COUNSEL: Diplock K.C. and T. G. Roche for the appellant (plaintiff).
Gardiner K.C. and Herbert Baxter for the respondents (defendants).

SOLICITORS: Theodore Goddard & Co. and Deacons & Pritchard; Hale, Ringrose & Morrow.

JUDGES: Lord Porter, Lord Goddard, Lord Oaksey, Lord Radcliffe and Lord Tucker

DATES: 1951 Nov. 21, 22, 26, 27, 30; 1952 Feb. 25

APPEAL from the Court of Appeal (Somervell, Jenkins and Birkett L.JJ.); decision of the Court of Appeal reported at [1951] 2 K.B. 34 affirmed.

1952. Feb. 25. LORD PORTER. 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 Ord. 25, r. 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 [*354] strike out was in fact made on a summons in a libel action under Ord. 19, r. 27, and Ord. 25, r. 4.

[His Lordship stated the facts and continued:] 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 defendants 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 defendants 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 Ord. 25, r. 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 appears 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 [*355] 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 personal 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 the personal character of the person libelled, it is upon him as responsible for certain productions, e.g., an article in the press, a book, a musical composition, or an artistic work.

Later, I shall have to come back to the truth and accuracy of this analogy but I have thought it right to set out the basis of literary criticism at this point, because a distinction is sought to be drawn and, indeed, in some of the decided cases, has been drawn between literary criticism and a personal attack upon the character of an individual. If an author writes a play or a book or a composer composes a musical work, he is submitting that work to the public and thereby inviting comment. Not all the public will see or read or hear it but the work is public in the same sense as a case in the Law Courts is said to be heard in public. In many cases it is not possible for everyone who is interested, to attend a trial, but in so far as there is room for them in the court all are entitled to do so, and the subject-matter upon which comment can be made is indicated to the world at large.

The same observation is true of a newspaper. Whether the criticism is confined to a particular issue or deals with the way in which it is in general conducted, the subject-matter upon which criticism is made has been submitted to the public, though by no means all those to whom the alleged libel has been published will have seen or are likely to see the various issues. Accordingly, its contents and conduct are open to comment on [*356] the ground that the public have at least the opportunity of ascertaining for themselves the subject-matter upon which the comment is founded. I am assuming that the reference is to a known journal: for the present purpose it is not necessary to consider how far criticism without facts upon which to base it is subject to the same observation in the case of an obscure publication.

A further ground for the distinction sought to be drawn between an attack on an individual and criticism of a literary work appears to suggest that comment upon the literary production must be confined to criticism of it as literature. This is not so; a literary work can be criticized for its treatment of life and morals as freely as it can for bad writing, e.g., it can be criticized as having an immoral tendency. The fairness of the criticism does not depend upon the fact that it is confined to form or literary content. The question, therefore, in all cases is whether there is a sufficient substratum of fact stated or indicated in the words which are the subject-matter of the action, and I find my view well expressed in the remarks contained in Odgers on Libel and Slander (6th ed., 1929), at p. 166. “Sometimes, however,” he says, “it is difficult to distinguish an allegation of fact from an expression of opinion. It often depends on what is stated in the rest of the article. If the defendant accurately states what some public man has really done, and then asserts that 'such conduct is disgraceful,' this is merely the 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 have been 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 same considerations apply where a defendant has drawn from certain facts an inference derogatory to the plaintiff. If he states the bare inference without the facts on which it is based, such inference will be treated as an allegation of fact. But if he sets out the facts correctly, and then gives his inference, stating it as his inference from those facts, such inference will, as a rule, be deemed a comment. But even in this case the writer must be careful to state the inference as an inference, [*357] and not to assert it as a new and independent fact; otherwise, his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact.”

But the question whether an inference is a bare inference in this sense must depend upon all the circumstances. Indeed, it was ultimately admitted on behalf of the appellant that the facts necessary to justify comment might be implied from the terms of the impugned article and therefore the inquiry ceases to be – Can the defendant point to definite assertions of fact in the alleged libel upon which the comment is made? and becomes – Is there subject-matter indicated with sufficient clarity to justify comment being made? and was the comment actually made such an honest, though prejudiced, man might make?

