[IN THE COURT OF APPEAL.]

THE AGA KHAN v. TIMES PUBLISHING COMPANY.

[1923. A. 1699.]

Practice - Libel - Plea of fair Comment - "Rolled-up plea" - Particulars of Statements relied on as Facts and of those relied on as Comment.

Where in an action of libel the defendant relies on the defence of fair comment, and pleads it in the form now commonly known as the "rolled-up plea" - i.e., "In so far as the said words consist of allegations of fact the said words are in their natural and ordinary meaning true in substance and in fact, and in so far as the said words consist of expressions of opinion they are fair comment made in good faith and without malice for the benefit of the public upon the said facts which are a matter of public interest," the Court will not order the defendant to specify which of the words complained of he relies on as being statements of fact, and which as being expressions of opinion, for it is for the jury to determine to which class the several statements belong, and the defendant ought not to be called upon to forecast the findings of the jury; nor will the Court order him to give particulars of the facts on which he relies as being the basis of his comments, if the plea (as above) limits those facts to "the said facts," for the plaintiff is thereby given all the information on the subject that he can require.

Secus, if the plea is pleaded generally without that limitation.

APPEAL from an order of Roche J. at chambers.

The action was for libel. The plaintiff, an Indian prince, who was an owner of racehorses, complained in his statement of claim of certain articles published in different issues of the Times newspaper relating to the running of two fillies belonging to him, named Paola and Teresina, which articles it was alleged were libellous, as imputing to him that he dishonestly arranged for the said horses being run in such a way as to conceal their real form and racing qualities, with a view to deceiving the public generally and particularly the handicappers who would have to decide upon the weights to be carried by the said horses in future races. The articles complained of were set out in paras. 3, 4, 5, 6 and 7 of the statement of claim. The article in para. 3 stated that the plaintiff had both the said fillies running in the Coronation Stakes, and that he put his second colours on Paola, who in the result was an easy winner, Teresina being second. The

article went on to say: "The Aga Khan would have been well advised to have run only one of his fillies. Either could have won." The article in para. 4, after stating that the plaintiff had entered Paola for the Jersey Stakes when she was looking light and distinctly off colour, and that she finished last, said: "The Aga Khan was surely ill advised to run so beautiful a filly as Paola when she was so obviously not at her best." The article in para. 5 said: "It is a long time since a filly won the Eclipse, but Teresina has an undoubted chance of winning this week. There will, however, be many people who will not be at all sorry if she is beaten, and I cannot see that she is certain to win." In the article in para. 6, which related to the Eclipse Stakes, the matter complained of was: "It is said openly on the racecourse and in places where serious betting is being done that Teresina is very much better than her public form suggests. It is said that she has been kept especially for this race." The last article, that in para. 7, dealt with the result of the same race, the Eclipse Stakes. It stated as follows: "There was an unfortunate ending to the race at Sandown Park yesterday for the Eclipse Stakes for Lord Astor won the race, not with the first favourite, Bold and Bad, but with Saltash, who carried the second colours and won at 20 to 1 against. .... This is the second occasion this season that an owner has won an important race with his second string. The Aga Khan won the Coronation Stakes at Ascot with Paola, who carried his second colours, Teresina carrying his first colours. There is however a great difference in these two cases. .... No one suggests for a moment that the result of the race is anything except unfortunate for the public, and I am convinced that Lord Astor feels very keenly the fact that they have lost their money over the result. Neither he nor Taylor (Lord Astor's trainer) has done anything which should not have been done according to the laws of racing." The defendants admitted publication, but denied that the words complained of in the said five paragraphs were defamatory, and in para. 3 of the defence pleaded that: "In so far as the said words consist of allegations of fact

the said words are in their natural and ordinary meaning true in substance and in fact, and in so far as the said words consist of expressions of opinion they are fair comment made in good faith and without malice for the benefit of the public upon the said facts which are a matter of public interest." The plaintiff took out a summons for an order that the defendant should give particulars of para. 3 of the defence: 1. Of the words set out in paras. 3, 4, 5, 6 and 7 of the statement of claim, which the defendants say are allegations of fact and upon which they intend to rely. 2. Of the words set out in the said paragraphs, which they say are expressions of opinion and upon which they intend to rely. 3. Of the facts in respect of which such expressions of opinion are made and upon which the defendants intend to rely. The Master dismissed the summons. On appeal Roche J. made an order for particulars of heads 1 and 2, but dismissed the appeal with respect to head 3, the defendants' counsel stating that the allegations of fact commented on were those set out in the statement of claim and no others. The plaintiff applied to amend the summons as to head 3 by substituting for the order asked the following: "Of the facts relied upon in support of the allegation that the statements alleged to be statements of fact are true," but the judge refused to allow the amendment.

