[IN THE COURT OF APPEAL.]

PETER WALKER & SON, LIMITED v. HODGSON.

Practice - Discovery - Interrogatories - Action for Slander - Defence of Fair Comment.

The defendant in an action for slander, alleged to have been uttered in a speech made by him as chairman at a licensing meeting, pleaded a defence of fair comment in the following terms: "In so far as the words complained of consist of statements of fact the same are in their natural and ordinary signification true in substance and in fact. In so far as they consist of comment the same are fair and bona fide comment upon matters of public interest." There was no plea of justification. Upon an application by the defendant for leave to administer interrogatories to the plaintiffs directed to proving the truth of the statements of fact in his speech and in the particulars delivered by him of the materials upon which his defence of fair comment was based:-

Held, that the defendant was entitled, notwithstanding the absence of a plea of justification, to administer interrogatories with the object of obtaining admissions of the truth of the material statements of fact in the speech and particulars alleged to be defamatory.

APPEAL of the defendant from an order of Bray J. at chambers refusing leave to administer interrogatories to the plaintiffs.

The plaintiffs, a limited company carrying on the business of brewers and wine and spirit merchants and owners of licensed houses in Lancashire, Yorkshire, Cheshire, and other counties, sued the defendant, the chairman of the licensing justices for Crewe, to recover damages for slander, alleging that in a speech or address made by him at a general annual licensing meeting and transfer sessions held at the police court, Crewe, he falsely and maliciously spoke and published of the plaintiffs, and of the plaintiffs in the way of their trade and business, certain words, which were thus set out in the statement of claim:-

"There are some other matters, probably, which may be in the minds of some people as they are in the minds of the Bench, as to what has occurred during the past year with reference to the conduct of licensing business, and which are not included in the superintendent's report. They don't come within the province of the superintendent to make comment on such matters, but I have been asked by the magistrates to say

something about them. This last year has been a year of considerable interest to the Bench with reference to a matter which has come before them, which they consider exceedingly serious. They have had suggested to them for a long time that a number of the licensees in this town" (meaning the licensees of the licensed public-houses in Crewe of which plaintiffs are owners) "who were supposed to be bona fide tenants, and who have produced agreements before this Court of tenancy with their owners on the face of which they seemed to be described clearly as bona fide tenants, whereas the general opinion has been that they were not tenants at all, but simply managers in receipt of weekly wages, acting as agents of the Brewery Company" (meaning the plaintiffs) "only. A case has occurred recently" (meaning the case of one Hannah Brown, the then licensee of the Blue Cap Dog public-house, Crewe, of which plaintiffs are owners) "in which the magistrates, after a great deal of care and patience, under exceedingly great provocation, came to the conclusion that such a suspicion was proved; and they believed that these agreements in those cases, and in that particular case, were bogus. And they, therefore, considered the practice of presenting such agreements as a fraudulent practice. They also came to the conclusion that the outgoing tenant in that case" (meaning the said Hannah Brown) "was being cruelly wronged, dispossessed of her licence because she refused to carry out a practice which she knew to be fraudulent, and is consequently dispossessed by the Brewery Company" (meaning the plaintiffs) "of her licence. The magistrates consider that a Court of justice ought not to be used as a means for the perpetuation of corrupt practices. Whether the law gives us power to stop a corrupt practice or not, it seemed to the magistrates that they ought to object to it. They believed they had the power to stop it as far as they could stop it, but on an appeal to quarter sessions" (meaning an appeal to the Chester quarter sessions wherein one Peter Leigh and the plaintiffs were appellants and the defendant and other justices of the borough of Crewe were respondents) "they were reversed without having an opportunity of stating their reasons for objecting to the transfer of the licence. Counsel for the magistrates asked the Court of quarter sessions to state

