England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 June 2001

Mr Justice Eady :

The Defendant's article as comment rather than fact

1. The background facts of this case are set out in my judgment of 21 November 2000 and do not need to be repeated. On that occasion, I ruled that the words complained of in Mr Bower's Evening Standard article of 14 December 1999, and in particular the remarks about Sir Richard Branson's motives for bidding for the National Lottery, were comment rather than fact. Accordingly, they were susceptible to a defence of fair comment but not one of justification. A defendant should not be required to justify value judgments or opinions expressed on matters of public interest as though they were matters of objectively verifiable fact. That conclusion is not only in line with established common law principles but is also consonant with the jurisprudence of the European Court of Human Rights. Some of the relevant decisions were identified in my earlier judgment and I need not address them in any detail, but I have in mind especially Lingens v. Austria (1986) E.H.R.R. 407, De Haes & Gijsels v. Belgium (1997) 25 E.H.R.R. 1 and Neilson & Johnsen v. Norway, 25 November 1999.
2. On 1 May 2001 the Court of Appeal upheld my ruling in this respect, and handed down their reasons on 24 May. Sir Philip Otton confirmed that "... the words complained of when taken in the context of the article as a whole are such that no reasonable jury could conclude other than that they were comment". This clearly has implications for the pleaded meanings. In particular, the Defendant's plea of justification has been withdrawn as redundant and with it the Lucas-Box meanings. So too, logically, it must follow that the Claimant may no longer press for his defamatory meanings in so far as they attribute allegations of fact to the words complained of. I will return to the subject of meaning in due course.

The present applications

3. The trial of this action was until recently listed for 25 June 2001. That date has now been vacated. Meanwhile, there is an outstanding application before me, on the Defendant's behalf, seeking summary judgment under Part 24 of the CPR on various alternative bases namely, that:

a) the Claimant has no real prospect at trial of defeating the argument that the words were fair comment on a matter of public interest;

b) the Claimant has no real prospect at trial of establishing malice on the part of the Defendant; and/or

c) the Claimant has no real prospect at trial of establishing the meanings pleaded in paragraphs 5 and 6 of the Particulars of Claim; and

d) there is no other compelling reason why the case should be disposed of at a trial.

In the further alternative the Defendant asks for

i) summary judgment under CPR Part 24 on the issue of whether (subject to malice) the words were fair comment on a matter of public interest; and/or

ii) an order that the plea of malice in paragraph 7 of the Reply be struck out under CPR Part 3.4 as disclosing no reasonable grounds to support a finding of malice and/or under CPR Part 24; and/or

iii) a determination under CPR Part 53 PD-030 as to whether the words complained of are capable of bearing the meanings pleaded in paragraphs 5 and 6 of the Particulars of Claim or any meaning defamatory of the Claimant.

4. I ruled on the plea of malice on 4 April. I concluded that some of the particulars should be struck out but that it was not yet possible to rule that none of them was capable of supporting the Claimant's allegation of dishonesty. What is now to be resolved primarily is whether or not there is anything fit to be left to a jury on the defence of fair comment itself.

The modern approach to the defence of 'fair comment on a matter of public interest'

5. In every case of fair comment, the court needs to rule whether the words were, objectively judged, fair comment. It will ordinarily be for the jury to decide whether each relevant comment, or opinion, is such that a hypothetical person could (in the light of the material facts) honestly express it. It is important to emphasise that it is immaterial whether the jury agrees with the views expressed. Also, it is submitted by Mr Michael Tugendhat Q.C. (who now appears for Mr Bower) that there should be no question of deciding whether they think the words were expressed in a balanced or fair way. Nor should they have to contemplate, when addressing the hypothetical commentator for this purpose, someone who has any particular qualities of fair-mindedness or objectivity.
6. It has long been clear that one may be prejudiced or biased and yet claim the protection of a fair comment defence for the expression of one's views. Those views may themselves be exaggerated or obstinate and yet fall within the concept of honest opinion. If one is writing or speaking on a matter of public interest, there is no doubt that the law permits the language to be rude and offensive. It has been acknowledged, for example, that a critic is entitled to dip his pen in gall for the purposes of legitimate criticism: see e.g. Gardiner v. Fairfax (1942) S.R. (N.S.W) 171, 174 (Jordan C.J), Turner v. MGM Pictures Ltd [1950] 1 All E.R. 449, 461 (Lord Porter) and Silkin v. Beaverbrook Newspapers Ltd [1958] 1 W.L.R. 743 (Diplock J).
7. At the time of my ruling on 21 November 2000, I had not had the benefit of reading the judgment of Lord Nicholls in Albert Cheng v. Tse Wai Chun Paul in the Court of Final Appeal in Hong Kong, because it had only been delivered a week earlier (on 13 November). I had, however, received it by the time of hearing submissions on the pleaded case of malice. The judgment re-emphasises that, for the defence traditionally known as "fair comment on a matter of public interest", the touchstone is always honesty and that it should not be watered down by considering issues such as fairness or moderation. That is relevant, of course, to Stage 1 of the defence of fair comment, when the court is concerned whether a hypothetical commentator could express the views in question honestly. It is also relevant at Stage 2, when the enquiry turns to the individual defendant's state of mind for the purpose of resolving a plea of malice. Once again, the only touchstone is that of honesty.
8. As is well known from Lord Diplock's speech in Horrocks v. Lowe [1975] A.C. 135 it is, at least theoretically, possible that a finding of malice could be made notwithstanding a conclusion that the defendant was speaking honestly on an occasion of qualified privilege. Lord Diplock emphasised that judges and juries should be slow to find a defendant malicious on the sole ground that the publication of the defamatory words (even though he believed them to be true) was prompted by the dominant motive of injuring the claimant. I have never heard of such a finding, but it is there in the jurisprudence as a possible outcome. By contrast, as Lord Nicholls makes clear in Cheng, no such exercise may be permitted in fair comment cases - where motive cannot of itself found a plea of malice. That is not to say that motive is totally irrelevant, because there are circumstances in which it could be germane to the primary question of whether the opinions were honestly expressed.
9. This principle I took into account when ruling on the plea of malice and struck out anything not directed to establishing that the opinions he expressed in the Evening Standard did not honestly represent what Mr Bower believed.
10. Lord Nicholls' judgment is once again prayed in aid by Mr Tugendhat in the context of the first ruling he now seeks, viz. that it could not possibly be held that the defence of fair comment is inapplicable to the article. Naturally, Lord Nicholls' judgment and his explanation of the public policy reasons underlying the defence of fair comment must also inform my determination of this issue, along with the guidance given in the other authorities to which I have referred.
11. Strictly speaking, of course, Lord Nicholls' judgment in Cheng is of 'only' persuasive authority, but I have already gratefully adopted and followed it in Sugar v. Associated Newspapers on 6 February 2001. What I said on that occasion was as follows:

