On 28 February 2013 the Court of Appeal delivered judgment in Waterson v Lloyd  EWCA Civ 136. The decision grapples, once again, with the elusive distinction between fact and comment in the law of defamation. By a majority, the Court of Appeal held that publications by a political candidate criticizing his opponent’s ‘scandalous’ parliamentary expenses claims were statements of comment, rather than statements of fact.
The case illustrates the difficulty of distinguishing between fact and comment in libel actions. Of the four judges who considered the issue, two thought the challenged words were statements of fact (Tugendhat J and Richards LJ) while two thought they were statements of comment (McCombe and Laws LJJ).
Although the decision provides little fresh guidance on this thorny issue, Laws LJ’s judgment contains an interesting discussion about the relevance of context – in particular the fact the articles were political speech published during an election – to the honest comment defence. It also reflects the growing influence of Strasbourg jurisprudence on English defamation law.
The claimant was the former Conservative MP for Eastbourne. In the run up to the 2010 General Election, the claimant’s Liberal Democrat rival, Stephen Lloyd, published two pieces of campaign literature that criticized the claimant’s parliamentary expenses claims. After losing to Mr Lloyd at the election, the claimant began libel proceedings against Mr Lloyd and his agent in respect of the publications.
The first publication was in the ‘Sussex Courier’, a free ‘local newspaper’ produced by the Liberal Democrats and consisting entirely of campaign literature. The front page bore the headline ‘Expenses scandal MP faces defeat’. An article below said taxpayers had paid almost £70,000 during the last four years towards the cost of the claimant’s family home, which was over 60 miles away from his constituency. It added that the MP had also claimed for food, cleaning and utilities and spent over £1,000 of taxpayers’ money redecorating his garage door.
The substance of the statements was repeated in a ‘Comment’ column on the following page under the headline ‘Expenses scandal: Eastbourne residents speak out’. The article included the following passages:
“Local residents have delivered their verdict on the MPs’ expenses scandal. Eastbourne’s Conservative MP Nigel Waterson has come under fire in recent months for his own scandalous expenses claims. Mr Waterson claimed almost £70,000 for the mortgage on his large family home in Kent, which is over 60 miles away from his constituents. He also claimed over £1000 to have his garage re-decorated. It’s clear that Mr Waterson’s expenses claims have upset many people in Eastbourne.”
The second publication was another Liberal Democrat campaign ‘newspaper’. It contained a column that included the statement: “We’ve seen the scandal of MPs abusing their expenses.” Alongside the column were articles which said the claimant had claimed £70,000 of expenses over four years. Another article described the constituency as a two-horse race and stated: “Voting Labour here in Eastbourne and Willingdon will just let our expenses scandal MP off the hook.”
The claimant argued that by linking criticism of his expenses claims with the overarching parliamentary expenses scandal, the publications meant that he was one of a number of notorious MPs whose expenses claims were unlawful and/or in breach of the Parliamentary rules and/or they were liable to repay the amounts they had received. The defendants argued that the words did not suggest the claimant had broken any rules. Instead, they were a simple comment that the claimant had used the expenses system for his own benefit in a way that was open to criticism.
Meaning and honest comment
The principles for ascertaining meaning and the honest comment defence were largely undisputed. In Jeynes v News Magazines Limited  EWCA Civ 130 the Court of Appeal summarized the basic rules for determining meaning:
“(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any “bane and antidote” taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, “can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…” (see Eady J in Gillick v Brook Advisory Centres approved by this court  EWCA Civ 1263 at paragraph 7 and Gatley on Libel and Slander (10th edition), paragraph 30.6). (8) It follows that “it is not enough to say that by some person or another the words might be understood in a defamatory sense.” Neville v Fine Arts Company  AC 68 per Lord Halsbury LC at 73″. 
In Spiller v Joseph  UKSC 53 the Supreme Court identified the requirements of the honest comment defence as follows:
(1) The comment must be on a matter of public interest.
(2) The comment must be recognizable as comment, as distinct from an imputation of fact.
(3) The comment must be based on facts that are true or protected by privilege.
(4) The comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.
(5) The comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.
(6) The comment must not have been published maliciously.
Judgment of the High Court
Tugendhat J held that the defendants’ words would not be understood as meaning that the ‘scandal’ concerning the claimant was the mere fact of making claims for mortgage interest and costs of decoration pursuant to a scandalous system. The articles located their criticism of the claimant in the context of the ‘MPs’ expenses scandal’, which included all the forms the scandal had taken, including MPs whose claims were unlawful, those whose claims breached the parliamentary rules, and those who repaid their expenses voluntarily after being criticized by their parties or by an independent parliamentary audit.
Tugendhat J therefore held the articles would reasonably be understood as meaning that the claimant was guilty of abusing the Parliamentary rules for his own financial advantage. They were ‘plainly statements of fact’. The defendants had made no effort to distinguish what could only be factual statements (e.g. the statement that the claimant’s home was 60 miles from the constituency) from matters they claimed were comment or opinion. On this basis, the Judge entered summary judgment for the claimant.
