Jakudo Pty Ltd v South Australian Telecasters Ltd

[1997] SASC 6370

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

DOYLE CJ, WILLIAMS AND BLEBY JJ

Equity - equitable remedies - interlocutory injunctions

Defamation - interlocutory injunctions - principles on which granted - whether grant of interlocutory injunctions in respect of defamatory material is special exception to general principles - consideration of balance of convenience in defamation cases - whether reasonable grounds that defence of justification may succeed - bare assertion by defendant that it intends to plead justification not sufficient - broad equitable principles apply - consideration of so-called "Polly Peck" principle - whether particular imputations fell within the general sting - whether reason to believe defendant might be able to prove truth in respect of particular allegations - appeal allowed. Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; National Mutual Life Association of Australasia Ltd v GTV Corporation Pty

Ltd [1989] VR 747; Polly Peck (Holdings) PLC v Trelford [1986] 1 QB 1000; Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153, applied. Coulson v Coulson (1887) 3 TLR 846; Stocker v McElhinney (1961) 79 WN(NSW) 541, considered.

ADELAIDE, 21 August 1997 (hearing), 15 October 1997 (decision)

#DATE 15:9:1997

Counsel for appellant: Mr T Hughes QC with Mr A Harris

Solicitors for appellant: Finlaysons

Counsel for respondent: Mr A Besanko QC with Mr S White

Solicitors for respondent: O'Loughlins

Order: appeal allowed

DOYLE CJ

In my opinion this appeal should be allowed. The interlocutory injunction granted by the Judge below should be set aside. I agree in substance with the reasons given by Williams J. Because the appeal raises a point of principle, relating to the grant of interlocutory injunctions to restrain the publication of defamatory material, I add some brief observations.

The facts are set out in the judgment of Williams J. In brief, the plaintiff conducts a nursing home. The defendant operates a widely viewed television channel in Adelaide. One of the programs which it disseminates, "Today Tonight", features local current affairs. One Saturday evening the defendant transmitted a short item advertising an item that would feature in "Today Tonight" the following Monday. The item was about the plaintiff's nursing home, although the promotional item did not in terms identify the nursing home. It made it clear that the advertised item was about serious allegations relating to the manner in which the nursing home was being conducted. The nature of the allegations made is indicated by the imputations that the Judge below found to be conveyed by the promotional item. Those imputations are set out in the judgment of Williams J. The plaintiff succeeded in getting an injunction that prevented the advertised item being transmitted. The imputations made in the promotional item would be revived by the advertised item, and the Judge found that certain further imputations would arise from the advertised item. These also are set out in the judgment of Williams J.

When the appeal came on for hearing, the plaintiff had not yet filed a Statement of Claim. There is no pleading of the defamatory imputations that the plaintiff relies upon. The Court is therefore in much the same position as was the Judge who heard the application for the injunction. The court must rely upon its own view of the material, aided by the submissions of counsel.

As I understood the submissions by counsel for the appellant (the defendant in the proceedings), it was not denied that there was a serious question as to whether the imputations identified by the Judge below were made by the material before him. There was no dispute that those imputations were defamatory of the plaintiff.

The defendant filed quite detailed affidavits about the evidence that it would adduce in support of a plea of justification or truth. The Judge's conclusion about those affidavits was as follows:

"The affidavits disclosed sufficient evidence whereby it could be said that the defendant may be able, in due course, to justify those imputations which consist of defamatory imputations relating to the standard of nursing care, the cleanliness of the hospital, the availability of food for residents, the comfort of residents and in that respect, the heating of the hospital, and the care and consideration of the resident's morale."

But the Judge went on to find that no material had been put forward that was capable of justifying two particular imputations. One of those was, in essence, that Mr C had been left to go hungry, and was starving to death. The other was that Mrs B had been so badly cared for that it had been necessary to remove her to hospital for treatment.

As I read his judgment, the Judge's decision to grant the injunction was based upon the fact that there was no evidence on which those two imputations could be justified, upon the conclusion that the plaintiff would suffer irremediable harm if the material was published making those imputations, and upon the conclusion that in those circumstances, although the subject matter of the article was a matter of public interest (the treatment of elderly persons in a nursing home), the balance of convenience favoured the grant of the injunction.

His Honour reached no conclusion in relation to two other imputations that were said to have been made. They were that the plaintiff's nursing home was "the nursing home from hell" and that the treatment of patients was "cruel and callous".

