Berkoff v Burchill [1996] EWCA Civ 564 (31st July, 1996)

Actor Steven Berkoff sued journalist Julie Burchill and Times Newspapers for defamation after articles described him as 'hideously ugly' and compared his appearance unfavourably to Frankenstein's monster. The Court of Appeal held by majority that such statements were capable of being defamatory as they could expose him to ridicule and lower his standing.

Facts

The plaintiff, Steven Berkoff, is a well-known actor, director and writer. The first defendant, Julie Burchill, was a journalist writing for the Sunday Times (published by the second defendant, Times Newspapers Limited). In January 1994, Miss Burchill wrote that ‘film directors, from Hitchcock to Berkoff are notoriously hideous-looking people.’ In November 1994, reviewing the film ‘Frankenstein’, she described the Creature as ‘a lot like Stephen Berkoff, only marginally better-looking.’ Mr Berkoff issued proceedings claiming the articles meant he was ‘hideously ugly’ and were defamatory.

Procedural History

The defendants applied under RSC Order 14A for determination of a preliminary question: whether the meaning pleaded was capable of being defamatory. Sir Maurice Drake, sitting as a High Court Judge, dismissed the application, holding with hesitation that describing someone as ‘hideously ugly’ was defamatory as it would cause people to shun the plaintiff. The defendants appealed.

Issues

The central issue was whether a statement that someone is ‘hideously ugly’ is capable in law of being defamatory. The court considered whether such words could expose the plaintiff to ridicule or cause him to be shunned or avoided.

Judgment

Lord Justice Neill (Majority)

Lord Justice Neill reviewed numerous definitions of ‘defamatory’ from case law, noting that words may be defamatory if they hold a person up to contempt, scorn or ridicule, or tend to exclude him from society, even without imputing moral fault. He emphasised that the court should exercise great caution before concluding words are incapable of defamatory meaning. Considering the context and Mr Berkoff’s profession as an actor in the public eye, he concluded that the words were capable of lowering Mr Berkoff’s standing and making him an object of ridicule. He dismissed the appeal.

Lord Justice Phillips (Majority)

Lord Justice Phillips distinguished between statements of fact about physical condition (which can be defamatory) and subjective statements about ugliness. While he doubted that calling someone ugly would cause people to shun them, he held that where the issue is whether words damage reputation by exposing someone to ridicule, the question must be considered in light of the actual words and circumstances used. The words in this case were plainly intended to convey the message by way of ridicule, and whether they damaged Mr Berkoff’s reputation was a matter for the jury.

Lord Justice Millett (Dissenting)

Lord Justice Millett dissented, arguing that the words were an attack on appearance, not reputation. He stated that defamation protects reputation, and ugly people are not generally shunned in society. He considered the proceedings frivolous, stating that people must be allowed to poke fun at one another without fear of litigation, and would have allowed the appeal and dismissed the action.

Implications

This case confirmed that statements about physical appearance can be capable of being defamatory where they expose the plaintiff to ridicule, particularly considering the context and the plaintiff’s profession. It emphasised that defamation encompasses all aspects of a person’s standing in the community, not merely attacks on moral character. The decision demonstrates judicial reluctance to strike out defamation claims on preliminary issues where context and circumstances are relevant to determining whether words are defamatory.

Verdict: Appeal dismissed by a majority (Neill LJ and Phillips LJ; Millett LJ dissenting). The words complained of were held to be capable of being defamatory and the matter should proceed to trial for determination by a jury.

Source: Berkoff v Burchill [1996] EWCA Civ 564 (31st July, 1996)