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On Monday 26 July and Tuesday 27 July 2010, the UK Supreme Court will hear the appeal in the “fair comment” case of Spiller v Joseph. This the first libel case to the heard by the Supreme Court.   This will be the first defamation case heard by the highest court since the decision of the House of Lords four years ago in Jameel v Wall Street Journal ([2006] UKHL 44).  Over the last 10 years of its existence the House of Lords only considered 6 mainstream defamation appeals.  The defence of fair comment was last considered by the House of Lords in Telnikoff v Matusevitch ([1992] 2 AC 343).

The case will be heard by a 5 judge bench consisting of Lords Phillips, Rodger, Walker and Brown and Sir John Dyson. The case details can be found on the Supreme Court website here.

Background

The case concerns a “Motown tribute band”, the Gillettes who were booked by Bibi’s restaurant in Leeds.  The restaurant liked them but thought their agent, Mr Spiller was a “total tosser, ignorant, rude and aloof” and decided, in future, to book the band direct.   A later booking was made and Mr Spiller complained to the claimants that they were in breach of a “re-engagement” clause in the contract.  The claimants responded in an email dated 27 March 2007 which said, inter alia, that “your contract is mearly [sic] a formality and holds no water in legal terms”.

Mr Spiller was upset and put a notice on his company’s website which said, inter alia

“1311 Events is no longer able to accept bookings for this artist as The Gillettes c/o Craig Joseph are not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract …  Craig Joseph … has advised 1311 Events that the terms and conditions of “… contracts hold no water in legal terms” (27.3.07).  For this reason, it may follow that the artists’ obligations for your booking may also not be met”.

The Gillettes, Mr Joseph and two others, sued for libel.  The defendants raised substantive defences of justification, qualified privilege and fair comment.  Eady J held that the defences of qualified privilege and a “fair comment” were not arguable.  The latter was on the basis that the allegations were fact not comment and there was no public interest ([2009] EWHC 1152 (QB)).  In relation to “justification” there was an issue about the Conduct of Employment Agencies and Employment Business Regulations 2003 which is no longer live and will not be considered further.

Decision of Court of Appeal

On the “fair comment” point, the Court of Appeal (Pill, Hooper and Wilson LJJ, [2009] EWCA Civ 1075) held that the words were, indeed, comment and arguably in the public interest.  However, they rejected the defence of fair comment on the basis that it was not comment “on facts truly stated”.  As Pill LJ (who gave the only judgment) said

“The statement of fact in the words complained of, namely that the claimants had ‘advised’ the second defendant that “. . . contracts hold no water in legal terms” (20.03.07) is plainly false. The first claimant’s email referred not to contracts in general but to a particular contract, that between the claimants and the second defendant. A jury could not properly hold that the statement was true” [38].

The Court also considered the application of section 6 of the Defamation Act 1952 which provides

“In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expressions of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.”

The defendants relied on the breach of the re-engagement clause and an alleged breach of a contract in December 2005 (which was not mentioned in the words complained of).  Pill LJ pointed out that, in an analysis of the law of fair comment in the Hong Kong Court of Final Appeal case of Tse Wai Chun Pau v Albert Cheng ([2001] EMLR 31), Lord Nicholls had said

“the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded” [19].

Pill LJ’s conclusion was as follows:

45.  I have come to the conclusion that the defence of fair comment should not be permitted to stand, on an application of section 6, on the strength of an alleged breach of contract with a hirer in December 2005. The dispute arose in March 2007 following an alleged breach by the claimants of the re-engagement term in their contract with the second defendant. That breach gave rise to the publication which led to the present action.

46.  The breach of contract relied on for present purposes is of a contract with a hirer in 2005. As between the claimants and defendants, there were no repercussions in that contractual relations proceeded without complaint until March 2007. The words “following a breach of contract” in the words complained of cannot be taken as referring to the December 2005 breach. Nor, in my judgment, can the later words in the defendants’ comments. In my judgment, a jury could not properly base a finding of fair comment against the claimants, given the nature of the comment, upon a breach of contract in December 2005 14 months before the breach which led to the publication. On this ground, the judge’s decision to strike out the defence of fair comment is to be upheld.”