a case on the points of law, and sanction was granted for stating a case. The magistrates having conferred with their legal advisers, with eminent legal advisers too, have been sustained in their opinion that they have legal grounds for the course they took, and that the case should be proceeded with. In view, however, of the new Licensing Bill which in a very few days it is anticipated will be laid before Parliament, and in which it is anticipated that the powers of the magistrates are not only to be restored but strengthened, the magistrates have come to the conclusion that, instead of pursuing the matter in what would be somewhat expensive litigation, they will leave it where it stands after just giving this statement of the position, in the hope that possibly in future years there may be no occasion for drawing attention to what they believe to be most reprehensible practices. As far as we are concerned, we can have no part or lot with sanctioning anything that is corrupt, whatever may be done elsewhere. The magistrates, so far as their views of these matters are concerned, are prepared to take their stand behind Lord Justice Lindley, probably one of the most eminent licensing justices in this country, and they intend to act according to the advice he has given, if they consider it necessary to do so. We have no bias, however, except the general one of objecting to anything which seems corrupt. Anything that appears to be wrong or corrupt that appears before them they will endeavour to stop as far as they can. I haven't said anything more about this case, and I don't intend. It is very easy, of course, for wealthy brewery companies" (meaning the plaintiffs) "to engage expensive counsel in order to browbeat the local Bench" (meaning the justices for the borough of Crewe) "to deter them from doing their duty in any future case. So far as that matter is concerned we have nothing to say. We don't intend to reply to counsel. We have been content to do what seemed to be our duty without fear or favour, affection or ill will. Whether we please or displease, whether it is brewery company or licensee, we must do our duty, and we have nothing whatever to say as to whatever comments may be made on that decision. The renewal of the licences of the following houses will be adjourned."

[Here followed a list of nine houses.]

"These comprise the list of houses owned by Messrs. Walker & Company" (meaning the plaintiffs). "The superintendent of police will be instructed to issue notice of objection to the licensees of these houses mainly on the ground of fitness. The specific terms of the objection will be issued by the clerk and the police, mainly that they are not bona fide tenants and that the agreements or assurances which they have with their brewers" (meaning the plaintiffs) "and which have been disclosed to the Bench are not bona fide, not genuine, have not been acted upon, and that they have other assurances and agreements which are in operation which have not been disclosed to the Bench. And they will be required to produce trade books, weekly takings books, other documents and receipts which have passed in the course of trade, and stocktaking memoranda and so on between themselves and their owners for the information of the Bench at the adjourned sessions. Every one of these cases will be considered at the adjourned sessions. I have gone into the list of all these houses, their history for many years past. The history is a very sad one, and the magistrates considered they would not be doing their duty without they endeavoured to get to the bottom of the cause of this sad history. A number of the tenants either died in delirium tremens or through drink, some of them are now destitute, nearly all the houses have been convicted from one cause or another, and in many respects, palpably, there is a necessity for seeing whether or not the condition of tenancy is such as to lead to such a conduct in the trade of these houses as is to the interests of the public."

The innuendo contained in paragraph 4 of the statement of claim was in the following terms: "The said words mean and were understood to mean that the plaintiffs had been guilty of corrupt, dishonest and fraudulent conduct in and about the carrying on of their said business; that the plaintiffs had entered into fraudulent and bogus agreements with their tenants; that they had conspired with their said tenants to withhold information from and to deceive the licensing justices of Crewe; and that they were unfitted to be the owners of licensed property or to carry on their said business as aforesaid."

The defence, after denying the publication and the innuendo, pleaded that the occasion of the alleged publication was absolutely privileged, upon the grounds that the words were spoken, if at all, by the defendant in his capacity and office of chairman of the general annual licensing meeting whilst engaged in the performance of the duties of the office, and that they were spoken, if at all, bona fide without malice towards the plaintiffs and with the object of protecting the interests of the public and in the honest belief that every word he spoke was true. It then proceeded in paragraph 8 in the following terms: "In so far as the words complained of consist of statements of fact the same are in their natural and ordinary signification true in substance and in fact. In so far as they consist of comment the same are fair and bona fide comment upon matters of public interest."

Immediately after delivery of the defence a summons was taken out by the plaintiffs for "particulars of the justification pleaded in paragraph 8 of the defence," upon which an order was made on April 28, 1908, by a Master that the defendant should within fourteen days deliver to the plaintiffs "particulars under paragraph 8 of the defence of the materials on which his comments were based, he stating that the defence is one of fair comment and not of justification." Particulars under the order were duly delivered, the nature of which is set out in the judgment of Vaughan Williams L.J.; they consisted, shortly, of reports of committees of magistrates and police, proceedings at licensing sessions, &c., particulars as to the character of the tenancies of the plaintiffs' licensed houses, returns of licensed houses in Crewe, the deaths of certain licensees from drink, convictions of certain of the plaintiffs' licensees, &c.

