Thornton v Telegraph Media Group Ltd

Issues concerning fair comment arise only if the words complained of are defamatory or capable of bearing a defamatory meaning. Where that essential predicate has not been determined, and an application for a preliminary ruling on it is intended, an application for permission to appeal on consequential fair-comment issues should be adjourned. The procedural route for challenging the lower court’s answer to a separate issue is by cross-appeal, rather than by a respondent’s notice.

The defendants in a libel action sought renewed permission to appeal from a decision of Sir Charles Gray in the High Court. The judge had considered whether the words complained of contained statements of fact rather than comment, and whether material misstatements of fact defeated the defence of fair comment. He answered the first question in the defendants’ favour and the second against them. Permission had previously been refused on the papers by Sir Richard Buxton.

On the renewed application, the Court of Appeal identified a prior and potentially determinative issue: whether the words were defamatory or capable of being defamatory. The intended respondent indicated that, if permission were granted, it might seek to challenge the answer to the first question. The central issue was whether the permission application should proceed before the necessary predicate of defamation had been determined.

1. Application adjourned. The renewed application for permission to appeal was adjourned.
2. The questions addressed by the High Court concerning fact and comment, and the effect of material factual misstatement on fair comment, presupposed that the words complained of were defamatory or capable of being defamatory. Those questions would have no continuing relevance if that necessary predicate were absent.
3. The Court of Appeal considered that it would be inappropriate to allow the permission application, or any intended cross-application, to proceed further while an application for a preliminary decision on defamatory meaning was to be issued. The proper sequence was first to determine whether the words satisfied the threshold requirement of defamation.
4. The court observed that words may be false without being defamatory. Whether the publication was defamatory had not been argued before the High Court and was not an issue for determination on the renewed application.
5. The intended respondent’s proposed challenge to the High Court’s answer to the first question would properly be made by cross-appeal, rather than by a respondent’s notice. If the application were restored, it was to be restored on full notice to the intended respondents so that any cross-application could be made in proper form.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was adjourned pending consideration of a preliminary issue concerning whether the words were defamatory or capable of being defamatory.
• High Court of Justice, Queen’s Bench Division: Sir Charles Gray answered the fact-or-comment question in the defendants’ favour and held that material misstatement of fact defeated the fair-comment defence.