Both parties appealed.

Eustace Hills K.C. and Wilfrid Lewis for the defendants. The so called "rolled-up plea" which has been pleaded in the present case is now generally recognized to be a plea of fair comment and nothing else. The averment that in so far as the words complained of are statements of fact they are true is not intended to be a plea of justification. "It is a necessary part of a plea of fair comment to show that there has been no misstatement of facts in the statement of the materials upon which the comment was based": per Collins M.R. in Digby v. Financial News. (1) A defendant must not first invent his facts and then comment on them.

(1) [1907] 1 K. B. 502, 508.

But even if the plea is to be treated as a combined plea of fair comment and justification the Court will not order the defendants to distinguish which statements are fact and which are comment. In Lyons v. Financial News (1), where the plea was pleaded in the same form as here, Channell J. ordered the defendants to give particulars distinguishing and stating separately the facts which they justified as true and those on which they relied as being matters on which they were entitled to comment. On appeal Fletcher Moulton and Buckley L.JJ. set aside that order. A fortiori will the Court not allow such an order if the plea is to be treated as one of fair comment only? The order would unfairly embarrass the defendants, for it would call upon them to guess what the probable findings of the jury would be on the question whether particular statements were fact or comment, and would give no corresponding assistance to the plaintiff.

Harold Morris K.C. and A. B. Aspinall for the plaintiff. This particular form of plea was first made use of in 1890 in Penrhyn v. Licensed Victuallers' Mirror. (2) There Mathew and Grantham JJ. held that it was not embarrassing or misleading, but they ordered particulars to be given of it. It is in reality a plea of fair comment coupled with a plea of justification: per Vaughan Williams L.J. in Plymouth Mutual Co-operative Society v. Traders' Publishing Association (3); and the plaintiff is entitled to know which are the facts the defendants say they justify. It is vital to the plaintiff to know what is alleged to be the difference between his case and Lord Astor's. If however the plea is only a plea of fair comment the plaintiff is entitled to particulars of the facts on which the defendants rely as materials for their comment, and, on the basis of head 3 of the summons not being amended, he is entitled to particulars of head 3 as originally drawn. In Peter Walker & Son v. Hodgson (4) particulars were ordered "of the materials on which the comment was based." (5) And in an appeal heard before Scrutton and Warrington L.JJ.

(1) (1909) 53 Sol. J. 671.

(2) (1890) 7 Times L. R. 1.

(3) [1906] 1 K. B. 403, 411.

(4) [1909] 1 K. B. 239.

(5) Ibid. 243.

in July last: Municipal Mutual Insurance Co. v. Policy Holders' Journal (1), the Court made an order for particulars in the form asked for in the present summons.

BANKES L.J. This appeal raises a question which has been the subject of considerable discussion in many cases, a discussion which has been brought about by the form of the plea in which the defence of fair comment is now generally pleaded. The plaintiff complains of a series of libels contained in issues of the Times. The defendants admit publication, but deny that the words complained of are defamatory, and say that, assuming they are defamatory, the defence is fair comment. That defence is pleaded in what is now the generally accepted form, and we must deal with it as we find it. The application was that the defendants should give particulars of the words in paras. 3, 4, 5, 6 and 7 of the statement of claim, stating which are statements of fact, and which are expressions of opinion. I have known many attempts to get an order for particulars in the form now asked for, but have never known such an order to be made until the recent case of Municipal Mutual Insurance Co. v. Policy Holders' Journal (1), where an order was made by Scrutton and Warrington L.JJ. I do not know anything of the facts of that case, but Scrutton L.J. tells us that the statements in the pleadings were very confused, and that orders had been made that were difficult to reconcile, and that as a result a special order was made, which no doubt was right under the circumstances of that particular case. But it is not to be regarded as a precedent for other cases, and I do not think it is applicable to the present case; and the reason why I come to that conclusion is that it is an accepted rule that a party is entitled to an order for particulars only for the purpose of ascertaining the nature of his opponent's case that he has to meet, and not for the purpose of ascertaining the evidence by which his opponent proposes to prove it. In many actions for defamation the defendant has pleaded the defence of fair

