[COURT OF APPEAL]

LONDON ARTISTS LTD. v. LITTLER

GRADE ORGANISATION LTD. v. SAME

ASSOCIATED TELEVISION LTD.v. SAME

GRADE v. SAME

[1965 L. No. 1884. 1965 G. No. 1663. 1965 A. No. 1768. 1965 G. No. 1678].

Libel and Slander - Fair comment - Test of public interest - Whether affecting general public - Allegation of plot - Whether fact or comment - Sudden simultaneous notices by leading players terminating appearances - Theatre owner's wish to transfer play - Allegation of plot without basis of fact - Whether plea of fair comment on matter of public interest available - Defamation Act, 1952 (15 & 16 Geo. 6 & 1 Eliz. 2, c. 66), s. 6. ¹

Libel and Slander - Pleadings - Libel - Fair comment - Need to distinguish fact and comment - The "rolled-up" plea - Defamation Act. 1952, s. 6. ¹

1 Defamation Act, 1952, s. 6. "In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved."

The defendant, an impresario, wrote and published at a press conference a letter suggesting that the plaintiffs, organisers in the entertainment industry, had taken part in what appeared to be a plot to force the end of the run of a successful play which he was producing by arranging for four leading players in the cast simultaneously to give identical notices to leave. Such a coincidence of players' notices was almost unprecedented in the theatre world, and was likely to stop the play. The letter, a copy of one sent to the players, was written after the defendant had been informed of the theatre owners' wish to transfer another play to the theatre which he was renting and after he had received the players' notices which were in accordance with their contracts.

In actions against the defendant for libel he pleaded justification, fair comment on a matter of public interest, namely the fate of the play, and publication on occasions of qualified privilege. At the close of the plaintiffs' evidence the plea of justification was withdrawn. The judge held, inter alia, that the plea of fair comment failed because the matter was not one of public interest and that the publication to the press was not privileged. Damages was the only issue left to the jury who awarded modest sums.

On the defendant's appeal on the ground that the judge was wrong in shutting out the defence of fair comment from the Jury:

Held, dismissing the appeal, that although the comment was on a matter of public interest affecting people at large, the allegation of a plot was of a basic fact, defamatory of the plaintiffs and not reasonably capable of being considered as comment, which the defendant had failed to substantiate; alternatively, in his allegation of a plot he had made a defamatory imputation without any basis of fact to support it. Accordingly the defence of fair comment failed.

South Hetton Coal Co. v. North-Eastern News Association [1894] 1 Q.B. 133; Peter Walker & Son Ltd. v. Hodgson [1909] 1 K.B. 239; Kemsley v. Foot [1952] A.C. 345; [1952] 1 All E.R. 501, H.L.; Jones v. Skelton [1963] 1 W.L.R. 1362; [1963] 3 All E.R. 952, P.C. and dicta of Fletcher-Moulton L.J. in Hunt v. Star Newspaper Co. Ltd. [1908] 2 K.B. 309, 319, 320 applied.

Per curiam. In order for the defence of fair comment to be left to the jury, there must be a sufficient basis of fact to warrant the comment (post, pp. 392H, 394H-395A, 399C).

Observations on the "rolled-up" plea and the need to distinguish fact and comment (post, pp. 390G-H, 397H-398A).

Per Lord Denning M.R. The matter of the public interest on which fair comment may be made should not be confined within narrow limits (post, p. 391B-C).

Per Edmund Davies L.J. It is for the defendant to establish to the satisfaction of the judge that a matter of public interest has arisen for comment (post, p. 393F-G). Whether the words complained of are reasonably capable of being regarded as mere comment is also a matter for the judge (post, pp. 394H-395A).

Ruling of Cantley J. [1968] 1 W.L.R. 607; [1968] 1 All E.R. 1075 affirmed in part.

The following cases are referred to in the judgments:

Aga Khan v. Times Publishing Co. Ltd. [1924] 1 K.B. 675.

Andrews v. Chapman (1853) 3 C. & K. 286.

Broadway Approvals Ltd. v. Odhams Press Ltd. (No. 2) [1965] 1 W.L.R. 805; [1965] 2 All E.R. 523, C.A.

Burton v. Board [1929] 1 K.B. 301, C.A.

Cunningham-Howie v. F. W. Dimbleby & Sons, Ltd. [1951] 1 K.B. 360.

Grech v. Odhams Press Ltd. [1958] 2 Q.B. 275.

Hunt v. Star Newspaper Co. Ltd. [1908] 2 K.B. 309.

Jones v. Skelton [1963] 1 W.L.R. 1362; [1963] 3 All E.R. 952, P.C.

Kemsley v. Foot [1952] A.C. 345; [1952] 1 All E.R. 501, H.L.

Lefroy v. Burnside (No. 2) (1879) 4 L.R.Ir. 556.

Mangena v. Wright [1909] 2 K.B. 958.

Peter Walker & Sons Ltd. v. Hodgson [1909] 1 K.B. 239, C.A.

South Hetton Coal Co. v. North-Eastern News Association [1894] 1 Q.B. 133.

Stopes v. Sutherland (1923) 39 T.L.R. 677, C.A.

Thomas v. Bradbury, Agnew & Co. [1906] 2 K.B. 627.

Truth (N.Z.) Ltd. v. Avery [1959] N.Z.L.R. 274.

Turner (orse. Robertson) v. Metro-Goldwyn-Mayer Pictures Ltd. [1950] W.N. 83; 66 T.L.R. (Pt. 1) 342; [1950] 1 All E.R. 449, H.L.

The following additional cases were cited in argument:

Campbell v. Spottiswoode (1863) 3 B. & S. 769.

Dakhyl v. Labouchere [1908] 2 K.B. 325n., H.L.

Gathercole v. Miall (1846) 15 M. & W. 319.

Hulton (E.) & Co. v. Jones [1910] A.C. 20.

Lewis v. Daily Telegraph Ltd. [1964] A.C. 234; [1963] 2 W.L.R. 1063; [1963] 2 All E.R. 151, H.L.(E.).

Merivale v. Carson (1887) 20 Q.B.D. 275.

Slim v. Daily Telegraph Ltd. [1968] 2 Q.B. 157; [1968] 2 W.L.R. 599, C.A.

APPEAL from Cantley J. [1968] 1 W.L.R. 607; [1968] 1 All E.R. 1075.

Separate actions for damages for libel were brought against the defendant, Emile Littler, a theatrical producer, by London Artists Ltd. ("London Artists"), the Grade Organization Ltd., Lew Grade, and Associated Television Ltd. ("A.T.V.") in respect of a letter dated June 23, 1967, written by the defendant and circulated and published by him to the press. Each plaintiff, except London Artists, claimed also for slander and an injunction.

London Artists was a wholly owned subsidiary of the Grade Organization Ltd., of which a shareholder was Lew Grade, who was also managing director of A.T.V. A.T.V., through subsidiary companies controlled the Lyric Theatre and also Her Majesty's Theatre of which the lessees contracted with the defendant, by licence dated April 30, 1964, where under at Her Majesty's Theatre he produced a play entitled The Right Honourable Gentleman on terms, inter alia, that if for two consecutive weeks the weekly takings fell below £3,500 ("the get-out figure") the lessees had the right by notice to terminate the licence. By letter dated June 18, 1965, to the defendant, the managing director (Prince Littler) of the lessees stated, inter alia,

"The Right Honourable Gentleman ... has done good business but over the last few months it has tended to fall very considerably and now it is playing to an average of £3,700 a week. I have had instructions, from my board at our meeting yesterday to give you

notice as soon as you fall below the get-out figure in order to move Robert and Elizabeth which is playing to capacity at the Lyric theatre to Her Majesty's Theatre ..."

By letters dated June 22, 1965, London Artists as agents on behalf of four players appearing in the defendant's play, gave notices in accordance with their contracts, terminating their appearances on July 24, 1965.

The defendant's letter of June 23, 1965, was written in substantially identical terms to three of the four artists in respect of whom notices had been given by London Artists. The terms of the letter are set out on pp. 388E-389C.

On June 23, 1965, the defendant communicated the terms of the letter and other words to the public by means of a press conference.

