DATES: 1990 March 7, 8; April 24; May 16

SOLICITORS:: Peter Carter-Ruck & Partners; Bindman & Partners.

JUDGES: Lloyd, Glidewell and Woolf L.JJ.

HEADNOTE: Libel and Slander – Fair comment – Test of fairness – Plaintiff’s article published in newspaper – Newspaper publishing letter defamatory of plaintiff written in reaction to article – Whether letter comment or statement of fact – Whether letter to be read with article or in isolation – Whether onus on defendant to establish belief in views expressed

The plaintiff, a Russian emigré, who was at the time employed by the B.B.C. Russian service, wrote an article which was published in a national daily newspaper concerning, inter alia, the Russian service. The defendant, also a Russian emigré employed by the same service, wrote a letter in reaction to that article which was published in the same newspaper. The letter imputed racialist opinions to the plaintiff and was the subject of a claim by the plaintiff for damages for libel. The defendant did not seek to justify the words complained of, but pleaded fair comment on a matter of public interest, in reply to which the plaintiff alleged express malice. At the conclusion of the plaintiff’s case at the trial of the issue before a judge and jury there was a submission of no case to go to the jury on the grounds that (1) any reasonable jury properly directed would be bound to uphold the defence of fair comment and (2) there was no evidence of express malice. The judge accepted that submission and dismissed the plaintiff’s claim. [*103]

On the plaintiff’s appeal:—

Held, dismissing the appeal, that the question whether the words complained of were capable of constituting statements of fact was to be determined by considering them not only in the context of the letter as a whole but also in the light of the article in response to which the letter was written and that, so considered, they could only be regarded as comment; that since it would not have been open to the jury to find that the views expressed by the defendant were those which no fair-minded man could honestly hold, the comment was fair in the objective sense; that unless the plaintiff proved express malice there was no burden of proof on the defendant to establish that he himself honestly held the views expressed in the article; that no reasonable jury could have held that the defendant’s dominant motive was to injure the plaintiff and that there was, therefore, no evidence of malice to go to the jury; and that, accordingly, the judge had been right to withdraw the case from the jury and dismiss the plaintiff’s claim (post, pp. 109, 110-111, 115, 119, 121, 122,123).

Turner v. Metro-Goldwyn-Mayer Pictures Ltd. [1950] 1 All E.R. 449, H.L.(E.) applied.

Decision of Drake J. upheld. [*104]

APPEAL from Drake J.

By a writ served on 19 April 1984 the plaintiff, Vladimir Ivanovich Telnikoff, claimed (1) damages for libel contained in a letter headed “Qualifications for Broadcasting to Russia” written by the defendant, Vladimir Matusevitch, and published in “The Daily Telegraph” dated 18 February 1984; (2) an injunction restraining the defendant from publishing the same or any similar libel concerning the plaintiff. The statement of claim alleged that in their natural and ordinary meaning the words complained of meant and were understood to mean that the plaintiff (i) advocated the introduction of blood-testing as part of the recruitment process of the B.B.C. Russian Service in order to maintain racial purity; (ii) advocated the dismissal of employees of the B.B.C. Russian Service on racial grounds; (iii) had made statements inciting racial hatred and/or racial discrimination; and (iv) was a racialist and/or an anti-semite and/or a supporter and/or proponent of doctrines of racial superiority or racial purity.

On 5 October 1988 the action was tried before Michael Davies J. in the defendant’s absence and the plaintiff was awarded £65,000 damages. On 28 April 1989 that judgment was set aside by Michael Davies J. on the defendant’s paying the costs of the abortive trial and of the application to set aside. By an amended defence re-served on 16 May 1989 the defendant, inter alia, denied that the words complained of bore or were understood to bear the meanings pleaded in the statement of claim and, further or alternatively, that they were fair comment on a matter of public interest. By his reply served on 22 October 1984 the plaintiff had alleged that in publishing the words complained of the defendant had been actuated by express malice. At a new trial of the action before Drake J. and a jury a submission was made at the close of the plaintiff’s case that there was no case to go to the jury on the grounds that (1) any reasonable jury properly directed would be bound to uphold the defence of fair comment and (2) there was no evidence of express malice. The judge accepted this submission and dismissed the plaintiff’s claim.

By a notice of appeal dated 17 July 1989 the plaintiff appealed on the grounds that (1) the judge wrongly withdrew the case from the jury and gave judgment for the defendant on the ground that as a matter of law there was insufficient evidence of malice to put before the jury; (2) in so ruling the judge also wrongly withdrew from the jury the question whether the words complained of contained defamatory statements of fact (to which there was no pleaded defence), and not comment: in particular, the judge should have left to the jury the question whether the following assertions by the defendant were statements of fact, and not comment: (i) that the plaintiff had demanded that the B.B.C. should test prospective employees for Jewishness and disregard their professional abilities; (ii) that the plaintiff had claimed that “ethnically alien” staff of the B.B.C. Russian Service should be dismissed, no matter how high their standards and integrity; and (iii) that the plaintiff was an anti-semite and racialist; (3) assuming (contrary to the plaintiff’s primary contention) that the matters referred to in (2)(i) to (iii) were to be regarded as comment, the judge should have left to the jury the [*105] question whether the comment was on its face (and regardless of the issue of malice) such as could be made by a fair-minded man on the plaintiff’s article.

After hearing the main submissions of counsel on the appeal the court intimated that it wished to hear argument on the question whether, in deciding whether the defendant’s letter was capable of amounting to statements of fact, the court could have regard to the plaintiff’s article. The resumed hearing on this point took place on 24 April.

The facts are stated in the judgment of Lloyd L.J.

The main submissions of counsel for the plaintiff are set out in the judgment of Lloyd L.J. at pp. 6P, 7O, P, 8P, Q – 9P, 10P, Q – 11P, Q, 15P, 16P, 17P, Q, R – 18P, Q. In addition counsel relied on Adam v. Ward [1917] A.C. 309 as laying down the appropriate test for leaving malice to the jury.

