Knowledge of facts

Lowe v Associated Newspapers Ltd QBD TLR 29 March

The claimant was the chairman of Southampton Football Club. He sued the defendant for libel because it had published an article which he considered to refer to him to his detriment. The defence included fair comment and at the case-management stage the question arose whether the particulars of fact, upon which the fair comment defence relied, could be permitted only if there were facts known to the defendant at the time the article was published. Could he rely on existing facts to support the comment even if they only came to his attention later, for example, when his solicitor was carrying out research? It made no sense for a person to express an opinion upon or to draw influences from facts he knew nothing about. There was no authority directly in point. Any fact pleaded to support fair comment must have existed at the time of publication. Any such facts must have been known, at least in general terms, at the time the comment was made, although it was not necessary that they should have been in the forefront of the commentator’s mind. Facts might not be pleaded of which the commentator was unaware, even in general terms, on the basis that the defamatory comment was one he would have made if he had known them. A commentator might rely upon a specific or general fact and, it followed, provide illustrative examples, even if he had forgotten it, because it might have contributed to the formation of his opinion.