London Artists Ltd v Littler (Associated Television Ltd v Littler, Grade v Littler, Grade Organisation Ltd v Littler)

The defence of fair comment requires a matter of public interest, recognisable comment and a sufficient foundation of true or privileged facts. Public interest extends to matters which legitimately interest or concern people at large.

The judge must decide whether words are reasonably capable of being comment. An allegation presented as an existing fact cannot be protected merely because it represents an honestly held inference. Even genuine comment fails where its essential factual foundation is false or where no fair-minded person could honestly draw the defamatory inference from the proved facts.

The defendant publicly alleged that four theatrical and broadcasting businesses and an individual had participated in a plan to end the successful run of a West End play. The allegation followed simultaneous notices from four members of its cast. The plaintiffs brought four libel actions.

At trial, the defendant withdrew justification and the pleaded allegation of a combination after the evidence disclosed no plot. Cantley J ruled that publication to the press was not privileged and withheld fair comment from the jury because there was no matter of public interest or sufficient factual basis. The rulings were reported at [1968] 1 WLR 607. The jury assessed damages.

The defendant appealed only against the withdrawal of fair comment and sought a new trial. The central questions were whether the fate of the play was a matter of public interest, whether the alleged plot was fact or comment, and whether the proved facts could support that imputation.

1. The appeal was dismissed unanimously, with costs. Although the trial judge had erred in holding that no matter of public interest existed, the defence of fair comment was unavailable on the remaining grounds. Leave to appeal was refused.

2. Lord Denning MR, Edmund Davies LJ and Widgery LJ held that the threatened premature closure of a successful play was a matter of public interest. Public interest is not confined narrowly. It encompasses matters which legitimately interest or concern people at large. The public character of the play did not, however, authorise unrestricted comment upon an actor's private life.

3. The court held that the alleged plan or combined effort was an assertion of fact, rather than words reasonably capable of constituting comment. The judge determines that threshold question. The allegation was presented as an existing arrangement among the plaintiffs, including in the defendant's own pleading and evidence. Its factual character was not altered by guarded introductory language.

4. A defence of fair comment assumes a sufficient foundation of true facts, or facts published on a privileged occasion. Where the publication states defamatory basic facts, the defendant must prove them. Section 6 of the Defamation Act 1952 did not remove that requirement. The defendant proved circumstances showing connections among some of the parties, but not the essential alleged combination. Withdrawal of the pleaded combination therefore removed the necessary factual link between the plaintiffs and the actors' notices.

5. Lord Denning MR and Widgery LJ further held that, even if the words could be treated as comment, no fair-minded person could honestly infer from the proved facts that the plaintiffs were parties to a plot. The defendant's personal honesty and good faith were insufficient. He had reached and published the conclusion precipitately without adequate inquiry.

6. Accordingly, the trial judge was right to leave only damages to the jury. The appeal was dismissed with costs, and leave to appeal was refused.

1. Court of Appeal: The defendant's appeal against the withdrawal of fair comment from the jury was dismissed unanimously, with costs. Leave to appeal was refused.
2. High Court: Cantley J and a jury tried the four libel actions. The judge rejected privilege and withheld fair comment from the jury; those rulings were reported at [1968] 1 WLR 607. The jury awarded damages to each plaintiff.