"I agree with [counsel] that I should apply the tests for fair comment as explained by Lord Nicholls in Cheng. If I may respectfully say so, that explanation accords entirely with my own understanding of the rationale and the logic of a fair comment defence. Fair comment is one of the means adopted in this jurisdiction in our attempts to comply with the public policy objectives nowadays embodied in Article 10 of the European Convention on Human Rights. It is important, therefore, that it should not be construed in a way that would be unnecessarily restrictive of freedom of speech and thus inhibit people from making comments on matters of public interest. There is nothing new about this: see e.g. the remarks of Lord Denning M.R. and Diplock L.J. ... in Slim v. The Daily Telegraph [1968] 2 Q.B. 157, 170, 179".

I am still of the same view.

The correct approach to summary judgment in jury cases

12. Other pertinent and interesting developments since my ruling of 21 November have been the decisions of the Court of Appeal in Safeway Stores v. Tate, [2001] E.M.L.R. 350 on 20 December, and in Alexander v. Arts Council of Wales [2001] EWCA Civ 514 on 9 April 2001. These cases serve to remind us all of the important distinction in defamation cases between the function of the judge and that of the jury. This was very much to the fore also in the recent Court of Appeal decisions in Grobbelaar v. News Group Newspapers [2001] 2 All ER 437 and McPhilemy v. Times Newspapers, [2001] EWCA Civ 871.
13. There is undoubtedly the jurisdiction to grant summary judgment in libel or other jury cases, as these authorities confirm, but it is always necessary to focus on the (qualified) right to jury trial preserved by the Supreme Court Act 1981. The judge must not trespass, whether at the trial or at any earlier stage of litigation, upon matters which are reserved to a jury. Sometimes an application will be made at the half-way stage for the judge to rule that there is no evidence fit to go to the jury on malice: see e.g. Colchester Oyster Fishery v. Purslow, 10 June 1997 (unreported). Sometimes such an application will come at the conclusion of the evidence and, in particular, after the defence witnesses have been cross-examined: see e.g. Alexander v. Arts Council of Wales (cited above). In other cases, it may be possible to apply at a much earlier stage, on the basis of what is pleaded or what is contained in witness statements: see e.g. S v. London Borough of Newham [1999] E.M.L.R 583.
14. At whatever stage the application is made, however, the test for the judge has to be the same. It will be closely analogous to the test used in criminal trials in the light of Galbraith [1981] 1 W.L.R. 1039. This is re-emphasised by May L.J. in Alexander v. Arts Council of Wales (at paras. 37-38). Could a jury properly directed, and seeking dutifully to comply with the relevant directions, conscientiously reach a particular factual conclusion or not? If so, the judge should leave it to the jury, or at least to a later stage, to determine. Naturally, even if a judge has ruled (as I did in this case on 4 April in relation to malice) that the pleaded allegations are not on their face unsustainable, that by no means precludes a similar application during the trial (either at the half-way stage or at the conclusion of all relevant evidence).
15. The corollary is that if the judge is able to conclude that a properly directed and conscientious jury could only decide the issue in favour of the applicant, then it would be his duty to close off that issue so as to save time and money in accordance with the objectives of the CPR. In order to perform this exercise, on the pleadings alone, it will be necessary for the judge to make all factual assumptions against the applicant. Where the challenge is to a plea of malice, for example, it follows that the court must approach the factual assertions, from which the claimant wishes to invite that inference, on the basis that they will be proved at the trial. At the pleading stage, it will only be possible to strike out a plea of malice if the facts pleaded are held to be incapable of supporting a plea of malice; that is to say, with reference to a fair comment case, if they are incapable of supporting an inference of dishonesty on the defendant's part: see e.g. Turner v. MGM and Somerville v. Hawkins (1851) 10 C.B. 583.