The defendant then applied for leave to administer certain interrogatories, twenty-five in number, to the plaintiffs. The first two interrogatories were admittedly unobjectionable. The third asked whether the words were not spoken by the defendant in his capacity and office of chairman of justices at the general annual licensing meeting and special sessions and whilst he was engaged in the performance of the duties of that office.

The fourth inquired as to the report of a committee appointed in 1891 by the quarter sessions for Cheshire. Interrogatories 5 to 17 inquired as to certain convictions of persons alleged to be licensees of the plaintiffs' houses, and No. 18 asked as to reports alleged to have been made by the police from the year 1893 onwards as to the conduct of licensed victuallers and beer retailers in Crewe. No. 19 asked as to the proportion of the licensees of the plaintiffs' houses in and near Liverpool on a given date who were managers and not tenants, and No. 20 asked as to a return of licensed houses in crewe prepared in 1903 by the clerk to the justices. No. 21 asked whether six named persons, licensees of the plaintiffs' houses, between 1889 and 1908 had not died on certain named dates of delirium tremens or through drink, and No. 22 asked whether four named persons, tenants of the plaintiffs' houses, were not destitute on a certain date. Interrogatory 23 was in the following terms: "Is it not a fact that up to 1894 George Withers, the licensee of the Blue Cap Dog Inn, was for some time a servant of the plaintiffs, receiving a weekly or some other and what wage and/or accounting to the plaintiffs for the takings and the profits of the business? Was not an agreement relating to the tenancy of the Blue Cap Dog entered into between the plaintiffs and George Withers, dated September 16, 1895? Was such agreement verbal or in writing? Were not the terms of the agreement submitted to the said justices for approval? Was not the licence from time to time renewed to George Withers upon the understanding as between the plaintiffs and the justices that the terms of the agreement were being adhered to? Is it not a fact that the terms of the agreement were never adhered to? Is it not a fact that George Withers did not pay the rent reserved by the agreement? that George Withers did not depart in any way from his original position as manager at weekly wages, accounting to the plaintiffs weekly for the takings and expenses? If any, in what respect was his position altered after the execution of the agreement?" The 24th interrogatory inquired whether a tenant, manager, or representative of the plaintiffs was present at certain meetings or sessions of the Crewe justices from 1893 onwards, and the 25th inquired

whether certain newspaper extracts ranging over a period of fifteen years were not fair and accurate reports of the proceedings referred to in them, and, if nay, in what respects they were unfair or inaccurate.

The Master allowed certain of the interrogatories, but, on appeal to Bray J., the learned judge, being of opinion that although a few were unobjectionable the interrogatories as a whole were, in the absence of a plea of justification, oppressive and unreasonably exhibited, disallowed the whole of them. The defendant appealed.

Hugh Fraser (Isaacs, K.C., with him), for the defendant. The learned judge was wrong in holding that, as the defence was based upon fair comment and not upon justification, the interrogatories as a whole were oppressive and such as ought not to be allowed to be administered. It is true that the defence in paragraph 8, which is in the same terms as that in Digby v. Financial News (1), is one of fair comment only; but in order to establish his defence of fair comment the defendant must prove the convictions of the licensees of the plaintiffs' houses and the condition of the plaintiffs' tenants, the facts relating to which are all in the knowledge of the plaintiffs. No doubt the facts relied upon to support the defence of fair comment, e.g., the convictions, are capable of being proved in another way at the trial, but the defendant is entitled to obtain from the plaintiffs admissions as to the truth of such facts in order to avoid incurring large and unnecessary costs. The defendant is clearly entitled to interrogate the plaintiffs upon the report of the quarter sessions committee as being a matter of public interest. The 25th interrogatory is not pressed.

F. E. Smith, K.C. (Ellis Griffith with him), for the plaintiffs. The learned judge was right in disallowing the whole of the interrogatories; his view is supported by the case of Oppenheim & Co. v. Sheffield. (2) It is not sufficient that there are a few unobjectionable interrogatories among many improper ones. The first two are trivial and there is no objection to their being answered, but the third is an argumentative interrogatory

(1) [1907] 1 K. B. 502.

