing his unauthorised biography of the respondent. It was published as a feature article on the 14th December 1999. It was headed: "Why we should be less charitable to Branson". It was accompanied by a photograph of the respondent with the caption: "Tom Bower on the Risks of allowing the Virgin Empire to run our National Lottery".
The passages in the article apart from the heading and the caption about which complaint is made by the appellant are as follows:
"Revenge rather than pure self righteousness has motivated Richard Branson's latest bid to run Britain's Lottery. Ever since that fateful day in May 1994 when he emerged from his Holland Park mansion in tears complaining about the "nasty little fax" announcing that his bid for the lottery had been rejected, Branson has fumed and campaigned against Camelot and the Lottery Regulator.
Yesterday all traces of that emotion had been expunged for his announcement that "The People's Lottery" a limited company owned entirely by Branson, would be Camelot's only challenger
Sceptics will inevitably whisper that Branson's motive is self glorification. Many will carp that his promise of private charity fund based on his lottery company's profits will be his excuse to appear every week on national television to personally represent a Virgin cheque to a worthy cause. His critics will also scorn the professional self-publicist for seeking a major opportunity to regularly promote the Virgin brand on the BBC TV at no expense to himself
Undoubtedly that silence will be disregarded by the new Lottery Commission. An applicant's ambition, vanity and self promotion is not relevant to his ability to run the lottery better than Camelot."
In the particulars of claim, the appellant asserts that the words, in their natural ordinary meaning were to the effect that the appellant was acting dishonourably by using his promise of a private charity fund to disguise his true purpose of promoting the Virgin brand on television at no expense to himself.
Two innuendoes are complained of. First, it is said that the article was asserting that the appellant was a hypocrite who claimed to be organising a bid for the National Lottery franchise for charitable motives, but was in fact motivated by revenge and financial self interest. Second, it is said that the article was asserting that the appellant was acting dishonourably and hypocritically by using the promise of a private charity fund to disguise his true purpose of promoting the Virgin brand on television at no expense to himself.
The defence, in its original form, denied the meanings alleged, and raised substantive defences of justification, fair comment and qualified privilege. In doing so it raised the issue as to whether the words about which complaint was made were allegations of fact when ascribing motives to the appellant other than those which he was publicly asserting, which the respondent would have to justify, or comment which he was entitled to defend as fair comment. This was raised as a preliminary issue which was the subject of the part of the judge's judgment which is appealed to us.
The judge, having set out the facts, recorded arguments on behalf of the respondent based upon the jurisprudence of the European Court of Human Rights in the context of Article 10 of the European Convention on Human Rights. He then said:
"In this jurisdiction it happens that we have a civil law of defamation which is sophisticated and highly developed and includes a range of defences for the media. Furthermore it has been stated on a number of occasions, at the highest judicial level, that our law in this respect is consistent with the imperatives and safeguards of the European Convention. (See for example the remarks of Lord Goff in Attorney General -vGuardian Newspapers (No 2) [1990] 1 AC 109 at page 283 to 4, and of Lord Keith in Derbyshire County Council -vTimes Newspapers [1993] AC 534, at 551) It is clearly my duty to apply English domestic law and, in doing so, to have regard to the principles of the Convention as explained and developed in Strasbourg.
It cannot be stated baldly, in my judgment, as a matter of English law, that a defendant can be exonerated from the need to prove the truth of factual defamatory statements if it is unreasonable or impossible to do so. It is well established, for example, that a person is regarded as having a good name, and defamatory words are presumed to be false unless and until a defendant takes on the burden of proving them to be true. That principle was reaffirmed as recently as March 1999 in the Court of Appeal in MacDonald's Corporation -vSteel & Anr [unreported]. Nevertheless the law of defamation recognises that it is unreasonable to require a defendant to prove the truth of every defamatory statement, and provision is duly made. For example, we have the rule that a defendant only has to prove the libel to be substantially true. What has to be justified is the real "sting" of the libel. That principle has been supplemented by s. 5 of the Defamation Act 1952.
If the allegations can truly be classified as comment rather than fact, then a defendant is not required to prove the words to be objectively...
To continue reading
Request your trial
- Khairul Azwan Harun v Mohd Rafizi Ramli
-
Richard Burgon MP v News Group Newspapers Ltd
...is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.”, see Branson v Bower [2001] EWCA Civ 791; [2001] EMLR 32 at paragraph 12 and the authorities there considered. A statement may be fact or opinion, depending ......
- Coys Ltd v Autocherish Ltd
-
Matthias Rath v (1) Guardian News and Media Ltd (2) Ben Goldacre
...In recognition of its importance to protecting freedom of expression, the law allows some width to what can be held to be comment. In Branson v Bower [2001] EWCA Civ 791; [2001] EMLR 800 [11]-[12] Latham LJ said: “… It may … become necessary in some cases to consider with some care the exte......