On 2 February 2010 the Supreme Court have granted permission to appeal in the “fair comment” case of Joseph v Spiller ([2009] EWCA Civ 1075).  The Notice of Appeal raises general issues about the law of fair comment and the applicant’s Written Submissions 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”.

The case has attracted a certain amount of media publicity – because, in the words of the “Guardian’” piece, “Media organisations hope judgment will clear away tangle of legal complexities around defence of fair comment”.   The facts are not without interest.  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, too book the band direct.  Mr Spiller was upset and put a notice on his company’s website saying that the Gillettes were “not professional enough to feature in our portfolio” and had told him that “contracts hold no water in legal terms”.

The Gillettes, Mr Joseph and two others, sued for libel.  Eady J held that a “fair comment” defence was not arguable as the allegations were fact not comment and there was no public interest ([2009] EWHC 1152 (QB)).  The Court of Appeal 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”.  The only “fact” referred to – that the claimants had advised the defendant that “contracts hold no water in legal terms” was plainly false.  The Court was also unimpressed by the defendants’ point that other generally indicated facts were truly stated.

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.

The case will provide the Supreme Court with an opportunity to consider the relationship between the defence of “fair comment” and the Strasbourg distinction between statements of fact and value judgments which covers much of the same ground.   In the Article 10 case law the concept of ‘value judgment’ has been widely construed including, for example, an allegation of lying (see eg Kulis v Poland (Judgment of 18 March 2008, para 51). Nevertheless, as with the approach of the Court of Appeal in the Joseph case it has been held that a value judgment must have a factual basis to support it (Jerusalem v. Austria (2003) 37 EHRR 43).  It remains to be seen whether the less focussed Strasbourg approach will find favour with the English courts.