Brent Walker Group Plc v Time Out Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BINGHAM,LORD JUSTICE PARKER |
| Judgment Date | 21 November 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J1121-4 |
| Docket Number | 90/1005 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 November 1990 |
[1990] EWCA Civ J1121-4
Lord Justice Parker
and
Lord Justice Bingham
90/1005
1988 B No.4674
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. MICHAEL BELOFF Q.C., Sitting as a Deputy Judge of the High Court)
Royal Courts of Justice
MR. ANDREW NICOL (instructed by Messrs. Simons Muirhead & Burton, Solicitors, London, WC2E 9HE) appeared on behalf of the Defendants (Appellants).
MR. MARK WARBY (instructed by Messrs. Simmons & Simmons, Solicitors, London, EC2M 2RJ) appeared on behalf of the Plaintiffs (Respondents
This is an appeal by the defendants against a decision of Mr Michael Beloff QC sitting as a deputy judge of the Queen's Bench Division. On 22nd November 1989 he allowed an appeal by the plaintiffs against Master Warren's refusal to strike out certain sub-paragraphs of the defendants' defence and himself made that order. The sub-paragraphs in question are some of those in which the defendants particularise the facts upon which they rely to support their plea of fair comment in this libel action.
The point at issue in the appeal has been formulated in different ways by different parties but it may, I hope accurately, be put thus: Can a defendant establish a defence of fair comment by showing that his comment is based on a statement (even if false) previously made on a privileged occasion or must he show that the statement was previously made on a privileged occasion of which he gives (together with his comment) a fair and accurate report? The defendants submit that in establishing a defence of fair comment, as an alternative to proving the truth of the facts on which the comment is based, a defendant may prove that the facts or matters relied upon were spoken or written on a privileged occasion. A defendant is not, they say, also required to prove that such facts or matters were included in the publication complained of as part of a fair and accurate report of the privileged occasion. The plaintiffs contend (and the deputy judge held) that the defendant must prove that his own publication of the facts or matters relied on as supporting the comment was made on an occasion of privilege. The question is one of some little importance in the pleading and conduct of libel actions, and I do not find a clear and wholly unambiguous answer in the authorities or the textbooks.
The first plaintiff is a public company which owns and operates casinos. The second plaintiff is chairman of the company. The first defendants publish Time Out, a weekly magazine, and the second defendant is a journalist. By their writ the plaintiffs claim damages for libels contained in two illustrated articles written by the second defendant and published by the first, but only the earlier of the articles (in the issue of Time Out for 16th-23rd March 1988) is relevant to this appeal. This article is lengthy, occupying some five pages of the statement of claim, and I need not set it out. It deals with certain criminal activities and certain criminal proceedings, allegedly involving the second plaintiff, in the 1950s and refers to the Gaming Board's approval of the plaintiffs as managers of gaming. Since the meaning and effect of the article are in issue I prefer to say no more about it. The plaintiffs plead in paragraph 4 of the statement of claim that the article and pictures bore the following among other natural and ordinary meanings:
"(1) that the second plaintiff has a history of close association with violent mobsters and racketeers, and of involvement in violence and organised crime; (3) that he is unfit by reason of his character and reputation to have any connection with the ownership or operation of casinos…….."
The defendants, in paragraph 5 of their defence, plead a defence of fair comment to paragraph 4(1) and (3) of the statement of claim. They then plead particulars of the facts on which the comment is based.
In pleading these particulars the defendants are, without doubt, following the established law and good practice. The law is conveniently and succinctly summarised in Duncan & Neill on Defamation (2nd edn) at paragraph 12.05:
"It is a necessary ingredient of fair comment that the comment shall be based on facts which are either stated by the commentator or indicated by him with sufficient clarity to enable the reader or listener to ascertain the matter on which the comment is being made. A defendant cannot defend a statement as comment, however, if he has not set out the facts on which he based the statement nor, at the least, indicated in general terms what those facts were. In Kemsley v Foot, Lord Porter approved the following formulation of the law:
'If the defendant accurately states what some public man has really done, and then asserts that "such conduct is disgraceful" this is merely an expression of his opinion, his comment on the plaintiff's conduct. So, if without setting it out, he identifies the conduct on which he comments by a clear reference. In either case, the defendant enables his readers to judge for themselves how far his opinion is well founded; and therefore, what would otherwise be an allegation of fact becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege or truth.'"
The practice is briefly described in the Supreme Court Practice 1991, volume 1, at paragraph 18/12/11.
The defendants' particulars under paragraph 5 of their defence run from (1) to (11), some of which sub-paragraphs the plaintiffs object to and some not. For purposes of this appeal I need only quote sub-paragraphs (1) and (2):
"(1) On or about 13th April 1956 the Second Plaintiff was convicted at the Central Criminal Court of theft of various nylons and woollen goods and sentenced to two years imprisonment.
(2) The court was told by Detective-Sergeant Bob Halliday that police investigations showed that there was a much larger organisation behind the thieves, with a criminal brain at the top."
Sub-paragraph (1) is not objected to by the plaintiffs. The defendants may or may not succeed in proving that fact, if it is disputed, but it is not suggested that the pleading is in any way objectionable and it has not been struck out. Subparagraph (2) is objected to and has been struck out. The same applies to sub-paragraphs (3), (4) and (6) and parts of sub-paragraphs (5), (8) and (9) which are in principle indistinguishable.
Two points may be made at once about sub-paragraph (2). The defendants do not claim to base their comment on the truth of what the detective-sergeant is said to have said but on the fact that he said it. In the ordinary way, the fact to be proved is not the making of an assertion but the truth of what is asserted. To the extent that the defendants can base their comment on what the detective-sergeant said (as opposed to the truth of what he said) there would appear to be some encroachment on familiar principles.
The second point concerns privilege. The detective-sergeant of course enjoyed absolute privilege for anything he said in open court. A fair, accurate and contemporaneous report of such proceedings by a newspaper similarly enjoys absolute privilege by statute. A fair and accurate report of such proceedings by a newspaper, if not contemporaneous, enjoys qualified privilege by statute. At common law a fair and accurate report of such proceedings, even if not by a newspaper, enjoys qualified privilege. Thus while the detective-sergeant enjoyed absolute privilege in making his original observations, the defendants in reporting them enjoyed privilege only if they were published as part of a fair and accurate report of the proceedings. Thus the question arises whether the defendants can rely, as a fact on which their comment was based, on what the detective-sergeant said, otherwise than as part of a fair and accurate report of the proceedings during which he said it.
The earliest authority referred to us was Wason v Walter (1868) LR 4 QB 73. In that case The Times published a lengthy report of a debate in the House of Lords in which strong criticisms were made of the plaintiff. It also published a leading article in which the plaintiff was the subject of critical comment. He sued for libel in respect of both the report and the leading article. The jury found for the newspaper on both counts. Dismissing a legal challenge to the trial judge's direction to the jury on the second count, the Court of Queen's Bench said (at page 96):
"We are of opinion that the direction given to the jury was perfectly correct. The publication of the debate having been justifiable, the jury were properly told that the subject was, for the reasons we have already adverted to, pre-eminently one of public interest, and therefore one on which public comment and observation might properly be made, and that consequently the occasion was privileged in the absence of malice."
The court here appears to have treated the fairness and accuracy (or faithfulness, as it was put) of the report as a pre-condition of the newspaper's right to comment.
The next authority of assistance is Mangena v Wright [1909] 2 KB 958. In that action the plaintiff complained of a letter written to and published by The Times, to which was annexed an extract from an official blue book, presented to both Houses of Parliament by command of His Majesty. The...
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