(2) [1893] 1 Q. B. 5.

upon a point of law material to the case. Nos. 4 and 18 relate to a report of a committee of justices which sat eighteen years ago, and they should be disallowed. Nos. 5 to 17 ask for information as to convictions which could easily be proved in the ordinary way, and they are doubly oppressive in that they ask in each instance whether the licensee was a tenant or a manager. But the general objection to the interrogatories is that they cannot be asked at all. The substance of the libel is that the plaintiffs fraudulently made bogus agreements with their tenants, thereby deceiving the licensing justices; and if the defendant had pleaded justification the interrogatories could have been asked. But it is clear that in the absence of a plea of justification the defendant cannot interrogate the plaintiffs as to the truth of the statements complained of as libellous: Lord Hindlip v. Mudford. (1) In the present case fact and comment are so confused and intermingled in the defendant's speech that it is difficult to distinguish between them. [He also cited Hunt v. Star Newspaper Co. (2)]

Isaacs, K.C., in reply. Where there is a defence of fair comment it is necessary for the defendant to set up the truth of the facts relied on in support of that defence, for you cannot get fair comment until you prove the truth of the facts on which the fair comment is based. The defendant has to prove more than that these facts had come before the committee of quarter sessions; he must shew that the facts themselves are true - in other words, that there are facts from which he might fairly draw the inference which he did. Lord Hindlip v. Mudford (1) is distinguishable; the defence in that case did not allege that the facts commented on were true, but merely that the alleged libel was a fair and bona fide comment on a matter of public interest. If the truth of the facts is necessary in order to base a plea of fair comment, the defendant must frame his defence in the form here adopted, and he will then be entitled to interrogate. The object of interrogating in the present case and similar cases is to save the expense of proof.

(1) (1890) 6 Times L. R. 367.

(2) [1908] 2 K. B. 309.

Nov. 18. VAUGHAN WILLIAMS L.J.,after stating that the Court intended to allow some of the interrogatories, but that the counsel for the parties ought to agree as to which should and which should not be answered, read the following judgment:- This is an appeal from an order of Bray J. varying an order of a Master, who had allowed certain interrogatories out of a number proposed by the defendant for the examination of the plaintiff company, and had disallowed the others. Bray J. rejected the whole of the proposed interrogatories. [His Lordship read several extracts from the defendant's speech as set out in the statement of claim, and continued:-]

I have now set forth enough of the slander alleged in the statement of claim, and of the innuendo, to ascertain what is the substance of the words complained of, and of the innuendo, and how far the words support the innuendo. It seems to me that the speech complained of does not allege that the plaintiff in fact carry on their business in a corrupt, dishonest, and improper manner, conspiring to deceive the justices of Crewe, but only that the magistrates have had such suggestions and information laid before them and such cases brought before them on applications for renewals of licences, and in particular the case of the Blue Cap Dog, a house owned by the plaintiff company, and that in their honest opinion as magistrates they think there is a "necessity for seeing whether or not the condition of tenancy is such as to lead to such a conduct in the trade of these houses as is to the interests of the public," that is to say, the houses set forth in the list and owned by the plaintiffs. Let us look, then, at the amended defence. There is no plea of justification as such. What the defendant pleads in paragraph 8 is that "in so far as the words complained of consist of statements of fact the same are in their natural and ordinary signification true in substance and in fact. In so far as they consist of comment the same are fair and bona fide comment upon matters of public interest." This form of pleading, which I always think very indefinite and embarrassing, has, however, been adopted and sanctioned ever since the decision of Mathew and Grantham JJ. in Penrhyn v. Licensed Victuallers' Mirror (1),

(1) (1890) 7 Times L. R. 1.

and must now be accepted as proper pleading. No difficulty, however, arises in the present case, because there was an order for particulars obtained by the plaintiffs in which it was stated that the defendant admitted that the defence was one of fair comment, and not of justification, and counsel argued this case upon the basis that there was no plea of justification.