Each of the plaintiffs claimed in substantially identical terms that the letter was defamatory of them and, contrary to the true facts, meant that they had been party to a conspiracy to force the defendant to close the run of his play and had, in pursuance of the conspiracy, procured the giving of the players' notices.

By his defence in each action the defendant pleaded, inter alia, justification, fair comment made in good faith upon a matter of public interest, "namely the fate of the play ... which was at all material times enjoying a successful run on the public stage at Her Majesty's Theatre ...," and that the words were published on occasions of qualified privilege. In each action the plaintiffs required particulars of the facts relied on for the defences, and by particulars amended pursuant to order dated May 19, 1966, the defendant pleaded as follows:

Under ['justification'].

"1. The terms of a written agreement between Associated Television Ltd., the Grade Organisation Ltd. and Mr. Lew Grade dated April 28, 1964.

2. Mr. Lew Grade is managing director and Mr. Prince Littler a director of Associated Television Ltd. Mr. Lew Grade is the majority and controlling shareholder in, and his brother, Mr. Leslie Grade, the managing director of, the Grade Organisation Ltd.

3. Associated Television Ltd. hold all or nearly all ordinary stock of Stoll Theatres Corporation Ltd. and all the ordinary shares of Moss Empires Ltd.

4. Stoll Theatres Corporation Ltd. hold all or nearly all ordinary shares of Associated Theatre Properties (London) Ltd.

5. Associated Theatre Properties (London) Ltd. own all or nearly all the ordinary shares of H.M. & S. Ltd.

6. H.M. & S. Ltd. are the lessees of Her Majesty's Theatre.

7. The terms of a licence in writing between H.M. & S. Ltd. and the defendant dated April 30, 1964.

8. Mr. Prince Littler is managing director of Stoll Theatres Corporation Ltd. and of H.M. & S. Ltd. and a director of Moss Empires

9. Associated Television Ltd. and A.B.C. Pictures Ltd. financed the production of the play Robert and Elizabeth which at all material

times has been staged at the Lyric Theatre. The defendant can give no further particulars in this regard until after discovery herein.

10. The following companies, being artists' agencies, are wholly owned subsidiaries of The Grade Organisation Ltd.: London Management & Representation Ltd., London Authors Representation Ltd., London Artists Ltd., Bernard Delfont Agency Ltd. Associated Television Ltd. book and employ a great number of artists through them.

11. Mr. Kenneth Hall, Mr. Laurence Evans and Miss Olive Harding are directors both of the Grade Organisation Ltd. and of London Artists Ltd.

12. Associated Television Ltd. hold all or nearly all the ordinary shares of Associated Theatres Ltd.

13. Associated Theatres Ltd. by itself or a subsidiary company is the lessee of the Lyric Theatre.

14. The producer of Robert and Elizabeth is Mr. Martin Landau. Mr. Herbert de Leon acts as his agent.

15. Mr. Frederick Carter is a director of Associated Theatres Ltd. and general manager of Her Majesty's, the Lyric and other theatres. In or about January 1965, he orally informed the defendant that "the owners" of Robert and Elizabeth wanted to transfer that play from the Lyric to Her Majesty's Theatre.

16. At all material times London Artists Ltd. were the agents for Mr. Anthony Quayle, Miss Coral Browne, Miss Anna Massey and Mr. Corin Redgrave, to whom the defendant's letters described in paragraph 2 of the statement of claim were written. The defendant will refer to the terms of the relevant agreements between each of such artists and London Artists Ltd.

17. The terms of the following letters:- Mr. Prince Littler to the defendant dated June 18, 1965; defendant to Mr. Prince Littler dated June 18, 1965; Mr. Prince Littler to the defendant dated June 23, 1965. London Artists Ltd. to the defendant dated June 22, 1965. The defendant had received no prior warning of the contents of the four letters last mentioned, which were delivered simultaneously by hand and without explanation. London Artists Ltd. made no suggestion as to replacements.

18. On April 28, 1965, Mr. Herbert de Leon, acting on behalf of Mr. Martin Landau, Associated Television Ltd. and A.B.C. Pictures Ltd., orally explained to the defendant, at the defendant's office, that the money capacity of the Lyric Theatre did not show a weekly surplus adequate to discharge initial production costs and that his principals were interested in transferring the play to Her Majesty's Theatre.

19. At all material times the defendant was staging the play The Right Honourable Gentleman at Her Majesty's Theatre. Mr. Anthony Quayle, Miss Coral Browne, Miss Anna Massey and Mr. Corin Redgrave were members of the cast; the first three in star roles. The "first-night" was on May 28, 1964.

20. At all material times the box-office takings at Her Majesty's Theatre were in excess of £3,500 a week. This was due in great part

to the casting of Mr. Anthony Quayle, Miss Coral Browne and Miss Anna Massey, none of whom was really replaceable.

20A. By writing or orally at a place or places and time or times unknown to the defendant or partly orally and partly by writing Mr. Lew Grade by himself, his servants or agents agreed, combined and planned with A.T.V. Ltd., The Grade Organisation Ltd. and London Artists Ltd., by themselves their servants or agents to procure the termination of the run of The Right Honourable Gentleman at Her Majesty's Theatre and of the agreements in paragraph 16 above described. The acts in paragraphs 15 and 18 and the letters from Mr. Prince Littler and London Artists Ltd. in paragraph 17 hereof described were respectively performed and written and delivered pursuant to such agreement, combination and plan; the existence whereof is necessarily to be inferred by reason of the facts and matters hereinbefore set forth. The defendant will give particulars of any material document after discovery.

21. The defendant has been associated with the theatre for some forty years and has never encountered a situation similar to that disclosed by the facts hereinbefore set forth.

Under ['fair comment on a matter of public interest'].

The defendant will rely upon the particulars given under [justification'].

Under ['occasions of qualified privilege'].

The defendant will rely upon the facts set out under ['justification'] above and to the terms of the respective constitutions of Equity and the Society of West End Theatre Managers and will contend that the words complained of constituted fair information on a matter of public interest. The defendant will rely upon the facts set out under ['justification'] above and will contend that the words complained of constituted fair information "on a matter of public interest."

Each of the plaintiffs in reply pleaded, inter alia, express malice.

The four actions were called on and tried together with a jury. Witnesses for the plaintiffs gave evidence to the effect that sudden and simultaneous notices of four players, of whom three were stars, was unknown in the witnesses' experience. At the close of the evidence for the plaintiffs, the defendant withdrew the plea of justification and disclaimed reliance on the particulars in paragraph 20A set out above.

Thereupon, on submissions relating to the defence of fair comment on a matter of public interest, the defendant contended that the letter of June 23, 1965, contained statements of fact except for the following words which were comment:

"[...] what on the face of it appears to be a plan to close the run of The Right Honourable Gentleman [...].

In other words because I do not wish to disturb over a year's established success at Her Majesty's Theatre, I am being put into a position by my landlords, Associated Television Ltd., whereby, by withdrawing all Grade Star labour, the play must close down on the date on which these notices expire [...].

I feel this is such a serious matter, affecting all branches of the industry, that I must make this correspondence available to Equity, the Society of West End Theatre Managers and the National Press [...]."

The defendant contended also that the matter of public interest in the plea of fair comment included the unprecedented coincidence of notices given by the four players, which was also coincidental with the desire to move the play Robert and Elizabeth into Her Majesty's Theatre.

The court was invited to rule whether the occasions of publication to the players and to the public via the press were privileged, and, in the event, was also invited to rule that the defence of fair comment on a matter of public interest should not be left to the jury.

On February 27, 1968, Cantley J. ruled [1968] 1 W.L.R. 607, 624 that the occasion of publication to the public via the press was not privileged, that the occasions of publication to the players were privileged and that the defence of fair comment on a matter of public interest was not open to the defendant. Subsequently the jury awarded London Artists £250 damages, the Grade Organisation Ltd. £500, A.T.V. £500 and Lew Grade £1,000 damages.

The defendant appealed, in each action asking for the judgment to be set aside and for a new trial on the ground that the judge erred when he ruled that the defence of fair comment could not be left to the jury. These were respondents' notices under R.S.C., Ord. 59, r. 6.

The facts are further stated in the judgment of Lord Denning M.R.