The main submissions of counsel for the defendant are set out in the judgment of Lloyd L.J. at pp. 6D, 7D – 8D. In addition counsel relied on London Artists Ltd. v. Littler [1969] 2 Q.B. 375 as authority for the proposition that the judge had acted properly in looking at the letter as a whole. Agha Khan v. Times Publishing Co. [1924] 1 K.B. 675 was referred to as having been overtaken by R.S.C., Ord. 82, r. 3. Adam v. Ward was relied on as showing that if evidence of malice could suggest either malice or lack of malice the judge was entitled to withdraw malice from the jury. On the question of proof of malice, reference was made to Clark v. Molyneux (1877) 3 Q.B.D. 237; Peter Walker & Son Ltd. v. Hodgson [1909] 1 K.B. 239 and Stuart v. Bell [1891] 2 Q.B. 341.

In reply counsel for the plaintiff referred to London Artists Ltd. v. Littler as demonstrating that comment had to be clearly established as such. In relation to the test for proof of malice reference was made to Everett v. Griffiths [1921] 1 A.C. 631. Peter Walker & Son Ltd. v. Hodgson was referred to as bearing on the subjectivity of the test.

Cur. adv. vult.

16 May. The following judgments were handed down.

LLOYD L.J. In this case we are concerned with a dispute between two Russian emigrés. It raises an important question as to the scope of the defence of fair comment in an action for libel.

On 13 February 1984 “The Daily Telegraph” published an article written by the plaintiff, Mr. Vladimir Telnikoff. He was then employed by the B.B.C. Russian Service as a probationer. The article was in many ways prophetic. The main thrust of the article was the importance of distinguishing between Russia on the one hand and Communism on the other. The article traced the history of Russian broadcasting since the early 1970s, and continued: [*106]

“But still, after three decades of gradually becoming aware of the significance of Russian language broadcasting, I believe its general concept has never been set right. It continues to reflect the fatal confusion of the West, which has yet to clarify to itself whether it is threatened by Russia or by Communism. We fail to understand that Communism is as alien to the religious and national aspirations of the Russian people as those of any other nation.”

The article then makes a different point. I set out the next three paragraphs in full in order to put the matter in context. But it is the first of the following paragraphs which has given rise to all the trouble:

“This confusion further manifests itself in the policy of recruitment for the Russian Service. While other services are staffed almost exclusively from those who share the ethnic origin of the people to whom they broadcast, the Russian Service is recruited almost entirely from Russian-speaking national minorities of the Soviet empire, and has something like 10 per cent. of those who associate themselves ethnically, spiritually or religiously with Russian people. However high the standards and integrity of that majority there is no more logic in this than having a Greek Service which is 90 per cent. recruited from the Greek-speaking Turkish community of Cyprus.

“When broadcasting to other East European countries, we recognise them to be enslaved from outside, and better able to withstand alien, Russian, Communism through our assertion of their own national spirit and traditions. However, this approach leaves room for flirting with Euro-communism or ‘socialism with a human (non-Russian) face’ as a desirable future alternative, and well suits the Left in the West.

“Resisting the ideological advance of Communism by encouraging anti-Russian feelings is of less obvious value with a Russian audience. Making ‘Russian’ synonymous with ‘Communist’ alienates the sympathetic Russian listeners. It stirs up social resentment in others against the Russians. Making those words synonymous also makes sympathy for Russia into support for the Communist system.”

So the plaintiff is making two separate, and at first sight unrelated, points. He draws a distinction, as I have said, between the Russian threat and the Communist threat. But he also draws a distinction between Russia on the one hand and the national minorities of the Soviet empire on the other. He criticises the Russian Service of the B.B.C. for treating Russia as synonymous with Communism. But he also criticises the service for employing too many recruits from among the ethnic minorities of the Soviet empire, and not enough from among those who “associate themselves ethnically, spiritually or religiously with Russian people.”

The defendant is Mr. Vladimir Matusevitch. He is a Russian Jew, who, like the plaintiff, suffered persecution in Russia before coming as an emigré to this country. Like the plaintiff, he too was employed at the relevant time by the Russian Service of the B.B.C. But he had never met the plaintiff. He was much incensed by the plaintiff’s article. He [*107] regarded it as racialist, and anti-semitic. He wrote a letter to “The Daily Telegraph” which was published on 18 February 1984 as follows:

“Sir,

“Having read ‘Selecting the Right Wavelength to Tune in to Russia’ (13 February) I was shocked, particularly by the part on alleged inadequacies of the B.B.C.’s Russian Service recruitment policies. “Mr. Vladimir Telnikoff says: ‘While other services are staffed almost exclusively from those who share the ethnic origin of the people to whom they broadcast, the Russian Service is recruited almost entirely from Russian-speaking national minorities of the Soviet empire.’

“Mr. Telnikoff must certainly be aware that the majority of new emigrés from Russia are people who grew up, studied and worked in Russia, who have Russian as their mother-tongue and have only one culture – Russian. People with Jewish blood in their veins were never allowed by the Soviet authorities to feel themselves equal with people of the same language, culture and way of life. Insulted and humiliated by this paranoiac situation, desperate victims of these Soviet racialist (anti-semitic) policies took the opportunity to emigrate.

“Now the B.B.C.’s Russian Service, as well as other similar services of other Western stations broadcasting to Russia, who are interested in new staff members (natives), employ those people in accordance with common democratic procedures, interested in their professional qualifications and not in the blood of the applicants.

“Mr. Telnikoff demands that in the interest of more effective broadcasts the management of the B.B.C.’s Russian Service should switch from professional testing to a blood test. Mr. Telnikoff is stressing his racialist recipe by claiming that no matter how high the standards and integrity of ‘ethnically alien’ people Russian staff might be, they should be dismissed.

“I am certain ‘The Daily Telegraph’ would reject any article with similar suggestions of lack of racial purity of the writer in any normal section of the British media. One could expect that the spreading of racialist views would be unacceptable in a British newspaper.”

The plaintiff took great exception to the defendant’s letter, and in particular to the statement that he, the plaintiff, was advocating the introduction of blood testing and the dismissal of ethnically alien members of the B.B.C. Russian Service. On 12 March the plaintiff’s solicitors wrote demanding an apology. On 18 April they issued a writ, and served a statement of claim the following day. The natural and ordinary meaning pleaded in paragraph 4 was that the plaintiff:

“(i) Advocated the introduction of blood testing as part of the recruitment process at the B.B.C. Russian Service, in order to maintain racial purity. (ii) Advocated the dismissal of employees of the B.B.C. Russian Service, on racial grounds. (iii) Had made statements inciting racial hatred and/or racial discrimination. (iv) Was [*108] a racialist and/or an anti-semite and/or a supporter and/or proponent of doctrines of racial superiority or racial purity.”