Now, according to the ordinary practice, interrogatories to establish the truth of the alleged defamation are not admissible unless justification is set up by the defence. The question which we have to decide is whether these proposed interrogatories are admissible to establish (a) the facts alleged in the speech of the chairman; (b) the particulars delivered by the defendant of the fact, or facts, or materials referred to, disclosed, or proved, with reference to the plaintiffs, upon which the defendant alleges that his comments were based. The particulars deal with various subject-matters, and it may be that some interrogatories are admissible and some are not; I will deal with that later on. For the present it is sufficient to say that the matters relied on in the particulars of fair comment are (1.) reports of committees of magistrates; (2.) proceedings in licensing sessions, Courts of summary jurisdiction, the Court of Bankruptcy, and Chester quarter sessions; (3.) annual reports of police; (4.) the fact that a large number of licensees of the plaintiffs' houses in Liverpool are managers and not tenants. I may say in passing that, comparing the first three particulars with the fourth, the difference is obvious at once; as to the first three there is no mention whatsoever of those specified matters in the chairman's speech, but they are introduced because they are relied upon as grounds supporting the defence of fair comment. (5.) The provisions of s. 16, sub-s. 1, of the Licensing Act, 1902; (6.) the return of licensed houses in Crewe prepared by the clerk to the justices; (7.) the deaths of certain persons from delirium tremens or drink; (8.) the fact that certain people were destitute at the time of the publication of the defamation; (9.) certain convictions; (10.) a letter addressed by the secretary of the Crewe, Nantwich, and District Licensed Victuallers' Association to the chairman and members of the licensing Bench in the same district.

The interrogatories deal with most of these subject-matters, asking, moreover, questions as to the occasion when the words were spoken by the defendant, and the capacity and/or office in which he spoke them. It will be observed that although some of these interrogatories deal with specific statements of fact made by the defendant when he made the speech complained of, yet many of them refer to general statements made by the defendant in respect of the public-houses of the plaintiff company as a class, as illustrations of the state of things. The fact is that the defendant made general statements as to the character of the real occupation of these houses of the plaintiffs as disclosed in the antecedent proceedings before the magistrates, and proceeded to set forth a list of houses of the plaintiffs for which there were pending on that day applications for renewal of licences, and said that the applications would be adjourned, and that pending the adjournment the superintendent of police would be instructed to issue notices of objection based upon the specific objections which the magistrates thought necessary, having regard to the necessity for seeing whether or not the condition of the tenancy of such houses was such as to lead to such a conduct in the trade of these houses as was to the interest of the public; whereas the interrogatories are based not on this general statement about the houses of the plaintiff company, but on specific instances of the class of the complaint set forth in the defendant's speech, which instances, however, are not specifically alleged in the defendant's speech, but appear for the first time in the defendant's particulars of the facts and grounds upon which he bases his fair comment. The doubt is whether the defendant, not having pleaded justification, but only fair comment, can interrogate the plaintiffs as to these matters, or whether it would not be oppressive to throw this burden on the plaintiffs in a case where no plea of justification is relied upon. No one can doubt that the matter commented on by the defendant is a matter of public interest; but the onus of proving that his words are a comment, and that they are a comment on a matter of public interest, lies upon the defendant. The onus of proving that the comment is unfair or dishonest formerly used always to be held to lie on the plaintiff; that is to say, he had to establish that the facts were not such

as to justify the defendant's comments, which were therefore malicious.

It has been said in recent cases that a comment cannot be a fair comment if it is based upon facts not truly stated. This appears strongly in the case of Dakhyl v. Labouchere. (1) Ever since Merivale v. Carson (2) the doctrine laid down by Sir James Shaw Willes (3) that fair comment is a branch of the doctrine of privileged occasion, under which the publication is protected if the judge rules that the occasion is privileged and that there is no evidence of express malice, has been disapproved, and the defence of fair comment has been regarded, as it is now regarded, as a denial that the words complained of are really defamatory, fair criticism being, it is said, no defamation. Opinions differ as to the merits of this change of doctrine. On the one hand it is said that under the privileged occasion doctrine the right of criticism is practically unlimited, however unfounded in fact or in style, unless malice is proved; on the other hand it is said that a doctrine which exposes the critic dealing with matters of public interest to a verdict against him unless he can vouch the truth in substance and in fact of every fact alleged by him in the criticism of the acts of any one acting in a matter of public interest is destructive of that freedom of criticism which is so essential for a free people. I think, however, that the modern doctrine must now be accepted as the doctrine in force, but even so it has been recognized until a few recent decisions that a defence of fair comment does not raise quite the same issues as a defence that the allegations complained of are true in substance and in fact. Cockburn C.J. said in Campbell v. Spottiswoode (4), which case seems to be the foundation of the modern doctrine, "One man has no right to impute to another, whose conduct may be fairly open to ridicule or disapprobation, base, sordid, and wicked motives, unless there is so much ground for the imputation that a jury shall find not only that he had an honest belief in the truth of his statements but that his belief was not without foundation." These are not words which a judge would

(1) [1908] 2 K. B. 325, n.

(2) (1887) 20 Q. B. D. 275.