Colin Duncan Q.C., Peter Bristow Q.C. and Michael Kempster for the defendant. The point in issue on the appeal is short, simple and of classical importance. Only the issue of damages was left to the jury. We appeal against the ruling that the issue of fair comment was not left to the jury. There are certain issues which should go to the jury. Where you are dealing with the right of free speech, it must be absolutely crystal clear before the issue is taken away from the tribunal appointed to decide it. Cantley J. held that the matter was not one of public interest: [1968] 1 W.L.R. 607, 623. No duty was left to the jury except the assessment of damages which they discharged with becoming modesty. The judge fell into the trap of confusing justification and fair comment. The substance of the plea of justification was abandoned during the trial. There is no appeal on qualified privilege. The court is only concerned with fair comment.

The right approach to the question whether the matter was one of public interest is whether what happened is the sort of thing on which the public were entitled to hear the views of one of the most celebrated impresarios in the entertainment business.

It is of great importance that too narrow a construction should not be put on the question, "What is a matter of public interest in law?" It is of vital importance that free speech should be preserved. Qualified privilege and public interest must not be confused. The judge spoke. [1968] 1 W.L.R. 607, 619, of "in the interests of the public" not "of interest to the public." The cardinal question is "has something happened

that legitimately invites public attention or curiosity? "It was accepted in Slim v. Daily Telegraph Ltd. [1968] 2 Q.B. 157, 170 that the right of way was a matter of public interest.

The juxtaposition of what happened here was clearly a matter of interest to all people who had an interest in whether this sort of thing should be allowed to happen. Fraser on Libel, 7th ed. (1936), p. 115, refers to "anything which invites public attention or criticism." Gatley on Libel and Slander, 6th ed. (1967), para. 748, speaks of "anything which may fairly be said to invite comment" or "challenge public attention." The field changes year by year. What may not have been a matter of public interest in Queen Victoria's reign may be one today.

The question whether the reference to "plan" or "plot" in the letter of June 23, 1965, was a statement of fact or comment should have been left to the jury. The vital issue of fair comment was not left to the jury, and, as in Dakhyl v. Labouchere [1908] 2 K.B. 325n., 327, a new trial should be ordered.

Peter Bristow Q.C. following. The defendant was trying to draw an inference justified by the facts. He took the view that there was a plot. The relationship between the people applying the pressure and the people taking the action is what is significant. The existence of the set-up described in the letter of June 23, 1965, was quite clearly a matter of public interest. Anything which enables people to have a foot in each camp is a matter of public interest. To hunt with the hounds and run with the hare at the same time in industry or the entertainment world is of public interest.

Desmond Ackner Q.C. and Anthony Lincoln Q.C. for London Artists Ltd. Conspiracy is not created by relationship but by conduct. There was a remarkable tenacity based on no foundation for proceeding with justification. The plot has all along been the foundation of the defendant's case.

The issue of fair comment went at the same time as the issue of justification for the reasons given by Cantley J. [1968] 1 W.L.R. 607, 624. The subject-matter relied on by the defendant was not a matter of public interest. The plea of fair comment was not available against the plaintiffs in that the defendant failed to allege or prove any facts on which fair comment could be based. "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 judge": see per Lord Atkinson in Dakhyl v. Labouchere [1908] 2 K.B. 325n., 329. The plea of fair comment was not available because no facts were alleged or proved, once paragraph 20A was taken out, on which it could be based. The comment alleged was the plot for which there was no foundation once 20A had gone. There was no activity which faintly resembled a conspiracy. An allegation that "Sir A.B. performed Othello appallingly badly" is comment; but if the allegation is that "he performed it so badly that he must have been bribed," the facts must be justified. Here the allegations of a plot were false and defamatory statements of fact and not comment at all.

On the question whether the subject-matter relied on by the defendant was a matter of public interest, the approach of Lord Denning M.R. in Slim v. Daily Telegraph Ltd. [1968] 2 Q.B. 157, 169 is accepted. Accepting

that fair comment is necessary for freedom of speech, it is not a defence which provides a licence to defame. The defence of fair comment is a special privilege. It provides the right to injure someone without paying compensation. Freedom of speech is not in issue. The defendant's right to speak depends upon his speaking accurately. Three matters must be distinguished: (1) whether it is of public interest; (2) whether it is opinion or fact; (3) whether it forms an adequate foundation for comment. The word "interest" means more than curiosity; it means a matter that is of concern to the public. What took place with regard to the artistes was a private matter; not one which concerned the public.

The old case of Gathercole v. Miall (1846) 15 M. & W. 319 makes the same classification of public interest as Cantley J. [1968] 1 W.L.R. 607, 619. There was nothing done in this case that was done for the scrutiny of the public. The plaintiffs acted wholly lawfully. There is a right of comment, but no licence to do so inaccurately or falsely. The fact that four stars give notice expiring on the same day does not make it a matter of public interest.

No facts were alleged or proved on which fair comment could be based. There is a distinction in law between what you are entitled to do in attacking a work and what you are entitled to do in attacking a reputation. In criticising a work, you can be as rude as you like, but when you leave the work and attack the reputation, the facts must be correct. The subjective test cannot be applied in attacking a reputation: Campbell v. Spottiswoode (1863) 3 B. & S. 769; Merivale v. Carson (1887) 20 Q.B.D. 275; perFletcher Moulton L.J. in Hunt v. Star Newspaper Co. Ltd. [1908] 2 K.B. 309, 318. If a defendant seeks to make a comment which imputes some dishonourable matter, it is no answer that he honestly believes what he says. There must be a foundation of fact for the comment. The criticism must be germane to the matter under discussion. There were no facts here warranting the inference of a plot. [Reference was made to Gatley on Libel and Slander, 6th ed., paras. 727, 728.] Unless the plot was established, fair comment and justification both fell.

Lord Porter's speech in Kemsley v. Foot [1952] A.G. 345, 353 does not in any way detract from that of Lord Atkinson in Dakhyl v. Labouchere [1908] 2 K.B. 325n., 327. Diplock K.C. in argument in the former case [1952] A.C. 345, 349 outlines the history of the law relating to fair comment. An inference of fact is a fact; an inference does not become an opinion by a statement of fact: per Lord Devlin in Lewis v. Daily Telegraph Ltd. [1964] A.C. 234, 283, 284. The whole basis of the letter of June 23 was that there was a plot which was to be brought to the attention of the press. It is fact. It is false. It is defamatory. Section 6 of the Defamation Act, 1952, does not help; Truth (N.Z.) Ltd. v. Avery [1959] N.Z.L.R. 274, accepted by this court in Broadway Approvals Ltd. v. Odhams Press Ltd. (No. 2) [1965] 1 W.L.R. 805. The suggestion that there was a combined effort was clearly defamatory. The test as to whether a matter is fact or comment is provided in the judgment of the Privy Council in Jones v. Skelton [1963] 1 W.L.R. 1362, 1379; it must be for the defendant to establish what he asserts.

G. R. F. Morris Q.C. and A. T. Hoolahan for the Grade Organisation Ltd. Mr. Ackner's argument applies to all the plaintiffs, although not

with the same impact on each of them. What is relied upon as comment in respect of the Grade Organisation must be comment based upon the correct facts. The argument of Mr. Ackner about public interest is adopted.

In no branch of the law is there greater precision in pleading than in libel actions and the matter pleaded was the fate of the play, which did not involve the Grade Organisation. The statement in the letter of June 23 that the Grade Organisation owns London Artists Ltd. is true. But the statement that the Grade Organisation manages the stars is untrue.

Mr. Ackner's submissions of law are adopted and reliance is particularly put on Hunt v. Star Newspaper Co. Ltd. [1908] 2 K.B. 309 and Kemsley v. Foot [1952] A.C. 345. There was no bridge or link between the Grade Organisation and the alleged matter of public interest. Any comment on the Grade Organisation could not be a matter of public interest.

Lewis Hawser Q.C. and Brian Neill Q.C. for Associated Television Ltd. and Lew Grade. There are three main issues so far as these plaintiffs are concerned: Are the matters complained of fact or comment?; (2) is the defence of fair comment available against either of these defendants?; (3) if it is, is there a sufficient factual element to support the plea of fair comment?