An interlocutory injunction is not lightly granted to restrain the publication of material alleged to be defamatory. There are many cases containing statements to that effect. The well-known words of Lord Esher MR in Coulson v Coulson (1887) 3 TLR 846, which are set out in the judgment of Williams J, are often cited in this respect.

The grant of an interlocutory injunction, in my opinion, involves the application of equitable principles that are the same in all cases. The grant of interlocutory injunctions in respect of defamatory material is not the subject of principles unique to that area of the law. In all cases the ultimate issue is whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted, and has shown that the balance of convenience favours the granting of an injunction: Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148 at 153 Mason ACJ. These are the principles to be applied in the present case. In that respect I respectfully agree with and adopt what was said by Ormiston J and, on appeal, the Full Court of the Supreme Court of Victoria in National Mutual Life Association of Australasia Limited v GTV Corporation Pty Ltd [1989] VR
747 and by Hunt J in Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153.

The reason why interlocutory injunctions are rarely granted in respect of defamatory material is, as Ormiston J pointed out in the case just cited, that the courts have recognised the substantial public interest in the free discussion of matters of public or general interest. That means that when the balance of convenience comes to be weighed, the public interest in free discussion of matters of public or general interest weighs heavily against the grant of an injunction. Particularly will this be so if the defendant puts forward material which shows that there are reasonable grounds to think that a defence of justification may succeed. In that respect I accept what was said by Walsh J in his frequently cited judgment in Stocker v McElhinney (1961) 79 WN(NSW) 541. When the real issue is not whether the words are defamatory, but that of justification, the plaintiff will have shown that there is a serious question to be tried as to the plaintiff's entitlement to relief. But, if there are reasonable grounds to suppose that a defence of justification may succeed that, coupled with the substantial public interest in the free discussion of matters of public and general interest, will usually mean that the balance of convenience is in favour of the refusal of a grant of an injunction. Of course, that assures that damages will be an adequate remedy.

I would also, with respect, agree with the view of Ormiston J in National Mutual Life Association of Australasia Limited v GTV Corporation Pty Ltd (supra) at 754 that a bare assertion by the defendant that it intends to plead justification and prove the truth of its allegations will not necessarily suffice to resist an injunction. It is not necessary to go any further, because this is not such a case. It is important to remember that broad equitable principles are in issue, and each case has to be assessed in the light of its facts. Like the Judges in the two relatively recent cases cited by me, I agree that applications for interlocutory injunctions in respect of defamatory material are not to be determined according to apparently rigid rules of practice to be found in some of the older cases. That is not to say that those rules of practice do not provide useful guidance.

The approach that I have outlined is the approach taken by the Judge below.

But, the appellant complained, in applying that approach the Judge made a significant error. In considering whether the defendant has shown that there are reasonable grounds for thinking that a defence of justification may succeed, it is necessary to bear in mind that a failure to justify a particular imputation will not result in the defendant being liable if that particular imputation is encompassed within the "common sting" of other defamatory allegations which are justified. This is the so-called "Polly Peck" principle. It was recently enunciated in Polly Peck (Holdings) PLC v Trelford [1986] 1 QB 1000 at 1032 and applied in Khashoggi v IPC Magazines Ltd [1986] 1WLR 1412. The principle appears to be a generally accepted one. There is no reason to think that it would not be applied by an Australian court.

His Honour does not appear to have considered this particular point. Or, at least, no reference is made to the principle. It may be that his Honour considered that the imputations in respect of Mr C and Mrs B were not covered by the general sting of those imputations in respect of which he found that there was reason to think that the defendant might be able to justify.

Be that as it may, in my opinion it was fairly arguable that the two imputations upon which his Honour founded his decision do fall within the general sting of the allegations in respect of which his Honour found that there was reason to think that the defendant might be able to justify. Putting it a little differently, I consider that it was fairly arguable that the two particular allegations upon which his Honour relied are not separate and distinct from the other defamatory statements. It is fairly arguable that they are but instances of the poor treatment of patients that the defendant said it would set out to prove. In saying this I am also mindful of the fact that in colloquial use a person is often said to be "starving" when what is meant is "very hungry", and that this is so even when a person is said to be "starving to death". It is reasonably arguable that that expression was used in its colloquial sense.

