Joseph and Others v Spiller and Another

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLORD PHILLIPS,LORD RODGER,LORD WALKER,LORD BROWN,SIR JOHN DYSON SCJ
Judgment Date01 December 2010
Neutral Citation[2010] UKSC 53

[2010] UKSC 53

THE SUPREME COURT

Michaelmas Term

On appeal from: 2009 EWCA Civ 1075

before

Lord Phillips, President

Lord Rodger

Lord Walker

Lord Brown

Sir John Dyson, SCJ

Spiller

and another

(Appellants)
and
Joseph

and others

(Respondents)

Appellant

David Price Solicitor

(Advocate of David Price Solicitors & Advocates)

Respondents

William Bennett

(Instructed by Pattinson & Brewer)

Interveners

Andrew Caldecott QC

Sarah Palin

(Instructed by Reynolds Porter Chamberlain LLP)

LORD PHILLIPS

Introduction

1

Mr David Price, the Solicitor-Advocate acting for the defendants, who are the appellants, at one point described the claim as a storm in a teacup. He was correct, but the storm is considerable. It involves consideration of one of the most difficult areas of the law of defamation, the defence of fair comment.

2

Over 40 years ago Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157, 171 referred to "the artificial and archaic character of the tort of libel". Some 20 years on Parker LJ in Brent Walker Group plc v Time Out Ltd [1991] 2 QB 33, 46 commented on the absurdity of the "tangled web of the law of defamation". Little has occurred in the last twenty years to unravel the tangle, and this is particularly true of the defence of fair comment. Statutory reform has been proposed in the form of Lord Lester of Herne Hill's private member's Defamation Bill and the Ministry of Justice has undertaken to publish a draft Defamation Bill early next year. Both Mr Price, and Mr Caldecott QC, who has intervened on behalf of and with the support of important newspaper and broadcasting interests, have invited the court to use this appeal as a vehicle for developing the common law defence of fair comment in a manner which goes well beyond what is necessary to resolve the issues raised by this appeal. What are currently the elements of the defence of fair comment?

3

Sitting in the Court of Final Appeal of Hong Kong in Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777 Lord Nicholls of Birkenhead was concerned with the ingredients of malice that can defeat the defence of fair comment. Before considering that question he set out at paras 16-21, under the heading "Fair Comment: The Objective Limits" what he optimistically described as five "non-controversial matters", which were "well established" in relation to the defence of fair comment:

"16. … First, the comment must be on a matter of public interest. Public interest is not to be confined within narrow limits today: see Lord Denning in London Artists Ltd v Littler [1969] 2 QB 375, 391.

17. Second, the comment must be recognisable as comment, as distinct from an imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege. Much learning has grown up around the distinction between fact and comment. For present purposes it is sufficient to note that a statement may be one or the other, depending on the context. Ferguson J gave a simple example in the New South Wales case of Myerson v. Smith's Weekly (1923) 24 SR (NSW) 20, 26:

'To say that a man's conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.'

18. Third, the comment must be based on facts which are true or protected by privilege: see, for instance, London Artists Ltd v Littler [1969] 2 QB 375, 395. If the facts on which the comment purports to be founded are not proved to be true or published on a privilege occasion, the defence of fair comment is not available.

19. Next, the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded.

20. Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: see Lord Porter in Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 461, commenting on an observation of Lord Esher MR in Merivale v Carson (1888) 20 QBD 275, 281. It must be germane to the subject-matter criticised. Dislike of an artist's style would not justify an attack upon his morals or manners. But a critic need not be mealy-mouthed in denouncing what he disagrees with. He is entitled to dip his pen in gall for the purposes of legitimate criticism: see Jordan CJ in Gardiner v Fairfax (1942) 42 SR (NSW) 171, 174.

21. These are the outer limits of the defence. The burden of establishing that a comment falls within these limits, and hence within the scope of the defence, lies upon the defendant who wishes to rely upon the defence."

