The defendants in the libel case of Joseph v Spiller [2009] EWCA Civ 1075 are seeking the permission of the Supreme Court to appeal against the decision of the Court of Appeal striking out their defence of fair comment.  The Court of Appeal held that although the words complained of were comment, they did not explicitly or implicitly indicate the facts on which comment was being made and the single allegation of fact expressly made was untrue.  The claim was brought by the members of the trio, the Gillettes concerning an allegation that they were “not professional enough to feature in our portfolio”. 

The Notice of Appeal raises general issues about the law of fair comment.  The points are expanded in the applicant’s Written Submissions which 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”.  

 Reliance is placed on the contention that

there is a lack of public confidence in English defamation law and procedure and a perception that it does not provide a fair balance between freedom of expression and the protection of reputation. There is an ongoing debate on the subject in Parliament and elsewhere. London is perceived to be the libel capital of the world because our law and procedure is or is perceived to be so claimant-friendly. The Court of Appeal’s decision is a further shifting of the balance away from freedom of expression.

The defence of “fair comment”  (or in Strasbourg terms, the contention that the publication complained of consists in “value judgments” rather than statements of fact) has not been considered by the highest court since Telnikoff v Matusevitch ([1992] 2 AC 343), eighteen years ago.   It has been the subject of a number of first instance decisions, most recently in the case of Thornton v Telegraph Media Group [2009] EWHC 2863 (QB) where Sir Charles Gray struck out another fair comment defence.

The applicants are represented by David Price, Solicitors and Advocates who have made the Notice of Appeal and Submissions publicly available.  Their press release is here .  We commend them for making all these documents publicly available.