Quite apart from that I consider that there was evidence upon which the Judge below should have concluded that there was reason to think that the defendant might be able to prove truth in respect of these particular allegations. As to Mr C, the defendant adduced evidence tending to show that Mr C's weight had dropped significantly over a relatively short period of time. Unless the imputation of "starving" is taken quite literally, that is material upon which the imputation might be justified. In relation to Mrs B the defendant adduced evidence to the effect that she had been left in a very cold room. Indeed, Mrs B was interviewed complaining bitterly about that very thing. There was also evidence from the defendant that Mrs B was in fact admitted to hospital for treatment for infective bronchitis. While the link between the exposure to the cold and the onset of infective bronchitis is not supported by medical evidence, the material is nevertheless, in my opinion, material upon which it could be concluded that the link exists.

In my respectful opinion this was, therefore, a case in which it was fairly arguable that the two imputations upon which the Judge relied fell within the general sting of the imputations in respect of which there was reason to think that the defendant might be able to prove truth. Alternatively, it was fairly arguable that there was material upon which it was reasonable to think that the defendant might be able to prove truth in respect of the two particular imputations.

In the light of that, and in the light of the conclusion, which the Judge below himself reached, that the subject matter of the items is a matter of public interest, the injunction should have been refused. I acknowledge that the publication of the material that the defendant proposed to publish is likely to cause significant loss to the plaintiff. However, in my respectful opinion proof of that loss should not be too difficult. Counsel for the defendant openly acknowledged that if there was a general loss of business after publication, the inference that this was attributable to the publication would be almost irresistible. I also take into account the fact that there is no reason to think that the defendant would not be able to satisfy a verdict for damages, even a substantial verdict.

That leaves the question of the significance of the two imputations in relation to which the Judge reached no conclusion. The former ("the nursing home from hell") looks to me like a comment, and liability in respect of it would depend upon the findings as to the factual imputations. The latter ("cruel and callous") could be a statement of fact or a comment. To the extent that it is a statement of fact, I consider that there are reasonable grounds to think that it might be proven true. As to the comments (if that is what they are), it is fairly arguable that they might be protected as fair comment upon matters of fact, if the defendant is able to establish the facts that it alleges. Accordingly, these imputations do not entitle the plaintiff to an injunction.

For all those reasons I have concluded that the appeal should be allowed. The injunction granted on 14 July 1997 should be discharged and the suppression orders made as part of the same order should also be revoked. The suppression orders that this Court made on the hearing of the appeal should also be revoked.

I wish to hear from the parties on the question of the costs of the application for the injunction and of the costs of the appeal.

WILLIAMS J:

This is an appeal by the defendant South Australian Telecasters Ltd against an order made by a single judge of this Court whereby an interlocutory injunction was granted upon the plaintiff's application.

The respondent has instituted proceedings for defamation against the appellant. In these proceedings the appellant (the operator of the Adelaide Television Station Channel 7) has been restrained by the order now under appeal from advertising, transmitting or otherwise publishing a particular television programme (and associated promotional material) concerning the respondent's nursing home until further order.

The material in question has been pre-recorded for use as a segment of the programme "Today Tonight"; video tapes of the programme itself and the promotional material (in the form of a bulletin) are before the Court. The bulletin went to air on Saturday 5 July 1997 advertising the principal segment which was intended for television broadcast at 6pm the following Monday 7 July 1997. The present proceedings were commenced on 7 July 1997 and the injunction issued on 14 July 1997 when the Judge published his reasons after hearing argument. (The appellant gave undertakings to the Court to refrain from publication whilst the application for injunction was before the Court.)

The promotional bulletin informed viewers of a "Today Tonight report that will shock every family". There is a reference to "The nursing home from hell" and the announcer gives notice that "We uncover serious neglect....Insiders blow the whistle. That's Monday night on 7."

In granting the injunction the judge considered that serious allegations were made by the promotional material as affecting the respondent's trading reputation namely:

1. The proprietor of the nursing home is guilty of serious neglect of its residents.

2. The residents are left to freeze. They are forced to sleep in icy cold rooms.

3. It is of the worst kind of nursing home.

4. The residents are inappropriately treated.

5. The residents are not given medical treatment.

6. The residents are left to suffer bed sores and skin problems.

7. Mr [C] has been starved.

8. The proprietor allows the residents to go hungry.

9. The proprietor allows the residents to starve.

In arguing for the injunction, counsel for the respondent claimed that the principal segment gave rise to the following imputations that the proprietors of the respondent:

1. Were incompetent and unprofessional.

2. Were callous and cruel.

3. Were guilty of physical abuse and a form of emotional abuse.

4. Would put their interests above the interests of the residents.

5. Conducted their nursing home in a way that leaves the residents of the nursing home to wish that they were dead rather than remain resident at the nursing home.