My narrowing down of the issues for the jury on malice

16. The Claimant makes allegations of dishonesty on Mr Bower's part. Following the approach of Lord Woolf M.R. in S v. Newham Borough Council, the judge should be prepared to scrutinise the pleadings, the witness statements and other relevant documents, and take a view on whether malice could realistically be proved. His Lordship's later remarks, however, in Alexander v. Arts Council of Wales would appear to make clear that the claimant should only be prevented from airing his case in front of a jury if the particulars of malice cannot pass muster according to a strict Galbraith test. The plea of malice in the present case, in so far as it now survives, may be somewhat forlorn. A judge may be sceptical as to whether it could be found by any fair-minded jury that Mr Bower, at the time of the Evening Standard article, had no honest belief in the views he was canvassing. But if (and it is, of course, a substantial 'if') the Claimant's factual assertions about Mr Bower's state of mind were to be established, then it would at least be open for a jury to find the case proved. Much might turn on cross-examination. One cannot, however, say in my judgment that those ambitious assertions in the Reply (as it now stands) are so fanciful that they could in no circumstances be upheld. That is not to say, as I have already emphasised, that the plea could not be excluded by the trial judge at an appropriate stage. Such a ruling may well be on the cards at the close of the defence case, but in my view it would be premature now.

The nature of the objective test for a fair comment defence

17. The same considerations do not necessarily apply, however, to the ruling which I am now invited to give on the Stage 1 question relating to the defence of fair comment itself (i.e. the 'objective test').
18. Counsel were unable to agree as to the right tests to apply in dealing with an application of this kind. This may seem surprising, but there are comparatively few authorities in the field of fair comment and most were decided some time ago. As Lord Nicholls has pointed out in Cheng, the history of fair comment has to some extent been complicated by its having become separated from qualified privilege at a relatively late stage of its development. It is now recognised as a separate form of life which is there to serve different public policy imperatives. The areas of uncertainty I must now address in the light of counsel's submissions. In doing so, I need to take into account pre-existing authorities and the exposition of the underlying rationale of fair comment in Cheng. I should then try and resolve any doubts having regard to the Human Rights Act 1998 and relevant European jurisprudence.
19. I must first identify the nature and extent of the dispute. There is a degree of uncertainty in the law as to the extent to which, at the first 'objective' stage of assessing a fair comment defence, it is appropriate to take into account "fair-mindedness" or "reasonableness" on the part of the hypothetical commentator. I note that I used such wording myself in the course of my ruling on 21 November 2000, when I referred in passing to the test as being whether the views were "such that a reasonable person could hold them in the light of the facts...." In the past this was not uncommon as a formulation. In Telnikoff v. Matusevich [1991] 1 Q.B. 102, 119 Lloyd L.J. approved the statement of the law in Duncan & Neill on Defamation (2nd edn.) at p.57, which included the words "... the comment must satisfy the following objective test: could any fair-minded man honestly express that opinion on the proved facts?" (emphasis added). It is important, however, to remember that Lloyd L.J. explained his understanding of this at pp.112-113. He there indicated that what mattered was not whether the comment was fair in the ordinary sense, but whether the words complained of could fairly be regarded as comment. The explanation might be thought to connote a rather special use of the phrase such as to render it almost a term of art. This suggests for the future, perhaps, that such terminology is best avoided.
20. Mr James Price Q.C., appearing for the Claimant, drew my attention to the passage approving Duncan & Neill and recognised that it is not consistent with Lord Nicholls' analysis, which emphasises that honesty, and honesty alone, should be the touchstone. As I have already noted, the defence of fair comment is open to a commentator however prejudiced he might be, and however exaggerated or obstinate his views: see e.g. Lord Esher in Merivale v. Carson (1888) 20 Q.B.D. 275, 281, Lord Porter in Turner v. MGM Pictures Ltd [1950] 1 All ER 449, 461 and Diplock J in Silkin v. Beaverbrook Newspapers Ltd [1959] 1 W.L.R. 743. That being so, I have always had difficulty in reconciling this with the requirement for which Mr Price contends, to the effect that the relevant expression of views must be judged, additionally, by the standards of a fair-minded or reasonable person. I am by no means alone in this. It was a problem to which Lloyd L.J. expressly referred before explaining his understanding of the word "fair" in Telnikoff v. Matusevich [1991] 1 Q.B. at pp.112-113 (see above).

Is there a different test where dishonourable motives are imputed?

