Lowe v Associated Newspapers Ltd
Reference:  EWHC 320 (QB);  2 WLR 595;  3 All ER 357;  EMLR 476; The Times, 29 March 2006
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 28 Feb 2006
Summary: Defamation - Libel - Fair Comment - Meaning - Requirements as to facts relied upon as supporting comment - Knowledge of relevant facts at the time of publication
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Desmond Browne CBE KC - Leading Counsel (Claimant)
David Sherborne (Claimant)
Instructing Solicitors: Mischon De Reya for the Claimant; Taylor Wessing for the Defendant
The Chairman of Southampton FC sued Associated Newspapers Ltd over an article which contained two accusations: one about his alleged mistreatment of former manager, Dave Jones, and one alleging that his company’s take-over of the football club in 1997 had been a “repellent piece of financial chicanery”. The Defendant relied principally on a plea of fair comment, although it also advanced an alternative defence of justification. The parties made a number of interim applications, the most substantial of which related to the issue of fair comment and included an application by the Claimant to strike out particulars of fact relied upon on the basis that such facts were not referred to or indicated in the words complained of and/or were irrelevant to the allegation as against the Claimant.
Whether the “single meaning” rule doctrine applied to the defence of fair comment. Whether a defendant could rely upon facts in support of a plea of fair comment if they are not “referred to or indicated” in the words complained of themselves, or whether the reader simply needs only to be able to recognise that a comment has been made, as opposed to an assertion of fact. Whether those facts have to be known to the commentator at the time of the article.
In fair comment, it is the objective meaning of the words which is relevant not the subjective meaning the journalist intended (which can be relevant under Reynolds privilege as explained in Bonnick v Morris). Further, Eady J held that the oft-quoted shorthand proposition that the defence must be based “on facts truly stated” does not limit the Defendant to facts stated in the article. Facts not stated in the article can be relied upon, but such facts must have (a) existed at the time of the publication and (b) been known at least in general terms at the time to the commentator. A general fact within the commentator’s knowledge may be supported by specific examples even if the commentator had not been aware of them. Substantial parts of the Defence were struck out on the basis of irrelevance and/or made contingent upon the commentator confirming knowledge of the facts.
This decision – together with Cheng before it – may have the effect of revitalising the defence of comment. It is important for the analysis paid to the apparent inconsistency between the decision of the House of Lords in Kemsley v Foot back in 1952 and the modern dicta of Lord Nicholls in Cheng and Reynolds where he stated that it was important for readers to have sufficient factual material before them to assess the comment and decide for themselves whether or not they agree with it. Kemsley was not cited in either case. On a practical note, Eady J suggests a practice where defendants must plead the facts that were known to the commentator at the time of publication.