D wrote a letter claiming that P had plotted to force the end of the run of a successful play which he was producing by arranging for four leading players in the cast simultaneously to give identical notices to leave. This letter was sent to the actors and made it public. CA found for P and rejected D’s defence of fair comment. It held that although the comment was on a matter of public interest affecting people at large, the allegation of a plot was of a basic fact, defamatory of the plaintiffs and not reasonably capable of being considered as comment. D had failed to substantiate the fact of a plot which he had written existed. In order for the defence of fair comment to be left to the jury, there must be a sufficient basis of fact to warrant the comment
Edmund Davies L.J: It is for the defendant to establish to the satisfaction of the judge that a matter of public interest has arisen for comment. Whether the words complained of are reasonably capable of being regarded as mere comment is also a matter for the judge.
Lord Denning MR: The defence of fair comment does not apply where it contains factual accusations. For a defence of fair comment there has to be (1) public interest (“Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.”); (2) comment which gets the basic facts right (“get his basic facts right”).