The Court of Appeal for Northern Ireland overturned a £25,000 jury award March 10, 2008 for a Belfast restaurant owner who claimed he had been defamed by an unflattering restaurant review in the Irish News. The three-justice panel held that the trial court failed to properly instruct the jury on the defense of “fair comment” and ordered a new trial.
The case arose out of an Aug. 26, 2000 Irish News review of Goodfellas restaurant in Belfast. In the review, critic Caroline Workman called the dining experience “joyless,” the squid “reconstituted fish meat,” and the chicken marsala “inedible.” She recommended readers “stay at home.”
According to the Court of Appeal’s decision, restaurant owner Ciarnan Convery filed suit in November 2000 alleging that the article was defamatory.
The Irish News and Workman argued that most of the article consisted of “fair comment” and portions of the article that could be considered facts were true. “Fair comment” is a defense to libel in the United Kingdom that allows defendants to avoid a verdict for the plaintiff by showing that the statements in question are fair opinions on matters of public importance, the court’s ruling said.
In addition to the requirement that the statements in question refer to a matter of public interest, the defendant must also show that the statements in question “involve authentic comment as opposed to assertions of fact,” are “based on facts which are true” and readily identifiable, and that the comment is “one which an honest person might make,” Lord Chief Justice Sir Brian Kerr wrote in his opinion.
According to the court, the comment does not have to be “fair” as the term is generally understood; the comment can be “exaggerated” and even “prejudiced.” But the comment must be one which, based on readily identifiable and true facts, a person could genuinely hold.
The plaintiff can defeat the defense of fair comment by showing that the defendant acted with “malice.” “Malice” means that the defendant made the allegedly defamatory statement without an “honest belief” in the opinion expressed.
The three justices agreed that the trial court erred by allowing the jury to consider statements as facts that should have been considered as comments. For example, the court presented the statements “[t]he cola was flat, warm and watery” and “[t]he starters were of poor quality” to the jury as statements of fact when they should have been presented as statements of comment. “None of these qualities can be measured as an objective fact,” Kerr said.
The justices held that the misdirection by the trial judge may have confused the jury and muddled the newspaper’s separate defenses – fair comment and justification or truth – in a prejudicial manner. Although the justices indicated that it seemed unlikely a jury would not find the statements to be fair comments if properly instructed, the outcome was not “inevitable,” so a new trial was required.
The appellate court’s decision was greeted with relief by British press. The Times of London ran a March 15, 2008 story by Giles Coren that both summarized the ruling and reviewed Goodfellas, the restaurant at the center of the dispute.
“Can there be anything more counter-intuitive than choosing to pay a visit to a restaurant the day after it has lost a court case?” Coren asked in the article.
After summarizing the court’s ruling and offering a disclaimer he wrote: “In short, loyal readers, as long as I ate the meal I tell you I ate, and as long as I truly believe what I write, I can say anything. If you thought the critics were scary before, you wait ‘till [sic] you get a load of us now.”
Coren continued, clearly confident in his interpretation of the court’s ruling, with a review of the chicken marsala, the same dish Workman called “inedible” in her Irish News review. “Without the court papers to confirm what I had ordered, I’d have guessed I was eating thin strips of mole poached in Ovaltine,” Coren wrote of the chicken dish.
“It is revolting. It is ill-conceived, incompetent, indescribably awful. A dish so cruel I weep not only for the animal that died to make it, but also for the mushrooms. Ms Workman [sic] said it was inedible but, to be honest, as it sits before me, congealing quietly, I cannot leave it alone but return to it every few minutes with the grim fascination of a toddler mesmerised by a pile of its own faeces, nibbling at it, gurning with revulsion, then nibbling some more.”
Convery, the restaurant owner, could appeal the ruling to the House of Lords, the United Kingdom’s highest court, or return to the trial court for a new trial. “In my eyes it makes a farce of the judicial system when a jury is overturned,” he told Agence France-Presse on March 11.
– Michael Schoepf
Silha Research Assistant