Defamation Bill

Lord Lloyd of Berwick Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, it is always a pleasure to follow the noble Lord, Lord Phillips of Sudbury. Like him, I welcome the Bill. I agree with almost all—indeed, I think I can say all—its main objectives. However, I should add that unlike the noble Lord I have never been an expert in the law of defamation. I will therefore say nothing about the important clauses, Clauses 4 and 6, which have been the subject of full discussion by the noble Lord, Lord Lester, the noble Baroness, Lady O’Neill, and many other noble Lords. Those are the important clauses.

However, I once gave the leading judgment in a decision of the Court of Appeal on the subject of fair comment, which is now to be renamed, under Clause 3, “Honest opinion”. That is my only reason for speaking tonight. It was the case of Telnikoff v Matusevitch, who were both Russian émigrés living in London. The great question was whether in a defence of fair comment it was for the defendant to prove that he had an honest belief in what he had written. We in the Court of Appeal held that it was not for him to make that proof. The question was whether an honest man could hold such a belief—the test that is proposed in Clause 3(4). In other words, the test should be objective and not subjective. The case went to the House of Lords and, I have to say, the Court of Appeal’s judgment on that point was unanimously upheld.

I mention that only because there was a later case in the Supreme Court on the subject of fair comment, Joseph v Spiller, in which exactly the same point arose. A lengthy judgment was given by the noble and learned Lord, Lord Phillips of Worth Matravers. Why is it that all judgments in the Supreme Court seem to get lengthier and lengthier—far longer than when I was giving judgments in the House of Lords—with every year that passes? At the end of that judgment, he made three suggestions: first, that it was high time to reform the law of defamation; secondly, that we should make a start by renaming fair comment as honest belief or opinion; and thirdly, that the test should be subjective and not objective. I agree with the noble and learned Lord’s first and second suggestions, which is why I support Clause 3, and indeed the Bill as a whole. However, with great respect, I do not agree with his third suggestion. I do not know whether this will become a live issue in Committee—I profoundly hope not. However, if it does, I remain of the view that the test should be objective, not subjective—in other words, the test as set out in Clause 3(4).

However, there was another point in the case of Telnikoff v Matusevitch. The defamatory words were contained in a letter written to a newspaper, in which the writer referred specifically to an article which had appeared in the same newspaper only a few days before. We held that this was sufficient to enable the defendant to rely on fair comment. However, we were reversed on that point by the House of Lords. It said that, since some people might have read the letter without having read the article, the facts contained in the article should have been set out in the letter. I always thought that the House of Lords was wrong about that and that the dissenting judgment of Lord Ackner, who many noble Lords will remember, was much to be preferred. I end by asking whether I am right in thinking that, if similar facts were to come before the court today, it could take a different view from that taken by the House of Lords in light of Clause 3(3) of the current Bill. If so, it will prove that Lord Ackner and the Court of Appeal were right all along.