21. We have not yet reached the limit of the uncertainty, however, since Mr Price invited my attention to the proposition canvassed by the learned editors of Gatley on Libel and Slander (9th edn), at para. 12.25, to the effect that there may be a different test when the words complained of could be characterised as attributing dishonourable motives to a claimant. At the least, he suggests, defendants must pass the "reasonableness" hurdle in those cases. This argument is based on what are now fairly old authorities. For example, it was said in Wason v. Walter (1868) L.R. 4 Q.B.73, 96 that a defendant has to "... bring a reasonable degree of judgment and moderation, so that the result may be what a jury shall deem, under the circumstances of the case, a fair and legitimate criticism on the conduct and motives of the party who is the subject of censure". It is obvious that this statement is not reconcilable either with Lord Nicholls' exposition or with the European jurisprudence identified in my judgment of 21 November.
22. The editors refer to observations in Hunt v. Star Newspaper [1908] 2 KB 309, 320-321 (Fletcher-Moulton L.J.), 317 (Cozens Hardy M.R.), Stevens v. B.M.A., The Times, 8 May 1915 (Swinfen Eady L.J.), Peter Walker v. Hodgson [1909] 1 KB 239, 253 (Buckley L.J.) and London Artists v. Littler [1969] 2 QB 375, 393. They also note (at para. 12.26 ) that, if there is a "special principle" applying to inferences of improper motives, it does not figure largely in modern case law. They come eventually to the same conclusion as the Faulks Committee (Cmnd. 5909, 1975); namely, that there should be no special rule for imputations of corrupt or dishonourable motives. I agree. It would introduce another layer of uncertainty and confusion.

The chilling effect of a 'fair' or 'reasonable' test

23. Both counsel recognise that any imposition of a 'fair' or 'reasonable' test is quite inconsistent with Lord Nicholls' explanation of the law in Cheng (and indeed, I would add, it would be inconsistent with Lord Porter in Turner). Lord Nicholls did not address the specific difficulties that arise in this case, and which are canvassed in Gatley; there was no need for him to do so. Yet it is not difficult to imagine what his answer would be - or rather where the logic of his exposition would lead. It is necessary to acknowledge that if a defendant does indeed have to pass any more restrictive test, going beyond that of honesty, then the consequence would be a significant inhibiting effect on freedom of expression on matters of public interest. There would be an especially chilling effect, at least in theory, upon those who wish to criticise persons in public life or those with sufficient wealth or power to impact upon the way we live our lives. It is thus apparent that the matter has to be judged alongside the growing jurisprudence in the European Court of Human Rights with regard to Article 10.
24. As Lord Nicholls makes clear, the whole point about a defence of fair comment is that it is to allow citizens to express hard-hitting opinions on matters of public interest honestly without fear of being brought before the courts. In the present case, for example, Mr Bower was writing about a matter of undoubted public interest and at a time when the subject was topical. This was not a gossip column piece about a show business personality.
25. The Claimant is a private citizen, but he had placed himself before the public twice as a suitable person to handle (through the relevant corporate entity) hundreds of millions of pounds deriving from the public. He would naturally have to accept close scrutiny and criticism in those circumstances and, indeed, appears to have acknowledged in his comments, at the launch, that people would quite naturally be wondering about his motives. It cannot be right that he should expect at that point effectively to close off any public discussion on the subject, with the assistance of the courts, on the footing that his own assurances had to be accepted by everyone at face value. That would be the antithesis of freedom of expression. In a modern democracy all those who venture into public life, in whatever capacity, must expect to have their motives subjected to scrutiny and discussed. Nor is it realistic today to demand that such debate should be hobbled by the constraints of conventional good manners - still less of deference. The law of fair comment must allow for healthy scepticism.
26. It is well settled that a defendant does not have to persuade the court, whether judge or jury, to agree with his opinions (although the remarks of Fletcher-Moulton L.J. in Hunt v. Star Newspaper might be taken as suggesting the contrary); nor yet should he have to demonstrate that honestly expressed opinions fall within some elusive and nebulous margin of what is 'reasonable' or 'fair'. Freedom of speech is not a game to played according to an umpire's subjective assessment of what constitutes fair play. Moreover, one could hardly fail to notice that, if there ever was within this jurisdiction a generally agreed set of standards as to what was 'reasonable' behaviour, it has not survived intact into the less homogeneous society of today. It is important that one should be able to conduct one's affairs and regulate one's speech with some degree of assurance, if necessary with the assistance of legal advice, as to what the likely consequences may be. If the touchstone is honesty, that has the great merit of being a straightforward criterion - not least for jurors to put into practice.
27. It is clear (as illustrated in a number of European cases) that there is a significant inhibition upon freedom of speech if one is required to prove the unprovable. A commentator may be able to prove facts objectively, but it is neither just nor logical to seek to subject opinion to the same test. To impose a test of reasonableness or fairness is to bring in objective criteria which have no place in the context of subjective opinion. "The objective safeguards, coupled with the need to have a genuine belief in what is said, are adequate to keep the ambit of permissible comment within reasonable bounds" (per Lord Nicholls in Cheng: transcript p.10).
28. I have therefore come to the conclusion (I believe consistently both with Lord Nicholls in Cheng and with the Article 10 jurisprudence) that the only two requirements in this context are (1) that a defendant should have expressed the opinions honestly and (2) that he should have done so upon facts accurately stated. This second requirement is the only objective criterion that makes sense, because such facts are capable of proof. Yet it gives rise to its own difficulties in this case, as Mr Price has highlighted. I now turn to address these.

