Branson v Bower

Factual and Procedural Background

The case concerns defamatory words published in an article by the Defendant, specifically regarding the motives of the Plaintiff in bidding for the National Lottery. The court previously ruled on 21 November 2000 that the words were comment rather than fact, thus susceptible to a defence of fair comment but not justification. The Court of Appeal upheld this ruling on 1 May 2001, confirming that no reasonable jury could find the words to be anything other than comment. The trial was initially set for 25 June 2001 but was vacated pending various applications by the Defendant for summary judgment and other procedural orders.

Legal Issues Presented

1. Whether the words complained of constitute fair comment on a matter of public interest.
2. Whether the Plaintiff can establish malice on the part of the Defendant.
3. Whether the pleaded defamatory meanings attributed to the words are sustainable.
4. Whether summary judgment is appropriate on these issues or whether a trial is necessary.

Arguments of the Parties

Defendant's Arguments

• The words in the article are comment and opinion, not statements of fact, thus protected by the defence of fair comment.
• The Plaintiff has no real prospect of defeating the fair comment defence or proving malice.
• The meanings pleaded by the Plaintiff are incompatible with the ruling that the words are comment and should be struck out or limited accordingly.
• The objective test for fair comment requires only honesty and that the comment be based on facts truly stated, not fairness or reasonableness.
• The Defendant relies on a concise statement of facts supporting the comment, which a hypothetical observer could honestly hold.
• The Defendant contends that the Plaintiff’s additional or alternative factual assertions do not undermine the objective test for fair comment.

Plaintiff's Arguments

• The pleaded defamatory meanings attribute dishonourable conduct and hypocrisy to the Plaintiff.
• The Defendant’s comment is not fair or reasonable, particularly where dishonourable motives are imputed.
• The Defendant should not pass the objective test if negligent in assembling facts or if extraneous facts would alter the significance of the comment.
• The Plaintiff challenges the accuracy and completeness of the facts relied upon by the Defendant.
• The Plaintiff disputes certain factual inferences drawn by the Defendant, including the purpose behind charitable initiatives and motives of revenge.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lingens v. Austria (1986) E.H.R.R. 407	Protection of fair comment and freedom of expression under European human rights law.	Supported the principle that value judgments on matters of public interest do not require justification as fact.
De Haes & Gijsels v. Belgium (1997) 25 E.H.R.R. 1	Freedom of expression and fair comment.	Referenced to reinforce the protection for comments on public interest matters.
Neilson & Johnsen v. Norway (1999)	Standards for fair comment under European Convention on Human Rights.	Reinforced the distinction between comment and fact and the protection of honest opinion.
Gardiner v. Fairfax (1942) S.R. (N.S.W) 171	Legitimate criticism and the right to express offensive opinions.	Supported the allowance of rude and offensive language in fair comment.
Turner v. MGM Pictures Ltd [1950] 1 All E.R. 449	Fair comment defence and the irrelevance of fairness or moderation to honesty.	Used to illustrate that bias or exaggeration does not negate fair comment.
Silkin v. Beaverbrook Newspapers Ltd [1958] 1 W.L.R. 743	Scope of fair comment and protection of honest opinion.	Referenced for the principle that critics may express harsh opinions.
Albert Cheng v. Tse Wai Chun Paul (Hong Kong Court of Final Appeal)	Clarification that honesty alone is the touchstone of fair comment.	Adopted as persuasive authority to refine the objective test for fair comment.
Horrocks v. Lowe [1975] A.C. 135	Qualified privilege and malice.	Referenced to distinguish malice in qualified privilege from malice in fair comment cases.
Sugar v. Associated Newspapers (2001)	Application of Lord Nicholls’ tests for fair comment.	Followed to confirm the defence's rationale and public policy objectives.
Safeway Stores v. Tate [2001] E.M.L.R. 350	Summary judgment in defamation cases and the judge/jury distinction.	Used to illustrate principles guiding summary judgment applications in jury cases.
Alexander v. Arts Council of Wales [2001] EWCA Civ 514	Summary judgment test and jury trial rights in defamation.	Referenced for the Galbraith test analogue and the necessity of leaving factual disputes to the jury.
Grobbelaar v. News Group Newspapers [2001] 2 All ER 437	Judge and jury roles in defamation trials.	Reinforced the importance of not usurping the jury’s function prematurely.
McPhilemy v. Times Newspapers [2001] EWCA Civ 871	Summary judgment and defamation trial procedures.	Supported the cautious approach to summary judgment in libel cases.
Colchester Oyster Fishery v. Purslow (1997, unreported)	Application for summary judgment on malice.	Example of mid-trial application to exclude malice evidence.
S v. London Borough of Newham [1999] E.M.L.R 583	Early stage summary judgment on factual pleadings.	Illustrated the possibility of early applications based on pleadings alone.
Galbraith [1981] 1 W.L.R. 1039	Test for sufficiency of evidence to go to jury.	Applied analogously to summary judgment in defamation jury cases.
Turner v. MGM Pictures Ltd [1950] 1 All ER 449	Malice and fair comment.	Referenced regarding the inability to strike out malice pleas if facts could support dishonesty.
Somerville v. Hawkins (1851) 10 C.B. 583	Test for sufficiency of malice pleadings.	Referenced for the principle that malice pleadings must be capable of sustaining an inference of dishonesty.
Merivale v. Carson (1888) 20 Q.B.D. 275	Fair comment defence and prejudice or bias.	Supported the principle that biased views can still qualify for fair comment.
Telnikoff v. Matusevich [1991] 1 Q.B. 102	Objective test for fair comment.	Discussed the role of "fair-mindedness" and its problematic usage in fair comment tests.
Wason v. Walter (1868) L.R. 4 Q.B.73	Reasonableness in criticism of motives.	Referenced as an older authority inconsistent with modern fair comment principles.
Hunt v. Star Newspaper [1908] 2 K.B. 309	Requirement of judgment and moderation in criticism.	Discussed but noted as not reflecting modern fair comment standards.
Peter Walker v. Hodgson [1909] 1 K.B. 239	Standards for legitimate criticism.	Referenced in discussion of reasonableness in imputations of motive.
London Artists v. Littler [1969] 2 QB 375	Criticism and fair comment principles.	Noted as part of older case law not heavily relied upon in modern jurisprudence.
Barfod v. Denmark (1991) 13 EHRR 493	European human rights jurisprudence on fair comment.	Supported the necessity for comments to be based on facts truly stated.
Kemsley v. Foot [1952] A.C. 345	Requirement that comment indicate facts on which it is based.	Applied to confirm that readers should be able to judge the foundation of comment.
Reynolds v. Times Newspapers Ltd [1999] 3 WLR 1010	Qualified privilege and duty to publish.	Distinguished from fair comment defence and not directly applicable.
Skuse v. Granada Television [1996] EMLR 278	Judge's role in delimiting possible meanings.	Applied to assess the defamatory capacity of words.
Gillick v. BBC [1996] EMLR 267	Meaning and defamatory imputations.	Referenced for the standard of assessing natural and ordinary meaning.
Mapp v. News Group Newspapers [1998] QB 520	Defamatory meaning and range of possible interpretations.	Used to delimit possible defamatory meanings in the article.

