As we mentioned on 11 June 2010, Associated Newspapers Limited and Times Newspapers Limited sought permission to intervene in the forthcoming Supreme Court fair comment appeal of Spiller v Joseph (involving the Motown tribute band, the “Gillettes”, pictured right). On 17 June 2010, Guardian News and Media Limited also applied to intervene. On 21 June 2010, the solicitors for the respondents wrote to the court indicating that they opposed the application on the grounds that it would increase costs and as the interveners were seeking to advance similar arguments to the appellants, effectively “ganging up” on the claimants.
Notwithstanding the claimant’s opposition, the Supreme Court has today given the media companies permission to intervene by way of both written and oral submissions, limited to one hour. This is a highly unusual course – interventions are very rare in “private law” cases and, historically, have only been permitted where wider issues of, for example, statutory construction or professional conduct arise. We are not aware of any previous libel case in which the media have been permitted to intervene.
We reported on the granting of permission in this case and its listing. In October 2009 the Court of Appeal ( 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 case is due to be heard by a the UK Supreme Court on 26 and 27 July 2010. The Supreme Court’s “Case Details” are to be found here.
Unusual though it may be for the Supreme Court to have permitted the media to intervene, more importantly, does it not create a real risk of injustice? Is it reasonable to expect the claimants – the respondents to the appeal (i.e. it is not their wish to be in the Supreme Court) – to address any arguments raised by the media interveners that are extraneous to the issues that arise between the parties? And if the claimants choose not to deal with such arguments, who is going to present the other side to the media’s story? Having permitted the media to intervene, surely it would be right for the Court to even things up and appoint an amicus curiae?