Telnikoff v Matusevich

This is a libel action concerning a letter published in a national newspaper responding to an article. The central legal principles are the distinction between statements of fact and comment in defamation law and the scope of the defence of fair comment (honest opinion). The court held that it is for the judge to determine as a matter of law whether words are capable of being statements of fact or only comment, and that if there is reasonable doubt the question must be left to the jury. The House of Lords found that the judge below erred in withdrawing from the jury the question whether two paragraphs of the defendant's letter (paragraphs 6 and 7) were statements of fact or comment and therefore remitted that issue to a jury. The House of Lords accepted the established objective test for fair comment and upheld the conclusion that there was no evidence of express malice fit for the jury.

This action for libel arose after the appellant published an article in the Daily Telegraph and the respondent published a critical letter in response. The appellant (a Russian émigré and probationer with the BBC Russian Service) sued the respondent (also an émigré and a BBC/Radio Liberty employee) for libel, alleging the letter imputed racist demands, advocacy of dismissal on racial grounds, and racialist/anti-semitic tendencies.

The procedural history was: an initial trial before Michael Davies J. and a jury resulted in judgment for the plaintiff; that judgment was set aside and a retrial ordered. At the retrial before Drake J. the defendant succeeded on a submission of no case to answer when the judge held that the impugned paragraphs were fair comment and that there was no evidence of express malice. The Court of Appeal dismissed the plaintiff's appeal ([1991] 1 Q.B. 102) but granted leave to appeal to the House of Lords.

The issues framed were:

• Whether paragraphs 6 and 7 of the respondent's letter were statements of fact (defamatory) or were commentary/opinion;
• Whether the defence of fair comment was available and, if so, whether the objective test (could an honest albeit prejudiced person have held the view) was satisfied;
• Whether the defendant was obliged affirmatively to prove that the comment was his honest belief (i.e. whether the defendant had to give evidence) and whether there was evidence of express malice.

The House of Lords reasoned that the question of whether words are capable of being statements of fact is for the judge as a matter of law, but where reasonable doubt exists the matter must be left to the jury. The majority concluded that, read on its own, the letter could reasonably be understood by some readers as asserting facts in paragraphs 6 and 7 and so Drake J. should have left that issue to the jury. The House of Lords did not upset the conclusion that, on the fair comment test and on the evidence, the defence would succeed and there was no material of express malice, but remitted the issue of fact or comment on paragraphs 6 and 7 to a jury in the Queen's Bench Division. The House also addressed the proper scope of context: while the judge must consider the publication itself, the court accepted that in many cases the subject-matter to which comment is directed may be identified and relevant to the question of fairness; nevertheless the core question whether words are capable of being factual allegations may properly require attention to how the impugned piece would be read on its own by readers who had not seen the primary material.

Appeal allowed in part. The House of Lords held that Drake J. was wrong to withdraw from the jury the question whether paragraphs 6 and 7 of the defendant's letter were statements of fact rather than comment; that issue must be remitted to a jury. The court accepted the established objective test for fair comment and found no evidence of express malice fit for the jury, but the critical preliminary question of fact or comment should have been left to a jury.

Initial trial before Michael Davies J. (judgment for plaintiff 5 Oct 1988) was set aside and a retrial ordered (28 Apr 1989). Retrial before Drake J. (May 1989) where the judge upheld a no-case submission and dismissed the claim; Court of Appeal dismissed the plaintiff's appeal but granted leave to appeal to the House of Lords ([1991] 1 Q.B. 102). House of Lords allowed the appeal in part, set aside the orders below and remitted the issue whether paragraphs 6 and 7 contained statements of fact to the Queen's Bench Division for a jury determination (House of Lords judgment [1991] UKHL 16, reported [1992] 2 AC 343). The House of Lords also ordered costs allocation between the parties (see judgment for details).