By his amended defence the defendant pleaded fair comment on a matter of public interest. He did not seek to justify. In reply, the plaintiff alleged that the defendant was actuated by express malice.

The case came on for trial before Drake J. in May 1989. The plaintiff appeared in person. At the conclusion of the plaintiff’s case, there was a submission of no case to go to the jury, on the grounds (1) that any reasonable jury properly directed would be bound to uphold the defence of fair comment and (2) that there was no evidence of express malice. The judge upheld the submission. There is now an appeal to this court.

Fact or comment?

The first question is whether the words complained of were capable of being understood as a statement of fact or facts, rather than comment: see Turner v. Metro-Goldwyn-Mayer Pictures Ltd. [1950] 1 All E.R. 449, 461, perLord Porter. If they were so capable, then it would have been the judge’s duty to leave that question to the jury.

Mr. Browne submitted that there were three distinct allegations of fact contained in the words complained of, namely, (i) that the plaintiff had demanded that the management of the B.B.C.’s Russian Service should switch from professional testing to a blood test; (ii) that the plaintiff had claimed that no matter how high the standards and integrity of “ethnically alien” Russian staff might be they should be dismissed; (iii) that the plaintiff had spread racialist views, and was a racist and an anti-semite.

Mr. Garnier, for the defendant, submitted that the words complained of were comment. He particularised the comment, in accordance with the recent decision of this court in Control Risks Ltd. v. New English Library Ltd. [1990] 1 W.L.R. 183, as follows:

“The plaintiff’s opinions regarding the personnel employed by the B.B.C. Russian Service and the recruitment policy of that station are shocking for their racialism and, if taken to their logical conclusion, could lead to the selection or even dismissal of broadcasters on grounds of race or ethnic origin rather than on the basis of professional qualifications.”

The judge was in no doubt that, reading the letter as a whole, the words complained of should be regarded as comment. He said it would be artificial to regard the words as a statement of fact.

“Read in the context of the rest of the letter, I think that the defendant was doing no more than to make the comments that, if the plaintiff’s views as stated in his article were given effect to, then the logical outcome would be that the B.B.C. would, when interviewing applicants to join the Russian service, concentrate on the ethnic origins of the applicant rather than their expertise as broadcasters.” [*109]

Before coming to Mr. Browne’s submissions, there is a preliminary question for our consideration. Certain questions in a defamation action are questions for the judge alone. If, for example, the defence is qualified privilege, it is a question for the judge alone whether the occasion is privileged. So also, where the defence is fair comment, whether the matter is one of public interest. There are some slight indications – no more – that the judge may have regarded the question, statement of fact or comment, as also being a question for him alone. Thus at the start of the relevant passage in his judgment he said:

“I must consider whether the defendant’s letter was purely comment on the article or whether it also contained statements of fact.”

At the conclusion he said:

“Having decided that the letter amounts to comment on a matter of public interest, I next turn to consider whether there is evidence to go to the jury that any of the comments are unfair.”

I do not think it would be right to infer from these passages, or the judgment as a whole, that this very experienced judge mistook his function. He was applying the law as stated in Halsbury’s Laws of England, 4th ed., vol. 28 (1979), p. 114:

“The question whether all or some of the words complained of are statements of fact or comments is a question of construction for the judge. If, in his opinion, there is no reasonable doubt, he must direct the jury accordingly; but if, in his view, there is reasonable doubt as to whether the words are statements of fact or expressions of opinion he must leave it to the jury to decide.”

When the judge said that he had no doubt that the letter was comment, he was saying that a reasonable jury would be bound so to conclude: no less and no more.

Next Mr. Browne submitted that the judge was wrong to construe the letter as a whole. This was a case where by concentrating on the wood, the judge overlooked the trees. I do not agree. When any question of construction is involved the courts always have regard to the context. In other words, the courts have regard to the document as a whole. I cannot regard the question whether words are statement of fact or comment as being an exception to this universal rule.

Then it was said that the defendant had failed to distinguish clearly between the comment, if it was comment, and the facts on which it was based: see Hunt v. Star Newspaper Co. Ltd. [1908] 2 K.B. 309, 319, per Fletcher Moulton L.J. Again I disagree. The defendant makes clear in the first paragraph of his letter that the facts on which he is commenting are the plaintiff’s article, from which he then goes on to quote in the second paragraph. The comment begins with the words “Mr. Telnikoff must certainly be aware . . .” Facts and comment are thus clearly distinguished.

There remains the fundamental question whether the words in question were capable of being understood as a statement of fact. If they were, they are defamatory, since there is no attempt to justify. [*110]

Although this is not the most important question in the appeal, it is in some ways the most difficult. The dividing line between statement of fact and comment is never easy.

Somewhat to my surprise, Mr. Garnier at first conceded that in deciding that question we are confined to a consideration of the letter itself. We are not entitled to look at the article. Mr. Garnier’s reason for making that concession was that a man might read the letter, without having read the article, or without being able to remember what the article said. The letter must therefore be judged on its own. We were not happy to decide the case on the basis of this concession. So we invited further argument on the point. On further consideration, Mr. Garnier withdrew his concession. He submitted that the question whether words are a statement of fact or comment is a question of construction, albeit a question of construction of a special kind. On questions of construction, it is always permissible, indeed essential, to have regard to the context. In most cases it will be apparent from the publication itself whether the words complained of are comment or not. But in some cases it may be necessary to have regard to the wider context, for example to documents which are, as it were, incorporated in the publication by reference. This is permissible when a question arises as to the meaning of the alleged libel: see Gatley on Libel and Slander, 8th ed. (1981), p. 55, para. 102. It should also be permissible where the question is whether words complained of are statement of fact or comment.

Mr. Browne submitted that we are confined to the four corners of the letter. He conceded that the subject matter on which the defendant was commenting, namely, the article, was sufficiently indicated in the letter: see Kemsley v. Foot [1952] A.C. 345, 355-356, per Lord Porter. But the letter might, he said, have been read by someone who had no ready access to the article. Accordingly the question of construction, which he described as purely linguistic or grammatical, must be answered by reference to the letter alone.