4

These five propositions relate to elements of the defence of fair comment in respect of which the burden of proof is on the defendant. Cheng was primarily concerned with a sixth element – absence of malice. A defendant is not entitled to rely on the defence of fair comment if the comment was made maliciously. The onus of proving malice lies on the claimant.

5

The second proposition. This merits elaboration. Jurists have had difficulty in defining the difference between a statement of fact and a comment in the context of the defence of fair comment. The example in Myerson (1923) 24 SR (NSW) 20, 26 cited by Lord Nicholls is not wholly satisfactory. To say that a man's conduct was dishonourable is not a simple statement of fact. It is a comment coupled with an allegation of unspecified conduct upon which the comment is based. A defamatory comment about a person will almost always be based, either expressly or inferentially, on conduct on the part of that person. Judges and commentators have, however, treated a comment that does not identify the conduct on which it is based as if it were a statement of fact. For such a comment the defence of fair comment does not run. The defendant must justify his comment. To do this he must prove the existence of facts which justify the comment.

6

The fifth proposition. The requirement to show that the comment is germane to the subject-matter criticised and is one that an honest person could have made, albeit that that person may have been prejudiced, or have had exaggerated or obstinate views, is one that is bizarre and elusive. I am not aware of any action in which this has actually been an issue. I shall describe this element as "pertinence".

7

The fourth proposition. It is this proposition that is directly in issue in this appeal. The facts on which the defendants wish to rely in support of their plea of fair comment include a fact to which they made no reference in the publication complained of. The claimants say that they cannot rely on this, for this would run foul of Lord Nicholls' fourth proposition. Mr Price submits that far from being well established, that proposition is contrary to authority and wrong. Mr Caldecott supports that submission. The important issue raised by this appeal is thus the extent to which, if at all, the defence of fair comment requires that the comment should identify the matter or matters to which it relates.

The facts

8

The claimants are members of the musical acts "The Gillettes" and "Saturday Night at the Movies". They perform in venues across the country, at wedding receptions and other events. The first claimant is a singer in both acts and is their de facto manager. The first defendant was at all relevant times one of the two directors (the other being his wife, Christina) of the second defendant, which at all relevant times provided entertainment booking services and advertised acts and performers on its website for weddings, drinks receptions, corporate entertainment and other events.

9

On 13 October 2004 the first claimant agreed that the claimants' acts could be promoted by the defendants. This involved completing an online agreement form. The agreement simply permitted the defendants to promote the claimants. It did not require the claimants to take up any booking that was offered to them. The agreement form contained a link to the terms and conditions that would apply in the event that a booking was made.

10

Several performances were subsequently arranged by the defendants. These included a booking at the Landmarc Hotel arranged in December 2005 ("the Landmarc booking"). This was cancelled by the first claimant shortly after it was made. The first claimant claims that this was because of the existence of a previous booking, which he had over-looked. This is denied by the defendants. They contend that the claimants cancelled this booking because they had received a better offer.

11

On 19 April 2006 the first claimant signed a booking agreement in relation to a performance on 31 December 2006 at Bibis, a restaurant in Leeds ("the Bibis booking"). The terms and conditions included a re-engagement clause, which provided that any further bookings at the venue in the following 12 months should be through the second defendant. The first claimant arranged a further performance at Bibis on 9 May 2007 directly with the venue. He admits that he was aware of the re-engagement clause. He says that he deliberately decided not to inform the first defendant of the booking because the new manager of Bibis would not deal with the first defendant (the latter allegation is denied by the defendants).

12

When the first defendant discovered this on 27 March 2007 he sent an email to the first claimant in the following terms:

"Craig

It appears you have taken a booking directly with Bibis. We will be instructing our legal team to deal with this. I will also be discussing this with the Musicians Union as it does appear that, aside from having no commitment to those that give you work, you are also not able to abide by the terms of your contract.

'The...

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