Court orders defendants to provide facts underlying fair comment in libel action despite rolled-up plea rules.

[*384] 1985 March 15

(ARTEMIDES, AG. P.D.C.)

IN THE DISTRICT COURT OF NICOSIA

DANA WATKINS,

Plaintiff,

v.

Ekdotiki Eteria Telegraphos Ltd, and Another,

Defendants.

(Action No. 6306/83).

Civil Procedure - Defence to a libel action - Rolled up plea - Better and further particulars of that plea, application for - Principles applicable - Review of authorities - In the circumstances the applicant (plaintiff) is entitled to such particulars.

C. Velaris, for Applicant-plaintiff.

A. Skordis, for Respondents-Defendants.

RULING

The following ruling was delivered by:-

ARTEMIDES. AG. P.D.C.:- In this libel action the defendants set up the well-known in such a cause defence of the rolled up plea. It is a plea which rolls up justification and fair comment together. The plaintiff by the present application prays for further and better particulars of that plea. Pursuant to order 19, rule 7 of the Civil Procedure Rules, counsel for the plaintiff [*385] addressed a letter to his colleague for the defendants requesting for the above particulars but as no answer was forthcoming, he filed this application which is founded on Order 19, r.6, of the Civil Procedure Rules.

The alleged infamous publication is contained verbatim in the statement of claim and the rolled up plea in the defence is in the standard form, namely: “The defendant without prejudice to his allegations as stated in para.5 of the statement of defence and/or his above defences and allegations alleges that as far as the alleged publication consists of allegations of fact, these are true. And as far as the alleged publication consists of expression of opinion this is a fair comment made in good faith upon facts that consist a matter of public interest”.

The plaintiff’s request for particulars as contained in his letter of 10.2.1984 reads as follows: “Please furnish us under paragraph 6 of the statement of defence with particulars of the facts on which the commend is made”.

It is the contention of the plaintiff-applicant that the respondents-defendants should be ordered to give those particulars so that she will be enabled at the trial to meet their case. [*386]

Both counsel have made their respective submissions succinctly, have referred me to the Annual Practice and to cases cited therein. Mr. Scordis supports the view that there is nothing more the plaintiff should know. The alleged libel is set verbatim in the attached statement of claim and since its contents is explicit, the Court will decide which words constitute facts and which comment based on facts.

Brief reference to English authority

will prove useful in resolving the issue in this application. In the case of Aga Khan v. Times Publishing Co., Dawson v. Same (1924) 1 K.B. 675, the Court of Appeal held that when the rolled

up plea was set by a defendant, an order for particulars could not be made because this would lead to the disclosure by the defendant of his evidence. This principle was affirmed and applied in Tudor

Hart v. British Union for the Abolition of Vivisection (1937) 4 ALL E.R. 475 by the Court of Appeal, though Greer L.J.

remarked that the rule was neither reasonable nor just.

In the case of Marks and Another v. Wilson-Boyd and Others (1939) 2 ALL E.R. 605, where full particulars were requested of

the facts and matters relied in support of a plea of justification, the Court of Appeal held that there was no absolute rule of practice that whenever such a plea was raised an order for full particulars of the facts and matters relied upon must be made. Each case depended on its own [*387] facts and circumstances. In a given case where the charges made are sufficiently clear no order for particulars will be made. Goddard, L.J. had this to say, at page 608 of the report:-

“If the words charged as a libel are themselves so specific - that is, precise - that the plaintiff must know from them what the charge is, no further particulars are required. Counsel for the respondents agreed that, if, for instance, the libel were (to take a clear case), ‘The plaintiff is a thief because he stole my watch from my house last Monday’, no further particulars would be required, and, if asked for, would be properly refused. On the other hand, were the charge merely, ‘The plaintiff is a thief’, he would be entitled to the facts and matters on which the defendant intended to rely in support of his plea that the plaintiff was a thief”.

It must be stated, however, that in the above case the defendants had given particulars in their defence but the plaintiff applied for full particulars.

In 1949, the practice established by the case of Aga Khan, cited above, not to order particulars when the rolled up plea was set up, changed following the disapproval of Judges expressed in many cases. This change was brought about by Order 19, rule 22(A) which reads:[*388]

“………… shall give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true”.

This Order was examined in the case of Cunningham Howie v. F.W. Dimbleby and Sons (1950) 2 ALL E.R. 882, where Lord Denning held that in an action for libel the plaintiff is entitled to particulars of the facts on which the comment alleged to be fair is based, not only where the defence of fair comment is pleaded in the form known as the rolled up plea to which Order 19, r. 22(4) applies, but also where the general plea of fair comment is pleaded.

Lastly, in the case of Lord v. Sunday Telegraph Ltd. (1970) 3 ALL E.R. 504, Lord Denning M.R. said the following with

regard to R.S.C. Order 82, r.3(2), which replaced R.S.C. Order 19, r.22(A):

“That recommendation was implemented in 1949 by the former RSC Ord. 19, r.22A, which is now replaced by RSC Ord. 82, r.3(2). But it is to be noted that when the rule-makers framed their rule, they went beyond the recommendations of the Porter Committee. Whereas the Porter Committee only required ‘particulars of the facts relied upon’, the rule-makers made this addition: ‘particulars stating which of the [*389] words complained of …… are statements of fact’. So that the defendant has to say which are facts and which are comment”.

In this case a brief, but useful for our purposes, remark was made by Sachs, L.J.:

“In both cases, the rolled-up plea and the present plea, the plaintiff is nowadays entitled to full particulars of any facts relied on as being true for the purpose of founding the defence of fair comment. In the present case those particulars have already been set out under para. 4 of the defence and the plaintiff has nothing about which he can justifiably complain”.

In the case under consideration the plea, as contained in para.6 of the statement of defence, is stated hereinabove. It gives no particulars whatsoever. Counsel for the defendants says that the alleged libel is explicit and the facts on which comments are made can easily be elicited. He further submits that the plaintiff does not wish the particulars genuinely but in order to force the defendants to disclose their evidence.

In Cyprus the issue, what is fact or comment is within the entire province of the Court. The question, however, is whether the plaintiff is entitled to those particulars in order to be able to meet [*390] the case of the defendants. The plaintiff, in my view, is not trying to discover the evidence of the defendants. What she asks is for particulars of the facts on which the comment is made and a mere reading of the alleged publication will, in my view, show that the plaintiff is entitled to those particulars. An example will suffice to make the point clear. It is stated in the alleged libel: “H Newspot είναι αγγλόφωνη

εφημερίδα που εκδίδεται στην Άγκυρα και είναι όργανο της Υπηρεσίας Τύπου και

Πληροφοριών της Χούντας του Εβρέν”. The plaintiff is entitled to know on what facts the comment is made about being the editor of an “organ” of the cited Service. An order is, therefore, made that the defendants do deliver to the plaintiff within 20 days from today particulars of the facts on which the comments contained in the alleged libel are made.

A similar application has been made in Action No. 6307/83 by another plaintiff against the same defendants for the same publication. Counsel have agreed that the ruling just delivered will abide them in that case as well. Consequently, the order just made in the present action to apply in 6307/83 as well in the same terms. Costs in favour of Applicant.

Order as above.