Defendants’ Contentions

The Notice of Appeal raises general issues about the law of fair comment.  In the  applicant’s Written Submissions Mr David Price, Solicitor Advocate, criticises the approach of the Court of Appeal as creating “a further level of technicality which is not only unnecessary but also significantly inhibits the defence”.

The defendants contend that the two alleged breaches of contract were referred to in the words complained of within the meaning of section 6 of the Defamation Act 1952 and that the “misquotation” of the Email of 27 March 2007 in the words complained of is not fatal to the fair comment defence because, where a defendant is entitled to rely on section 6 of the Defamation Act 1952 he is not required

  • To establish that a reader is in a position to judge for himself how far the comment is well founded or
  • To explicitly or implicitly indicate the facts on which the comment is being made.

As an alternative the defendants contend that there is no requirement that the facts supporting a comment should be referred to in the words complained of.  They suggest that the defence of fair comment should be simplified and liberalised so that, once the words have been found to be comment, the only other requirement should be the existence of one or more facts (or privileged information) on which an honest person could hold the relevant opinion.

Claimants’ Contentions

The claimants argue that the words complained of are only comment because they rely on a false quotation – that the claimants had stated that “. . . contracts hold no water in legal terms” – and that, as a result, the fair comment defence should not be permitted.   It is argued that, without the “false fact” the words complained of would not be comment at all.   In any event, where the facts on which the comment is based are in the words complained of, those facts must be “truly stated”.

The claimants argue that Article 10 does not assist the defendants because there is no public interest in making false statements.  Reliance is also placed on the Article 8 right to reputation.

Interveners

The case is notable for the fact that a number of media organisations have been granted permission to intervene in the case and have made written submissions in order to assist the court in clarifying the scope of the defence generally.  As far as we are aware, this is the first example of a purely “private” intervention in a private law case in the English courts.

The interveners’ submissions are discussed in a post on the Inforrm Blog. The interveners contend that the central issue of principle on the appeal is to what extent the facts relied on by the commentator must be set out, indicated or referred to in the words complained of.  They suggest a considerable broadening of the current position to permit the defendant to rely on any facts in existence at the time of publication which relate to the subject matter of the comment.

Some Observations

This is a simple “fair comment” case which the defendants (and the media interveners) are seeking to use as a vehicle to persuade the Supreme Court to engage in a wholesale “restatement” of the “fair comment” defence.  It is difficult to see how the case can be so used and the dangers of embarking on such an exercise in the context of an interlocutory appeal on a narrow issue are obvious.  Concerns have been expressed that the intervention – on behalf of a group of private parties with interests in common with the defendants – risks unbalancing the appeal.  The defendants and the interveners are both arguing for wide ranging law reform, whereas the claimants are simply dealing with the applicability of the defence on the (unusual facts) of the case before the court.

The question is whether the words complained of are “capable” of being understood by a jury as comment (as opposed to statements of fact).  As the claimants point out this exercise itself depends on looking at the factual content of what is said.  It is obvious that a statement may be a statement of fact or a comment depending on the context.  In the Cheng case Lord Nicholls quotes a well known passage from an Australian case

“To say that a man’s conduct was dishonourable is not comment it is a statement of fact.  To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment” (Myerson v Smith’s Weekly (1923) 24 SR (NSW) 20, 26).

In this case, if the claimants had, indeed, said “… contracts hold no water in legal terms” then the statement in the words complained of that the Gillettes might not meet their obligations would obviously be capable of being comment.  But when the facts are not “truly stated” then there is a strong argument that there is no comment and it is difficult to see how the position can be altered by the existence of other facts which are not referred to.  In other words, the case does not appear to engage the deeper issue of the extent to which facts must be “indicated or referred” to in a fair comment case.

As noted by the defendants and the interveners, in Strasbourg the distinction is not between “fact” and “comment” but between “facts” and “value judgments” and, if a statement is in the latter category, an interference will be unjustified unless there is “no sufficient factual basis” for the judgment.  Applying this approach it might be thought that Eady J’s approach at first instance is to be preferred – what the defendants are really saying is that the claimant take a generally cavalier attitude to contractual obligations and are not to be trusted in business dealings.  If so, the defendants would be confined to their defence of justification and the real issue in the action would then be the straightforward one of truth.  It might be thought that from a “public perspective” this would be a satisfactory result all round.   The big issues of fair comment can, perhaps, be resolved in another case or by statutory reform.