The Supreme Court’s first libel case, Spiller v Joseph (Case Details here) will be heard on 26 and 27 July 2010.  As we have mentioned in previous posts, a number of media organisations applied for and were granted permission to intervene to assist the court in clarifying the defence of “fair comment”.   Permission was granted on 29 June 2010 for the media to intervene by way of written and oral submissions limited to one hour.  The written Case for the Interveners has now been served.   This is a 37 page document with a six page Appendix setting out a “historical perspective”.The Interveners identify no less than fifteen issues arising in relation to the defence of “fair comment” and suggest six principles for the defence of “honest opinion” in libel law:

(1)   To qualify as “honest opinion” a statement must be recognisable in its context as opinion.  A statement of opinion may in context be an inference of fact drawn by the commentator from facts stated or indicated by him.

(2)   The opinion will qualify for protection if any person, however prejudiced, exaggerated or obstinate his views, could have honestly expressed it on the proved facts or on alleged facts protected by privilege.

(3)   The opinion must be on a matter of public interest

(4)   The defendant may rely on any proved facts or privileged material in existence at the time of publication, provided those facts relate to the subject matter of the comment.

(5)   If the defendant proves sufficient facts to satisfy the objective test then, subject to malice, the defence succeeds irrespective of whether facts referred to in the publication on facts relied on extrinsic to the publication are not proved or are misstated.

(6)   The defence is lost where a claimant proves that the defendant did not act honestly in publishing the opinion complained of

The interveners then go on to make detailed further submissions on issues directly arising on the appeal. The fourth of their suggested “principles” is the one directly relevant to the issues on the appeal.  They support the appellants in contending that the facts relied on by the defendant do not have to be referred to or indicated in the words complained of or even known to the defendant at the time of publication.  They do not, however, support the appellant’s contention that a defendant can rely on facts which did not exist at the time at which the comment was made.

This is the first time, as far as we are aware, that private parties have been permitted to intervene in purely private litigation.  It will be interesting to see whether and to what extent the Supreme Court addresses the issues of general principle which the media have sought to raise and allows itself to be drawn into a general exercise of clarification of the “fair comment” defence.