Is there, then, in this case sufficient subject-matter upon which to make comment? In an article which is concerned with what has been described as “the Beaverbrook Press” and which is violently critical of Lord Beaverbrook’s newspapers, it is, I think, a reasonable construction of the words “Lower than Kemsley” that the allegation which is made is that the conduct of the Kemsley Press was similar to but not quite so bad as that of the press controlled by Lord Beaverbrook, i.e., it is possibly dishonest, but in any case low. The exact meaning, however, is not, in my opinion, for your Lordships but for the jury. All I desire to say is that there is subject-matter and it is at least arguable that the words directly complained of imply as fact that Lord Kemsley is in control of a number of known newspapers and that the conduct of those newspapers is in question. Had the contention that all the facts justifying the comment must appear in the article been maintainable, the appeal would succeed, but the appellant’s representatives did not feel able to and, I think, could not support so wide a contention. The facts, they admitted, might be implied, and the respondents' answer to their contention is: “We have pointed to your press. It is widely read. Your readers will and the public generally can know at what our criticism is directed. It is not bare comment; it is comment on a well-known matter, much better known, indeed, than a newly printed book or a once-performed play.”

One further matter on which some discussion took place does not, in my opinion, directly arise on this appeal, but as it may be raised in interlocutory proceedings later in the course of the action, I think it desirable to express an opinion on it. In a case where the facts are fully set out in the alleged libel, each [*358] fact must be justified and if the defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence. Does the same principle apply where the facts alleged are found not in the alleged libel but in particulars delivered in the course of the action? In my opinion, it does not. Where the facts are set out in the alleged libel, those to whom it is published can read them and may regard them as facts derogatory to the plaintiff; but where, as here, they are contained only in particulars and are not published to the world at large, they are not the subject-matter of the comment but facts alleged to justify that comment.

In the present case, for instance, the substratum of fact upon which comment is based is that Lord Kemsley is the active proprietor of and responsible for the Kemsley Press. The criticism is that that press is a low one. As I hold, any facts sufficient to justify that statement would entitle the defendants to succeed in a plea of fair comment. Twenty facts might be given in the particulars and only one justified, yet if that one fact were sufficient to support the comment so as to make it fair, a failure to prove the other nineteen would not of necessity defeat the defendants' plea. The protection of the plaintiff in such a case would, in my opinion, be, as it often is in cases of the like kind, the effect which an allegation of a number of facts which cannot be substantiated would have upon the minds of a jury who would be unlikely to believe that the comment was made upon the one fact or was honestly founded upon it and accordingly would find it unfair. It is true that Kennedy J. in Joynt v. Cycle Trade Publishing Co.44 says that “a comment cannot be fair which is built up on facts which are not truly stated,” and in the same case Vaughan Williams L.J.45 quotes the language of Crompton J. in Campbell v. Spottiswoode46: “If he (the critic) … imputes to the person whom he is criticizing base and sordid motives which are not warranted by the facts, I cannot think for a moment that because he bona fide believes that he is publishing what is true, that is any defence in point of law.” But in each of these cases the court was dealing with the lack of any basis of fact sufficient to warrant the comment made and, in any case, what is fair or unfair comment and what amounts to an imputation of base and sordid motives are matters for the jury and not a subject for your Lordships' decision. In reaching the conclusion which I have stated I am not conscious of being at variance with the authorities or at any rate

44 [1904] 2 K.B. 292, 294.

45 Ibid. 298.

46 (1863) 3 B. & S. 769; 32 L.J. Q.B. 185, 200.

[*359] with cases decided in this country. The main support for the appellant’s argument is founded upon the observations of Fletcher Moulton L.J. in Hunt v. Star Newspaper Co. Ld.47 The observations relied on are: “The law as to fair comment, so far as is material to the present case, stands as follows: In the first place, comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment: see Andrews v. Chapman.48 The justice of this rule is obvious. If the facts are stated separately and the comment appears as an inference drawn from those facts, any injustice that it might do will be to some extent negatived by the reader seeing the grounds upon which the unfavourable inference is based. But if fact and comment be intermingled so that it is not reasonably clear what portion purports to be inference, he will naturally suppose that the injurious statements are based on adequate grounds known to the writer though not necessarily set out by him. In the one case the insufficiency of the facts to support the inference will lead fair-minded men to reject the inference. In the other case it merely points to the existence of extrinsic facts which the writer considers to warrant the language he uses. … In the next place, in order to give room for the plea of fair comment the facts must be truly stated. If the facts upon which the comment purports to be made do not exist the foundation of the plea fails. This has been so frequently laid down authoritatively that I do not need to dwell further upon it: see, for instance, the direction given by Kennedy J. to the jury in Joynt v. Cycle Trade Publishing Co.,49 which has been frequently approved of by the courts. Finally, comment must not convey imputations of an evil sort except so far as the facts truly stated warrant the imputation.” It must be remembered that in that case a jury had found a verdict for the plaintiff. That verdict had been taken upon the general issue and it was not apparent whether in their view the facts were truly stated or not or whether they thought the comment unfair. Lawrance J. had ended his summing up by telling the jury50: “If a newspaper publishes exactly what took place with no comment whatever, they would be justified in so doing as a matter of public interest, but if they add to that comment of their own, then the question is whether that comment was bona fide and fair comment, or

47 [1908] 2 K.B. 309, 319-20.

