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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Artists Ltd v Littler  EWCA Civ 3 (10 December 1968)
Cite as:  EWCA Civ 3,  2 QB 375,  2 All ER 193,  2 WLR 409
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COURT OF APPEAL.
Appeal of Defendant from judgment of Mr. Justice Cantley and a jury, London, dated March 5, 1968.
B e f o r e :
LORD JUSTICE EDMUND DAVIES
LORD JUSTICE WIDGERY.
| LONDON ARTISTS Ltd.
|GRADE ORGANISATION Ltd.
|ASSOCIATED TELEVISION Ltd.
Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C. 2.)
Mr. G.R.F. MORRIS, Q.C., and Mr. A.T. HOOLAHAN (instructed by Messrs. Allen & Overy) appeared on behalf of The Grade Organisation Ltd.
Mr. LEWIS HAWSER, Q.C., and Mr. BRIAN NEILL, Q.C. (instructed by Messrs. Nicholson, Graham & Jones) appeared on behalf of Associated Television Ltd., and Mr. Lew Grade.
Mr. COLIN DUNCAN, Q.C., Mr. PETER BRISTOW, Q.C. and Mr. MICHAEL KEMPSTER (instructed by Messrs. M.A. Jacobs & Sons) appeared on behalf of Mr. Emile Littler, Appellant.
Crown Copyright ©
THE MASTER OF THE ROLLS: In May of 1964 there opened in London a play called "The Right Honourable Gentlemen". It was staged by Mr. Emile Littler 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 £3,000 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 the 18th June of 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 the 22nd of June of 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 24th. 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, the 23rd June, 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 the 22nd June, 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 24th.
"'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, who looked after the artists; Associated Television, who controlled the theatres; and Mr. Lew Grade, and the Grade Organisation 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 oh 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 plots 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. He held that the plea of privilege failed because the publication to the press was not privileged. He held that the plea of fair comment failed because the matter was not one of public interest, and in addition there was no basis of fact to support the plea. His rulings are reported in 1968 1 Weekly Law Reports at page 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 £250; the Grade Organisation £500; Associated Television £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 S. 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. The Times (1924 1 K.B. 673). But that plea fell into disfavour after 1949, when Order 82, Rule 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 implification 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. Dimbleby (1951 1 K.B. 364). So long as that implication is read into the plea, it is unobjectionable.
Three points arise on the defence of fair comment. Firstly, Was the comment made on a matter of public interest? The Judge ruled that it was not. 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 (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, Master of the Rolls, said 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 want 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.) at page 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 in 1952 Appeal Cases, 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 v. Avery (N.Z.F.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 Bust 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 satellites 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, I think that the allegation of a plot was a statement of fact. The first paragraph runs in guarded language, "it -appears*'; and the fourth 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 WLR 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 would honestly hold that opinion." See what Lord Justice Buckley said in Peter Walker & Son Ltd. v. Hodgson (1909 1 K.B. 239) at page 233.
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 enquiries of the artists. He ought to have made enquiries of his brother, or wait till he had a letter from him. We know that the brother had on the 23rd June, that very day, written saying "We shall have to continue on the sane 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 artists themselves but of Associated Television and the agents, London Artists, Mr. Lew Grade and the Grade Organisation. The Judge held 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.
LORD JUSTICE EDMUND DAVIES: 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 learned trial Judge to reject as he did 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 Ltd. v. Hodgson (1909 1 K.B. at page 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 learned Judge ruled otherwise, but added 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 and give rise to the plea of fair comment, for such a strike might equally be brought about by each actor individually and lawfully 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 public 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 continual 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 by the manner in which he dealt with it.
I differ from the Judge, too, in relation to the second question he posed, 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. While in my judgment he fell into error in applying it, that was the correct test, for, as Lord Porter said in Turner v. Metro-Goldwyn Mayer (1930 1 A.E.R. at 461):
"It is for the jury in a proper case to determine what is comment and what is facts but a prerequisite to this right is that the words are capable of being a statement of 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 WLR 1362 at 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 accordingly 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:
Firstly, 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. Irish 556, at 565) the very nature of the plea "assumes the matters of fact relied upon to be somehow or other ascertained. It does not mean that a man may invent facts and then comment on the facts so invented in what would be a 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 Ltd. (1906 2 K.B. at 638).
It behoves a writer to indicate clearly what portions of his work are fact and what are comment, for, in the words of Lord Justice Fletcher-Moulton in Hunter v. "The Star" (1908 2 K.B. at 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 (1833 3 C. & K. 280)".
Failure to exhibit clarity in this respect carries its own risks, for, as Lord Justice Fletcher-Moulton went on to say (at page 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 the 6th edition of Odgers on Libel and Slander, quoted with approval by Lord Porter in Kemsley v. Foot (1952 A.C. 345, at page 356) -
"If (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 that 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 the 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, at 679, and Aga Khan v. "Times". 1924 1 K.B. 673, at 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, these 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 natters 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 itemization of a series of assertions of fact 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 assertion 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 (ante) in saying (at page 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 consent 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), ante, at page 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, focussed 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 the contrary before us.
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 Order 82 Rule 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 Lord Justice Fletcher-Moulton in Hunt v. "The Star" (ante). 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 learned Judge in rejecting 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 natter of public interest." W
ere 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 consent 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 consent 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 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 that the only issue which should be left to the jury was that of quantum of damages. I accordingly concur in dismissing this appeal.
LORD JUSTICE WIDGERY: I agree that this appeal must be dismissed, and since my reasons are identical with those which hate been indicated in the judgments of my Lords, I do not propose to deal with then in great detail. In particular, I agree that the learned Judge erred in ruling that the defendant's letter of the 23rd June 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 fives- 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 coving 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 can 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. Accordingly I concur in the order proposed.
Mr ACKNER: My Lord, I respectfully ask, on behalf of London Artists Ltd., that the appeal be dismissed with costs.
Mr MORRIS: My Lord, I make the same application on behalf of The Grade Organisation.
Mr HAWSER: My Lord, I make the same application on behalf of my clients.
Mr DUNCAN: Surprisingly enough, my Lord, I cannot resist any of those applications. I formally ask your Lordships for leave for the matter to go to the House of Lords.
(The Court conferred.)
THE MASTER OF THE ROLLS: The appeal will be dismissed with costs.
We do not give leave to appeal.
Mr DUNCAN: I have to ask your Lordships' refusal, if I do not have your Lordships' consent.