I cannot accept Mr. Browne’s argument. It is not only wrong in principle, it would also lead to all sorts of unfortunate consequences. It would mean that if the question, statement of fact or comment, had fallen to be decided by the jury, the judge would have had to direct the jury that they must refer to the article in deciding whether any comment was fair or not, but must not refer to the article in deciding whether it was comment at all. I cannot regard that as a desirable result. Similarly it would mean that a correspondent, before commenting on an article, would be wise to repeat the whole of the article on which he was commenting, in case any reader might read the letter without having read the article. No newspaper editor would accept that condition; and free discussion of matters of public interest would thus be restricted. The answer might be different if the reference were to some “obscure publication,” to use Lord Porter’s words in Kemsley v. Foot. But that was not the case here.

So I would allow Mr. Garnier to withdraw his original concession, and hold that it is permissible for us to look at the article as well as the letter in deciding whether the words complained of are a statement of [*111] fact or comment. The judge was, however, able to decide the question without reference to the article. I find myself in the same position.

Mr. Browne’s strongest argument in favour of the view that the words complained of contain a statement of fact or facts is based on the judgment of Bowen L.J. in Merivale v. Carson (1887) 20 Q.B.D. 275, 284, quoted by Sir Richard Henn Collins M.R. in McQuire v. Western Morning News Co. Ltd. [1903] 2 K.B. 100, 110. If a man imputes that an author has written something which he has not written, he travels outside the realm of fair comment. As Bowen L.J. said, positive misdescription is a question not of opinion but of fact. On the other hand it is well settled that a comment does not lose its quality as such merely because it is stated as a fact, providing it is apparent from the context that the fact so stated is an inference from the facts on which the comment is based: see Kemsley v. Foot [1952] A.C. 345, 356-357, per Lord Porter, and Gatley on Libel and Slander, 8th ed., p. 299, para. 706.

The third of the three facts identified by Mr. Browne is to my mind quite obviously an inference of fact in this sense. The same is also true, if not quite so obviously, in relation to the two other “facts.” Take the statement “Mr. Telnikoff demands that [the B.B.C.] should switch from professional testing to a blood test.” Contrary to what might appear from the particulars in the statement of claim, Mr. Browne concedes that the reference to a blood test is not to be taken literally. The same is surely true of the plaintiff’s “demand.” It should not be taken literally. Any fair-minded man reading the letter as a whole would regard it as an inference drawn by the author from the quotation set out in the second paragraph of the letter. It is true that the defendant does not prefix the statement with the words “I infer.” But this is not conclusive. The sense of the words is “Mr. Telnikoff in effect demands . . .” This is how the words must have been understood by a reasonable reader. It is for this reason that I agree with the judge on the first question. The words are comment, and are not reasonably capable of being understood as statements of fact.

The matter becomes all the clearer if, as I have held, one is entitled to look at the article as well as the letter in deciding the question of construction.

Fair comment – introduction

The second question is whether there was any evidence that the comment was unfair. If the case had been left to the jury, would the jury be bound to find that the comment was fair comment on a matter of public interest? It is common ground that the matter was one of public interest. So the question for the jury would be whether the comment was fair.

The judge adopted a conventional approach to this question. He referred to a number of well-known authorities, and concluded:

“It is clear from the authorities that the test for fair comment is an objective one, and that the vital question to be considered is whether an honest-minded man might honestly hold the views [*112] stated as comments on the facts on which those comments were made.”

I agree with that formulation. It is based on the language of Lord Esher in Merivale v. Carson (1887) 20 Q.B.D. 275, 281, with the modification suggested by Lord Porter in Turner v. Metro-Goldwyn-Mayer Pictures Ltd. [1950] 1 All E.R. 449, 461.

In an earlier passage the judge had said:

“Where a comment is made on a matter of public interest, the defendant who relies on the plea of fair comment does not have to prove that the comment is an honest expression of his view.”

As authority for that proposition the judge quoted Gatley on Libel and Slander, 8th ed., p. 348, para. 792:

“In the same way, the defendant who relies on a plea of fair comment does not have to show that the comment is an honest expression of his views.”

There is no challenge to this proposition in the notice of appeal. On the contrary paragraph 3 of the notice of appeal presupposes that the sole test for fair comment in the absence of express malice is an objective one. Nor is there any hint of anything other than an objective test in Mr. Browne’s original skeleton argument.

But as the argument was developed before us, another test began to take shape. By the end of his reply Mr. Browne was contending that in every case where a defendant relies on fair comment, he has a twofold burden to discharge: (1) he must satisfy the objective test; (2) he must prove that the comment represented his real opinion. The reason for this change of direction in the plaintiff’s case will appear hereafter. At present it is sufficient to note that it is this change of direction which has brought us face to face with a question of major importance in the law of defamation, namely, whether the decision of the majority of the Supreme Court of Canada in Cherneskey v. Armadale Publishers Ltd. (1978) 90 D.L.R. (3d) 321 represents the law of England. Before coming to that, however, I should deal first with Mr. Browne’s arguments on the judge’s application of the objective test.

Fair comment – the objective test

It has been said from time to time that the expression “fair comment” is unhelpful and potentially misleading. How can comment which is ex concessis prejudiced, wrong-headed and grossly exaggerated, be fair? It is anything but fair. It is for this reason that it is occasionally suggested that a better name for the defence would be honest comment, or more simply comment. But to introduce honesty into the name of the defence might be even more misleading. As will appear later, it risks confusion between the elements of the defence on which the burden rests on the defendant, and express malice, where the burden is on the plaintiff.

So in my view it is better to retain the traditional name of the defence. I have found it helpful to remind myself that the question is not whether the comment is fair in the ordinary sense of that word, but [*113] whether the words complained of can fairly be regarded as comment. The observations of an honest crank on a matter of public interest may fairly be regarded as comment, so as to attract the defence, even though the substance of his comment is grossly unfair.

There is a further virtue in retaining the name fair comment. It serves to distinguish comment from what cannot fairly be regarded as comment at all, namely, mere abuse or invective.

And so I come to Mr. Browne’s submissions on the objective test. Could any man, however prejudiced and obstinate, honestly hold the view expressed by the defendant in his letter? Mr. Browne submits that it would have been open to the jury to answer the objective test in favour of the plaintiff. He relies on three main considerations. First, nowhere in the article does the plaintiff refer to Jews by name. He refers to Russian-speaking national minorities. Nor does the plaintiff advocate testing of any kind to exclude Jews. Secondly, nowhere does the plaintiff say that ethnically alien people should be dismissed. He does not even use the expression “ethnically alien.” It follows that there was no justification for putting those words in inverted commas, thus suggesting that he had. Thirdly, and most important, the plaintiff does not say in the article that only 10 per cent. of those employed by the Russian Service are ethnically pure. He says that only 10 per cent. are among those who associate themselves “ethnically, spiritually or religiously with the Russian people.” This is not a racial test, but a cultural test, or a test as to where a man’s sympathies lie.

