BRANSON v BOWER [2001] EWCA Civ 791

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL

DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

EADY J

[2001] EWCA Civ 791

Case No Case No: A2/2001/0289

Venue Royal Courts of Justice, Strand,, London, WC2A 2LL, Thursday 24th May 2001

Between

BRANSONAppellant

BOWERRespondent

Before

Lord Justice Latham

Sir Philip Otton

James Price, QC, & Heather Rogers (instructed by Harbottle &

Lewis for the Appellant)

Michael Tugendhat, QC (instructed by Reynolds Porter

Chamberlain for the Respondent)

Date 24 May 2001

LORD JUSTICE LATHAM:

This

[1]is an interlocutory appeal in libel proceedings brought by the appellant against the respondent. With the permission of the judge, Eady J, the appellant appeals against so much of the order that the judge made on the 18th December 2000 whereby he declared that words complained of by the appellant were comment and were not capable of being statements of fact.

[2]The dispute arises out of the bid which was made by the appellant in the name of The Peoples Lottery to run the National Lottery. In a speech on the 13th December 1999, the appellant asserted that all the profits made by The Peoples Lottery would go to good causes so that the beneficiaries of the National Lottery were the public. At the end of his speech, he said:

"Finally, I feel I should address a point that I know a lot of people will be thinking: What's in it for me? Well, firstly, the bid is completely separate - structurally, legally, organisationally - from Virgin. Its a Peoples Lottery Bid, put together by me, not a Virgin bid. Secondly, I am not looking for any advantage. I saw the wonderful affect the Irish Lottery was having back in 1988 and I wrote to Mrs Thatcher, the then Prime Minister, suggesting that the UK should start one too. Every other country in Europe had one including Albania, so it was hardly radical thinking. But I believed then that it could be a huge force for good and a little harmless fun and I still believe that today. Happily, I am in a position to do something about it. If run properly, it can be a force for good and a little harmless fun. It doesn't need shareholders making huge profits to incentivise them. The incentives of doing it well and in generating huge sums for good causes, which benefit everyone, would seem to me to be incentive enough"

[3]The Evening Standard then commissioned an article from the respondent who was completing his unauthorised biography of the respondent. It was published as a feature article on the 14th December 1999. It was headed:

"Why we should be less charitable to Branson"

. It was accompanied by a photograph of the respondent with the caption: "Tom Bower on the Risks of allowing the Virgin Empire to run our National Lottery".

[4]The passages in the article apart from the heading and the caption about which complaint is made by the appellant are as follows:

"Revenge rather than pure self righteousness has motivated Richard Branson's latest bid to run Britain's Lottery. Ever since that fateful day in May 1994 when he emerged from his Holland Park mansion in tears complaining about the "nasty little fax" announcing that his bid for the lottery had been rejected, Branson has fumed and campaigned against Camelot and the Lottery Regulator. ........ Yesterday all traces of that emotion had been expunged for his announcement that "

The People's Lottery" a limited company owned entirely by Branson, would be Camelot's only challenger ........ Sceptics will inevitably whisper that Branson's motive is self glorification. Many will carp that his promise of private charity fund based on his lottery company's profits will be his excuse to appear every week on national television to personally represent a Virgin cheque to a worthy cause. His critics will also scorn the professional self-publicist for seeking a major opportunity to regularly promote the Virgin brand on the BBC TV at no expense to himself..... Undoubtedly that silence will be disregarded by the new Lottery Commission. An applicant's ambition, vanity and self promotion is not relevant to his ability to run the lottery better than Camelot."

[5]In the particulars of claim, the appellant asserts that the words, in their natural ordinary meaning were to the effect that the appellant was acting dishonourably by using his promise of a private charity fund to disguise his true purpose of promoting the Virgin brand on television at no expense to himself.

[6]Two innuendoes are complained of. First, it is said that the article was asserting that the appellant was a hypocrite who claimed to be organising a bid for the National Lottery franchise for charitable motives, but was in fact motivated by revenge and financial self interest. Second, it is said that the article was asserting that the appellant was acting dishonourably and hypocritically by using the promise of a private charity fund to disguise his true purpose of promoting the Virgin brand on television at no expense to himself.

[7]The defence, in its original form, denied the meanings alleged, and raised substantive defences of justification, fair comment and qualified privilege. In doing so it raised the issue as to whether the words about which complaint was made were allegations of fact when ascribing motives to the appellant other than those which he was publicly asserting, which the respondent would have to justify, or comment which he was entitled to defend as fair comment. This was raised as a preliminary issue which was the subject of the part of the judge's judgment which is appealed to us.