As to (1), the law has been bedevilled by the word "opinion." There can be either an assertion of a fact or of a point of view. If I say "A is a thief," that is a statement of fact. But if I say "A is a thief; that is a disgraceful way to behave," that is to express a moral judgment on a fact, which is the only real meaning of opinion. The matter is sufficiently set out in Gatley on Libel and Slander, 6th ed., paras. 100, 352, 353. The evidence makes it clear that this was an assertion of fact.

The letter of June 23 was a very carefully worded letter dressed up to justify a defence of fair comment. A defendant is not permitted to choose the facts on which he makes the comment. All the facts within his knowledge must be put forward. Fair comment is a dangerous weapon. It must be used within the proper confines of the law. Defamatory statements cannot be made without stating the facts accurately. The letter is a carefully worded letter done under a solicitor's advice, the purpose of which was to make an outright declaration of a plot, knowing the defence of fair comment would be available. The first part of the letter is an assertion of facts. If it contains comment it is so mixed up with the facts as to amount to fact. As to what Lord Porter said about inference in Kemsley v. Foot [1952] A.C. 345, 356, 357 it may be that there is an important distinction between an attack on a work and on character. A personal attack on a man and his reputation is very different from an attack on a work of art or the public acts of, e.g., the Chancellor of the Exchequer.

As to (2), what is asked for is the right to comment on the conduct of the plaintiffs. Comment is not in vacuo. First, you must have true facts relating to matters of public interest and then comment on those facts. It is neatly put in Fraser on Libel and Slander, 7th ed., p. 104, note 1. Particulars of the basic facts must be given: Burton v. Board [1929] 1 K.B. 301. There was no conduct by these plaintiffs on which the defendant could comment.

The right of fair comment is basically a right to criticise. Here there

were no facts on which the comment could be based. As Bowen L.J. pointed out in Merivale v. Carson (1887) 20 Q.B.D. 275, 284, there is all the difference in the world between saying that you disapprove of the character of a work and that you think it has an evil tendency, and saying that a work treats adultery cavalierly, when in fact there is no adultery at all in the story. On no view of the matter here was there a sufficient background of established fact.

Colin Duncan Q.C. in reply. A very important question has arisen on the Cinderella of the law, the law of defamation. The defendant wants a trial which, so far, he has not had.

It is for the defendant to show that it is a matter of public interest. Whether the observations are comments or statements of fact is, prima facie, a question for the jury and not for the judge. The comment has "to be upon facts truly stated" as the textbooks put it, or rather the comment must be on actual facts. The "rolled-up plea" is now fast disappearing. Paragraph 20A went to justification and not to fair comment. It was not the facts on which the comment was based.

The fair comment plea was in general form. In a rolled-up plea you have to allege what is fact and what is comment. This does not apply in a general plea of fair comment where it is only the facts on which the comment is based which need be pleaded. Where particulars have been delivered and pleadings are closed, the facts alleged must have been known to the defendants at the time of publication at the time the comment is made. A defendant cannot comment without the leave of the court on any fact other than those pleaded. To the extent limited by the Defamation Act. 1952, the facts must be true. As to section 6 of the Defamation Act, 1952, if the jury is satisfied in the end that what they find to be comment or expression of opinion is fair having regard to the facts found in the particulars to be true, the defence still runs.

The question for the jury should have been: look at the particulars, strike a red pencil through those not established and consider what is left, do you consider that the comment is fair? In defamation, words mean what the ordinary citizen thinks they mean. If the words are reasonably capable of being fact or comment, it should be left to the jury to decide whether it is fact or comment. In Lewis v. Daily Telegraph [1964] A.C. 234 it was for the jury to make up its mind what the words did mean. The only test is: what is the reasonable meaning of the words, are they really expressions of opinion or of fact? The jury is traditionally and historically the proper tribunal to determine these matters. Paragraph 20A was really a gathering-up clause. Unless the plaintiffs "gave the show away," justification was never a real defence.

The matter of public interest was the fate of the play.

[LORD DENNING M.R. We need not trouble you as to whether it was a matter of public interest.]

As to whether it is fact or comment, the moment that it has been decided by a competent court that it is a matter of public interest, it is a question for the jury. The question whether all or some of the words complained of are statements of facts or comments is one of construction and the test is stated in Fraser on Libel and Slander, 6th ed., p. 105: if there is reasonable doubt as to whether the words are statements of fact

or expressions of opinion, the judge will leave it to the jury to decide. This properly states the law subject to a slight expansion: if there is doubt, is one highly trained lawyer a better judge than twelve good men and true? In Mangena v. Wright [1909] 2 K.B. 958, 976, there was a question for the jury to decide as to whether the words were "of comment and not of statement." Bankes L.J., in Stopes v. Sutherland & Another (1923) 39 T.L.R. 677, 679, said that in doubtful cases the question must be for the jury. In Aga Khan v. Times Publishing Co. [1924] 1 K.B. 675, 680, it was a rolled-up plea. In Dakhyl v. Labouchere it clearly looked on the face of it to be a question of fact.

The letter read as a whole was clearly capable of being comment. reasonable man could read it as a matter of opinion. To raise the defence of fair comment all the pleader has to do is to plead fair comment on a matter of public interest. The rolled-up plea is not used because, if you use it, you have to say what is fact and what is comment. One of the results of that plea was that the pleader said, "A is a fact, alternatively it is comment." In fair comment you must look at the whole letter or article.

The textbooks stress the difficulty of deciding what is comment and what is fact. The intention of the person who wrote the letter is quite irrelevant. As the law stands, the test is objective. The meaning of the writer is irrelevant to the meaning of the words: Hulton v. Jones [1910] A.C. 20. In fair comment, the comment is necessarily defamatory. To suggest otherwise is to confuse fair comment and justification.

It was never suggested in cross-examination that the letter was carefully couched or that fact was deliberately dressed up as comment. It was urged for the first plaintiffs that punitive and exemplary damages should be awarded. It was expressly left to the jury whether punitive damages should be awarded. The jury awarded modest damages.

As to an imputation on motive in a matter of public interest, see perBuckley L.J. in Peter Walker & Son, Ltd. v. Hodgson [1909] 1 K.B. 239, 253. It must have such a reasonable foundation as would warrant a reasonable person however mistaken holding the opinion. It is exclusively a matter for the jury. Researches have been made and no case is known where the case has been kept from the jury. It is said that the defence is not available against these plaintiffs. The defence is the right to express your views, the right of free speech. This is always available although it may not always succeed. It is a straight question for the jury: Was the comment fair? The four plaintiffs were all implicated. The all important question is: look at all the facts which the defendant has pleaded and can now rely upon, are they such that a man, holding perhaps obstinate or prejudiced views, might have arrived at in the light of the inferences he has drawn? Unless it was impossible for a reasonable man to conclude that there was a case against the fourth plaintiff, the matter must go to the jury. The question is: could a man have arrived at the conclusion reached by the defendant? It is important to see the difference between the facts known to the writer and the facts known to others. How the letter is to be read is purely a matter for the jury. It should not have been taken away from the jury. Slim's case [1968] 2 Q.B. 157 shows that

the defence of fair comment is not to be whittled down. In the long run the law of defamation should be a matter of common sense.

Bristow Q.C. on the plaintiff's cross-notice. When the facts stated in the alleged libel are removed from the particulars, it must remain for the jury to say what inference can be drawn.

Ackner Q.C. in reply on the cross-notice. There is a lack of application of common sense or the common law in the pleadings in this case. Diplock K.C. put the matter clearly and succinctly in Kemsley v. Foot [1952] A.C. 345, 349. This was a case for the rolled-up plea. It is quite clear that this was a statement of fact. The matter cannot go to the jury unless the defendant can satisfy the judge that it could be comment. The only possible combination was between the four plaintiffs. There is no factual foundation for the implication of the plot. When an attack is made on a man's reputation or motives, the subjective test of the belief of the maker is not enough: see per Lord Porter in Kemsley v. Foot [1952] A.C. 345, 356, 357. The defence of fair comment needed paragraph 20A because it was a comment on the plot. The defence of justification was bogus; and when that went everything went with it. The defence was that the comment was the plot. Opinion is not the same as comment: see the judgment of Buckley L.J. in Peter Walker & Son Ltd. v. Hodgson [1909] 1 K.B. 239, 253. Comment is an evaluation of facts, criticism may be favourable or unfavourable.

[Counsel was not required to argue further.]