The appellant filed an affidavit by the Executive Producer of the programme to the effect that the appellant relied upon the defence of justification; further affidavits were filed as the factual basis for that defence. His Honour found that

"The affidavits disclosed sufficient evidence whereby it could be said that the defendant may be able, in due course, to justify those imputations which consist of defamatory imputations relating to the standard of nursing care, the cleanliness of the hospital, the availability of food for residents, the comfort of residents and in that respect, the heating of the hospital and the care and consideration of the residents' morale."

However, the Judge at first instance noted that two particular matters of complaint had not been covered by the affidavits submitted by the appellant. The impugned material included allegations to the effect that:

(1) The respondent starved Mr C a resident of the nursing home (or at least let him go hungry).

and

(2) Mrs B, a resident of the nursing home, suffered pneumonia (or infective bronchitis) and had to be hospitalised as a result of the lack of care in the nursing home.

His Honour found that he was not satisfied that the appellant would be able to justify these two last mentioned assertions. His Honour held that "There is no evidence presently that [these] two imputations will be justified".

In identifying the principle upon which he should act His Honour referred to the statement of Zelling J in Lennox v Krantz (1978) 19 SASR 272 at 276:

"The locus classicus for Australia in this matter (referring then to interlocutory injunctions) has usually been considered to be the judgment of Walsh J (then of the Supreme Court of New South Wales) in Stocker v McElhinney (No.2) (1961) 79 WN (NSW) 538 where his Honour said:

I consider the following propositions to be in accordance with the authorities:

(1) Although it was at one time suggested that there was no power in the court under provisions similar to those contained in the Common Law Procedure Act, ss.176 to 179, to grant an interlocutory injunction, in case of defamation, it is settled that the power exists in such cases.

(2) In such cases, the power is exercised with great caution and only in very clear cases.

(3) If there is any real room for debate as to whether the statements complained of are defamatory, the injunction will be refused. Indeed it is only where on this point, the position is so clear that, in the judge's view a subsequent finding by a jury to the contrary would be set aside as unreasonable, that the injunction will go.

(4) If, on the evidence before the judge, there is any real ground for supposing that the defendant may succeed upon any such ground as privilege or of truth and public benefit, or even that the plaintiff, if successful, will recover nominal damages only, the injunction will be refused."

The Judge also referred to the statement of Lord Esher MR in Coulson v Coulson (1887) 3 TLR 846 -

"It could not be denied that the court has jurisdiction to grant an interim injunction before the trial. It was, however, a most delicate jurisdiction to exercise, because, though Fox's Act only applied to indictments and informations for libel, the practice under that Act had been followed in civil actions for libel, that the question of libel or no libel, was for the jury. It was for the jury and not for the court to construe the document and to say whether it was a libel or not. To justify the court in granting an interim injunction it must come to a decision upon the question of libel or no libel before the jury decided whether it was a libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where if the jury would say that the matter complained of was libellous, and where if the jury did not so find the Court would set aside the verdict as unreasonable. The Court must also be satisfied that in all probability the alleged libel was untrue, and if written on a privileged occasion that there was malice on the part of the defendant. It followed from those three rules that the Court could only on the rarest occasions exercise the jurisdiction."

The appellant now argues that the reasons of His Honour disclose an error of principle which requires that this Court should intervene.

The appellant argues that (as now relevant) the allegations of starvation of Mr C and the neglect of Mrs B are to be treated as particular allegations made within the framework of a programme which asserts callous and incompetent neglect by the respondent of those in its care. The appellant argues that when considering the defence of justification, the particular allegations regarding two residents should not be regarded separately and distinct from the general allegation of which the particular circumstances are but examples.

The appellant argues that a defence of justification will be established if it adduces evidence to justify the general sting of the programme irrespective of the appellant being able to prove two particular incidents which fall within the ambit of the general sting.

In Polly Peck v Trelford (1986) 2 WLR 845 at 869 O'Connor LJ said:

"Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case. The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting, and once again it is fortuitous that what is in fact similar fact evidence is found in the publication."

This principle was recognised in Khashoggi v IPC Magazines (1986) 1 WLR
1412 when the defendant alleged a number of sexual liaisons by the plaintiff during her marriage; the plaintiff disputed and complained of only one of these liaisons. At 1417 Sir John Donaldson MR said:

"What is said here is that the principle can be applied and the sting of the article is promiscuity generally. It is submitted that it would be very difficult for the plaintiff, when her statement of claim comes to be prepared, to make any complaint about this particular allegation which could not equally be made about the other allegations contained in the same article. In those circumstances the Polly Peck principle applies and, notwithstanding that the defendants may not be able to prove the particular affair complained of, they will be able to adduce evidence which will justify the sting of the article and the sting of that statement on the footing, I suppose, that it is not more defamatory to have an extra-marital affair with one person rather than another in the circumstances of this case."

