Kemsley v Foot
| Jurisdiction | UK Non-devolved |
| Judge | Lord Porter:,Lord Oaksey:,Lord Radcliffe:,Lord Tucker: |
| Judgment Date | 25 February 1952 |
| Judgment citation (vLex) | [1952] UKHL J0225-3 |
| Date | 25 February 1952 |
| Court | House of Lords |
[1952] UKHL J0225-3
Lord Porter
Lord Goddard
Lord Oaksey
Lord Radcliffe
Lord Tucker
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Viscount Kemsley against Foot and others, that the Committee had heard Counsel, as well on Wednesday the 21st, as on Thursday the 22d, Monday the 26th, Tuesday the 27th and Friday the 30th, days of November last, upon the Petition and Appeal of the Right Honourable James Gomer Viscount Kemsley, of Kemsley House, London, W.C.1, praying, That the matter of the Orders set forth in the Schedule thereto, namely, three Orders of His Majesty's Court of Appeal of the 14th of December 1950, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Orders might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Michael Foot, Mrs. Jennie Bevan, Mrs. Evelyn Anderson and Tribune Publications Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:,
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled. That the said three Orders of His late Majesty's Court of Appeal, of the 14th day of December 1950, complained of in the said Appeal, be, and the same are hereby. Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
This case is concerned with the determination of a point of procedure and practice, leave having been given by your Lordships that it should be dealt with by this House.
Two points were originally involved: (1) whether an application in Chambers to strike out paragraph 5 of the Defendants' Defence was properly the subject of such a summons or whether the matter should not have been dealt with by other means, e.g. by an objection taken in the pleadings and by setting down the point for argument under Order 25 Rule 2 ; and (2) whether a plea of fair comment is permissible where the facts or, at any rate, the salient facts upon which the comment is made are not set out in the publication complained of
The application to strike out was in fact made on a Summons in a libel action under Order 19 Rule 27 and Order 25 Rule 4 and sought to have paragraph 5 and certain particulars delivered thereunder struck out on the ground that they were vexatious and contrary to the rules of pleading and tended to prejudice, embarrass and delay the fair trial of the action and disclosed no reasonable cause of action and were frivolous.
The libel alleged was contained in an issue of the "Tribune" dated the 10th March. 1950. and it is enough to set out its opening paragraph. It reads as follows:—
"Lower than Kemsley
by Michael Foot
The Prize for the foulest piece of journalism perpetrated in this country for many a long year—and that certainly is saying something—must go to Mr. Herbert Gunn, editor of the 'Evening Standard' and all those associated with him in the publication of an attack on John Strachey last week".
It goes on to make a somewhat violent attack upon the conduct of the "Evening Standard". The words used were said to reflect upon the Plaintiff and a writ was issued against the Respondents and one other defendant, viz.: Hardy Press Ltd. The last named has now altered its defence and is not a party to this appeal. The four first-named Defendants, however, are all parties to the appeal, but as their positions do not differ one from the other it is enough for the determination of the issue presented to deal with the case of Michael Foot.
Paragraph 5 of the defence is in the following terms:—
"5. Further or in the alternative if and so far as the said words refer to the Plaintiff they are a fair comment made in good faith and without malice upon a matter of public interest namely the control by the Plaintiff of the newspapers (other than the 'Evening Standard') referred to in paragraph 1 of the Statement of Claim. Particulars of the specific facts upon which the said words are a fair comment are delivered separately."
The Master, to whom the application was made, struck out two paragraphs of the particulars but refused to strike out paragraph 5 of the defence or any of the other particulars. On appeal, however. Parker. J. in Chambers struck out the paragraph itself and all the particulars under it.
The Respondents appealed from the order of Parker, J. to the Court of Appeal, who allowed the appeal and restored the Master's Order and at the same time gave leave to the Respondents to amend the particulars of defence.
In these circumstances it is not, in my view, necessary to set out the particulars in detail, it is enough to say that they contain excerpts from the Plaintiff's newspapers and allegations of certain respects in which they are inaccurate or untruthful together with complaints of their tone and the impropriety of their method of dealing with the news contained in them even when it is accurate.
I need not make any reference to those particulars, the object of which is to show the responsibility of the Plaintiff for the contents of the papers, inasmuch as the Appellants accept responsibility for the allegations made.
The rest of the particulars under discussion begin by asserting that they are particulars of the facts upon which the words complained of are fair comment
Paragraph 3 is perhaps as good an example as can be adduced of the matters relied upon. It begins as follows:—
"The Plaintiff in the exercise of such control as aforesaid" (i.e. general editorial control) "caused or permitted to be published as items of news, matter which did not correspond with the facts or was so coloured with comment as not to give an accurate representation of the news it purported to report and headlines which distorted the news reported thereunder."
So far as I can discover no allegation of conscious lying is asserted in terms.
The comment upon these matters is said to be criticism of the way in which the Plaintiff's newspapers are conducted and to assert that that conduct is of a low character, that the Respondents are entitled to criticize that conduct, and, as it is a matter of public interest, to comment fairly upon it.
The Plaintiff, on his part, maintains that the right of comment is dependent upon the existence in the words alleged to be libellous of a statement of some fact or facts upon which comment is made so that those reading the comment may be able to judge for themselves whether it is justified or not.
The Respondents say that, in a case where the dispute between the opposing sides is one of this nature, an attempt to strike out paragraph 5 of the defence under the rules and orders specified above is not justified. Those rules should, they maintain, be used only in plain and obvious cases: if a serious discussion of legal principles is required, the point at issue should be taken in the pleadings and set down for argument under Order 25 Rule 2.
At the request of both parties, however, the Court of Appeal decided the substantive question as well as that concerned with procedure, and, as they have done so, all your Lordships have thought it proper to determine that matter and have not heard argument upon the technical question as to the propriety of the course adopted. They have assumed that the application to strike out was rightly made and accordingly have confined their consideration to the question of the correctness of the order made by the Court of Appeal in refusing to strike out paragraph 5 of the defence on the ground that no or no sufficient statement of the facts on which the comment is made appear in the article complained of.
It is not, as I understand, contended that the words contained in that article are fact and not comment: rather it is alleged that they are comment with no facts to support it.
The question for your Lordships' decision is, therefore, whether a plea of fair comment is only permissible where the comment is accompanied, by a statement of facts upon which the comment is made and to determine the particularity with which the facts must be stated.
Before one comes to consider the general question it is, I think, desirable to determine what the language of the alleged libel can be held to assert.
It may, in my opinion, be construed as containing an inference that the Kemsley Press is of a low and undesirable quality and that Lord Kemsley is responsible for its tone. Indeed, as I understand the defence and such particulars as have been delivered, an imputation no less severe has been accepted by the defendants as being a true interpretation of the words used.
Although the article complained of uses the phrase "Lower than Kemsley", that language is accompanied by an attack on Lord Beaverbrook's papers, and it is at least arguable that the attack is on the Kemsley Press and not on Lord Kemsley's persona' character save in so far as it is exhibited in the Press for which he is responsible. Nevertheless, libel must reflect upon a person and Lord Kemsley is held up as worthy of attack on the ground that he is a newspaper proprietor who prostitutes his position by conducting his newspapers or permitting them to be conducted in an undesirable way. In this sense the criticism does not differ from that which takes place when what is called literary criticism comes in question. In such case the attack is not on...
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