The Court of Appeal of Northern Ireland on 10 March allowed an appeal by the Irish News against the first instance decision of a jury that a review of Ciarnan Convery’s Belfast restaurant, Goodfellas, published by the Irish News, was defamatory. The jury awarded Mr Convery damages of £25,000.
The Court of Appeal held that the jury had been misdirected by the first instance judge and ordered a retrial.
The Northern Ireland Lord Chief Justice, Brian Kerr, indicated that if the case was retried, the Irish News’ defence of fair comment would succeed and for this reason the decision was widely welcomed by the restaurant review world. The judgment is interesting for its analysis of the difference between fact and comment for the purpose of a fair comment defence which is where the first instance judge seems to have gone wrong, and highlights the fact that even the most uncomplimentary of reviews can be defended as fair comment.
Facts v Comment
The review, published in August 2000, could not have been more uncomplimentary about the restaurant. The list of complaints was long and included the following: the restaurant had a poor ambience, the service was poor, the non smoking area was smoky, the cola drink ordered was flat and warm, the atmosphere of the restaurant was “joyless” and the food was for the most part inedible. As Lord Kerr put it: “The restaurant … rated 1 on a range of one to five which … signified the verdict, “stay at home”. This was not, one can safely say, a flattering review.”
The Irish News’ defences were fair comment or, in the alternative, justification. It was the former defence which appeared to cause the first instance judge the most problems in deciding what was comment and what was fact. For example, the following comments, in the opinion of Lord Kerr, were “plainly comment”, even though they were “described as disputed matters of fact”:
“2. The cola was flat, warm and watery;
7. The tomato, cucumber and shredded lettuce garnish was swimming with prawns in the bowl of sauce;
9. The starters were of poor quality;
13. The chips were pale, greasy and undercooked…”
The judge and jury’s problems were exacerbated by the fact that the Irish News had described these “comments” as “disputed matters of fact”, which thereby created “considerable problems for the judge in giving directions to the jury and … made it enormously difficult for them to reach conclusions on which matters were fact and which were comment.”
As Lord Kerr stated: “of greater consequence … was the judge’s acceptance that all of this material was factual in nature.” In fact, they “were all matters of comment and not statements of fact” and the jury should have been directed that they were so to regard them.
It was this confusion which led to the misdirection of the jury and the subsequent finding in favour of Mr Convery.
Requirements of Fair Comment
Lord Kerr helpfully set out the requirements for a defence of fair comment to succeed as follows:
- The comment must be on a matter that is of public interest. It was found by the first instance judge that the review was a matter of public interest and this was not challenged.
- The words must involve authentic comment as opposed to assertions of fact. As Lord Kerr recognised, “this is, however, a distinction that is not always easy to draw. An expression of opinion will usually constitute comment but comment in this context is not confined to opinion. An inference drawn from facts may properly be regarded as comment.”
- The comment must be based on facts which are true. If the facts on which the comment purports to be made are not proved to be true, the defence of fair comment will fail.
- It should be possible readily to identify the facts on which the comment is being made. In order to do so, it must be sufficiently clear to the reader upon which facts the writer of the article or the speaker of the words has based the comment. In this case, the misdirection arose partly from the confusing way in which the defence was pleaded and the lack of distinction between what was comment and what was fact. The only fact that the comments could be based on was that the reviewer had been to the restaurant and had eaten there.
- The comment must be one which an honest person might make or an opinion that might genuinely be held.
Lord Kerr went on to say that “What was necessary at the outset of the jury’s deliberations was a clear identification of the matters in the article that constituted comment. The next stage was to address whether there was a sufficient factual foundation for that comment. If the jury had recognised from the start that most of the article comprised comment, it would have realised that a fairly slender substratum for this was all that was needed.”
Lord Kerr concluded by saying that “Although I consider it likely that a properly directed jury would conclude that a sufficient factual substratum existed for the comment which constituted the preponderance of the article, I cannot be certain that this is so and I would therefore order a retrial.”
In other words, the defence of fair comment was likely to have succeeded if the jury had been properly directed.
Conclusion
Although the court was not definitive in its opinion that the Irish News would succeed on a retrial, the indications are that this would be the case. It would, as Lord Lester QC acting for the Irish News suggested, be “ludicrous” if restaurant reviewers and the newspapers which publish such reviews could be sued in defamation for something which is in the public interest, a point which was not disputed in this case. We have all surely relied on reviews when deciding whether or not to go to a certain restaurant.
Rather than agreeing that this was the case, the court instead indicated that the threshold for publications to make out a defence of fair comment would be low. Generally, the fact that the reviewer had been to the restaurant was a sufficient “factual substratum” on which to base her comments. That said, the review must not be motivated by malice as this will defeat any defence of fair comment.
From a legal point of view, reviewers should rely on a defence of fair comment rather than justification as it is easier to prove and more likely to succeed. Equally, pleadings should be drafted carefully to differentiate between what is fact and what is comment and what the facts are to justify the comment as being fair, if only to avoid the misdirection which occurred in this case leading, no doubt, to significant further costs being incurred.
Mr Convery has not indicated whether he will proceed with a retrial and, in light of the Lords’ comments, may decide that that would be a waste of time and money.