(1) July, 1923. Not reported.

comment in a general form, that is to say, has alleged that the words complained of are fair comment on matters of public interest, without indicating what those matters are. In such cases I agree that an order should be made requiring him to indicate what those matters are. But here the plea itself states the matters upon which the comment is based, and the defendant ties himself down to the admission that it is the statements of fact contained in the libel, and no others, on which he intends to rely. It cannot possibly assist the plaintiff that the defendants should be required to pick out the statements which they say are statements of facts and those which they say are matters of opinion, for the category to which the several statements belong is a question for the jury, subject to a direction from the judge. In some cases the judge may tell the jury that a particular statement is a statement of fact and is not capable of being considered an expression of opinion. On the other hand there may be statements with respect to which different minds may take different views on the question whether they are statements of fact or expressions of opinion. As illustrative of that I may refer to the case of Dakhyl v. Labouchere (1), in which I was counsel. In that case the libel was that the plaintiff was "a quack of the rankest species." The trial judge ruled that the statement was a statement of fact and that it was not open to the defendant to endeavour to satisfy the jury that, under the circumstances in which the words were used, they were a comment upon the conduct of the plaintiff. The House of Lords directed a new trial upon the ground that the statement was one which, under the circumstances, the jury might properly, if they thought fit, treat as an expression of opinion. To ask the defendants in the present case to go through the libel and point out which statements are statements of fact and which are comment would only result in this - the defendants would pick out what are obviously facts and say they are facts, and would also pick out what are obviously matters of opinion and say that they are matters of opinion.

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

With respect to any statements, as to which it was doubtful to which class they belonged, the defendants would be entitled to say that it was a question for the jury, that they might be fact or they might be opinion, and that under those circumstances the defendants relied upon them as both. If they did it would be impossible to strike out particulars so framed. In this case I think the defendants have sufficiently indicated the materials on which their comment is based. It would serve no useful purpose to make an order in the form asked for by the first two paragraphs of the summons; while the third paragraph, as unamended, amounts to the same thing as the first, and, as proposed to be amended, is nothing but an application for particulars of the evidence on which the defendants seek to establish their case. For these reasons the defendants' appeal succeeds, and the plaintiff's cross-appeal fails.

SCRUTTON L.J. As to the cross-appeal I have no doubt. As the summons was originally drawn head 3 appears to me to ask the same thing as head 1. As amended it appears to ask for the evidence by which the defendants are going to prove the facts, and is therefore contrary to all principle.

As to the appeal I personally have much more doubt. I do not profess to have had much experience, as counsel, of libel actions; my experience of such actions has been mainly that of a judge trying them, and as a judge I have formed the strongest objection to the so called "rolled-up plea." If a defence to an action for libel were pleaded strictly, justification, in the wide sense in which Collins M.R. used that term in Digby v. Financial News (1), as one which "must cover any imputation which the words in their context may be taken to convey," would be pleaded separately, and the pleader would allege that the statements of fact in the libel were true, and that the imputations conveyed by the words complained of in their ordinary meaning were also true in the sense that they were justifiable imputations. Then the defence of fair comment would be pleaded in another

(1) [1907] 1 K. B. 502, 509.