It is to be observed that, like the present case, Khashoggi involved an application for an interlocutory injunction pending trial; the principle there identified is directly in point.

It follows that the failure of the present appellant to provide evidence of two particular assertions does not stand as an obstacle to the appellant's reliance upon justification as a defence if the sting of the publication is justified in its generality even although two particular examples of the general imputation may not be sustained - at least upon the present state of the evidence.

The jurisdiction to grant an interlocutory injunction pending the trial of an action for defamation is one which should be exercised with great caution and having regard to "the public interest that the truth should be out" (see per Lord Denning MR in Fraser v Evans (1969) 1 QB at 360-1).

The respondent contends that there is a residual discretion available and that the court should maintain flexibility in the application of principle when considering the award of an interlocutory injunction in defamation cases. The respondent argues that the exercise of this discretion at first instance in the present case should not now be interfered with.

However, in my view the Polly Peck principle has not been recognised in the reasons for judgment which are now under appeal.

In my view it must be strongly arguable that the evidence put forward by the appellant is capable of providing the appellant with a basis for a defence of justification in a form which is capable of entirely defeating the respondent's claim.

The settled practice with respect to interlocutory relief in cases of defamation is contained in Bonnard v Perryman (1891) 2 Ch 269 where Lord Coleridge CJ said at 284:

"The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions. We entirely approve of, and desire to adopt as our own, the language of Lord Esher MR in Coulson v Coulson (1887) 3 TLR 846 - "To justify the court in granting an interim injunction it must come to a decision upon the question of libel or no libel, before the jury have decided whether it was a libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if the jury did not so find, the court would set aside the verdict as unreasonable."

It should be observed that Lord Esher's statement has been interpreted as doing no more than laying down some prima facie tests to be applied within the framework of broad principles associated with this jurisdiction to grant equitable relief (see National Mutual Life v GTV [1989] VR 747 at 764-5). The ultimate task of the court in such cases is to determine where the balance of convenience lies.

Upon the evidence it is unclear that the respondent's rights have been infringed even although it is accepted for the purpose of the appeal that relevantly the material is defamatory. It has not been demonstrated that the appellant's defence of justification lacks merit; indeed, in the language of Walsh J cited above, there is "on the evidence real ground for supposing that the appellant may succeed" in its reliance upon a defence of justification. Moreover, the matter of the proposed publication is properly a matter of public concern.

In my opinion the appeal should be allowed and the injunction should be discharged.

BLEBY J

I agree, for the reasons that Williams J gives, that the appeal should be allowed and that the injunction should be discharged. I also agree with what the Chief Justice has said about the principles applicable to the granting of interlocutory injunctions both generally and in relation to defamation cases. I merely wish to add a few remarks about the application of the Polly Peck principle to the circumstances of this case.

As has been pointed out, the learned judge at first instance held that the affidavits before him disclosed sufficient evidence to show that the defendant might be able to justify a number of defamatory imputations contained in the proposed programme, but that there was no evidence to show that it was able to justify two imputations in particular. They were:

- That the respondent starved Mr C, a resident of the nursing home, and - That the respondent so badly treated Mrs B that she was removed to hospital.

In relation to the first imputation, an advertising segment for the proposed programme had included the following:

Voice Over: "The aged left to go hungry."

Mr C's Daughter: "He was starving to death."

In the proposed programme itself, however, the reference to Mr C's alleged "starving" (a word used by his daughter) was referred to in the context of the general allegation of provision of insufficient or inadequate food, and of patients who were unable to feed themselves being left unaided. In its context it seemed to me at least arguable that this allegation did not mean that Mr C was literally being starved to death but that that was merely a graphic description by a close relative of how she perceived the effect of these inadequacies.

In relation to the second imputation it was suggested that this was because of the cold conditions under which Mrs B was kept or because of the failure to provide adequate medical attention for her, or a combination of both.