I hope I have stated the argument correctly. As to the third consideration, I can understand well enough that a man may associate himself culturally with the Russian people. But how can he associate himself ethnically, without being a Russian? So it may be that Mr. Browne reads too much into the the word “associate.”

Be that as it may, the question remains whether it would have been open to the jury to find that the view expressed by the defendant was one which no honest man could hold. I am quite unable to reach that conclusion. The plaintiff was complaining that 90 per cent. of those employed by the Russian Service came from national minorities of the Soviet Empire. If that was indeed his complaint, I do not see how it could be corrected except by discrimination against national minorities in recruiting new staff in the future, or dismissing existing staff. It was not disputed that Jews are a national or ethnic minority. How, in those circumstances, could any reasonable jury regard the comment as other than “fair” in the objective sense? There is no other possible view. That was the opinion of the judge. It is sufficient to say that I agree.

Fair comment – subjective test

I have already foreshadowed Mr. Browne’s argument under this head. He contends that no comment can be fair unless it is the honest opinion of the person making the comment. It is not enough, therefore, for the view expressed to be one which an honest man could hold – the objective test; the defendant must hold the view himself. Since the burden is on the defendant to prove fair comment, there must be some evidence that the comment represents his own honest view. Otherwise [*114] he fails. Mr. Browne draws a distinction between the subjective test of honesty, on which the burden is on the defendant, and malice, on which he accepts that the burden is on the plaintiff.

It may be thought that it matters little whether the honesty of the defendant comes in at what I will call the fair comment stage, or whether it comes in at the express malice stage. The burden of proof may not be the same. But very few cases turn on the burden of proof. But in the present case, as it happens, it does make a difference, because of the unusual feature that the judge stopped the case before the defendant gave evidence. If the burden was on the defendant to show that the letter was his honest opinion, he failed to discharge that burden. The judge should not have stopped the case when he did. It might have been open to the judge to stop the case after the defendant had given evidence, but not before.

It is in this way that the great question in the present case is raised. Is the test of fair comment subjective as well as objective? If so, is the burden on the defendant at both stages?

A very similar question came before the Canadian Supreme Court in Cherneskey v. Armadale Publishers Ltd., 90 D.L.R. (3d) 321. In that case the facts were curiously similar. The defendants were a newspaper. They published a letter to the editor in which the writer accused the plaintiff of holding racist views. The trial judge refused to leave the defence of fair comment to the jury, on the ground that there was no evidence that the view expressed in the letter was the honest view of the writer; and the defendants had given positive evidence that the letter did not represent the editor’s views, or the views of the newspaper. The defence of fair comment having been withdrawn, the jury found in favour of the plaintiff, and awarded $25,000 damages. The defendants appealed. The appeal was allowed. But, on further appeal to the Supreme Court, the decision of the judge was restored by a majority over a strong dissenting judgment of Dickson J.

The majority view was that it is an essential ingredient of the defence of fair comment that the view expressed should be the honest view of the author. Honesty of belief was held to be the “cardinal test” of fair comment (a phrase quoted from Lord Denning M.R.’s judgment in Slim v. Daily Telegraph Ltd. [1968] 2 Q.B. 157, 170). The majority applied the cardinal test of honesty not only to the writer of the letter, but also (if I follow the judgment correctly) to the newspaper which published the letter. The decision is summarised in the following paragraph, 90 D.L.R. (3d) 321, 339:

“In the absence of any proof of the honest belief of the writers, and having regard to the denial of honest belief by the defendants themselves, the defence of fair comment cannot, in my view, prevail.” (Emphasis added.)

This would at first sight seem to impose a very severe restriction on freedom of discussion. It would mean that no newspaper could safely publish a letter containing views with which it did not agree. But in the very next paragraph the majority disclaim any such intention: [*105]

“This does not mean that freedom of the press to publish its views is in any way affected, nor does it mean that a newspaper cannot publish letters expressing views with which it may strongly disagree. Moreover, nothing that is here said should be construed as meaning that a newspaper is in any way restricted in publishing two diametrically opposite views of the opinion and conduct of a public figure. On the contrary, I adopt as descriptive of the conclusion which I have reached, the language used by Brownridge J.A., in the following excerpt from his reasons for judgment in the Court of Appeal, where he said at p. 192 of the report: ‘What it does mean is that a newspaper cannot publish a libellous letter and then disclaim any responsibility by saying that it was published as fair comment on a matter of pubic interest but it does not represent the honest opinion of the newspaper.’”

This paragraph has the appearance of having been, as it were, tacked on to the majority judgment in order to meet the very real fears expressed by the minority that freedom of discussion of matters of public interest would be severely restricted.

I do not pause to consider the consequences of the majority view, or the complications which arise when, as in Cherneskey v. Armadale Publishers Ltd., a defendant, and in particular a newspaper, publishes the comments of another. These complications are discussed in Gatley on Libel and Slander, 8th ed., p. 313, para. 730 and the very extensive footnotes to that paragraph. They do not arise in the present case.

The importance of Cherneskey’s case for present purposes is whether the majority were right in asserting that honesty of belief is an essential in the defence of fair comment, on which the burden rests on the defendant.I can find no support for this view in the English authorities to which the majority refer. In my judgment the correct view of English law is that where the defendant’s comment is fair by the objective test, it is presumed to be the honest expression of his view unless the plaintiff pleads and proves express malice. This would tie in with other branches of the law of defamation. Thus where the defence is qualified privilege, the law presumes honest belief in the truth of what is published, unless the contrary is proved: see Horrocks v. Lowe [1975] A.C. 135, 149, per Lord Diplock. The same should be true of the defence of fair comment.

