## Facts

- A theatrical producer staged a West End play at a London theatre subject to a tenancy “get-out” clause triggered by low weekly takings.
- A separate production associated with the theatre’s corporate group was positioned to move into the same theatre.
- A director within the theatre’s ownership group notified the producer that board instructions required notice to vacate once takings fell below the contractual threshold.
- Soon after, four principal actors gave roughly simultaneous notices terminating their engagements, effectively ending the play’s run.
- The producer concluded that a talent agency and related television/entertainment entities, together with the actors, had conspired to engineer the resignations to displace his production.
- The producer published letters accusing the actors and the entities of a deliberate “plot” or “conspiracy,” distributing them beyond the immediate recipients, including more widely to the press.
- The plaintiffs brought separate libel actions tried together; the producer pleaded justification, qualified privilege, and fair comment, later withdrawing justification and the “plot” allegation when he could not prove it.
- The trial judge declined to leave fair comment to the jury; the jury awarded damages to each plaintiff; the producer appealed seeking a new trial on the fair comment issue.

## Issues

1. Whether the publications concerned a matter of public interest so that fair comment could apply in principle.
2. Whether the “plot” or “conspiracy” allegation was capable of being treated as comment rather than a statement of fact.
3. Whether there was a sufficient true factual basis to support any allegedly defamatory comment.
4. Whether the trial judge properly withheld the fair comment defense from the jury.

## Decision

- The Court of Appeal dismissed the appeal and affirmed the judgments and damages for the plaintiffs.
- The subject matter—events affecting a major theatrical production and the conduct of prominent organisations—was capable of being of public interest.
- The “plot” allegation was a basic defamatory assertion of fact, not protected comment.
- Because the producer failed to substantiate the alleged conspiracy and withdrew justification, there was no sufficient factual substratum to support fair comment.
- The trial judge correctly ruled, as a matter of law, that fair comment did not arise and should not be left to the jury.

## Legal Principles

- Fair comment applies only to comment on matters of public interest; “public interest” includes matters legitimately engaging public concern about what is happening or may happen to others.
- Fair comment does not protect defamatory factual accusations presented as opinion; the defendant must “get his basic facts right.”
- A sufficient factual basis must exist to warrant the defamatory inference; absent that basis, the defense fails.
- Threshold questions for the judge include (i) whether the matter is one of public interest and (ii) whether the words are reasonably capable of being comment rather than fact; only then does the jury consider whether the comment is fair.

## Conclusion

The Court of Appeal held that although the dispute involved matters of public interest, alleging a “plot” was an unproven defamatory statement of fact lacking a sufficient true factual foundation, so the fair comment defense was unavailable and the plaintiffs’ libel judgments were upheld.


London Artists Ltd. v. Littler, [1969] 2 Q.B. 375 (C.A.)