The learned judge at first instance appears not to have considered or to have been asked to consider the application of Polly Peck (Holdings) PLC v Trelford [1986] 1 QB 1000 to the circumstances of the case. In my opinion, there was at least an arguable case, on the present state of the evidence, that those two allegations were but particulars of wider imputations to which I shall later refer. The learned judge below correctly held that there were reasonable grounds to think that a defence of justification might succeed in respect of those wider imputations. In my opinion it followed that the appellant had an arguable case that justification of the general sting would cover the particular instances concerned.

The learned judge was not assisted by the pleadings, or lack of them, existing at the time when he was called upon to consider the granting of the interlocutory injunction.

The respondent's summons merely claimed the "relief set out in the application filed hereto" (sic). Apart from incidental matters, the contemporaneous application sought only the following relief:

"That the defendant be restrained from advertising, transmitting or otherwise publishing the programme or material held by the defendant for its proposed programme for Today Tonight concerning the plaintiff and its operation of the (named) nursing home."

No statement of claim had been filed, and in particular there had been no formal allegations concerning the nature of the imputations alleged against the respondent in the programme.

At the time when the summons and the application were filed, promotional material featuring the intended programme had been broadcast. The learned judge at first instance held that that promotion was defamatory of the respondent because a number of imputations necessarily arose from it, including imputations that "the residents are left to freeze. They are forced to sleep in icy cold rooms... The residents are not given medical treatment... The proprietor allows the residents to go hungry... The proprietor allows the residents to starve." Although the nursing home was not named in the promotion, to viewers who could identify the nursing home or its residents, it was plainly defamatory.

The summons filed did not claim damages in respect of the publication of the promotion. It merely sought an order restraining publication of the intended programme and of the advertising material relating to it.

Those imputations which His Honour correctly considered arose from the promotion were based largely on segments from the proposed programme, and were imputations also arising from the programme itself, albeit in much more detail. In argument before the learned judge at first instance counsel for the respondent acknowledged that those imputations would arise from the principal programme. When speaking of the videotape of the proposed programme which was then in evidence counsel said:

"Your Honour saw in the course of the programme that there is reference to the fact that the residents are not properly fed, they are not kept warm, they are not washed or cleaned, the nursing home is apparently not heedful of complaints..."

As noted by the learned judge at first instance, counsel then said that the article gave rise to the imputations that the proprietors:

(1) Were incompetent and unprofessional.

(2) Were callous and cruel.

(3) Were guilty of physical abuse and a form of emotional abuse.

(4) Would put their interests above the interests of the residents, and

(5) Conducted their nursing home in a way that leaves the residents of the nursing home to wish that they were dead rather than remain resident at the nursing home.

His Honour then observed, and counsel agreed, that a further imputation arose that "the proprietors are starving the residents", and counsel then added: "It may be that there is also an imputation that the proprietors are treating the residents that they are becoming so ill they then have to attend hospital...", to which His Honour then added: "Just generally failing to care (for) those for whom they were responsible". Counsel then said:

"Yes. But the point we wish to emphasize is that there is an imputation in this programme of cruelty and callousness."

All these imputations were expressed in quite general terms. His Honour concluded:

"The affidavits disclosed sufficient evidence whereby it could be said that the defendant may be able, in due course, to justify those imputations which consist of defamatory imputations relating to the standard of nursing care, the cleanliness of the hospital, the availability of food for residents, the comfort of residents and in that respect, the heating of the hospital, and the care and consideration of the residents' morale."

In the absence of pleadings and in the nature of counsel's justified observations as to what imputations arose out of the programme and its promotional material, the conclusion is almost inevitable that there was an arguable case that the foreshadowed plea of justification to those general imputations would cover the particular instances relating to Mr C and Mrs B as being particulars of those general imputations. In those circumstances it was not necessary at the interlocutory stage to lead additional evidence to show that the appellant might be able to prove the truth of those particular allegations. However, as the Chief Justice has pointed out, there was evidence to point to an arguable case of justification even in relation to those particular allegations.

Because of the learned judge's conclusion as to the two particular allegations, he did not need to express a conclusion as to whether the defendant could make out two other allegations, namely that this was "the nursing home from hell" or that the proprietors had been cruel and callous. In my opinion it was nevertheless arguable that to the extent that those were statements of fact, the appellant might have a defence of justification. To the extent that they were comments it was arguable, if the facts were established, that the defence of fair comment might succeed.

It was the failure to apply Polly Peck (supra) at 1032 and Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412 which, in my opinion, justifies interference by this Court. I would accordingly allow the appeal and discharge the interlocutory injunction. The discharge of the injunction would render the suppression orders of the learned judge and of this Court superfluous, and they too should be revoked.