“A good name smells sweeter
than the finest ointment,”
according to Ecclesiastes,
and lawyers arguing
defamation claims. The
judgment of the Northern
Ireland Court of Appeal
overturning the decision of
a jury that awarded a
restaurant £25,000 in libel
damages for a rude review in
a newspaper confirms that
the law allows a critic to
say that the product is a
stinker.
Caroline Workman, restaurant
critic for The Irish News,
wrote in August 2000 that
she was unimpressed by
Goodfellas restaurant in
West Belfast. The cola drink
was “flat, warm and watery”.
The starters were made “with
the cheapest ingredients”.
The chicken marsala main
course was “inedible”, being
“coated in a sickly,
saccharine sauce that
clashed heavily with the
savoury food”. Workman’s
verdict was “stay at home”.
The Court of Appeal accepted
the submissions of Lord
Lester of Herne Hill, QC,
for the newspaper and held
that the jury had not been
properly directed by the
trial judge on the defence
of fair comment. The appeal
court emphasised three
points that mean that
restaurant and other critics
can celebrate at The Ivy the
difficulty claimants have in
suing for libel.
First, the Court of Appeal
said that the statements to
which the owner of the
restaurant objected were
comment, not assertions of
fact. A comment is broadly
defined as “something which
is or can reasonably be
inferred to be deduction,
inference, conclusion,
criticism, remark,
observation etc”.
Secondly, the court noted
that a person is entitled to
make a comment on a matter
of public interest where
sufficient facts on which
the comment is based are
true and can be identified
from the publication. Lord
Justice Campbell explained
that “once it was
established that the various
dishes and the cola on which
the reviewer commented were
served to her, there was a
sufficient substratum of
fact for any comment on them
that followed”.
Thirdly, Lord Chief Justice
Kerr pointed out that the
law does not require the
opinion to be expressed in
moderate terms. Indeed, “it
can be couched in pungent or
even offensive language” and
it may be “even grossly
exaggerated and prejudiced”,
so long as it is an opinion
honestly held.
So the libel courts will be
slow to accept Iago’s plea
in Shakespeare’s Othello:
He that filches from me my
good name/ Robs me of that
which not enriches him/ And
makes me poor indeed.” The
artist James Whistler would
not today recover even one
farthing in damages — as he
did in 1878 — for suing the
critic John Ruskin for
describing one of his
paintings as an act of
“impudence” in asking “two
hundred guineas for flinging
a pot of paint in the
public’s face”. In 1987 the
actress Charlotte Cornwell
won £11,500 in damages for
libel after the television
critic of The Sunday
People, Nina Myskow (or
the “Bitch on the Box”, as
she liked to be known),
viciously attacked her in
print: “She can’t sing, her
bum is too big and she has
the sort of stage presence
that jams lavatories.”
Cornwell would today be
advised to take it on the
chin and avoid forever being
known for Myskow’s unfair
views on the size of her
backside rather than for her
substantial body of work as
a serious actress.
The approach taken by the
Northern Ireland Court of
Appeal is supported by many
similar judgments in
American courts. When the
restaurant Mr Chow sued the
Gault/Millau Guide for
New York for libel for a
hostile review, Judge
Meskell stated in 1985 for
the United States Court of
Appeals, Second Circuit,
that a critic’s use of
metaphor and hyperbole did
not turn a comment into a
libellous statement of fact.
He cited the 1977 judgment
of Justice Dennis, for the
Supreme Court of Louisiana,
in a defamation claim
brought against a New
Orleans newspaper by Donald
J. Mashburn, owner of Maison
de Mashburn restaurant. The
court held that a newspaper
review was not defamatory
even though the critic had
referred to the sauce as
“yellow death on duck” and
had suggested that a fish
dish should be renamed
“trout à la green plague”.
It was “obvious” that a
reasonable person “would not
infer that these entrées
were actually carriers of
communicable diseases”. In
2004 Judge Diane A. Lebedeff,
in the Supreme Court of New
York, similarly dismissed a
libel claim brought against
the Zagat restaurant
guide by Lucky Cheng’s
restaurant in Manhattan,
which offered a drag queen
cabaret along with the menu.
“God knows you don’t go for
the food” was one of the
uncomplimentary statements
of opinion that did not give
a cause of action in libel.
In law, as in restaurant
reviews, one man’s meat is
another man’s poison. But
the judgment in the
Goodfellas case should
appeal to almost all tastes.
The only disappointing item
on the menu is the decision
of the Northern Ireland
Court of Appeal to remit the
case for a retrial. If he
succeeds, I’ll eat my wig.
With the chicken marsala.
The author is a
practising barrister at
Blackstone Chambers in the
Temple and a Fellow of All
Souls College, Oxford