Court's Reasoning and Analysis

The court reaffirmed the principle that the defence of fair comment requires only that the comment be honestly expressed and based on facts truly stated. It emphasized that the defendant is not required to prove fairness, reasonableness, or moderation in the opinion expressed, nor must the jury or judge agree with the comment. The court distinguished fair comment from qualified privilege, particularly regarding the role of malice, noting that malice cannot be inferred solely from motive in fair comment cases.

The court applied the objective test for fair comment, asking whether a hypothetical person could honestly hold the opinions expressed based on the pleaded facts. It acknowledged that some facts relied upon by the Defendant were controversial but concluded that the underlying uncontroversial facts were sufficient to support the comment. The court rejected the Plaintiff's argument that extraneous or omitted facts should be considered at the objective stage, confining the test to the facts pleaded or proved by the Defendant.

The court also rejected the introduction of negligence as a factor in the fair comment defence, clarifying that the focus is on honesty and accurate factual basis rather than the thoroughness of fact-gathering.

Regarding the meanings pleaded by the Plaintiff, the court found that the words complained of could not reasonably bear imputations of hypocrisy or dishonourable conduct as pleaded. However, it held that the words could bear less serious defamatory meanings related to mixed motives and self-promotion, which must be left to the jury to determine.

In relation to summary judgment, the court applied the Galbraith test analogue, concluding that no reasonable jury could find against the Defendant on the objective test for fair comment, and thus this issue should not proceed to trial. However, the question of malice remained for trial, as the Plaintiff’s pleadings on malice were not so untenable as to be struck out at this stage.

Holding and Implications

The court granted summary judgment in favour of the Defendant on the issue of whether the words complained of were fair comment. It held that:

The words in the article constitute fair comment on a matter of public interest, and no reasonable jury could find otherwise on the objective test.

The case will proceed to trial only on the issue of malice, which the Plaintiff must prove to succeed. The pleaded defamatory meanings imputing dishonourable conduct and hypocrisy were rejected as unsustainable, narrowing the scope of the trial to less serious defamatory meanings and malice.

No new precedent was established; rather, the court applied and clarified existing principles consistent with European human rights jurisprudence and common law. The ruling underscores the protection afforded to honest opinions on matters of public interest and the limited role of courts in assessing the fairness or reasonableness of such opinions.