Lait v Evening Standard Ltd

Fair comment may protect an unreasonable, offensive or prejudiced opinion, provided that it is honestly capable of being expressed on the basis of facts that are stated or referred to and proved. A factual error does not necessarily defeat the defence where the comment remains fair on the accurate factual substratum, subject to Defamation Act 1952, section 6. The court must identify the meaning to which the defence is directed. It may summarily uphold the defence where only one answer is reasonably open to a jury, particularly in robust debate about public affairs.

Jacqui Lait, a former Member of Parliament, brought a defamation claim against the publisher of an article concerning her criticism of proposed reforms to MPs’ second-home expenses. The article wrongly stated that she had been forced to repay nearly £25,000, and was alleged to imply hypocrisy and disreputable exploitation of the expenses system.

The claimant sought summary judgment on the defendant’s pleas of justification and fair comment. The defendant sought summary judgment on fair comment, contending that readers could honestly regard the claimant’s intervention as provoking legitimate anger because she had benefited from the former expenses system.

1. Meaning and characterisation. The pleaded meanings concerning hypocrisy and legitimate anger were, in context, capable of being comments rather than assertions of fact. The court must first determine the meaning to which a fair-comment defence is directed; political invective is not automatically treated as comment.
2. Honest comment. The defence is available even for unreasonable, offensive or prejudiced views. The question is whether the opinion or inference could honestly be expressed in light of the facts, not whether the court or a reasonable person would agree with it. The widespread public resentment concerning MPs’ expenses formed part of the relevant background.
3. Factual basis. The false allegation that the claimant had been forced to repay £25,000 could not itself support fair comment. However, under section 6 of the Defamation Act 1952, the defence did not fail merely because every factual allegation was not proved, provided the comment was fair having regard to the facts accurately stated or referred to. The claimant’s subsidised capital gain and use of the former expenses system supplied an available factual substratum.
4. Summary disposal. Although a jury might have found that the words conveyed hypocrisy, that did not prevent the alternative meaning from being defensible. Applying the approach in Burstein v Associated Newspapers Ltd [2007] 4 All ER 319, the court held that fair comment was bound to succeed because no realistic jury could conclude otherwise on the alternative meaning.
5. The claimant’s application was dismissed. The defendant was granted summary judgment on fair comment. The factual error concerning the repayment did not leave a compensable defamatory residue.