(3) See Henwood v. Harrison, (1872) L. R. 7 C. P. 606.

(4) (1863) 3 B. & S. 769.

use in directing a jury on their duty in dealing with questions arising on a plea of justification.

In the case of Digby v. Financial News (1), which was a libel case in which the question was whether the plaintiff was entitled to particulars of the statements of fact which the defendants alleged to be true, and whether they alleged any of the statements in the plaintiff's documents to be untrue, Collins M.R. draws a distinction between a plea of justification and a plea of fair comment, and says that, when a justification is pleaded, it involves the justification of every injurious imputation which a jury may think is to be found in the alleged libel, but that fair comment does not purport to be a plea of justification, but a plea of fair comment; but he says further, "Comment, in order to be fair, must be based upon the facts, and if a defendant cannot shew that his comments contain no misstatements of fact, he cannot prove a defence of fair comment. .... If the defendant makes a misstatement of any of the facts upon which he comments, it at once negatives the possibility of the comment being fair. It is therefore a necessary part of a plea of fair comment to shew that there has been no misstatement of facts in the statement of the materials upon which the comment was based." In Hunt v. Star Newspaper Co. (2), which was subsequent in date to Dakhyl v. Labouchere (3), Cozens-Hardy M.R. says(4): "Now it seems to me that the learned judge did not properly direct the jury as to the meaning and effect of the plea of fair comment. The words which I have read seem to indicate that that cannot be fair comment which tends to prejudice or to impute blame to the plaintiff. In my opinion that is not the law. The defence of fair comment only arises in the event of the plea of justification failing, but the plea of justification may fail by reason of the facts stated not being substantially true. But there still remains the question whether, if, and only if, the facts are substantially true, the comment made by the defendants, based upon those true facts, was fair and such as might, in the opinion of the jury, be reasonably made. I cannot do better than adopt the language

(1) [1907] 1 K. B. 502.

(2) [1908] 2 K. B. 309.

(3) [1908] 2 K. B. 325, n.

(4) [1908] 2 K. B. at p. 317.

of Kennedy J. in Joynt v. Cycle Trade Publishing Co. (1) 'The comment must .... not misstate facts, because a comment cannot be fair which is built upon facts which are not truly stated, and further, it must not convey imputations of an evil sort, except so far as the facts, truly stated, warrant the imputation.' And in Dakhyl v. Labouchere (2) Lord Atkinson said, 'A personal attack mag form part of a fair comment upon given facts truly stated if it be warranted by those facts - in other words, in my view, if it be a reasonable inference from those facts. Whether the personal attack in any given case can reasonably be inferred from the truly stated facts upon which it purports to be a comment is a matter of law for the determination of the judge before whom the case is tried, but if he should rule that this inference is capable of being reasonably drawn, it is for the jury to determine whether in that particular case it ought to be drawn.'" And Fletcher Moulton L.J. says (3): "In order to give room for the plea of fair comment the facts must be truly stated. If the facts upon which the comment purports to be made do not exist the foundation of the plea fails. This has been so frequently laid down authoritatively that I do not need to dwell further upon it: see, for instance, the direction given by Kennedy J. to the jury in Joynt v. Cycle Trade Publishing Co. (4), which has been frequently approved of by the Courts."

Such being the state of the law, I come to the conclusion that the interrogatories on behalf of the defendant proposed for the examination of the plaintiffs cannot be wholly rejected. I assume that the defendant is entitled, as the law now stands, without a plea of justification, to ask the plaintiffs questions suggesting the truth of the allegations in the defendant's speech which the plaintiffs say were defamatory, or which the defendant desires to prove at the trial for the purpose of supporting his plea of absolute privilege. I have written out a list of the interrogatories which I think may be allowed, but I think it better that the parties should have an opportunity of agreeing, in view of our expression of opinion, which of the interrogatories are or

(1) [1904] 2 K. B. 292.

(2) [1908] 2 K. B. at p. 329.

(3) [1908] 2 K. B. at p. 320.

(4) [1904] 2 K. B. 292, at p. 294.

are not objectionable. The appeal therefore succeeds to this extent, that Bray J. held that none of these interrogatories were admissible, while we hold that some of them are admissible and ought to be answered.