Before considering the English authorities, I would quote in full a passage from the minority judgment of Dickson J., with whom Spence and Estey JJ. concurred, which explains the position with admirable clarity and accuracy, 90 D.L.R. (3d) 321, 345:

“ There is in some of the cases confusion between the requirement that a comment be ‘fair’ and that it not be made with malice. In fact, these two requirements are quite distinct. Shortly stated, the test of whether a comment is ‘fair comment’ in law is an ‘objective’ test, i.e., is the comment one that an honest, albeit prejudiced, person might make in the circumstances? The cases of Merivale v. Carson (1887) 20 Q.B.D. 275; Lyon v. Daily Telegraph Ltd. [1943] 2 All E.R. 316, and Slim v. Daily Telegraph Ltd. [1968] 1 All E.R. 497, in my opinion, support this view. Even if the comment passes [*116] this test, the defence of fair comment will fail if it does not pass the subjective test of whether the publisher himself was actuated by malice: see Thomas v. Bradbury, Agnew & Co. Ltd. (1906) 75 L.J.K.B. 726. There would be no point in having the second test if the first one included the ingredient of the subjective test. Many cases merge these two elements to ask whether the statement in question is the publisher’s real opinion. This works passably well when the defendant is the writer, but it does not work at all if he is not, as in the case where, as here, a newspaper has printed a letter in its letters to the editor space. In my view, the legal position is this: If a defendant raises the defence of fair comment, he has the burden of establishing that the facts on which it is based are true and that it is objectively fair; if he discharges this burden he will, nevertheless, lose the defence if the plaintiff proves that the comment was published maliciously. It is this second stage of the analysis which raises the subjective issue of the defendant’s state of mind or motive.”

The only textbook authority relied on by the plaintiff is Gatley on Libel and Slander, 8th ed., p. 312, para. 729 under the general heading of “Honest opinion published without malice”:

“Any honest comment protected. Comment must be published honestly in that it is the expression of the defendant’s real opinion. The law does not protect the expression of an opinion not honestly held, even if it is an opinion which someone else might honestly have expressed.”

It was this paragraph which was quoted by the majority in Cherneskey v. Armadale Publishers Ltd., 90 D.L.R. (3d) 321. That case is now referred to in a footnote as authority for the proposition in the text.

I am not convinced that paragraph 729 means what it appears to mean. In any event it is not dealing with the burden of proof. The editors are not saying, at any rate in terms, that honesty of belief is an essential element in the defence of fair comment on which the burden of proof lies on the defendant irrespective of malice. If they are (and I admit that the cross-heading creates some uncertainty) then I find paragraph 729 impossible to reconcile with paragraphs 747 and 792. Paragraph 747 reads: “The burden of proving that the words were published maliciously, or were not the honest opinion of the critic, is on the plaintiff.” (Emphasis added.) Paragraph 792 reads:

“In the same way, the defendant who relies on a plea of fair comment does not have to show that the comment is an honest expression of his views.”

As they stand, paragraphs 747 and 792 are simple and correct statements of English law. But the matter is complicated by a footnote to paragraph 792 which reads: “See paragraph 729. See however, Cherneskey v. Armadale Publishers.” In this somewhat confused state, I cannot regard paragraph 729 in Gatley on Libel and Slander, 8th ed., as authoritative. It was described by the minority in Cherneskey’s case as [*117] “unfortunate,” and as being “belied by the numerous passages in the same text which surround it.”

Turning to the cases, there are, of course, numerous references to honesty as being “the cardinal test,” and other similar expressions. But all these references, without exception, fall into one or other of two classes. They are either cases where a contrast is being drawn between what is fair for the purposes of fair comment and what is reasonable. This appears most clearly from Lord Porter’s modification in Turner v. Metro-Goldwyn-Mayer Pictures Ltd. [1950] 1 All E.R. 449, 461 of Lord Esher’s test in Merivale v. Carson (1887) 20 Q.B.D. 275, 281. Despite the substitution of “honest” for “fair,” (“would any honest man, however prejudiced he may be . . .”) Lord Esher’s test remains objective. The defendant’s state of mind (in the absence of malice) is irrelevant.

Alternatively they are cases where the court is using the term “fair comment” in a comprehensive sense, to include the absence of malice. Once the plaintiff has pleaded express malice in reply, then of course the defendant’s state of mind becomes critical. The fact that a defendant does not himself believe in the truth of his comment is the strongest possible evidence of malice. It is sometimes said to be conclusive. Once malice is proved, what would otherwise be fair comment by the objective test becomes “unfair” overall.

It was these considerations which Lord Denning M.R. had in mind when he said in Slim v. Daily Telegraph Ltd. [1968] 2 Q.B. 157, 170, that honesty is the cardinal test. That this must be so is shown by what Lord Denning himself said in Adams v. Sunday Pictorial and Champion [1951] 1 K.B. 354, 360:

“If [the defendant] proves that the facts were true and that the comments, objectively considered, were fair, that is, if they were fair when considered without regard to the state of mind of the writer, I should not have thought that the plaintiff had much to complain about; nevertheless it has been held that the plaintiff can still succeed if he can prove that the comments, subjectively considered, were unfair because the writer was actuated by malice.”

To the same effect is Lord Denning M.R.’s observation in Egger v. Viscount Chelmsford [1965] 1 Q.B. 248, 265:

“If the plaintiff seeks to rely on malice to aggravate damages, or to rebut a defence of qualified privilege, or to cause a comment, otherwise fair, to become unfair, then he must prove malice . . .”

Of the other English authorities, Mr. Browne relied in particular on Turner v. Metro-Goldwyn-Mayer Pictures Ltd. [1950] 1 All E.R. 449, to which I have already referred several times. But, rightly understood, the speech of Lord Porter is strongly against the plaintiff. The defendants in that case were sued for libel. The principal question was whether there was evidence of malice to go to the jury to rebut the defence of qualified privilege. But the plaintiff had an alternative claim in slander, to which the defence was fair comment. Mr. Browne relied on a sentence in Lord Porter’s speech, at p. 461: [*118]

“Here again, as in the case of malice, the question is not whether the comment is justified in the eyes of judge or jury, but whether it is the honest expression of the commentator’s real view and not mere abuse or invective under the guise of criticism: see McQuire v. Western Morning News Co. [1903] 2 K.B. 100.”

