Case Facts
Four consolidated libel actions were brought against Emile Littler, a theatrical producer and impresario, by London Artists Ltd, Grade Organisation Ltd, Associated Television Ltd, and Lew Grade personally. The dispute arose from events surrounding the West End play "The Right Honourable Gentleman," which Littler was producing at Her Majesty's Theatre under a licence dated 30 April 1964. That licence contained a "get-out figure" clause permitting the lessees of the theatre to terminate it if weekly takings fell below £3,500 for two consecutive weeks.
By a letter dated 18 June 1965, Prince Littler, managing director of the lessees (companies controlled by subsidiaries associated with Associated Television), informed the defendant that the board intended to give notice to terminate the licence as soon as takings fell below the get-out figure. The stated purpose was to transfer the musical "Robert and Elizabeth," then playing to full houses at the Lyric Theatre, to Her Majesty's Theatre.
On 22 June 1965, London Artists Ltd, acting as agents for four leading players in the production, gave notices in accordance with their contracts, terminating the players' appearances on 24 July 1965. The simultaneous coincidence of four such notices was described as almost unprecedented in the theatre world and was widely considered likely to bring the run of the play to an end.
On 23 June 1965, the defendant wrote a letter in substantially identical terms to three of the four artists and communicated its contents to the press at a press conference. In that letter, Littler suggested that the plaintiffs had taken part in what appeared to be a plot to force the premature end of the run of his play. It was this letter, published to the press, that gave rise to the libel actions.
The defendant pleaded three defences: (1) justification, (2) fair comment on a matter of public interest, and (3) qualified privilege. Notably, the plea of justification was withdrawn at the close of the plaintiffs' evidence — a significant procedural fact, as it left the defendant without any foundation for the allegation of a plot. At first instance, Cantley J held that the fair comment plea failed because the matter was not one of public interest, and that the publication to the press was not covered by qualified privilege. Damages were accordingly the only issue left to the jury, who awarded modest sums to the plaintiffs. The defendant appealed.
Held
The Court of Appeal dismissed the defendant's appeal. However, it disagreed with Cantley J on the question of public interest, holding that the comment was indeed on a matter of public interest affecting people at large. A successful West End theatrical production, and the circumstances surrounding the premature termination of its run, was the kind of matter upon which members of the public were legitimately entitled to receive information and upon which comment could be made.
Despite that finding in the defendant's favour on the public interest point, the fair comment defence nonetheless failed on two alternative grounds. First, the allegation of a plot was a statement of basic fact, defamatory of the plaintiffs and not reasonably capable of being regarded as mere comment; having withdrawn the plea of justification, the defendant had entirely failed to substantiate it. Secondly, and alternatively, the defendant had made a defamatory imputation without any sufficient basis of fact to support it. In either case, the defence of fair comment was unavailable to him.
The court also confirmed that the defendant's plea of qualified privilege in respect of the publication to the press was correctly rejected at first instance.
Ratio Decidendi
The central legal principle established by this case concerns the requirements for the defence of fair comment on a matter of public interest in defamation law.
For the defence to succeed, there must be a sufficient substratum of fact upon which the comment is founded. Where the words complained of allege a specific defamatory fact — here, the existence of a deliberate plot — that allegation cannot be treated as mere comment and must be substantiated by the defendant. If the defendant fails to prove that underlying fact (as happened here when the justification plea was withdrawn), the fair comment defence cannot stand.
The Court of Appeal identified two alternative grounds upon which the defence failed on the facts:
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The allegation that the plaintiffs had conspired to form a plot to end the play's run was a statement of basic fact. It was not reasonably capable of being characterised as an expression of opinion or comment. As a statement of fact, it was required to be proved, and it was not proved.
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Alternatively, even if the words could be treated as comment, the defendant had made a defamatory imputation without any basis of fact to support it. The defence of fair comment requires, per curiam, that there must be a sufficient basis of fact to warrant the comment before the defence can be left to the jury.
The case also engages s 6 Defamation Act 1952, which provides that in an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expressions 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 so-called "rolled-up plea" — a combined plea under which the defendant asserts that the words are true in substance and in fact, and that insofar as they are comment they are fair comment on a matter of public interest — was pleaded but could not assist the defendant here, because the foundational fact (the plot) remained entirely unproved and unsubstantiated.
Obiter Dicta
Two significant obiter observations merit attention for students of defamation law.
First, on the question of public interest, the court emphasised that the matters upon which fair comment may lawfully be made should not be confined within narrow limits. Wherever a matter is such that it may affect people at large — so that they may be legitimately interested in or concerned about what is going on — it is a matter of public interest on which comment may be made. The running of a major West End production and the circumstances of its possible premature end fell comfortably within this broad conception.
Secondly, on the respective roles of judge and jury, it was observed that it is for the defendant to establish to the satisfaction of the judge that a matter of public interest has arisen upon which fair comment is being made. Furthermore, the question of whether the words complained of are reasonably capable of being regarded as mere comment — as opposed to a statement of fact — is a matter for the judge to determine as a preliminary question of law, and not a matter to be left to the jury. This distinction between the judicial gatekeeping function and the jury's role in assessing the overall fairness of the comment is an important procedural aspect of the fair comment defence.