The comment must be upon "facts truly stated"

29. A commentator must not deliberately distort the true situation. That would be relevant on "malice" even according to Lord Nicholls' criterion. It would not be honest. The matter of distortion (whether dishonest or otherwise) may also come into play, however, at the stage of the objective test, because one cannot decide whether a hypothetical commentator could hold an opinion in a vacuum. Even at this point, it is surely necessary to test the matter against some factual assumptions.
30. One area upon which counsel did agree was that, when applying the objective test, it is necessary for the judge (or jury as the case may be) to decide whether the hypothetical person could honestly express the commentator's views on the assumption that he knows (a) facts accurately stated in the article, (b) facts referred to in the article and (c) facts that are so well known that they may be described as general knowledge: see e.g. Kemsley v. Foot [1952] A.C. 345. Lord Nicholls observed in Cheng that "... the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded". (See remarks to similar effect by Fletcher-Moulton L.J. in Hunt v. Star Newspaper, at p.319.)
31. There is an apparent difficulty here. It might be thought to be imposing undue restrictions on free speech if a defendant only has the defence of fair comment in circumstances where he has remembered to identify, even perhaps in the heat of public debate, the facts which led him to hold those views about the claimant. That may be so, but at least the law is clear in this respect. It has long been recognised at common law. It is also apparently accepted in the modern human rights jurisprudence: see e.g. Lingens v. Austria, Neilson & Johnsen v. Norway, both cited above, and Barfod v. Denmark (1991) 13 EHRR 493.

The relevance of accuracy to the objective test

32. The particular problem that arises before me is as to what relevance the accuracy of the facts should have at this first stage of testing the fair comment defence. I believe it is important always to separate out three questions for consideration, whether at the stage of summing up to a jury or of deciding, at an earlier point, whether an issue or issues can be resolved without the need for a jury to come to any conclusion.
33. The first question is whether the facts upon which the comment is based are objectively true. The second is whether someone could express the relevant comment upon those facts. If (and only if) that test is passed, then the third question would arise - whether the individual had in fact been expressing it honestly.
34. When the first question can be answered will obviously vary from case to case. Sometimes the facts themselves will be uncontroversial and the point at issue is simply whether the opinion could be held or the inference drawn. On other occasions, there may be no doubt that on certain factual assumptions a defamatory opinion could be honestly expressed, but the truth of those assumptions can only be established at trial. In this latter case, there does not seem to be any reason as a matter of logic why the court should not rule that the objective test for a fair comment defence has been satisfied (Question 2), while leaving the jury to decide whether the defendant has proved the facts (Question 1) and, if so, whether he was malicious (Question 3).
35. It may not always be a practical option, on the other hand, for a judge to resolve the objective test where the facts cannot be determined as a black and white issue (for example, whether or not the particular claimant had been guilty of stealing the petty cash). In the present case, the facts relied upon by the Defendant as supporting his comments are both wide-ranging and inevitably selective. They cover a variety of aspects of the Claimant's activities over a period of years (some of which might be thought to be general knowledge and others not).
36. Mr Price argues that the objective test for fair comment cannot be fulfilled (at any point) if the facts pleaded by the defendant might take on a different significance when set against other facts not referred to in the words complained of - at least if the defendant either knew about or could have discovered them. This raises a new clutch of problems for analysis.
37. The simplest example would be where a man has been charged with child abuse and a newspaper article calls for him to be suspended from his teaching post for so long as this question-mark remains over him. On the face of it, that would be a legitimate instance of fair comment if those facts stood alone. Suppose, however, that there are facts, not mentioned by the defendant, which throw a different light on matters. For example, the proceedings had been dropped by the Crown Prosecution Service, or he has been acquitted at trial, because it transpired that it was a case of mistaken identity, or because he had an alibi, or because DNA testing excluded him as the culprit. In those circumstances, the underlying factual substratum of the comment (viz. there are reasonable grounds to suspect that he may be guilty of child abuse) would have collapsed.
38. The existence of such extraneous circumstances would be relevant in dealing with the question of whether the facts were truly stated (Question 1). They would also be relevant if it turned out that the defendant had suppressed the exculpatory evidence deliberately. That would be evidence of malice - if the case ever got that far (Question 3). Where I would part company with Mr Price is over the question of whether such extraneous facts could also be relevant for answering Question 2. The question would simply be "Could someone honestly express the opinion that the claimant should be suspended on the footing that he was currently facing charges of child abuse?" The answer to that would almost certainly be in the affirmative. It does not need to be confused with the other two questions I have identified. This is because the objective test for fair comment is concerned with whether the defendant is able to show that a hypothetical person could honestly express the relevant comment on the facts pleaded and/or proved by the defendant. I do not understand Mr Price to challenge that as a proposition of law.
39. If the claimant, by way of rebuttal, proves truly exculpatory circumstances which negate the suspicious circumstances raised by the defendant, that will undermine the accuracy of the factual substratum for the comment. The defendant would therefore fail at Question 1.