BUCKLEY L.J.read the following judgment:- Where the defendant in an action for libel pleads by way of defence, first, justification, and, secondly, fair comment, he will fail upon his plea of justification unless he justifies every injurious imputation which the jury may think is to be found in the alleged libel. Assuming that he fails in that defence, then fair comment is a weapon which comes into action when justification has failed. The jury may, let us say, have found that the alleged libel imputed to the plaintiff that he, being returning officer at an election, was animated in that which he did by political bias, and may have found that the defendant has failed in justifying as true that the plaintiff was actuated by that improper motive. But the defendant may nevertheless succeed upon his defence of fair comment, if he shews that that imputation of political bias, although defamatory, and although not proved to have been founded in truth, yet was an imputation in a matter of public interest, made fairly and bona fide as the honest expression of the opinion which the defendant held upon the facts truly stated, and was in the opinion of the jury warranted by the facts, in the sense that a fair-minded man might upon those facts bona fide hold that opinion.

Upon the plea of fair comment the substratum must, I think, upon the authorities, be laid by shewing that, notwithstanding that the words are defamatory, yet the facts upon which the comment is based were truly stated, and that the comment was honest and was not without foundation. Fair comment does not negative defamation, but establishes a defence to any right of action founded on defamation. To succeed upon the plea of justification the defendant must prove not only that the facts were truly stated, but also that the innuendo is true. He must justify every injurious imputation. Upon fair comment, however, if it be established that the facts stated are true, the defence of fair comment will succeed even if the imputation or

innuendo be not justified as true, but be fair and bona fide comment upon a matter of public interest. The plea of fair comment will succeed if, in the language of Cockburn C.J. in Campbell v. Spottiswoode (1), the defendant had an honest belief in the truth of his statements and his belief was not without foundation. The criticism must be "not only honest, but also well founded." For the proposition that fair comment must be based upon facts truly stated I refer, without reading them, to Lord Atkinson's judgment in Dakhyl v. Labouchere (2), to the judgments in Hunt v. Star Newspaper Co. (3), and to the language of Kennedy J. in Joynt v. Cycle Trade Publishing Co. (4), which was approved by the Court of Appeal in Hunt v. Star Newspaper Co. (3)

The case of Digby v. Financial News (5) has been referred to as if it contained something to the contrary of this proposition. It is a convenient illustration, I think, of what is meant by saying that the statements of fact upon which the comment is based must be true, for it is upon this point that, as I think, some confusion is to be found in the argument pressed upon us. In Digby v. Financial News (5) the plaintiff had, by his advertisement and by the reports and papers which he handed to Carruthers, made certain statements of fact. The defendants had summarized those documents. They were responsible for the truth or accuracy of those summaries as fairly representing the contents of the documents, but so far the defendants' truth and accuracy were not questioned. Founding themselves upon those statements, which formed the basis of their comment, they made certain comments said to be injurious. The plaintiff wanted to fasten upon the defendants an issue as to the truth or falsity of the statements which the plaintiff himself had made in his advertisement and in the reports which he sent. The defendants answered, and I see no reply to their answer, that they had never affirmed that those statements were either true or untrue, that their truth or untruth was not in issue between the parties at all, that the plaintiff, not the defendants, had

(1) 3 B. & S. 769.

(2) [1908] 2 K. B. at p. 329.

(3) [1908] 2 K. B. 309.

(4) [1904] 2 K. B. 292, at p. 294.

(5) [1907] 1 K. B. 502.

made those statements of fact, and that the defendants, assuming them to be true, had based upon them certain comments. Under these circumstances the truth or falsity of the plaintiff's statements was not in issue between them, and it was not for the defendant to prove their truth or their falsity. The statement of fact which the defendants made was that the plaintiff had asserted certain facts which in fact the plaintiff had asserted.

In the present case the defendant, upon an occasion which for this purpose is to be assumed to be not privileged, made certain statements of fact, and from these statements of fact drew certain inferences, and upon them made certain comments. To prove his defence of fair comment it is essential, as I understand the authorities, that, as pleaded in paragraph 8 of his amended defence, he should first shew that the statements of fact which he made were in their natural and ordinary signification true, and then that his comment upon them was fair and bona fide comment in a matter of public interest. From this it results that in my opinion all proper interrogatories addressed to the question whether the statements of fact in the chairman's speech are true or untrue are relevant, and that to that extent the interrogatories ought to be allowed.

