Branson v Bower

An allegation about a person’s motive may constitute fact or comment. Its classification depends upon the words used and their context. The publication must be read as a whole.

An attribution of motive is comment where a reasonable reader would understand it as the writer’s deduction or inference from the facts presented. A judge may determine the classification without a jury where no reasonable jury could conclude that the words were factual assertions.

In libel proceedings arising from an article about a bid to operate the National Lottery, the claimant alleged that the defendant had imputed dishonourable and hypocritical motives to him. The defence pleaded justification, fair comment and qualified privilege.

Eady J determined a preliminary issue by declaring that the words complained of were comment and were incapable of being statements of fact. The claimant appealed with the judge’s permission.

The central issue was whether the allegations about the claimant’s motives were capable of being factual assertions requiring justification, or whether, read in the context of the whole article, they could only be understood as the defendant’s opinions or inferences.

1. Appeal dismissed. Latham LJ and Sir Philip Otton agreed that, when the words complained of were read in the context of the article as a whole, no reasonable jury could conclude that they were anything other than comment.

2. Per Latham LJ, an assertion about motive is capable of being an assertion of fact, but its classification depends upon its context. Comment includes a deduction, inference, conclusion, criticism, remark or observation, or material which can reasonably be understood in that way. The governing question is how the words would be understood within the whole publication.

3. The article expressed a series of opinions about the claimant’s motives. A reader would understand that those opinions were the defendant’s inferences from the facts presented in the article. The judge was therefore entitled to decide the preliminary issue himself rather than require the jury to classify the words as fact or comment.

4. Sir Philip Otton accepted that the opening allegation, taken by itself, might appear capable of being a defamatory factual assertion. Domestic defamation law nevertheless required the entire article to be considered. In its full context, the words admitted of no reasonable classification other than comment.

5. The appeal could be decided by applying the traditional common law test. It was unnecessary to determine whether the boundary between fact and comment had been affected by the Human Rights Act 1998 or the jurisprudence concerning article 10 of the European Convention on Human Rights. Sir Philip Otton found nothing in that jurisprudence requiring a different contextual approach.

6. The appeal was dismissed with costs, subject to detailed assessment.

• Court of Appeal (Civil Division): By [2001] EWCA Civ 791, dismissed the claimant’s interlocutory appeal and upheld Eady J’s classification of the words as comment.
• Queen’s Bench Division: Eady J declared on a preliminary issue that the words complained of were comment and were incapable of being statements of fact. The judge granted permission to appeal.