LORD DENNING M.R. In May of 1964 there opened in London a play called The Right Honourable Gentleman. It was staged by Mr. Emile Littler, the defendant, at Her Majesty's Theatre in Haymarket. The three principal actors were Mr. Anthony Quayle, Miss Coral Browne and Miss Anna Massey. Another actor of a well-known family was Mr. Corin Redgrave. The theatre was owned by a subsidiary of Associated Television Ltd., of which the managing director was Mr. Prince Littler, a brother of Mr. Emile Littler. Mr. Emile Littler rented the theatre on the terms that the owners could determine his tenancy if the takings fell below £3,500 a week for two weeks in succession. That is called the "get-out" figure.

Some months later, in September, 1964, there opened in London another play called Robert and Elizabeth. It was staged at the Lyric Theatre in Shaftesbury Avenue. The management of Robert and Elizabeth were very keen to move the play from the Lyric to Her Majesty's Theatre. The Lyric Theatre was controlled by another subsidiary of Associated Television Ltd., of which, as I have said, Mr. Prince Littler was managing director. So Mr. Prince Littler had a considerable voice in the ownership of both theatres.

On June 18, 1965, Mr. Prince Littler wrote to his brother Mr. Emile Littler saying:

"... I have had instructions from my board at our meeting yesterday to give you notice to go as soon as you fall below the get-out figure. This is in order to move Robert and Elizabeth which is playing to capacity at the Lyric Theatre to Her Majesty's Theatre ... there is

an alternative which is - would you be willing to transfer to the Lyric Theatre to enable us to move Robert and Elizabeth in to Her Majesty's. ..."

Mr. Emile Littler replied the same day saying that "The Right Honourable Gentleman is playing to about the biggest business of any play in London at the present time," and went on to say that he was not prepared to move unless it was made very much worth his while.

A day or two later, on June 22, 1965, Mr. Emile Littler received what to him was a stunning blow. The three top stars in The Right Honourable Gentleman and the satellite all gave four weeks' formal notice in writing to terminate their engagement. Each said that he or she would finish in the play after the evening performance of July 24. The letters were all in the same wording and were all sent by the actors' agents, London Artists Ltd. There had clearly been close collaboration in the sending of them. Such a thing - for all the top performers to remove at once - was almost unprecedented in the theatre world. It was likely to bring The Right Honourable Gentleman to a full stop. Mr. Emile Littler drew the conclusion that it was all a plot to get his play out of Her Majesty's Theatre, so as to get Robert and Elizabeth in. He thought that the owners had got hold of the artists and induced them to give the notices; and that the intermediary between them was Mr. Lew Grade and the Grade Organisation Ltd. So firm was his belief in this plot that the next day, June 23, 1965, Mr. Emile Littler wrote a letter to each of the four artists: and he held a press conference at which he distributed the letter to the press. It was published in the papers the next day. It was in these words. I will read the one to Miss Coral Browne.

"My dear Coral, We have been friends for years and I am hurt that you did not see me before being a party to what, on the face of it, appears to be a plan to close the run of The Right Honourable Gentleman by joining in and sending me a month's formal notice from your agent.

The Right Honourable Gentleman has been one of your greatest hits in London and is still doing better than any play in the West End. In spite of this Her Majesty's Theatre's new directorate are trying to get our play out of the theatre. Fighting for you all, play, artistes, staff and author, I have not acceded to their request to move because we have a valid contract and are paying top rent and faithfully fulfilling all obligations. Until box office takings drop below £3,500 for two consecutive weeks we can contractually continue at Her Majesty's Theatre.

Her Majesty's Theatre, and a great many other theatres in London, are now controlled by Associated Television of which Mr. Lew Grade is the managing director. Mr. Grade's contract for service with Associated Television Ltd. is with the Grade Organisation Ltd. The Grade Organisation Ltd. owns 'London Artists Ltd.' (and other theatrical agencies) and they manage our stars. - Anthony Quayle, Coral Browne, Anna Massey and Corin Redgrave. London Artists Ltd., on June 22, by identical letters, gave notice to me by hand for

each artiste to terminate their services with the play on the same identical date of July 24.

In other words because I do not wish to disturb over a year's established success at Her Majesty's Theatre, I am being put into a position by my landlords, Associated Television Ltd., whereby, by withdrawing all Grade star labour, the play must close down on the date on which these notices expire.

A great part of the success of The Right Honourable Gentleman has been the casting of this show and the combined effort of withdrawing suddenly the three Grade stars and another Grade artiste on a given date must finish our play for everybody at Her Majesty's and give Associated Television Ltd. possession of the theatre. You must all realise this and know that there has never been such a situation in the history of the theatre. I feel this is such a serious matter, affecting all branches of the industry, that I must make this correspondence available to Equity, the Society of West End Theatre Managers and the National Press. Sincerely yours. Emile."

That letter brought a quick retort. On the very next day four writs for libel were issued against Mr. Emile Littler. The plaintiffs were those who were accused of taking part in a plot: London Artists Ltd., who looked after the artistes: Associated Television Ltd., who controlled the theatres; and Mr. Lew Grade, and the Grade Organisation Ltd., who were in between.

Mr. Emile Littler in his defence pleaded justification, privilege and fair comment. The original pleading appeared to be defective, because there was nothing on the face of the particulars to suggest a plot. The master ordered the defence to be struck out unless it was amended. So Mr. Emile Littler did amend his particulars so as to allege a plot. He did it in a paragraph of the particulars numbered 20A, in which he said that the plaintiffs "combined and planned ... by themselves their servants or agents to procure the termination of the run of The Right Honourable Gentleman at Her Majesty's Theatre. ..." Mr. Emile Littler went to the court hoping to prove the plot. He had no direct evidence of a plot: but hoped to get something in cross-examination out of the mouths of the plaintiffs.

He failed utterly. The stars all gave evidence from which it became apparent that there was no combination between them and the owners at all. Miss Coral Browne earlier in the year had not been in good health. Her husband had recently died. She wished to make arrangements to go to the United States, but when her agent indicated this to Mr. Emile Littler, he made such a fuss that she decided to wait and give formal notice when the time came. Mr. Anthony Quayle decided to leave because he wanted to write a film script and needed a holiday first. When Miss Anna Massey heard that Mr. Anthony Quayle was leaving, she decided to go too. Mr. Corin Redgrave was a young man who wanted to get more experience.

Seeing that there was no evidence of the suggested plot, Mr. Emile Littler on the eighth day of the trial withdrew the plea of justification: and with it paragraph 20A of the particulars which alleged the plot. Then the plaintiffs submitted to the judge that there was nothing left in the

defence save damages. The judge upheld the submission, [1968] 1 W.L.R. 607, 624. He held that the plea of privilege failed because the publication to the Press was not privileged, ibid. p. 620. He held that the plea of fair comment failed because the matter was not one of public interest (p. 623), and in addition there was no basis of fact to support the plea (p. 624). His rulings are reported in [1968] 1 W.L.R. 607. The action then proceeded on the issue of damages. The plaintiffs asked for substantial damages, because they said Mr. Littler had no honest belief in what he said. They also asked for punitive damages because he was seeking to make money by giving additional publicity to The Right Honourable Gentleman. Mr. Emile Littler went into the witness-box and refuted these suggestions. He asserted his honest belief that there was a plot to get The Right Honourable Gentleman out of Her Majesty's Theatre. He was cross-examined. At one point he was asked "The whole core and sinew of the story was the conspiracy between Grade Organisation manipulating stars to get the play out of the theatre, that was the twist of the story, was it not?" He answered: "That is what I firmly believed at the time." the judge asked him: "You were really saying, were you, that there had been a dirty trick and Lew Grade had been taking part?" He answered "Yes."

After he had given his evidence the judge summed up. The jury rejected the claim to punitive damages. They awarded very modest sums. They gave London Artists Ltd. £250; the Grade Organisation Ltd. £500; Associated Television Ltd. £500 and Mr. Lew Grade £1,000. On hearing these figures, Mr. Littler felt that he might have got clear away if the defence of fair comment had been left to the jury. So he appeals to this court on the ground that the judge was wrong in shutting out the defence of fair comment. He does not appeal against the judge's ruling on privilege He appeals only on fair comment and asks that there should be a new trial.