KENNEDY L.J.read the following judgment:- In this case the question before the Court is as to the propriety of certain interrogatories which the defendant desires to administer to the plaintiffs, but which have been disallowed by the judge in chambers. His view appears to have been that, while some few of the proposed questions might rightly have been ordered to stand if they alone had been proposed, there was so much in the other interrogatories that was objectionable that the whole body ought to be disallowed. The principal object of these interrogatories is to procure admissions of fact. The need for such admissions arises out of the defence. The action is an action for slander, and the statement of defence includes a plea of fair comment. It is in my view abundantly clear that the alleged slander as set out in the statement of claim does contain several material averments of fact, and the plaintiffs, before it

was sought by the defendant to administer these interrogatories, had obtained from the defendant, under a Master's order, particulars of the materials upon which the statements of the defendant, defended as being fair comment, were based.

Now it is true that there may be comment of an injurious nature in which there is no statement of fact, or which refers to facts which are admitted or are indisputable. In such a case the fairness of the comment depends upon the character of the criticisms, or the inferences of which it is composed, that is, whether it is a comment made honestly and bona fide, or a comment made made fide and maliciously. It is such a position that Bramwell L.J. had in view when he said, in his judgment in Purcell v. Sowler (1), "If this had been a discussion on the plaintiff's conduct, the facts not being in controversy, the matter was a subject of such general public interest as would have given a right to comment upon it; and fair and bona fide comment would have been justified." But where the words which are alleged to be defamatory allege, or assume as true, facts concerning the plaintiff which the plaintiff denies, and which either involve a slanderous imputation in themselves, or upon which the comment bases imputations or inferences injurious to the plaintiff, it is, I think, settled law that the defence of fair comment fails, unless the comment is truthful in regard to its allegation or assumption of such facts. In Merivale v. Carson (2), a case of literary criticism of which the plaintiff complained as libellous, Bowen L.J. (3), in a passage of his judgment quoted by Collins M.R. in McQuire v. Western Morning News Co. (4), refers to "another class of cases in which, as it seems to me, the writer would be travelling out of the region of fair criticism - I mean if he imputes to the author that he has written something which in fact he has not written." And so in Thomas v. Bradbury, Agnew & Co., Ld. (5), also a case of literary criticism, Collins M.R., referring to the defence of fair comment, speaks of the right to comment, whether called privilege or by any other name, being limited to this extent,

(1) (1877) 2 C. P. D. 215, at p. 222.

(2) 20 Q. B. D. 275.

(3) 20 Q. B. D. at p. 284.

(4) [1903] 2 K. B. 100, at p. 110.

(5) [1906] 2 K. B. 627, at p. 638.

namely, it "does not extend to cover misstatements of fact however bona fide." And so, lastly, in the recent case in the Court of Appeal, Hunt v. Star Newspaper Co. (1), Cozens-Hardy M.R. said in the course of his judgment, "But there still remains the question whether, if, and only if, the facts are substantially true, the comment made by the defendants, based upon those true facts, was fair and such as might in the opinion of the jury be reasonably made." The Master of the Rolls then, after quoting with approval the language which I had used in summing up the case to the jury in Joynt v. Cycle Trade Publishing Co. (2), where I said, "The comment must .... not misstate facts, because a comment cannot be fair which is built upon facts which are not truly stated, and, further, it must not convey imputations of an evil sort, except so far as the facts, truly stated, warrant the imputation," proceeds to quote the judgment of Lord Atkinson in Dakhyl v. Labouchere (3): "A personal attack may form part of a fair comment upon given facts truly stated if it be warranted by those facts - in other words, in my view, if it be a reasonable inference from those facts." In the present case it is plain, as I have already observed, that the alleged slander does contain and involve averments of fact of a material character affecting the plaintiffs, and it appears to me that the defendant is well within established legal principle in asking by interrogatories for admissions as to those material facts, so far as they can fairly be treated as being within the plaintiffs' knowledge, information, and belief.

On the following day counsel for the plaintiffs informed the Court that he was willing to answer all the interrogatories except Nos. 3, 4, 18, 24, and 25, and this offer was accepted by counsel for the defendant.

Solicitor for plaintiffs: John Hands, for Berry & Co., Liverpool.

Solicitors for defendant: E. W. & Bruce Beal, for C. E. Speakman, Crewe.

(1) [1908] 2 K. B. 309, at p. 317.

(2) [1904] 2 K. B. 292.

(3) [1908] 2 K. B. at p. 329.

W. J. B.