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Two media organisations, Associated Newspapers Limited and Times Newspapers Limited, have sought permission to intervene in the  case of Spiller v Joseph, which is due to be heard by a five judge bench on 26 and 27 July 2010.  The Court’s “Case Details” are to be found here.  We reported on the granting of permission in this case in February 2010.   In October 2009 the Court of Appeal ([2009] EWCA Civ 1075) struck out the defence of fair comment holding 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 two media organisations, represented by Andrew Caldecott QC and Sarah Palin, have now sought permission to intervene on the basis that the case

“raises a number of fundamental issues of principle as to the core requirements of the defence of fair comment (better described as honest opinion) and, in particular, as to what facts qualify to support the opinion and to what extent they need to be indicated in the publication complained of, and to what extent they need to be proved at trial”

They indicate that they would seek to focus on three issues.  First, whether the statement that “the comment must explicitly or implicitly indicate, at least in general terms, what the facts are on which the comment is being made” is good law.  Second, whether the commentator has to know the facts at the time of publication?  Third, what is the correct interpretation of section 6 of the Defamation Act 1952.

The applicants suggests that the case is of “great significance for the media and the protectionof freedom of expression” and indicate that, if permission is given, other media entities might wish to be parties to the intervention.

Interventions by private bodies in private law actions are extremely rare.  We believe that the last time the media sought permission to intervene on an appeal was in McKennit v Ash [2006] EWCA Civ 1714.  In that case the point was dealt with by the Court taking note of the submissions, without a formal intervention being allowed.