The relevance (if any) of a defendant's negligence

40. I must now deal with Mr Price's related submission that a defendant should not be permitted to pass the objective test for a defence of fair comment (Question 2) if he has been negligent in assembling his facts - if, for example, it can be said that he could or should have discovered other facts that would have led a hypothetical observer to the conclusion that his comment was unwarranted. I believe it is unnecessary and confusing to introduce the concept of negligence into the defence of fair comment, whether when answering Question 2 or at all.
41. As Lord Nicholls demonstrated in Cheng, there are quite different policy considerations applying to fair comment from those operating in the field of qualified privilege. I am not here concerned with whether Mr Bower had done enough research to give rise to a duty to publish the words complained of for the purpose of the kind of privilege contemplated by their Lordships in Reynolds v. Times Newspapers Ltd [1999] 3 WLR 1010. I am addressing the different question of whether a hypothetical observer could hold Mr Bower's expressed opinions on the factual position he seeks to prove. If he has got his facts wrong, he fails for that reason (Question 1). It is only if he has his facts right that the objective test for fair comment arises (Question 2).

To what extent may a judge rule on the objective test if the facts are disputed?

42. Could a person honestly hold and express in the views published in the Evening Standard article in the light of the relevant facts? Of course, some of the facts relied on by a defendant may be controversial and, to that extent, it is no doubt appropriate to make assumptions in favour of the claimant as to how they will be resolved. Thus, at the present preliminary stage, the two questions I have to address in this context would appear to be as follows: (A) Could a person honestly express Mr Bower's declared opinions on the pleaded facts in so far as they are agreed or are uncontroversial? (B) If yes, would it make any difference if some or all of the disputes over Mr Bower's factual assertions were resolved in favour of the Claimant?
43. It is possible to imagine a case, as I have suggested above, in which one might express the defamatory opinions in question on the undisputed facts but, if they were combined with other facts alleged by the claimant, those views would become simply untenable. It does not seem to me that the present is such a case, but this two-tier test would probably, on principle, represent the right approach to adopt. Thus, if I were to apply it to the case of the hypothetical school teacher I posited above, the answer to my question (A) would clearly be that a commentator could honestly express the opinion that he should be suspended because of the pending criminal charges. Question (B) would be, "would it make any difference if he had been exonerated?". The answer to that is equally obvious. Of course it would. In such a case there would be no point in ruling on the objective test for fair comment until the facts were resolved. In a less simplistic case, it could well save time and money to do so. If the facts for which a claimant contends by way of rebuttal would not make any difference, for the objective test, one might as well dispose of it. That is what Mr Tugendhat invites me to do.

Has the issue already been resolved in this case?

44. Before I turn to the factual assertions relied on by Mr Bower, in the light of these considerations, I need to deal with a preliminary point taken on the Claimant's behalf relating to comments contained in the judgment of 21 November 2000. In the transcript (at pp. 24-25) I made remarks to the effect that I could not then rule, finally, on the objective test or hold that the views expressed were such that a fair-minded person could hold them on the facts. I commented that, "It will be for the jury to decide whether a fair-minded person could hold the opinions expressed in the relevant parts of the article (in the light of such facts that Mr Bower relies upon, and as are ultimately proved at trial)". This can surely only have been an initial impression, since not only had the matter not been argued before me by the parties at that stage but I did not have the witness statement of Elizabeth Hartley, in support of the present application, either. This was dated 22 January 2001. Nor, as I have already said, had I received the judgment of Lord Nicholls in Cheng. In those circumstances, I do not accept that this issue has been determined between the parties. I regard it as appropriate to resolve it now in the light of the principles to which I have referred.

The comment the Defendant seeks to defend

45. First, I should identify the comment that Mr Bower relies upon as contained in his Evening Standard article. It appears in its amended form at para. 5.1: "that revenge rather than pure self-righteousness has motivated the Claimant's latest bid to run the National Lottery and that he is or may be also motivated by self-glorification, self-promotion and the commercial advantages to the Virgin brand."

