Reference:  EWCA Civ 136;  EMLR 17
Court: Court of Appeal (Civil Division)
Judge: McCombe, Laws, Richards LJJ
Date of judgment: 28 Feb 2013
Summary: Libel - honest comment - meaning - appeal
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Desmond Browne CBE KC - Leading Counsel (Claimant)
David Hirst (Claimant)
Instructing Solicitors: Irwin Mitchell LLP for C; Goodman Derrick LLP for Ds
C brought a libel claim in relation to 2 campaign newsletters distributed by Eastbourne Liberal Democrats on behalf of D1 at the 2010 General Election. The newsletters, mocked up as local newspapers, referred to C as an ‘Expenses Scandal’ MP in a headline and internal articles. After the election C sued D1 who won Eastbourne in May 2010 and his election agent who was responsible for campaign literature. The Ds pleaded the defence of honest comment. The parties having agreed that the mode of trial was to be by Judge alone, C applied for summary judgment on the basis that the statements were not recognisably comments but verifiable allegations of fact that C was guilty of abusing the Parliamentary rules for his own financial advantage. The Ds cross-applied that the defence of comment was bound to succeed. The Judge acceded to the C’s application for summary judgment, determining that the Ds could have set out to comment but had in fact made an allegation of abuse of the MPs expenses system. In between circulation of a draft judgment and its handing down the Ds issued an application to amend to plead justification to the meaning the judge had found. In a separate judgment the Judge dismissed this appication. The Ds appealed both decisions. The Court of Appeal heard the comment appeal and adjourned the late amendment appeal.
Whether the statements in the election newsletters were to be understood as statements of fact or opinion and what defamatory meaning they reasonably bore.
By a majority the Court of Appeal held:
(1) The meaning found by the judge was over-elaborate and not consistent with the principles on ascertainment of meaning synthesized in Jeynes v News Magazines Ltd.  EWCA Civ 140. The meaning of the newsletters was simply, as a matter of impression: ‘C has claimed nearly £70,000 from the taxpayer for a family home that is 60 miles from Eastbourne (fact). That is a scandal (comment)’ . No breach of the MPs’ expenses rules or the law of the land was implied . The Ds had simply commented that stated facts regarding C’s conduct were ‘a scandal’ or ‘scandalous’ .
(2) The context of political speech at election time informed the determination that the statements should be regarded as comment. Common law is consistent with the Strasbourg principle that there is ‘little scope under article 10(2) of the Convention for restrictions on political speech or on debate on questions of public interest’ .
(3) The Ds’ application that the defence of comment was bound to succeed was remitted to the Judge.
[Richards LJ upheld the Judge’s decision, largely for the reasons given in the first instance judgment, that ‘the publication presents [C] as the Eastbourne exemplar of the national scandal of MPs’ abuse of the expenses system’.
The division of opinion between the four judges on appeal and at first instance indicates the notorious difficulties associated with distinguishing allegations of fact from comment in some cases. The Court of Appeal is as well-placed to tackle the fact/comment dichotomy and issues of meaning, as this case and decisions like Singh demonstrate, irrespective of the defence afforded to specialist decision-makers at first instance. Here the context of a general election campaign appears to have tilted that determination in favour of the newsletters being comment, a matter which neither the Judge nor the parties thought was material to the issues to be decided (see  of the Judge’s judgment). False unambiguously ‘factual’ statements at election time are still a matter for the law, either s. 106 of the Representation of the People Act 1983 or the law of defamation.