48 (1853) 3 C. & K. 286.

49 [1904] 2 K.B. 292.

50 [1908] 2 K.B. 309, 312-3.

[*360] whether it was comment which tended, as alleged here, to charge the plaintiff with improper conduct.”

Such a charge obviously misstated the elements of fair comment. The facts truly stated might warrant an imputation by an honest man that the plaintiff’s conduct was improper and, accordingly, the Court of Appeal sent back the case for a new trial in order that it might be ascertained (1) whether the facts stated were true, and (2) if the comment were such as an honest man might make on those facts. It was in those circumstances that Fletcher Moulton L.J. gave his judgment. He was seeking to distinguish facts from comment and in effect saying that the facts alleged must be such as to warrant an honest man’s making the comment complained of. He had not to consider whether the facts must be set out in full or whether a reference to well known or easily ascertainable facts was a sufficient statement of those relied on. In that case the facts were all set out and the only question which the court had to consider was whether, on facts assumed to be truly stated, the comment was honestly made. As the jury had been wrongly directed on this matter, the case was sent back in order that it might be ascertained whether the facts were true and, if true, whether the comment was an honest comment on facts truly stated. The limited measure of the Lord Justice’s criticism is to be found in the last sentence which I have quoted, and I should myself accept it as it stands.

I do not think it necessary to go through the other cases one by one, but reference must be made to the South African case of Roos v. Stent and Pretoria Printing Works Ld.51 If I thought that that judgment represented a new and independent view, it would be necessary to analyse its reasoning carefully. But in truth it is founded on Fletcher Moulton L.J.’s opinion in Hunt v. Star Newspaper Co. Ld.52 and does not contain any fresh point of view. It is the only direct decision on the point at issue. Admittedly no English authority determines this question, and for the reasons I have given I am of opinion that in this case a sufficient substratum of fact is to be found in the words complained of, and I would dismiss the appeal with costs. My Lords, the Lord Chief Justice has not written an opinion in this case, but has asked me to say that he agrees with that which I have delivered.

LORD OAKSEY. My Lords, I agree. The forms in which a comment on a matter of public importance may be framed are

51 1909 T.S. 988.

52 [1908] 2 K.B. 309.

[*361] almost infinitely various and, in my opinion, it is unnecessary that all the facts on which the comment is based should be stated in the libel in order to admit the defence of fair comment. It is not, in my opinion, a matter of importance that the reader should be able to see exactly the grounds of the comment. It is sufficient if the subject which ex hypothesi is of public importance is sufficiently and not incorrectly or untruthfully stated. A comment based on facts untruly stated cannot be fair. What is meant in cases in which it has been said comment to be fair must be on facts truly stated is, I think, that the facts so far as they are stated in the libel must not be untruly stated.

In the present case the word which indicates the subject is “Kemsley” and it must be read in its context, and in that context it must, I think, mean the newspapers controlled by Lord Kemsley – that is the subject-matter of the comment. The comment is that those newspapers are nearly as low as Lord Beaverbrook’s newspapers, about which many defamatory statements are made in the alleged libel. It is not, in my opinion, a statement of fact that a newspaper is low: it is a comment. It may be a statement of fact to say that a man is fraudulent, for there is a legal sanction for fraud, but there is no legal sanction for publishing low newspapers. I think, therefore, that the words “lower than” are words of comment and that the particulars which are sought to be struck out were alleged for the purpose of supporting the comment; and if it is proved to the satisfaction of the jury that an honest man might have made such a comment on Lord Kemsley’s newspapers, the defence of fair comment will have been established. It is one thing to publish a defamatory statement of fact; it is quite another to allege a defamatory statement of fact in a pleading in order to show that a published comment was fair. A defendant who has made a defamatory comment on a matter of public importance must be entitled to adduce any relevant evidence to show that the comment was fair, and in order to do so must be entitled to allege and attempt to prove facts which he contends justify the comment. Whether the facts alleged are satisfactorily proved or not, it will still be for the jury to say whether they consider that the comment in the circumstances proved might have been made by an honest man.

I am therefore of opinion that the order of the Court of Appeal was right and this appeal should be dismissed.

LORD RADCLIFFE. My Lords, I agree.

[*362] LORD TUCKER. My Lords, I am in complete agreement with the reasons which have been stated by my noble and learned friend on the woolsack in support of the motion to dismiss this appeal.

Appeal dismissed.