In November 2009 we blogged the permission application in the case of Joseph v Spiller ([2009] EWCA Civ 1075). The Notice of Appeal raised general issues about the law of fair comment and the applicant’s Written Submissions which criticise 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”.

We have now heard that the Supreme Court has granted permission to appeal. Permission was granted on 2 February 2010 by Lord Phillips, Lord Rodger and Lord Mance.  A copy of the Order granting permission can be found here.

This decision will be welcomed by the media – who are beginning to take a more positive view of the judiciary following their victories in the HM Treasury anonymity case (discussed here) and the first instance “John Terry” injunction application (see LNS v Persons Unknown [2010] EWHC 110 (QB)).

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).  As we pointed out in an earlier post, 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). Since that date, the defence has been considered at first instance and in the Court of Appeal on a number of occasions and has been arguably “liberalised”.  It will be interesting to see whether the Supreme Court will follow the appellants’ invitation to confirm and accelerate that trend.