[8]The judge, having set out the facts, recorded arguments on behalf of the respondent based upon the jurisprudence of the European Court of Human Rights in the context of

Article 10 of the European Convention on Human Rights

. He then said:

"In this jurisdiction it happens that we have a civil law of defamation which is sophisticated and highly developed and includes a range of defences for the media. Furthermore it has been stated on a number of occasions, at the highest judicial level, that our law in this respect is consistent with the imperatives and safeguards of the European Convention. (See for example the remarks of Lord Goff in Attorney General -v- Guardian Newspapers (No 2) [1990] 1 AC 109 at page 283 to 4, and of Lord Keith in Derbyshire County Council -v- Times Newspapers [1993] AC 534 , at 551) It is clearly my duty to apply English domestic law and, in doing so, to have regard to the principles of the Convention as explained and developed in Strasbourg. It cannot be stated baldly, in my judgment, as a matter of English law, that a defendant can be exonerated from the need to prove the truth of factual defamatory statements if it is unreasonable or impossible to do so. It is well established, for example, that a person is regarded as having a good name, and defamatory words are presumed to be false unless and until a defendant takes on the burden of proving them to be true. That principle was reaffirmed as recently as March 1999 in the Court of Appeal in MacDonald's Corporation -v- Steel & Anr [unreported]. Nevertheless the law of defamation recognises that it is unreasonable to require a defendant to prove the truth of every defamatory statement, and provision is duly made. For example, we have the rule that a defendant only has to prove the libel to be substantially true. What has to be justified is the real "sting" of the libel. That principle has been supplemented by s. 5 of the Defamation Act 1952. If the allegations can truly be classified as comment rather than fact, then a defendant is not required to prove the words to be objectively true. He will have a complete defence if he can bring himself within the defence of fair comment. There may be difficulties, on any given set of facts, about whether the words are to be classified as comment or not, but the principle is clear. So, too, a journalist will not be required to prove words to be true if they were published pursuant to a legal, social or moral duty and the subject matter was of legitimate public interest. See e.g. Blackshaw -v- Lord [1984] QB1 and Reynolds -v- Times Newspapers to which I have already referred. It is by affording defences of this kind that English law gives effect to the general (and in itself uninformative) proposition that it is not always reasonable for a journalist, or other defendant in libel proceedings, to have to establish the objective truth of what he has said. I must be guided by these principles, rather than deciding subjectively whether, on the facts of this or any other case, it seems to me reasonable for a defendant to have to establish a defence of justification. It is necessary, after all, to remember that the European Convention itself values predictability and certainty so that citizens can know so far as possible, if necessary with legal advice, what the legal consequences of their conduct may be. Furthermore exceptions to the right to freedom of expression as contemplated by Article 10(2) must be "prescribed by law", whether it be judge-made common law or statutory provision. That is a further reminder that one has to apply domestic law, so far as one's limitations permit, in a principled and rational manner. If one applies the English Law of defamation properly, there should be no reason to think that the principles underlying the Convention are infringed. One area in which there might appear to be a divergence, relevant in the present case, between English jurisprudence and that of Strasbourg is that relating to how to treat a journalist's attribution of motives. The traditional English view is exemplified in the words of Bowen LJ in Edgington -v- Fitzmaurice [1885] 29 ChD 459 , at page 483 to the effect that: "

The state of a man's mind is as much a fact as the state of his digestion" This approach has in the past been reflected also in the law of fair comment. See, for example Campbell -v- Spottiswoode [1863] B&S 769 at page 776 and the discussion in Gatley on Libel and Slander (9th Edition) at paragraphs 12.24 to 12.26. More recently, however, the courts have been readier to treat the attribution of motive, in some cases, as matters of inference or comment. Miss Page submits that they should, indeed, be even readier to do so in the light of Neilson & Johnsen -v- Norway . In the end, however, as the court in Strasbourg recognised, any such classification must depend upon the words actually used and upon their context. In any event, the boundary between fair comment and justification sometimes becomes a little fuzzy when the court has to address defamatory words couched in the form of the author's inferences of fact from the material set out or referred to in the body of an article. English law recognises in such cases that the validity of inferences can be a matter of opinion and thus susceptible to a defence of fair comment. Thus, if a journalist makes inferences as to someone's motives, that may be treated as the expression of an opinion even though the inference drawn may be to the effect that there exists a certain state of affairs (including a state of mind): see Gatley (9th Edition) paragraph 12.10 and Kemsley -v- Foot

