Brent Walker Group Plc v Time Out Ltd
Reference:  2 QB 33
Court: Court of Appeal
Judge: Parker and Bingham LJJ
Date of judgment: 21 Nov 1990
Defamation - fair comment on privileged statement - striking out of defence - what facts to be proved for valid defence
Time Out and one of its journalists were sued for libel in two articles reflecting adversely on the conduct of first plaintiff and its chairman, the second plaintiff. The defendants pleaded fair comment relying, among other things, on statements allegedly made by prosecution witnesses in a 1956 criminal trial at which the chairman had been convicted of theft, and at other trials involving alleged associates of the chairman. The plaintiffs applied to strike out these parts of the defence on the grounds that the statements in question had not been included or referred to in the articles complained of, nor did the defendants allege that they were true; they could not therefore form a legitimate part of a fair comment defence. Michael Beloff QC, sitting as a deputy judge, reversed the master’s decision and struck the passages out. The defendants appealed, contending that reliance on the witnesses’ statements was legitimate as they had been made in court, and hence on a privileged occasion.
Was it a requirement of the established defence of fair comment on a privileged statement that the statement should have been made by the defendant, and included in the publication complained of?
Dismissing the appeal, (1) the privilege for what is said in court is that of the witness; it does not extend to those who report what is said; they have privilege only for fair and accurate reports of proceedings; (2) the law requires a defendant relying on the defence of fair comment to show that his comment was based on a true account of the facts or a report which is privileged, because it is fair and accurate; (3) per Bingham LJ, the defence of fair comment on privileged material is an exception to the general rule that comment must be on true facts; policy does not justify widening the scope of the exception.
The point was novel but Parker LJ was particularly dismissive of the defendants’ contention, pointing out that if true it would lead to absurd and illogical results. If two newspapers published partial and unfair reports of proceedings, one adding defamatory comment and the other not, the former but not the latter would have a defence. At the time of this decision, Reynolds privilege had yet to be recognised. How, if at all, the defence of fair comment on a privileged report applies in a Reynolds case is a question not so far resolved.