Lowe v Associated Newspapers Ltd

For a defence of fair comment, readers must be able to recognise the defamatory statement as comment rather than fact. The publication need not set out every supporting fact. Where the subject matter is plainly identified and already before the public, the defendant may rely on relevant extrinsic facts.

Those facts must have existed and been known to the commentator, at least in general terms, when the comment was made. Later-discovered details may illustrate a general fact already known, but wholly unknown facts and post-publication events cannot support the defence. The ultimate question is whether someone could honestly have expressed the opinion on the facts known to the commentator.

The claimant, chairman of Southampton Football Club, brought libel proceedings concerning a newspaper column which criticised his treatment of a former manager and described the reverse takeover through which his company acquired the club as repellent financial chicanery.

The defendant pleaded fair comment and, alternatively, justification. On numerous interlocutory applications, the court considered the meanings the article was capable of bearing, whether the single-meaning rule applied to fair comment, which supporting facts could be pleaded, what knowledge the commentator required at publication, and whether individual particulars were relevant and adequately pleaded.

1. The applications were granted in part and refused in part. Several particulars were struck out as irrelevant, incomprehensible or inadequately connected with the alleged defamatory sting. Others could remain, subject to proper particularisation and proof of the commentator’s knowledge. Some outstanding applications were deferred until the pleadings had been adjusted.

2. The single-meaning doctrine applies when determining the meaning upon which a fair comment defence must operate. The court first identifies what was published and the meaning it is capable of bearing. The defence cannot be judged by the author’s subjective intention, belief or hope as to meaning.

3. A fair comment defence requires readers to be able to distinguish comment from fact. It does not invariably require the publication to state every fact supporting the comment. Following Kemsley v Foot [1952] AC 345, where the relevant matter is already before the public, comment may be made without setting out the supporting facts, provided the subject matter is plainly identified. Relevant extrinsic facts may therefore be pleaded.

4. Any facts stated in the publication must not be materially misstated. An inaccurate factual foundation may undermine the defence. The defendant is not, however, confined to the facts expressly stated in the article. The contrary observations concerning fair comment in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 were background observations rather than part of that decision’s ratio and did not displace Kemsley.

5. Facts relied upon for fair comment must have existed at publication and must then have been known to the commentator at least in general terms. Specific examples discovered later may support a general fact already known. A forgotten fact may also be relied upon because it may have contributed to the formation of the opinion. Facts wholly unknown to the commentator, facts arising later, mere received opinion and rumours cannot provide the foundation.

6. The objective question is whether someone could honestly have expressed the defamatory opinion, or drawn the inference, from facts known to the commentator and upon which the commentator purported to comment. A publisher of an identified commentator’s opinion need not independently possess that knowledge.

7. Allegations of dishonesty or improper collusion must be stated unequivocally and particularised with precision. A plea of reasonable grounds for suspicion cannot be used to support a direct allegation of guilt through a collection of particulars which merely creates general suspicion. Permission for that part of the proposed re-amendment was refused.

not stated in the judgment.