The plea of fair comment was in these words:

"Further or in the alternative the said words were fair comment made in good faith and without malice upon a matter of public interest namely the fate of the play The Right Honourable Gentleman which was at all material times enjoying a successful run on the public stage at Her Majesty's Theatre, London. The defendant will rely if necessary on section 6 of the Defamation Act, 1952."

That plea has been criticised and I think rightly. It refers to "the said words" as if they consisted only of comment. But "the said words" also contained statements of fact. And the plea leaves those statements of fact untouched. In my days at the Bar we used to meet the difficulty by the "rolled-up" plea which had the great advantage that the defendant was not bound to distinguish between fact and comment: see The Aga Khan v. Times Publishing Co. Ltd. [1924] 1 K.B. 675. But that plea fell into disfavour after 1949, when R.S.C., Ord. 82, r. 3 (2) compelled the defendant to distinguish between fact and comment. Instead of the "rolled-up" plea, the defendant now pleads simply "the said words were fair comment" - a plea which is obviously incomplete when the said words contain facts as well as comment. But the plea carries with it an implication that

the facts are true on which the comment is based; and the defendant can be ordered to give particulars of those facts: see Cunningham-Howie v. F. W. Dimbleby & Sons, Ltd. [1951] 1 K.B. 360. So long as that implication is read into the plea, it is unobjectionable.

Three points arise on the defence of fair comment. First, was the comment made on a matter of public interest? The judge ruled that it was not, [1968] 1 W.L.R. 607, 623. I cannot agree with him. There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment. A good example is South Hetton Coal Co. v. North-Eastern News Association [1894] 1 Q.B. 133. A colliery company owned most of the cottages in the village. It was held that the sanitary condition of those cottages - or rather their insanitary condition - was a matter of public interest. Lord Esher M.R., said at p. 140, that it was "a matter of public interest that the conduct of the employers should be criticised." There the public were legitimately concerned. Here the public are legitimately interested. Many people are interested in what happens in the theatre. The stars welcome publicity. They wart to be put at the top of the bill. Producers wish it too. They like the house to be full. The comings and goings of performers are noticed everywhere. When three top stars and a satellite all give notice to leave at the same time - thus putting a successful play in peril - it is to my mind a matter of public interest in which everyone, Press and all, are entitled to comment freely.

The second point is whether the allegation of a "plot" was a fact which the defendant had to prove to be true, or was it only comment? In order to be fair, the commentator must get his basic facts right. The basic facts are those which go to the pith and substance of the matter: see Cunningham-Howie v. Dimbleby [1951] 1 K.B. 360, 364. They are the facts on which the comments are based or from which the inferences are drawn - as distinct from the comments or inferences themselves. The commentator need not set out in his original article all the basic facts: see Kemsley v. Foot [1952] A.C. 345; but he must get them right and be ready to prove them to be true. He must indeed afterwards in legal proceedings, when asked, give particulars of the basic facts: see Burton, v. Board [1929] 1 K.B. 301; but he need not give particulars of the comments or the inferences to be drawn from those facts. If in his original article he sets out basic facts which are themselves defamatory of the plaintiff, then he must prove them to be true: and this is the case just as much after section 6 of the Defamation Act, 1952, as it was before. It was so held by the New Zealand Court of Appeal in Truth (N.Z.) Ltd. v. Avery [1959] N.Z.L.R. 274, which was accepted by this court in Broadway Approvals Ltd. v. odhams Press Ltd. [1965] 1 W.L.R. 805. It is indeed the whole difference between a plea of fair comment and a plea of justification. In fair comment he need only prove the basic facts to be

true. In justification he must prove also that the comments and inferences are true also.

So I turn to ask what were the basic facts in this case? In the particulars (as amended by including paragraph 20A) Mr. Emile Littler set out very many facts which conveyed no clear picture. But, putting them together, it appears that he was relying on three basic facts. First, that the owners wanted to get The Right Honourable Gentleman out of Her Majesty's Theatre. Second, that the stars and satellite all gave notice by the same agents at the same time in the same form. Third, that there was a plot between the owners and the stars (through the Grade Organisation) to bring to an end the run of The Right Honourable Gentleman. Mr. Emile Littler proved the first two basic facts, but did not prove the third. He failed to prove a plot and had to withdraw the allegation. That put him in a quandary on fair comment. He could not prove one of the basic facts. So he turned right about. He then submitted that the allegation of a "plot" was not a fact at all but only a comment. In my view that submission cannot be sustained, and for these reasons: In the first place, Mr. Emile Littler in his pleadings treated the "plot" as a statement of fact, and I do not think we should look with favour on such a complete turnabout in the middle of the case. In the second place, Mr. Emile Littler in his evidence said it was a statement of fact. He was asked:

"What was said in the letters was deliberately intended by you to be said. That is right, is it not? (A.) It was a statement of fact. (Q.) What you believed to be a fact?" He answered "Yes."

In the third place, on a fair reading of the whole letter (of June 23, 1965), I think that the allegation of a plot was a statement of fact. The first paragraph runs in guarded language, "it appears"; and the fifth paragraph says "in other words"; but the last paragraph speaks of "the combined effort." Reading the letter as a whole, I have no doubt that it stated as a fact that there was a plot between the plaintiffs to bring down a chopper on the head of The Right Honourable Gentleman.

Mr. Duncan submitted, however, that the question whether the statement was a statement of fact or comment should have been left to the jury. He would be right if it was reasonably capable of being considered as comment. That is clear from many of the cases, finishing with the judgment of the Privy Council in Jones v. Skelton [1963] 1 W.L.R. 1362. But for the three reasons which I have given, I do not think the statement of a "plot" was reasonably capable of being considered as comment. It was a statement of fact which was itself defamatory of the plaintiffs. The defendant, in order to succeed, had to prove it to be true. He failed to do so, and along with it went the defence of fair comment.

In case, however, I am wrong about this and it could be regarded as comment, then I turn to the third point, which is this: were there any facts on which a fair minded man might honestly make such a comment? I take it to be settled law that, in order for the defence of fair comment to be left to the jury, there must at least be a sufficient basis of fact to warrant the comment, in this sense, that a fair minded man might on those

facts honestly hold that opinion. There is no need for the defendant to prove that his opinion was correct or one with which the jury agree. He is entitled to the defence of fair comment unless it can be said: "No fair minded man could honestly hold that opinion"; see what Buckley L.J. said in Peter Walker & Son Ltd. v. Hodgson [1909] 1 K.B. 239, 253.

In this case I am sure that Mr Emile Littler acted honestly and in good faith. He honestly thought that there was a plot to bring to a stop the run of The Right Honourable Gentleman. He was himself so convinced of it that he took the extreme step of telling it to the world. But I fear that he went beyond the bounds of a fair minded man. He jumped too hastily to his conclusion. He ought not to have been so precipitate. He ought to have made inquiries of the artistes. He ought to have made inquiries of his brother, or wait till he had a letter from him. We know that the brother had on June 23, that very day, written saying "We shall have to continue on the same basis as now." By jumping so quickly to a conclusion Mr. Emile Littler came at odds with the law. He made a public condemnation not only of the artistes themselves but of Associated Television and the agents, London Artists, Mr. Lew Grade and the Grade Organisation. The judge held ([1968] 1 W.L.R. 607, 624) that in alleging that all those were parties to a plot he was making an imputation without any basis of fact to support it. I think the judge was quite right in so holding and in not leaving it to the jury.

In the upshot it comes to this: the fate of The Right Honourable Gentleman was a matter of public interest. Mr. Emile Littler was fully entitled to comment on it as long as his comment was fair and honest. He was entitled to give his views to the public through the press. But I think he went beyond the bounds of fair comment. He was carried away by his feelings at the moment. He did not wait long enough to check the facts and to get them right. He had no defence except as to damages: and on that he did well. I would dismiss this appeal.

EDMUND DAVIES L.J. I agree that this appeal should be dismissed, but I have arrived at that conclusion by a route quite different from that which led the trial judge to reject as he did ([1968] 1 W.L.R. 607, 624) the plea of fair comment.

