In an earlier post we noted that on 2 February 2010 the Supreme Court granted permission to appeal in the “fair comment” case of Joseph v Spiller ([2009] EWCA Civ 1075).  Although the case has not, for reasons which we are unable to explain, reached the Supreme Court’s list of “current cases” it is now reported that the appeal has been listed to be heard on 26 and 27 July 2010.

As we previously mentioned, 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 defence of “fair comment” is, of course, in the news at the moment due to the victory of Mr Simon Singh in the case of British Chiropractic Association v Singh [2010] EWCA Civ 350.  (see our post on the decision).  In that case the Court of Appeal expressed the view that the defence should be renamed “honest opinion” (see para 36).   It will be interesting to see whether the Supreme Court go along with that suggestion and whether the approach taken by the Court of Appeal in that case finds favour.

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.

As in the Singh case, 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).  That case was seen as a victory for freedom of expression and a liberalisation of the rules governing Reynolds privilege.  It will be interesting to see whether the Supreme Court now takes the same approach to the defence of “fair comment/honest opinion”.