England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION )
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR CHARLES GRAY)

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th March 2010

Lord Justice Sedley:

1. This is a renewed application for permission to appeal made by the defendants to a libel action. The defendants published an acerbic review by a well-known writer, Lynn Barber, of a book written by the claimant. Among Miss Barber's criticisms of the book, which was a study built around conversations with a variety of people in the art world, was this:

"She also claims that she practises 'reflexive ethnography', which means that her interviewees have the right to read what she says about them and alter it. In journalism we call this 'copy approval' and disapprove."

There was also a damaging factual error in the article, for which an offer of amends has been made and which is not on my present agenda.

2. The first question that, as it seems to me, will occur to anybody reading those words is how it comes about that they can be said to be defamatory at all. It is one thing to say of a person that they steal or cheat: that is something that any right minded person without further information would hold against them. But to say that somebody lets their interviewees see what they said about them and alter it seems to me to carry no moral connotation either way. The assertion that journalists do not approve of it may well be correct, but then journalists would not approve of it because it forfeits editorial control. It does not seem very obviously, on the face of it, to bring odium on the person of whom it is written.
3. But that is not the issue before me and it was not the issue before Sir Charles Gray. Sir Charles Gray, having not been asked to decide whether there was anything defamatory at all in the words complained of, whether true or false (because words may be false but not defamatory), was invited to adjudicate on two questions which Mr Price, appearing for the defendants, tells me today were formulated by the judge: (1) Do the words selected for complaint by Dr Thornton include any statement of fact as opposed to comment such as would disentitle the defendant from relying on the defence of fair comment? (2) Is it fatal to the success of the defence of fair comment if the facts set out within the text of the review or some of them are materially misstated?
4. Putting it crudely, to the first the judge answered "no"; to the second "yes". It is against his second answer that Mr Price now seeks permission to appeal, it having been refused by Sir Richard Buxton on the papers. There is before me a note put in by the intended respondent, the claimant, saying among other things that if permission is given to Mr Price to appeal then the claimant would want to put in a Respondent's Notice seeking to upset the judge's answer to the first question. That does not seem to me to be a matter for a Respondent's Notice at all. It seems to me to be a matter for a cross-appeal, but it would be entirely open to the claimant to make such an application.
5. The problem that appears to me to hang over the entirety of this pair of exercises is the one I have mentioned: it is all predicated on an assumption that the words are defamatory or are capable of being defamatory. Mr Price, to whom I expressed this concern when he rose to his feet today, has taken instructions and tells me that it is his client's intention to issue an application forthwith for a preliminary decision on the question that I have indicated. That is a matter entirely for him, but if it is the case, and I accept his word that it is, then it would be inappropriate for this application or the intended-cross application to proceed any further for the time being, because it is only if the necessary predicate of defamation is made out that the questions addressed by Sir Charles Gray continue to have any relevance.
6. I am pleased to know that the representatives of the intended respondent are in court today. I propose to adjourn this application of Mr Price. If it falls to be restored at any future date, Mr Price, it is to be restored on full notice to the intended respondents so that they may make any cross-application in proper form that they wish to at that point in time.

Order: Application adjourned