Evening Standard Wins Again As Law Lords Reject Composer’s Libel Appeal
The House of Lords has refused composer Keith Burstein permission to appeal against the Evening Standard’s recent ‘fair comment’ libel victory.
The Evening Standard was also given leave to seek their additional costs from Burstein.
He sued over a review of Manifest Destiny, an opera that he co-wrote, which was performed at the Edinburgh Festival.
The contentious part of the review stated: “But I found the tone depressingly anti-American, and the idea that there is anything heroic about suicide bombers is, frankly, a grievous insult.”
Burstein claimed it was not fair comment and that it meant he sympathises with terrorist causes and applauds the actions of suicide bombers.
In the High Court, Mr Justice Eady refused to strike out his libel claim, saying a jury might not find the review was fair comment.
But following a vigorous defence mounted by its solicitors, Foot Anstey, the newspaper won comprehensively in the Court of Appeal where the ‘fair comment’ defence was upheld and Burstein’s claim struck out with costs awarded against him.
Although he claimed to have no money, Burstein persisted by petitioning the House of Lords for permission to appeal against the Court of Appeal’s ruling.
Yesterday [17.10.07] it was announced the House of Lords rejected that petition. Costs were again awarded against Burstein, something that generally only occurs where the House decides a petition should not have been filed or was unjustifiably late.
Solicitor Cathryn Smith, a partner at Foot Anstey, who acted for the newspaper’s publisher, Associated Newspapers Ltd, said Burstein’s attempt to appeal to the House of Lords was hopeless.
She said: “We thought it was completely misconceived.
“We felt it amounted to an abuse of process in that Mr Burstein had acknowledged that he had no money to meet our costs. The judgment of the Court of Appeal could not have been clearer. Despite this Burstein went ahead and petitioned the House of Lords, thereby incurring additional costs for our client.”
Foot Anstey will now vigorously seek to enforce the costs rulings against the composer.
Notes for editors:
The case would have been a chilling precedent for the media if the composers arguments had won the day.
Burstein claimed the article was capable of bearing the defamatory meanings that (i) he is a sympathiser with terrorist causes, and (ii) he applauds the actions of suicide bombers and raises them to the level of heroism.
The Evening Standard applied for Burstein’s two alleged meanings to be struck out, and for summary judgment in its favour on the basis that the review was not defamatory as alleged, or if it was, it was unarguably fair comment on a matter of public interest.
In the High Court, Mr Justice Eady refused the newspaper’s application, saying the case should be left to a jury to decide. He declined to intervene and stop the claim in its tracks. He said: “It is difficult to say that a jury would be ‘perverse’ not to uphold the fair comment defence.”
The Court of Appeal disagreed.
Lord Justice Keene quoted with approval the following passage from an early libel case called Carr v Hood.
“It is not libellous to ridicule a literary composition, or the author of it, insofar as he has embodied himself with his work…Every man who publishes a book commits himself to the judgment of the public, and anyone may comment upon his performance. If the commentator does not step aside from the work, or introduce fiction for the purpose of condemnation, he exercises a fair and legitimate right.”
Their Lordships had to decide three issues: whether the judge had been wrong to hold the review was capable of bearing the meanings alleged by Burstein; whether the article was capable of being held by a jury to be a statement of fact rather than comment; and whether the article, if comment, was based on true facts and expressed a view which could be honestly held by the author.
On the first point, they rejected Burstein’s first alleged meaning but decided that the jury could conceivably find that the review was capable of meaning that in this particular opera Burstein applauded the action of suicide bombers and raised them to the level of heroism.
Second, they found the article was not capable of being interpreted as a statement of fact. In particular, it was clearly a press article within a newspaper’s arts review section, by a critic expressing her own views. Its concluding sentence, quoted above, drew a permissible inference from facts that were set out for readers in the review.
The fact that readers might conceivably understand the review to attribute a motive to Burstein himself was insufficient to take it out of the category of comment, or beyond the scope of the fair comment defence.
Third, they found that all the other necessary elements of the fair comment defence were made out. The review’s summary of the opera was factually accurate. A critic could honestly hold the opinion that was expressed, and no one disputed that the comment was on a matter of public interest.
Accordingly, Burstein’s claim was struck out and he was ordered to pay costs. Summary judgment was entered in favour of the Evening Standard.
The appeal court clearly felt Mr Justice Eady should have taken a more robust approach in case-managing, and ending, the misguided libel claim at the earliest opportunity.
It said it would be “an abdication of judicial responsibility” not to overrule his incorrect approach to the case.
Citing a European ruling on freedom of expression, it also noted that a writer should not be required to prove that his value judgments are objectively valid.
Published 22/10/2007