[1952] AC 345

, page 356. I see no obvious inconsistency between these important principles of English law and what was said so recently in Neilson & Johnsen -v- Norway at paragraph 50. It was clear that the court in Strasbourg was addressing the wording of particular statements in their context, and that they were intended to convey the applicants' own opinions. It was also said that they were thus akin to value judgments. I do not need to go so far as to draw any such analogy here. The first ruling I have to give is whether the words complained of should be classified now as comment or fact; or whether I should leave the issue to be resolved by the jury at trial as Miss Rogers submits is the appropriate course. In my judgment, Mr Bower seems to have been expressing a series of opinions about the motives of the claimant, based on inferences from facts identified or referred to in his article. In order for fair comment to succeed, Mr Bower will need to prove the underlying facts from which the inference is drawn. He will need also at trial to pass the usual objective test that operates in the law of fair comment; that is to say, to show that the opinions are such that a reasonable person could hold them in the light of the facts proved at trial (or admitted). It will be for Sir Richard Branson, if he can, then to prove that Mr Bower was malicious in what he wrote. Miss Page has pointed out that any reasonable reader will see straight away from the nature of the allegations, relating as they do to the claimant's state of mind, that Mr Bower cannot have direct knowledge and that he must accordingly have been expressing his own views or inferences. There is here no uncertainty about that, such as to require the jury to express its own conclusion on the issue of fact or comment. I am bound to say that I agree with Miss Page's submission about that."

[9]Mr Price, QC submits that the judge was wrong. He submits that if, as the judge purported to do, he was applying traditional principles of domestic law, the conclusion to which he should have come was that at the very least, the assertion as to motive was capable of being fact, and that accordingly the matter should have been left for determination by the jury. This is particularly so, he submits, because the allegation is that the respondent has imputed dishonourable motives to the appellant. Unless it is clear that the assertion as to motive is simply a deduction or inference from facts fully set out by the writer, that assertion must be treated as one of fact. It can only amount to comment if the assertion is made in a context which makes it clear that the assertion as to motive is only comment or inference, and in a way which enables the reader to come to his or her own conclusion as to whether that comment or inference is appropriate. He referred us to the judgment of Fletcher-Moulton LJ in Hunt -v- Star Newspaper

[1908] 2 KB 309

, at page 319:

"In the first place, 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 . The justice of this rule is obvious. If the facts are stated separately and the comment appears as an inference drawn from those facts, any injustice which it might do will be to some extent negatived by the reader seeing the grounds upon which the unfavourable inference is based. But if fact and comment be intermingled so it is not reasonably clear what portion purports to be inference, he will naturally suppose that the injurious statements are based on adequate grounds known to the writer, though not necessarily set out by him. In the one case the insufficiency of the facts to support the inference will lead fair minded men to reject the inference. In the other case it merely points the existence of extrinsic facts the writer considers to warrant the language which he uses. Any matter, therefore, which does not indicate with reasonable clearness but purports to be comment and not statement of fact, cannot be protected by the plea of fair comment."

[10]Mr Price submits that these words are particularly apposite to the present case in that it was stated at the end of the article in question that the respondent was completing his unauthorised biography of the appellant. This would, Mr Price submits, not only give weight to the views expressed by the respondent, but more particularly, could encourage a reader to believe that what might otherwise be capable of amounting to comment or inference, is in truth, a statement of fact based on the respondent's particular and special knowledge of the appellant. He submits that nothing in the jurisprudence of the European Court of Human Rights could justify the conclusion that

Article 10 of the Convention

in any way affects these principles of domestic law.

[11]Speaking for myself, I consider that the issue before us can be disposed of simply by applying what might be described as the traditional common law test, without the need to consider the extent to which it has been in anyway affected by the passing the Human Rights Act 1998. In doing so, I mean no disrespect to the full arguments set out, in particular, in the respondent's skeleton argument and in the submissions of Mr Tugendhat, QC, as to the impact of the Act as described in particular by the House of Lords in Reynolds -v- Times Newspaper

[1999] 3 WLR 1010

, and the remarks of Lord Steyn in McCartan Turkington Breen -v- Times Newspaper [2001] EMR 1 at page 19. It may as a result become necessary in some cases to consider with some care the extent to which the boundary between assertions of fact requiring justification and comment as drawn by domestic law has been affected by the passage of the Human Rights Act, and the European jurisprudence. But I am satisfied that in the present case, the judge came to the correct conclusion, applying what I have described as the traditional test.

[12]This test is, in my view, accurately described in Gatley 9th Edition, Chapter 12.6. Citing from a judgment of Cussen J in Clarke -v- Norton [1910] VLR 494 at 499, the editors state, as to what amounts to comment for the purposes of permitting the defence of fair comment:

"More accurately it has been said that the sense of comment is "something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.""

[13]Whilst an assertion as to motive may be capable of amounting to an assertion of fact, that depends on its context. Having read with care the whole of the article from which the words complained of have been abstracted, it seems to me that the judge was fully entitled to come to the conclusion that the respondent was expressing a series of opinions about the motives of the appellant in a way which would leave the reader in no doubt that they were inferences drawn by the respondent from the facts set out in the article. The judge was accordingly entitled to take the view that it was not necessary for a jury to be required to answer the question whether the matters complained of were fact or comment. Accordingly I would dismiss this appeal. SIR PHILIP OTTON:

Cited in 17 later judgments

and 8 more of the most senior