paragraph, and unless it set out the facts upon which the comments alleged to be fair were based, the defendant might be ordered to give particulars of those facts. But unfortunately some thirty years ago the two pleas were apparently rolled into one, and since then there has been much difference of opinion in the Court of Appeal whether that rolled-up plea was a plea of justification coupled with a plea of fair comment, or was a plea of fair comment only. In Plymouth Mutual Co-operative Society v. Traders' Publishing Association (1) and Lyons v. Financial News (2) the Court of Appeal treated it as embodying both defences; in Digby v. Financial News (3) and Peter Walker & Son v. Hodgson (4) as being a plea of fair comment only. The words of the plea, "In so far as the words consist of allegations of fact the said words are in their natural and ordinary meaning true in substance and fact," taken by themselves, seem to me clearly to be a plea of justification, because they justify the words in their natural and ordinary meaning, and it is the natural and ordinary meaning which conveys the defamatory imputation. Personally, if I were not hampered by authority, I should be inclined to say in every case in which this rolled-up plea is pleaded that the plaintiff is entitled to ask the defendant to specify the statements of fact which he says are true, and the comments which he says are fair. It is quite possible that the adoption of such a practice might, as my Lord suggests, result in the pleader making an alternative allegation: "If this is a statement of fact it is true, if it is a comment on a fact it is fair," but at any rate it would result in much greater clearness of mind in the pleader, and would afford much assistance to the judge who had to try the case. But I cannot overlook the fact that there has been a series of cases in which it has been held that particulars ought not to be given of the rolled-up plea where the comment is alleged, as here, to be "on the said facts." Where the comment is alleged generally to be "on a matter of public interest" particulars are, as far as I know, always

(1) [1906] 1 K. B. 403.

(2) 53 Sol. J. 671.

(3) [1907] 1 K. B. 502.

(4) [1909] 1 K. B. 239.

ordered, in order that it may be seen what facts beyond those stated in the libel the defendant intends to rely on. In Lyons v. Financial News (1), where the words complained of were said to be "fair comment upon a matter of public interest - namely, the said facts," and Channell J. made an order for particulars distinguishing the facts which the defendants justified as being true and those which they relied on as being matters on which they were entitled to comment, the Court of Appeal set aside the order; and I find that the general trend of the decisions in this Court is in the direction of not making the order where the facts, the comment on which is said to be fair, are defined as being the facts stated in the libel.

No doubt in Municipal Mutual Insurance Co. v. Policy Holders' Journal Co. (2) in July last Warrington L.J. and I made an order in this form, but it was a peculiar case. The Master had made an order which resulted in a long series of particulars being delivered. When the case came before Rowlatt J. he ordered all the particulars delivered to be withdrawn, on the ground that it would have been difficult for the parties to get to trial at all so long as they stood, and he made an order in another form, which resulted in particulars rather worse than the previous ones. The Court of Appeal, looking at the two orders and at the form of the libel, which was an extremely difficult one to deal with, set aside the second set of particulars and directed the defendants to say what they meant by the plea. That decision of Warrington L.J. and myself, although it would be a very useful order to make in a good many cases, cannot be regarded as one of general application, and I do not feel able to dissent from the order which my brothers propose.

SARGANT L.J. I am afraid I am in a worse position than the other members of the Court to deal with this appeal, because I cannot claim to have had any experience of actions of defamation either as counsel or as judge. But I look at the ordinary uses of particulars, which I understand to be

(1) 53 Sol. J. 671.

(2) July 23. Not reported.

to define the issues and thereby to prevent either party being taken by surprise, and incidentally to limit as much as possible the expense of trials. Now here it seems that there is in para. 3 of the defence a sufficient definition of the facts on which the defendants rely as the basis of their comments by reason of the introduction of the words "upon the said facts," that is to say, the facts appearing in the articles complained of. That limitation of the facts on which the defendants rely prevents them from bringing in in support of their defence an indefinite number of other facts not included in the articles. It is quite true that the plaintiff may find some difficulty in distinguishing between the parts of the articles which consist of facts, and those which consist of comments, but it may also be that that difficulty is incapable of solution until the case has been tried by a judge and jury. The order appealed from seems to call upon the defendants at this stage to tie themselves to what the jury are going to say are facts and what they are going to say are comments. It would be extremely embarrassing to the defendants, and would not be of any substantial value to the plaintiff for the purpose for which particulars are customarily ordered. I think therefore that the defendants' appeal ought to be allowed. As regards the plaintiff's cross-appeal, when he asks that the defendants shall be ordered to give particulars "of the facts relied upon in support of the allegation that the statements alleged to be statements of fact are true," I think he is making as bold a request for particulars of the evidence which the defendants are going to call in support of their case as I have ever seen.

Solicitors for the plaintiff: Wm. Easton & Sons.

Solicitors for the defendants: Soames, Edwards & Jones.

J. F. C.