But it is clear from the context that Lord Porter is treating the question comprehensively; in other words he is including absence of malice within an overall test whether the comment is “fair.” In the very next paragraph Lord Porter said:

“The only foundation in the present case for the assertion that the comment is unfair, lies in the suggestion that it does not represent the real view of the speaker, but was uttered with a dishonest object of injuring the appellant and driving her from the occupation of film critic. I have already dealt with this question in considering whether there is any evidence of malice which would defeat the qualified privilege enjoyed in respect of the letter. Having regard to the opinion there expressed, it is plain that I see no evidence from which unfairness could be derived. In alleging unfairness the plaintiff takes on him or herself the onus, also taken by an allegation of malice, to prove that the criticism is unfair either from the language used or from some extraneous circumstance.”

The last sentence of this passage is in direct opposition to Mr. Browne’s main arguments on burden of proof.

The majority in Cherneskey v. Armadale Publishers Ltd., 90 D.L.R. (3d) 321 quoted extensively from Lord Porter’s criticism of the summing up in Turner v. Metro-Goldwyn-Mayer Pictures Ltd. [1950] 1 All E.R. 449. But the point which Lord Porter is making is whether the jury may have been misled into thinking that the reasonableness of the defendant’s comments might in some way be relevant. This is clear from the following sentence, at p. 462:

“My Lords, in the course of his summing up in the present case the learned judge undoubtedly in places used language which accurately states the law as I conceive it to be, and, indeed, as it is accepted to be by both parties, viz., that it is the honesty of the witnesses’ views, not their reasonableness, which decides whether they are malicious or not.”

I do not understand how this passage could be said to help Mr. Browne, or to support the majority judgment in Cherneskey's case.

Finally Mr. Browne relied on a passage from Lord Morris of Borth-y-Gest’s speech in Jones v. Skelton [1963] 1 W.L.R. 1362, 1379:

“Accordingly, if a defendant publishes of a plaintiff words which a jury might on the one hand hold to be fact or might on the other hand hold to be comment, and if a plaintiff does not accept that any of the words are true or does not accept that any of them are comment and if a defendant chooses to assert that some of the words are fair comment (made in good faith and without [*119] malice) on facts truly stated it must (assuming that the judge rules in regard to the public interest) be for the defendant to prove that which he asserts. If a plaintiff does not acknowledge that there are any words of comment and if the words are reasonably capable of being held by a jury to be statements of fact the plaintiff’s overall burden of proving his case does not involve a duty of proving that comment (the existence of which he denies) is unfair.”

I do not read Lord Morris in this passage as saying that the burden of proving the absence of malice is on the defendant. He is saying (1) that the overall burden is on the plaintiff and (2) that the burden of proving fair comment is on the defendant, since that is the defence which he “asserts.” Lord Morris does not deal specifically with the burden of proving express malice. But he would have had well in mind the long-established rule that the burden of proving express malice is on the plaintiff; see, for example, Halsbury’s Laws of England, 4th ed., vol. 28 (1979), p. 76:

“Where the dependence is fair comment the burden is on the defendant to show that the facts are true and that the comment is objectively fair, and it is then open to the plaintiff to prove that the defendant made the comment maliciously, for example from a motive of spite or ill will.”

Fair comment – conclusion

My conclusion is that the law is correctly stated in Duncan & Neill on Defamation, 2nd ed. (1983), p. 57, para. 12.02:

“(a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can consist of or include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any fair-minded man honestly express that opinion on the proved facts? (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.”

In the light of the present case I would add a rider, already implicit in paragraphs (a) to (e), that the absence of honest belief in the truth of the comment is relevant to paragraph (e), and not otherwise. Thus the burden of proof in the present case that the letter did not represent the defendant’s genuine views lay on the plaintiff. It was not incumbent on the defendant to give evidence as to his state of mind. It follows that the judge was entitled to withdraw the case when he did, if he was not persuaded by the plaintiff that there was evidence of malice to go to the jury.

Before leaving fair comment, I should add that it was not suggested by Mr. Browne that the defendant had imputed any dishonourable or corrupt motive to the plaintiff so as to take the case out of the ordinary run of cases, or affect the defence of fair comment in any way. [*120]

Malice – correct test

Again there is a preliminary question whether the judge was guilty of usurping the role of the jury. The sentence which is criticised is as follows:

“In order to enable the plaintiff to have the question of malice submitted to the jury, it is necessary that the evidence should raise a probability of malice and ‘be more consistent with its existence than with its non-existence.’”

This sentence shows, so it is said, that the judge was weighing up the evidence of malice, which was a task for the jury, not for him. Even if the judge was open to criticism in this respect, it is to be noticed that in answering the question which he had set himself, he held that there was no evidence to go to the jury that the defendant was actuated by malice.

But in truth the judge did not misdirect himself. He was quoting from Gatley on Libel and Slander, 8th ed., p. 349, paras. 794 and 795. The language of those paragraphs is taken from the decision of Maule J. in Somerville v. Hawkins (1851) 10 C.B. 583. Mr. Browne seeks to discredit that authority, or at any rate to cast doubt on the test which the judge derived from Somerville v. Hawkins. This overlooks the fact that the language which the judge used was taken from a passage in Maule J.’s judgment which was quoted with express approval by Lord Porter in Turner v. Metro-Goldwyn-Mayer Pictures Ltd. [1950] 1 All E.R. 449, 455. So it cannot be said that the judge adopted the wrong test. The point is quite simple. If a piece of evidence is equally consistent with malice and the absence of malice, it cannot as a matter of law provide evidence on which the jury could find malice. The judge would be bound so to direct the jury. If there are no pieces of evidence which are more consistent with malice than the absence of malice, there is no evidence of malice to go to the jury.

Malice – the facts Mr. Browne relies on two letters dated 25 February and 8 May 1984, which contain much exaggerated language, and some wildly extravagant allegations. As to the exaggerated language, Mr. Browne submits that the judge erred in law when he held that mere exaggeration is not evidence of express malice. Once again, he referred us to the speech of Lord Porter in Turner v. Metro-Goldwyn-Mayer Pictures Ltd. But it was gross exaggeration which Lord Porter said in that case might constitute evidence of malice. If mere exaggeration were sufficient, then the objective test in Merivale v. Carson (1887) 20 Q.B.D. 275 would have to be rephrased. Indeed it was in Merivale v. Carson that Lord Esher said “Mere exaggeration, or even gross exaggeration, would not make the comment unfair.”

