Branson v Bower: QBD 15 Jun 2001

Eady J considered that: ‘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.
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.
The existence of such extraneous circumstances would be relevant in dealing with the question of whether the facts were truly stated (question . . [para 43 [iii] above]). 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 . . [para 43 [vi] above]). Where I would part company with Mr Price is over the question of whether such extraneous facts could also be relevant for answering question . . [para 43 [v] above]. 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.
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 [para [iii] above].’


Eady J


[2001] EWHC QB 460, [2002] QB 737, [2002] 2 WLR 452, [2001] EMLR 33




England and Wales

Cited by:

CitedLowe v Associated Newspapers Ltd QBD 28-Feb-2006
The defendant sought to defend the claim for defamation by claiming fair comment. The claimant said that the relevant facts were not known to the defendant at the time of the publication.
Held: To claim facts in aid of a defence of fair . .
CitedCook v Telegraph Media Group Ltd QBD 29-Mar-2011
The claimant, an MP, complained in defamation of the defendant’s description of his rejected expenses claim regarding an assistant’s charitable donation. The paper pleaded a Reynolds defence. The claimant said that when published the defendant knew . .
Lists of cited by and citing cases may be incomplete.


Updated: 25 May 2022; Ref: scu.236714