Judgment of the Court of Appeal
By a 2-1 majority the Court of Appeal overturned the Judge’s ruling and held the words complained of were statements of comment.
McCombe LJ said the meaning of the words was quite simple:
“Mr Waterson has claimed nearly £70,000 from the taxpayer for a family home that is 60 miles from Eastbourne (fact). That is a scandal (comment).’ 
McCombe LJ said the claimant’s argument on meaning involved ‘the technique of the lawyer, rather than that of the layman’ . The impugned statements fell squarely within the type of material identified in Myerson v Smith’s Weekly Publishing Co. Ltd (1923) 24 SR (NSW) 20, 26:
‘To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain things and this his conduct was dishonourable is a statement of fact coupled with a comment.’ 
There was no express or implied statement that the claimant had acted unlawfully, broken the parliamentary rules or was required to repay sums previously claimed . The conduct on which the defendants’ comments were based was clearly identified . McCombe LJ explained:
‘In the precise factual circumstances identified in the publications it was being said that it was ‘a scandal’ that [the claimant] could and did claim very substantial sums to maintain a family home at the stated distance from his constituency at the taxpayer’s expense. There was, in my view, no allegation of scandal beyond the stated facts. The fact that there was thought to be a wider ‘scandal’ does not alter the position.’ 
Paraphrasing from Diplock LJ’s judgment in Slim v Daily Telegraph  2 QB 157, McCombe LJ said it would be unfortunate
‘for free speech in this country if this kind of controversy on a matter of public though local interest were discouraged by the fear that every word written to be read in haste should be subjected in a court of law to minute linguistic analysis of the kind to which these [papers] have been subjected…’
Laws LJ agreed with McCombe LJ. He added that the political nature of the publications was important. The court must avoid ‘over elaborate analysis’ – a principle that has ‘a particular resonance in the context of political speech’ . While politicians are entitled to protection under the law of defamation, ‘the limits of acceptable criticism are wider in relation to politicians acting in their public capacity than in relation to private individuals’ (Jerusalem v Austria (2003) 37 EHRR 25, para 38). Similarly, in Hrico v Slovakia (2005) 41 EHRR 18 the Strasbourg Court observed that, ‘there was little scope under article 10(2) of the Convention for restrictions on political speech or on debate on questions of public interest’.
Laws LJ said the Strasbourg authorities
‘exemplify…the common law’s increasing focus in this area on the balance to be struck between public interest and individual right: between free speech and private claims, rather than on reputation as akin to a right of property… A political context – and especially at election time – surely informs this balance.’ 
Richards LJ dissented. The references to ‘the MPs’ expenses scandal’ and to ‘the scandal of MPs abusing their expenses’ clearly referred to the large number of MPs who made claims that were unlawful, in breach of the rules or improper. These were statements of facts .
In the first article the reference to the claimant’s ‘scandalous’ expenses claims came immediately after the reference to ‘the MPs’ expenses scandal’. It therefore suggested a link between the two, insinuating that the claimant was one of those MPs who acted unlawfully, in breach of the rules or improperly .
Likewise, in the second article the reference to ‘our expenses scandal MP’ suggested a connection with ‘the scandal of MPs abusing their expenses’. It would not reasonably be read as a mere comment that the fact the claimant claimed expenses for a home a long way from his constituency was scandalous .
Identifying the line between fact and comment is notoriously difficult. That four experienced judges could not agree where the boundary lay speaks volumes about the uncertainty inherent in this area of the law. The divergent judgments will provide little comfort to politicians, journalists and other public commentators.
Nevertheless, the outcome of the Court of Appeal’s decision is a sensible one. As McCombe LJ recognised, in libel litigation it is too easy for a microscopic dissection of words to displace straightforward and commonsense interpretations. The law is designed to compensate claimants for injury to reputation actually caused – a forensic and sterile linguistic analysis is therefore best avoided. Richards LJ’s approach had a distinctly artificial air, whereas the majority’s approach – eschewing over-complicated analysis and focusing on the meaning that an ordinary layman would attribute to the publications – was grounded in reality.
Laws LJ’s judgment provides welcome recognition to the importance of free expression in the political arena. In Lingens v Austria (1986) 8 EHRR 407 the Strasbourg Court said that:
“… freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention. The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10(2) enables the reputation of others – that is to say, of all individuals – to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.”
Of course, the deliberate dissemination of false statements about a political candidate can have a harmful effect on democracy. It was for this reason that Parliament enacted s. 106 of the Representation of the People Act 1983, which makes it an offence to publish, for the purpose of affecting any election, ‘any false statement of fact in relation to the candidate’s personal character or honour’. This provision was famously used to annul the re-election of the former Labour minister, Phil Woolas, after he made untruthful statements about his Liberal Democrat opponent during the 2010 general election.
But judges should be wary of letting libel law inhibit legitimate political discussion. Robust exchanges of opinion in election campaigns must not be quelled by the threat of defamation actions. Virulent criticism, puffery and overstatement are inevitable features of democratic debate. Political disputes should generally be settled at the ballot box, not the libel courts.
Edward Craven is a barrister at Matrix Chambers.