The first question he posed was whether any matter of public interest had arisen for comment. The burden of establishing to the satisfaction of the judge that this was so lay upon the defendant: see Peter Walker & Son Ltd. v. Hodgson [1909] 1 K.B. 239, 249; and he asserted that "the fate of the play The Right Honourable Gentleman, which was at all material times enjoying a successful run at Her Majesty's Theatre, London," was in truth a matter of public interest. The judge ruled otherwise, but added ([1968] 1 W.L.R. 607, 623) that he found it "something of a borderline case." He held that, since all four actors did no more than they were entitled to do, and did it privily, no matter of public interest arose even though it was established that the probable result of their synchronising their notices would be the abrupt termination of public presentation of the play. I find that ruling somewhat difficult to follow, especially in view of the judge's acceptance of the proposition that a strike of actors appearing in a particular production could well be a matter of public interest (ibid.) and

give rise to the plea of fair comment, for such a strike might equally be brought about by each actor individually, lawfully and privily terminating his engagement.

In my respectful view, the judge misdirected himself on this first point. Just as the presentation of a new play is of public interest, so also, in my judgment, is the sudden and surprising closure of a play enjoying a highly successful run. It was not, for example, as though Miss Coral Browne had changed her accountant, or Mr. Anthony Quayle had turned Buddhist, or Miss Massey had taken some other step equally unconnected with her public career. On the contrary, not only did they act collectively, but their collective action was immediately and dramatically connected with their careers as public entertainers.

It is not difficult to think up examples of the sort of proper comment which such an unusual event might legitimately provoke. For example, it might well lead to a discussion of whether the paucity of West End theatres is such that even highly successful plays have to be taken off to make way for new ones awaiting production, or to an examination of theatre finances, or to an assessment of the virtues and vices of the starring system, all such comment springing from and primarily illustrated by the abrupt taking off of one highly praised and successful production. If one of our theatre critics had written a piece on the lines I have indicated, could it be doubted that his comments on, inspired by, and expressly referring to such an event related to a matter of public interest? In my judgment it could not. Similarly, while Mr. Emile Littler possessed no special right simply because of his financial and other particular interest in the continued success of The Right Honourable Gentleman, he was as much entitled as anyone else to make proper comment on such a striking and unusual event in the theatrical world as its withdrawal during a triumphant run. For these reasons, I differ from the trial judge on this point. This defendant went wrong not for lack of a topic of public interest, but because of his maltreatment of the one which suddenly confronted him.

I differ from the judge, too, in relation to the second question he posed (ibid.), namely, as to "whether the part of the letter relied upon as comment is capable of being so understood." He expressed himself as unable to hold that the words complained of were not reasonably capable of being construed as comment and accordingly said that, had he decided the first question in the defendant's favour, he would have left this issue to the jury (ibid.). While in my judgment he fell into error in applying it, that was the correct test, for, as Lord Porter said in Turner (orse. Robertson) v. Metro-Goldwyn-Mayer Pictures Ltd. [1950] 1 All E.R. 449, 461:

"It is for the jury in a proper case to determine what is comment and what is fact, but a prerequisite to their right is that the words are capable of being a statement of a fact or facts. It is for the judge alone to decide whether they are so capable. ..."

It follows that the question whether the words complained of were reasonably capable of being regarded as mere comment is likewise essentially a matter for the judge, it being incumbent upon the defendant

to establish that they were so capable: see Jones v. Skelton [1963] 1 W.L.R. 1362, 1379. If the judge takes the view that they amount clearly to assertions of fact alone no question of fair comment arises and that plea must not be left to the jury.

It may be difficult in a particular case to distinguish between assertions of fact, on the one hand, and comment in the form of expressions of opinion, on the other. Yet the problem must be solved, be it by judge alone or by jury, and this for at least two reasons:

First, if the words complained of are comment, it is not necessary to prove their truth, but merely that they express a view such as an honest (though possibly prejudiced) man might form.

Secondly, comment must be disentangled from fact, for fair comment is available as a defence only in relation to facts which are either (a) true, or (b) if untrue, were published on a privileged occasion: see Mangena v. Wright [1909] 2 K.B. 958 and Grech v. Odhams Press Ltd. [1958] 2 Q.B. 275. Leaving aside privilege, which does not now arise for consideration, if the alleged facts relied upon as the basis for comment turn out to be untrue, a plea of fair comment avails the defendant nothing, even though they expressed his honest view. As was pointed out in Lefroy v. Burnside (No. 2) (1879) 4 L.R.Ir. 556, 565, the very nature of the plea

"assumes the matters of fact commented upon to be somehow or other ascertained. It does not mean that a man may invent fact, and comment on the facts so invented, in what would be a fair and bona fide manner on the supposition that the facts were true."

A man may be led to invent quite honestly and without realising that he is doing so, by mistake, through ignorance or prejudice, or (as probably occurred in the present case) under the stress of emotion. But, whatever the source of error, the defence "does not extend to cover misstatements of fact, however bona fide": see Thomas v. Bradbury, Agnew & Co. Ltd. [1906] 2 K.B. 627, 638.

It behoves a writer to indicate clearly what portions of his work are fact and what are comment, for, in the words of Fletcher-Moulton L.J. in Hunt v. "Star" Newspaper Co. Ltd. [1908] 2 K.B. 309, 319:

"... comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment: see Andrews v. Chapman (1853) 3 C. & K. 286."

Failure to exhibit clarity in this respect carries its own risks, for, as Fletcher-Moulton L.J. went on to say, at p. 320:

"Any matter, ... which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment."

This desirability is further borne out by the following passage from Odgers on Libel and Slander, 6th ed. (1929), p. 166 quoted with approval by Lord Porter in Kemsley v. Foot [1952] A.C. 345, 356, 357:

"if he (a defendant) sets out the facts correctly, and then gives his inference, stating it as his inference from those facts, such inference will,

as a rule, be deemed a comment. But even in this case the writer must be careful to state the inference as an inference, and not to assert it as a new and independent fact; otherwise, his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact."

Care is therefore called for, notwithstanding the many cases, among which are Stopes v. Sutherland (1923) 39 T.L R. 677, 679, and Aga Khan v. "Times" [1924] 1 K.B. 675, 680, holding that in doubtful cases the question of whether the words are comment must be left to the jury.

Such considerations having an obvious importance, the plaintiffs requested further and better particulars, not only of the defence of justification, but also of the plea of fair comment, seeking "Particulars of the facts and matters on which the alleged comment is made." Those originally delivered in no way connected any act of any of the four plaintiffs with the event which was said to threaten the fate of the play, namely the simultaneous giving of notice by four members of the cast. The plaintiffs accordingly applied to strike out both pleas. The master agreed to do this unless the defendant amended, holding that as they stood the particulars delivered disclosed no reasonable defence and were calculated to prejudice and embarrass the fair trial of the action. From that order the defendant never appealed. Instead, doubtless recognising the force of the plaintiffs' criticism and in order to salvage his pleading, he amended his particulars in the important respects already indicated by the Master of the Rolls. The essential allegation expressly advanced for the first time in the new paragraph 20A was that the four plaintiffs had combined together to procure the termination of (a) the run of the play and (b) the contracts entered into by the leading members of the cast as a means to that end.

While that paragraph remained, it provided the needed link between the plaintiffs and the combined action of the four actors. Nevertheless, Mr. Duncan has strenuously submitted that, despite the contrary intimation made to the plaintiffs, paragraph 20A ought not to be read as supplying any factual basis for the alleged comment. I regret that I was quite unable to follow that submission. On the contrary, I think that the defendant should be held to what he himself indicated was the role of paragraph 20A, in common with the rest of his particulars of the plea of fair comment.

The stage was reached during the trial when the overwhelming weight of evidence compelled the defendant to withdraw paragraph 20A in toto (together with certain other important allegations to which the Master of the Rolls has already referred), for there was simply no evidence that any of the plaintiffs had taken any step (acting either singly or collectively) to procure the termination of the play. Even so, it has been submitted that the particulars, emasculated though they had become, still retained sufficient virility to play their designated role of stating the facts upon which the alleged comment could honestly (even though mistakenly) be based. I disagree. Without the now excised amendments to the particulars of the plea of fair comment, what remained consisted simply of the itemisation of a series of assertions which, even assuming all were true, could not and did not (as the defendant himself clearly recognised

during the interlocutory stage) provide the basis of an allegation that any of the plaintiffs had conspired together to get the play stopped. The situation which thus arose was such as was envisaged by Lord Tucker in Kemsley v. Foot in saying, [1952] A.C. 345, 362 that:

"... where the facts relied on to justify the comment are contained only in the particulars it is not incumbent on the defendant to prove the truth of every fact so stated in order to establish his plea of fair comment, but ... he must establish sufficient facts to support the comment to the satisfaction of the jury."