I do not find it necessary to consider the terms of the two letters in detail. They were given careful consideration by the judge. The judge’s conclusion as to the letter of 25 February was:

“These exaggerated or untrue statements as to the plaintiff’s past do in my view provide a scintilla of evidence of malice on the [*121] part of the defendant towards the plaintiff, but in my judgment it is no more than a scintilla.”

I find myself in complete agreement with the judge. I agree also with his view as to the letter of 8 May 1984.

Some reliance was also placed on a letter written three years later in March 1987, in which the defendant said: “I knew and know nothing against him personally and willingly accept that he is a decent human being.” If the defendant always regarded the plaintiff as a decent human being, how, it was asked, could he truthfully have held the view that the plaintiff was a racist? I am unimpressed by this argument. The letter of March 1987 was written in a praiseworthy attempt to resolve the dispute between the parties. The defendant was holding out an olive branch, or twig at least. The sentence I have quoted is not evidence on which the jury could hold that the defendant did not believe in the truth of his comment. Two things stand out. First, the defendant believed passionately in the evil of anti-semitism. Secondly, he and the plaintiff were total strangers. In those circumstances no reasonable jury could have held that the defendant’s dominant motive was to injure the plaintiff, rather than express his own honest, if misguided, views.

A number of other peripheral matters were mentioned. But they do not amount to anything of substance. I agree with the judge that there was no evidence of malice to go to the jury. I would dismiss the appeal.

GLIDEWELL L.J. I have had the advantage of reading in draft the judgment of Lloyd L.J. I gratefully adopt and need not repeat his statement of the facts. In order for Drake J. at the trial of this action to uphold the submission that there was no case to go to the jury, it was necessary for him to decide that any reasonable jury properly directed would be bound to hold: (1) that the words of which the plaintiff complains in the defendant’s letter were comment and not statements of fact; and (2) that they were “fair comment”; and (3) that there was no evidence to go to the jury of express malice which would defeat the defence of fair comment.

As Lloyd L.J. says, the question whether the jury would be bound to find that the words complained of were comment and not statements of fact raises the issue whether, in deciding the question, a jury if it were left to them would be, or the judge in the circumstances was, entitled to consider the whole of the plaintiff’s article in “The Daily Telegraph” of 13 February 1984, or only the short extract from it contained in the defendant’s letter published on 18 February 1984.

The defendant’s letter started by referring to the plaintiff’s article, giving its title and the date on which it was published. While, of course, it may well be that many people who read the letter would not have read the earlier article, those who were sufficiently concerned about the content of the letter would have been able, if they wished, to refer back to the article. “The Daily Telegraph” is a newspaper with a wide circulation, and even a few days after publication copies are readily available. In the circumstances of this case, I therefore [*122] agree with Lloyd L.J. that in deciding the question, “fact or comment?,” the judge was entitled, and a jury would have been entitled, to consider the text of the whole article. I am strengthened in this view by realising that if this were not the case, the judge would have to direct the jury not to consider the article in deciding whether what was contained in the letter was comment or a statement of fact, but then if they decided it was comment to look at the article in order to decide whether the comment was fair. This would be a most unsatisfactory basis for a direction and I cannot think it would correctly represent the law. Accordingly, in my view, it was permissible to consider the whole article in deciding both questions.

Considering the whole article in this way, I also agree with Lloyd L.J. that the jury would have been bound to conclude that the matters of which complaint is made in the letter were, though expressed as if they were statements of fact, in reality comment upon the content of the article, or of part of it.

If, however, it were not permissible when answering this question to look at the article but only at the passage contained in the letter, then I would be of a different view. It would in my view then be arguable whether the statements in the letter were statements of fact or comment, and I would not have thought it right for the judge to withdraw this question from the jury. On this point, I find myself in disagreement with the view expressed by Lloyd L.J. However, this disagreement is of no consequence.

In every other respect I agree with the judgment of Lloyd L.J., both with his reasoning and with his conclusion. I wish particularly to emphasise my agreement with that part of his judgment which considers whether, in English law, it is an essential ingredient of the defence of fair comment that the view expressed by the author should be his honest view. Like Lloyd L.J., I am firmly of the opinion that this question only arises when the next stage is reached, i.e., consideration of the question whether malice has been proved.

As I have said, I agree entirely with Lloyd L.J.’s reasoning on this matter, and it is unnecessary for me to express the same reasons in words of my own. I emphasise, however, that like him I regard the statement of the law in Duncan & Neill on Defamation, 2nd ed., p. 57, para. 12.02 as accurate, subject to the rider to which Lloyd L.J. refers. I also regard the passage from the minority judgment of Dickson J. in Cherneskey v. Armadale Publishers Ltd., 90 D.L.R. (3d) 321 which Lloyd L.J. has set out in his judgment as accurately representing the law of England on this issue.

Agreeing as I do with Lloyd L.J.’s reasoning, I also agree with him that this appeal should be dismissed.

WOOLF L.J. I have had the opportunity of reading the judgments of Lloyd and Glidewell L.JJ. Subject to what I say hereafter I agree with those judgments.

If the words contained in the letter about which complaint is made are capable of being regarded as statements of fact this appeal must succeed since it would then be for the jury to decide whether the [*123] words amounted to comment or statements of fact. Considering the letter alone, I have difficulty in deciding whether the words complained of are comment or statements of fact. Therefore if I am required to determine this issue by considering the letter alone I would have difficulty in accepting the approach adopted by the judge. However, having heard the further argument, I am quite satisfied that the question as to whether the words complained of are comment or statements of fact has to be decided by looking at the whole of the contents of the letter and the article to which the letter refers. This is the context in which the letter is to be construed and when the letter is construed in this context, it is in my view clear that the words complained of are comment and not statements of fact.

In coming to my conclusion that you are entitled to look at the article in deciding whether the words complained of are statements of fact or comment I have in mind that it would unduly restrict the defence of fair comment if you were not entitled to look at the material on which it is alleged that the words complained of were commenting. I am not impressed by the argument that you are not entitled to look at the subject matter of the comment because the reader of the allegedly defamatory statement may not be aware of its contents. The ability of the defendant to comment should not depend on whether or not the reader is aware of the material which is the subject of the comment. The defence of fair comment is based on the principle that you should be entitled to comment on a matter of public interest and the fact that the publication is limited does not affect the public interest.

As the statements complained of were comment I would dismiss the appeal for the reasons given by Lloyd L.J.

Appeal dismissed with costs, save for costs of resumed hearing.

Leave to appeal.