The Supreme Court handed down judgment in the case of Spiller and another v Joseph and others [2010] UKSC 53 on 1st December 2010. The case concerned the defence of fair comment in defamation proceedings, specifically the degree to which the facts giving rise to the comment must necessarily be referred to and be so accurately.

The respondents, a musical group, had engaged the appellants to promote their act. A reengagement clause was included in the contract. Several performances were arranged by the appellants, one of which, namely the Landmarc booking, was cancelled by the respondent. A booking relating to a particular restaurant venue was arranged by the appellants for the respondents, who subsequently agreed to perform again at the venue without the involvement of the appellants. A breach of the clause was alleged by the appellants, to which the respondents contended that ‘mearly (sic) a formality and holds no water in legal terms’. A post was uploaded by the appellants to their website which was available for six weeks in 2007 and again, inadvertently, between February and April 2008.

The appellants post stated they no longer represented the respondents because they were:

“not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract”

“following a breach of contract Craig Joseph who runs The Gillettes and Saturday Night at the Movies has advised 1311 Events that the terms and conditions of “contracts hold no water in legal terms” (27.03.07). For this reason it may follow that the artists’ obligations for your booking may also not be met….”

Proceedings were issued by the respondents. Before the High Court, the defences of fair comment and justification contended by the appellants were struck out. The Court of Appeal reinstated the defence of justification, though declined to reinstate the defence of fair comment.

Before the Supreme Court, two issues were raised. Firstly, whether matters can be relied on in providing a defence of fair comment where no reference is made to such matters in the comment. Second, whether matters which were referred to were capable of sustaining a defence of fair comment.

Highlighting the development of the defence, the court considered the history, notably the case of Tse Wai Chun Paul v Albert Cheng (2000) 10 BHRC 525. In that judgment, the court in its fourth proposition set out that a comment must state “at least in general terms” the facts on which a comment is founded, so that a reader can judge for themselves. This proposition had been subject to challenge. Determining whether this proposition could be reconciled with other authorities, the court found that the true meaning of the defence did not require that a reader be in a position to evaluate the comment for ourselves.

Rewriting the fourth proposition, the court instead stated that a comment:

“must explicitly or implicitly indicate, at least in general terms, the facts on which it is based”.

The court considered the prospect of reforming the law. Determining that the area merited examination by a law reform body such as the Law Commission, the court nonetheless altered the wording of the defence. Renaming the defence a “defence of honest comment”, the court noted the judicial approval of such a reform set out in Reynolds v Times Newspapers Ltd [2001] 2 AC 127.

Applying the law to the instant case, the court upheld the view of the Court of Appeal that the Landmarc booking could not be relied upon in support of a defence of fair comment. The court discussed the findings of the Court of Appeal, which held that the appellants could not rely on the restaurant booking as it had not been explicitly mentioned in the comment. The court held that the breach referred to was with regard to the restaurant booking, and the subsequent email, and though not particularised in the comment, and could be relied upon. The significance of any difference between the statement in the email and that quoted in the website post was a matter for a jury.

Allowing the appeal, the Supreme Court held that the defence should be reinstated.