It follows that, if none of the facts so relied on exist, the plea has no foundation and must therefore be withdrawn from the jury: see Lefroy v. Burnside (No. 2), 4 L.R.Ir. 556, 565. Again, if (as I think is the case) paragraph 20A has to be regarded as setting out a vitally important part of the alleged facts upon which the defendant purported to comment, it is impossible to regard such comment as reasonably capable of being fair, focused as it very largely was on that paragraph, once its complete falsity was established and, indeed, conceded.

That is sufficient to dispose of this matter. Even so, one has perhaps not said all that needs to be said, for, even if the amended particulars had subsisted in their entirety, it remains to be considered whether the defamatory letter consisted of comment or fact or partly of fact and partly of comment. It is here to be observed that, although Mr. Colin Duncan sought valiantly to establish that the libel complained of was a melange of fact and of inference, the defence pleaded without qualification and in relation to the letter as a whole that "the said words were fair comment. ..." Having thus abjured the "rolled-up" plea, the defendant, through Mr. Duncan, nevertheless proceeded to dissect the letter, submitting that the opening words expressed a mere inference, that the next two paragraphs contained facts alone, and that the entire paragraph beginning, "In other words ..." was mere comment. But it seems to have been clearly conceded at the trial that the important reference in the final paragraph to "... the combined effort of withdrawing suddenly the three Grade stars and another Grade artiste on a given date" amounted to an assertion of fact. Its falsity became demonstrated, and that it was highly defamatory of all four plaintiffs is not challenged. Accordingly, no plea of fair comment could protect the defendant in respect of it. Nor, in my judgment, did such a plea avail him in relation to the reference in the opening paragraph to the alleged "plan to close the run of the play." Notwithstanding the prefatory words, "... what, on the face of it, appears to be a plan," that was as much an assertion of fact that a plan existed as was the claim made in paragraph 20A of the particulars that the plaintiffs "combined and planned" with each other for the purposes therein indicated. As Mr. Ackner neatly put it, the defendant was in effect pleading, "I commented on a plot" and not "My comment was that a plot existed." Indeed, I would have thought that this was beyond argument had the appellant's counsel not forcefully demonstrated that this was not so.

It is not presently necessary to decide whether a defendant who chooses not to adopt the "rolled-up" plea (which presents him with the necessity of distinguishing between fact and comment - now see R.S.C.,

Ord. 82 r. 3 (2) - a task which, as Mr. Duncan himself indicated, may prove difficult) and instead pleads, as here, simply that the words complained of were comment, may nevertheless at the trial pick and choose, then for the first time describing parts as comment and the rest as fact; but I certainly must not be taken as necessarily agreeing that he is free to do this. Be that as it may, however, the effect of Mr. Duncan's detailed analysis of the offending letter was to invite this court to bring to its interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at by holding his Press conference, and to ignore the obviously fair and common-sense test propounded by Fletcher-Moulton L.J. in Hunt v. Star Newspaper Co. Ltd. [1908] 2 K.B. 309, 319. And whatever degree of subtlety be applied in its interpretation, in my judgment the words complained of were clear assertions of facts and the judge should have so ruled, and for this additional reason should have withdrawn the plea from the jury. As it was, he was led to adopt that course by holding that no matter of public interest was involved.

Regarding the third point which he canvassed, I agree with the judge in rejecting ([1968] 1 W.L.R. 607, 624) the defence submission that "it does not matter that the comment defamed persons not actually involved in the conduct commented upon, provided the conduct commented on was a matter of public interest." Were that indeed the law it could work most oppressively, for, the issue of whether the comment was fair being for the jury and Mr. Duncan doubting (if not actually denying) the right of a judge to rule that the comment complained of was not reasonably capable of being regarded as fair, it would follow that, however widely he had defamed in commenting on a matter of public interest, the issue of fair comment would have to be left to the jury. No authority was cited for this startling proposition and its absence causes me no surprise.

In the result, although I hold that a matter of public interest existed (whereas the judge held (ibid. p. 623) that there was none) and although I also hold that the words complained of were not reasonably capable of being regarded as comment (whereas the judge held that they were), I agree with his ruling (ibid. p. 624) that the only issue which should be left to the jury was that of quantum of damages. I accordingly concur in dismissing this appeal.

WIDGERY L.J. I agree that this appeal must be dismissed, and since my reasons are identical with those which have been indicated in the judgments of my Lords, I do not propose to deal with them in great detail. In particular, I agree that the judge erred in ruling (ibid. p. 623) that the defendant's letter of June 23 was not written upon a matter of public interest. Here was a successful play receiving considerable public support which many members of the public no doubt still wished to see. Any event which prematurely curtailed the run of the play and deprived the public of this entertainment was in my judgment a matter of public concern. I think the situation is aptly described in the defendant's pleading where he says that the relevant matter of public interest was "the fate of the play." Mr. Ackner seeks to answer this argument by saying that when

an actor gives notice to determine his contract, the giving of that notice, and the motives which prompted it, are part of the private sector of the actor's life and are not a matter of public comment; but although this will often be true, I think this is not necessarily so. The fact that the fate of the play is a matter of public interest does not give a licence to comment at large on the actor's private life, but his conduct in relation to the termination of the run is within the sphere of public interest for this purpose.

This conclusion does not in the end profit the defendant since in the remainder of this appeal there are in my judgment overwhelming grounds for saying that the defence of fair comment was not open to him. I agree with my Lords that the words complained of were not comment but were a statement of fact. I confess readily that at one stage during Mr. Duncan's argument I had considerable doubt as to this issue, but in the end I am satisfied that the conclusion already stated is the right one, and that this would be enough of itself to dispose of the matter. But for myself I find that the third point referred to by my Lord, the Master of the Rolls, is perhaps the dominant one, because even if one assumes the view, contrary to that which we have all formed, that these words were comment, it seems to me abundantly clear that there was no sufficient factual foundation to support that comment. Of course, if the defendant had succeeded in proving that Associated Television had a financial stake in the play Robert and Elizabeth, and if he had further proved that Mr. Lew Grade had a controlling interest in the Grade Organisation, it is possible that the result would have been different; but it is idle, I think, to speculate on this, because those facts were not proved and indeed it is recognised that they were not correct. At the end of the day the only relevant facts upon which the comment could have been based were I think five: First, that Associated Television through its subsidiaries was the lessee of Her Majesty's Theatre. Secondly, that Mr. Lew Grade was the managing director of Associated Television. Thirdly, that Mr. Lew Grade was a shareholder with a minority holding in the Grade Organisation. Fourthly, that London Artists were a wholly-owned subsidiary of the Grade Organisation. And fifthly, that London Artists had given the notices in question on behalf of the four members of the cast. These facts no doubt showed a connection, in the person of Mr Lew Grade, between the lessees of the theatre who would have obtained possession of the theatre if the play had been taken off, and London Artists who gave the notices, and in the absence of any other material I suppose a particularly suspicious mind or a mind whose judgment was upset by emotion might have conjured up a plot, with Mr. Lew Grade as the moving spirit. But when Mr. Grade gave evidence he flatly denied this and the defendant eventually properly conceded that the jury could not be invited to draw the conclusion that Mr. Lew Grade had taken any personal part in the alleged plot. From that moment, as it seems to me, Mr. Duncan was producing Hamlet without the Prince; and indeed the defendant was quite unable to identify any plotter among the numerous influential witnesses called by the plaintiffs. In my judgment, no reasonably-minded man could have drawn the inference from such material that any of the plaintiffs was a party to the alleged plot; and I think the judge was entirely right in announcing that he would withdraw this issue from the jury and in consequentially ruling that the defence of

fair comment was not open (ibid.). Accordingly I concur in the order proposed.

Solicitors: M. A. Jacobs & Sons; Oswald Hickson, Collier & Co., Allen & Overy; Nicholson, Graham & Jones.

A. H. B.