The extent of the present factual dispute

46. The "concise statement of facts" underlying that comment appears in the proposed amended defence at paras 5A-5F. I need not set them out in extenso, but they are sub-divided as follows. Para. 5A is headed "Motives of Revenge" and paragraphs 5B - 5F relate to "Promotion of Self and Virgin Brand". Paragraph 5A sets out the facts upon which Mr Bower relies for the purpose of asserting that, since his first rejection (in May 1994), Sir Richard has been engaged on a "mission" to discredit Camelot (his successful rival) and Peter Davis, the Lottery Regulator responsible for the adverse decision. In large measure Mr Bower's allegations relate to Sir Richard's conduct or his public pronouncements that are widely known and well documented.
47. Paragraph 5B begins: "The Claimant is highly commercially and financially motivated in all aspects of his business and private affairs. The Claimant has projected himself as having, through his Virgin empire, turned himself into one of the richest men in the country." It goes on to develop that theme by reference to Sir Richard's publicity and image projection. These matters are so well known as part of the national consciousness that they could hardly be the subject of serious challenge, although I accept that the same propositions could be expressed in wording that was more flattering to the Claimant.
48. Paragraphs 5C and 5D set out the Claimant's proposals for a scheme whereby the distribution of his company's profits to good causes was to be achieved through the medium of a private charity rather than being donated to the National Lottery Distribution Fund.
49. Paragraph 5E refers to what is described as the Claimant's "humiliation" arising from publicity given to the state of his Virgin Group, his failure to "deliver" on important public pledges and also to certain statements he has made which are described as "misleading". The essence of the paragraph is to be found, however, in the words "... his People's Lottery could self-evidently have extremely valuable spin-offs in restoring confidence in and the credibility of the Claimant and Virgin in the perception of the public, financial institutions and prospective investors. Whatever the state of the Virgin businesses, and regardless of the fact that no Virgin company would take any operating profit from the lottery, the award of the lottery to the Claimant and his operation of it would have been of massive value to the Virgin brand. The Claimant and those advising him would have been very well aware of this potential." These general propositions are hardly controvertible. The issue is as to what inferences may be drawn from them by an honest onlooker.
50. Finally, there is paragraph 5F. This refers to certain obvious links between Sir Richard's lottery bid and the Virgin Group (through personnel associated with both and also through references to it on the Virgin website - albeit to confined to a regular feature called "Richard's Diary").
51. I have no doubt that the uncontroversial facts set out in these paragraphs are such that a hypothetical observer could honestly express the opinions contained in the Evening Standard article. Moreover, to answer the Question (B) I posed myself (in paragraph 42 above), I have concluded that in so far as the pleaded allegations in paragraphs 5A-5F are tendentiously expressed, or capable of being presented with a different and more flattering "spin" (from the Claimant's point of view), this is of marginal significance only. Since my judgment of 21 November 2000, the Claimant's case on the factual position has become much clearer, both through his witness statement served on 11 May and in his revised Reply (upon which I ruled on 4 April). It emerges from these that he disagrees with Mr Bower and Miss Hartley in certain respects as to their conclusions. That matters not for present purposes. What matter are the underlying facts. He also draws attention to allegations which, according to him, put a different complexion on those pleaded by Mr Bower.
52. There is no need for me to go through the "concise statement of facts" in detail, or tick off each item that is agreed and put a cross against each that remains controversial. Nevertheless, I think I should identify some of the more significant differences to which Mr Price attached importance. In paragraph 7 of his witness statement Sir Richard drew attention to Mr Bower's claim about the origin of the idea of having a charitable foundation. This is to be found in paragraphs 5C and 5 D of the Amended Defence. He expresses the view that the only [apparent] purpose for opting to donate profits to charities of his own choice is that of self-promotion. Sir Richard says this is unfair and misleading because the initiative came about for the purpose of allaying the concerns of smaller charities, which felt that they were losing out as a result of the National Lottery. What is more, he says that Mr Bower would have known about this because he attended the earlier libel trial in January 1998, when this matter emerged in the course of his own evidence. Sir Richard is here seeking to refute the validity of Mr Bower's inference, but the basic facts are very straightforward. The question is whether Mr Bower drew that inference in good faith. Sir Richard can at trial adduce the matters relating to small charity concerns, with a view to showing bad faith, but this makes no difference to the task I am now performing.
53. At paragraphs 8 and 9 of his witness statement, Sir Richard accepts that he was very disappointed in November 1994 when he learned that his Lottery Foundation had lost that bid. He accepts too that he expressed his disappointment in strong terms and threatened judicial review. These are the facts relied on by Mr Bower (at paragraph 5A.5) as pointing towards motives of revenge for the 1999 bid. He may be wrong, but again the issue is whether he drew that inference in good faith. Sir Richard wishes to draw attention to the fact that he withdrew the threat of court proceedings the very next day. He may do so if he thinks that it goes towards proving malice. Again, however, this does not affect what I have to decide.

My conclusion on the objective test

54. The right to comment freely and honestly is not to be whittled away by detailed and subtle arguments as to how a different commentator might have viewed the facts or given them a different emphasis. These disputes between the parties are not such as to undermine my primary conclusion on the objective test for fair comment. I am also able to hold, without difficulty, that any decision to the opposite effect would be perverse. That is to say, no jury properly directed could hold that Mr Bower's opinions were such that they could not honestly be held or expressed on the pleaded (and uncontroversial) facts. There is thus no reason for this issue to be left for resolution at a trial.
55. The consequence of this ruling would seem to be that the case goes to trial primarily on the issue of malice; in other words, on the footing that the Claimant can only succeed if he surmounts the formidable hurdle of proving that Mr Bower did not honestly believe what he was saying but was only pretending. It may be that the viability of this plea would have to be reviewed during the trial in the light of the evidence and whether it passed the Somerville v. Hawkins test (see above) and/or that set out in Alexander v. Arts Council of Wales. All this, however, is subject to the resolution of one of the other issues raised in the Defendant's application before me.

