Keays v Guardian Newspapers Ltd & Others
Reference:  EWHC 1565 (QB)
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 1 Jul 2003
Summary: Defamation - Libel - Fair comment - Inferences as to state of mind - Whether allegation of fact or comment - CPR part 24
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Instructing Solicitors: David Price for the Claimant. Lovells for the Defendants.
The Defendants published an article in The Observer which contained various observations about Sara Keays. The piece was critical of the Claimant’s decision to publish in the national press her story and that of her daughter shortly after her daughters 18th birthday. Up to that point, Flora Keays had been the subject of a contra mundum order made by the Family Division. The Claimant sued on the article contending that it suggested she had cynically exploited her vulnerable handicapped daughter by deliberately and detrimentally exposing her to maximum media attention in order to further her vituperative campaign of revenge against Lord Parkinson and had lied when she claimed that her justification for engaging the media was that publicity was inevitable when Flora turned eighteen and the injunction ended. The Defendant applied for a ruling that the words were only capable of being fair comment and not allegations of fact.
Whether a jury would be perverse to regard the words published as anything other than comment.
(1) Whether the allegation was one of fact or comment was to be determined in accordance with Branson v Bower; (2) Inferences about a state of mind were capable of being defended as comment where, as here, it was obvious that the author was expressing an opinion (based on stated facts). Where a journalist drew such an inference about a state of mind which s/he could not verify, then it would generally be clear to any reasonable reader that it did not purport to be an objective statement of fact; (3) The article was a comment piece “par excellence”; (4) It would be perverse for a jury to classify the defamatory imputations as factual and as such the Defendant’s application was allowed.
Eady J’s two decisions in relation to the attribution of state of mind being capable of being defended as comment (this case and Branson v Bower) have done much to revitalise the defence of fair comment, which has an important role in the protection of freedom of expression. They should be read together with Tse Wai Chun Paul v Albert Cheng  EMLR 777 and Gray J’s decision in Oliver v Chief Constable of Northumbria Police.