The dispute over the meaning of the article

56. There is a comprehensive challenge on meaning. There is first a general point which could have been made at any time after the particulars of claim were served; namely, that the words complained of are incapable of bearing any defamatory meaning at all. Secondly, there is a point linked with my ruling of 21 November 2000. It is said on behalf of the Defendant that the currently pleaded meanings cannot stand alongside the ruling that the words complained of were only to be construed as comment. The meanings challenged are to be found in paragraphs 5 and 6 of the Particulars of Claim:

"In their natural and ordinary meaning these words meant and were understood to mean that the Claimant was acting dishonourably by using the promise of a private charity fund to disguise his true purpose of promoting the Virgin brand on television at no expense to himself.

Further or in the alternative, these words meant and were understood to mean by way of innuendo:

(i) that the Claimant was a hypocrite who claimed to be organising a bid for the National Lottery franchise for charitable motives, but was, in fact, motivated by revenge and financial self-interest;

(ii) that the Claimant was acting dishonourably and hypocritically by using his promise of a private charity fund to disguise his true purpose of promoting the Virgin brand on television at no expense to himself."

57. Mr Tugendhat argues that it is stretching the words unduly to import an accusation of "dishonourable" conduct and to draw the stark contrast between charitable motives, on the one hand, and a desire to the promote the Virgin brand on the other - as though the two had to be kept in water-tight compartments and were mutually incompatible. His submissions were made succinctly in his skeleton argument in the following propositions:

• The Claimant describes his own motive for his acts as the advancement of charity. In the words complained of the Defendant expresses an opinion that there are other motives.

• First, the meanings are pleaded in the Particulars of Claim as statements of fact, whereas the decision upheld by the Court of Appeal means that no meaning can be left to the jury unless it one that is framed as an expression of opinion.

• Second, the words complained of do not express an opinion that the Claimant was hypocritical or otherwise dishonourable. No reasonable jury, properly directed, could find that they do. At most what the Defendant was opining was that the Claimant's assessment as to his own motives is not the only assessment possible (a questioning view which may be thought applicable not just to the Claimant but to everyone in public life who makes statements about their own motives).

• Third, the words complained of do not opine that the Claimant has no charitable motives - merely that his motives are mixed. It is part of the words complained of that the Claimant will (if successful in the bid) be presenting a weekly cheque to a worthy cause. The opinion expressed in the words complained of could not lower the reputation the Claimant has in the estimation of right thinking people. No reasonable jury could find that it did.

58. Mr Tugendhat argues, moreover, that the word "hypocrisy" is often used as a pleader's device to introduce a defamatory element artificially, where none is to be found in the natural and ordinary meanings of the words complained of. Judges should, therefore, be ready to scrutinise such cases with particular care. Here, says Mr Tugendhat, I need to bear in mind that "hypocrisy" implies professing one thing and believing another. What Mr Bower was ascribing to Sir Richard were mixed motives and that, he argues, is a far cry from hypocrisy. Mr Bower is doing no more than suggesting that Sir Richard has been deluding himself if and in so far as he believes that his motives are single-mindedly charitable and wholly untouched by such considerations as self-promotion or bringing the benefits of positive publicity to the Virgin brand. Those are clearly contentions he is entitled to place before a jury as his honestly held views.
59. Mr Tugendhat began his submissions by referring to this Claimant's record as a litigant which, he says, demonstrates that he is prone to making public pronouncements of a provocative nature and then, when someone dares to challenge him, he sues for libel. Here, for example, Mr Bower might be thought to have been taking up the gauntlet on the question Sir Richard himself had raised to the effect that people may be asking "what is in it for me?". I am not going to make any decision on Mr Tugendhat's comments, which I believe were only introductory in any event. Unless he were raising a general allegation of abuse of process, what has occurred in other litigation would not seem to me to be relevant.

My conclusion on meaning

60. I am very familiar with the tests to be applied when a judge is invited to rule on the capacity of words to bear, or not to bear, particular imputations. The judge's function on such applications is to delimit the range of possible meanings: see e.g. Skuse. v. Granada Television [1996] EMLR 278, Gillick v. BBC [1996] EMLR 267 and Mapp v. News Group Newspapers [1998] QB 520. I have come to the conclusion that the Claimant's pleaded meanings involve reading far too much into Mr Bower's words. No reasonable reader could derive from the article any imputation of hypocrisy or dishonourable behaviour.
61. On the other hand, I consider it impossible to rule at this stage that no jury, properly directed, could find the words complained of to be defamatory - in any sense at all. Mr Bower's comments could be considered as warning the public, when inspecting Sir Richard's stall, not to take his wares at face value. In so far as his 1999 launch was suggested as being possibly tainted by vanity, self-delusion or lack of full disclosure, these would be potentially defamatory imputations (albeit of a less serious order). The Court having delimited the range of possible meanings (in accordance with Mapp v. News Group Newspapers), it will be for the jury to decide which defamatory meanings (if any) the article in fact bears.