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Petitioner: JOSEPH and others VS Respondent: SPILLER and others
Court Name: Supreme Court of United Kingdom Judge(s): Lord Dyson, Lord Walker, Lord Phillips, Lord Brown, Lord Rodger Title: JOSEPH and others vs SPILLER and others Case No.: Date of Judgment:2010-12-01 Reported As: 2012 SCMR 1791 Result: Appeal allowed
JUDGMENT
JUDGMENT ' LORD PHILLIPS P.---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 defense of fair comment. 2. Over 40 years ago Dip lock 14 in Slim v Daily Telegraph Ltd [1968] 1 All ER 497 at 504, [1968] 2 QB 157 at 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 All ER 753 at 761, [1991] 2 QB 33 at 46 commented on the absurdity of the 'tangled web of the law of defamation'. Little has occurred in the last 20 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 defense 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 defense of fair comment? 3. Sitting in the Court of Final Appeal of Hong Kong in Cheng Albert v Tse Wai Chun Paul (2000) 10 BHRC 525, [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 (2000) 10 BHRC 525 at 529, [2001] EMLR 777 (paras 16-21) under the heading 'Fair Comment: The Objective
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Limits' what he optimistically described as five 'non-controversial matters', which were well established' in relation to the defense of fair comment:-- `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 All ER 193 at 198, [1969] 2 QB 375 at 391]. ' Second, the comment must be recognizable as comment, as distinct from an imputation of fact. If the imputation is one of fact, a ground of defense 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 at 26: "To say that a man's conduct was dishonorable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonorable is a statement of fact coupled with a comment." ' 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 All ER 193 at 201, [1969] 2 QB 375 at 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 defense of fair comment is not available, ' 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. ' 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 at 461, commenting on an observation of Lord Esher MR in Merivale v Carson (1888) 20 QBD 275 at 281. It must be germane to the subject matter criticized. 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 at 174. ' 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's case 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 tact and a comment in the context of the defence of fair comment. The example in Myerson v Smith's Weekly (1923) 24 SR (NSW) 20 at 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.
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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's 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 overlooked. 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 e-mail 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.
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"The client and artist agree that subsequent bookings within a 12 month period, from any artist provided by 1311 Events can only be booked directly with 1311 Events." ' Forthwith, we will not be representing you any longer as we can only work with professional artists who can accept our terms and conditions. Kind regards Jason' 13. The first claimant's response on the same day prompted the first defendant to publish on the second defendant's website the posting which is the subject of the claim (the posting). Only a small part of the first claimant's e-mail was set out in the posting and it was partially misquoted. The full e-mail read as follows:- 'Hi Jason ' It appears you do not know the meaning of freelance, that is what all my shows are. You are part of a cog which supplies all agents and artistes [sic] alike with work, one does not work without the other. ' You came to me Jason after viewing the quality of our show, your contract is mearly [sic] a formality and holds no water in legal terms. You should consider looking after your clients/venueus [sic] better then may be you would not lose them. Do not be fooled into thinking you can lose venues and reep [sic] the benefits from others hard work, that does not hold any legal value any more. You [sic] offer of work to my shows over the years was minimal and neither helped nor hindered our diary. ' I am not performing in the show, and since your agreement and terms was with me there are no grounds for your terms and conditions. ' Thers [sic] is one outstanding show with you guys Aug 4th 07 we will honour the show as we have all the other shows through your agency, providing you make sure the balance fee 900.00 + vat. TOTAL = 1057.50 is in our account 2 weeks prior to the show date, thus avoiding any cancellation [sic] of the show Please confirm this can be organised within 7 days or I will cancel the date. ' I look forward to any legal trysts. Kind regards ' Craig (On behalf of the Gillettes)' 14. The words of the posting were:- `1311 Events is no longer able to accept bookings for this artist as the Gillettes c/o Craig Joseph are not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract ... What we say: ' The show is an enjoyable soul and Motown experience which is popular for many events throughout the UK. However, 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" (27-3-2007). For this reason, it may follow that the artists' obligations for your booking may also not be met. In essence, Craig Joseph who performs with/arranges bookings for the Gillettes and Saturday Night at the Movies may sign a contract for your booking but will not necessarily adhere to it. We would recommend that you take legal advice before booking this artist to avoid any possible difficulties. ' Instead we recommend any of the following professional bands and artists ...' 15. The posting was accessible for six weeks between April and May 2007 when it was removed following a letter from Equity on behalf of the claimants. The claimants allege that they lost a booking as a result of it. The defendants do not admit this. 16. On 4th August, 2007 the claimants performed at the wedding of Michael Coombes (the Coombes booking). This booking had been arranged by the defendants before the rupture between the parties in March. Shortly before the wedding the first claimant agreed to play for a further 30 minutes for 275 (cash), without value added tax (VAT) or the defendant's commission that was charged on the main fee. The defendants allege that this was to evade their commission
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and tax. The claimants allege that they did not, in the end, perform the extra 30 minutes, which is why it does not appear on their records. 17. In February 2008 the posting was inadvertently uploaded to a part of the defendant's site where it could be accessed and it remained there until April 2008. The posting was removed following a solicitor's letter on behalf of the claimants. The claimants allege that they lost a further booking in consequence. The defendants allege that this claim has been manufactured by the claimants. 18. The claimants attach great significance to the difference between their e-mail of 27 March 2007 and the brief summary of this in the defendants' posting. They submit that their e-mail merely challenged the validity of the defendants' re-engagement clause and cast no doubt on the claimants' respect for their bookings with their customers. The defendants' e-mail, however, suggested that the claimants had challenged the validity of contractual obligations in general, so that they could not be trusted to honor their engagements. The claimants contend that this misrepresentation of their e-mail was deliberate. ' THE PLEADINGS 19. The amended particulars of claim allege that the defendants' posting bore the following meaning:- `the claimants are grossly unprofessional and untrustworthy and will not, and/or are unlikely to, honour any bookings made for them to perform either as The Gillette's or as Saturday Night at the Movies.' (Paragraph 8.) 20. The amended defense pleads justification in relation to the following meaning:- `Meanings that the defendant alleges to be true 9.1 The first claimant on behalf of the claimants has:- 9.1.1. Conducted himself in such a manner so as to entitle the defendants to conclude that "The Gillettes" were not sufficiently professional to feature in the second defendant's portfolio. 9.1.2. Breached the terms of agreements with the second defendant. 9.1.3. Demonstrated a contemptuous, cavalier and unprofessional attitude to the contractual obligations as evidenced by his email of 27 March 2007. 9.2 In the circumstances, the claimants may not necessarily adhere to the terms of booking agreements signed by the first claimant.' (Paragraph 9.) 21. The facts relied on in support of the plea of justification are: (a) by-passing the defendants when accepting a re-engagement at Bibis; (b) the first claimant's e-mail of 27 March 2007; (c) the cancellation of the Landmarc booking when something better had come up. 22. The defense then pleads fair comment in relation to the following parts of the posting:-- "The Gillette's" c/o Craig Joseph are not professional enough to feature in our portfolio ... It may follow that the artists' obligations for your booking may also not be met. In essence, Craig Joseph who performs with/arranges bookings for "The Gillette's" and "Saturday Night at the Movies" may sign a contract for your booking but will not necessarily adhere to it.' ' 'The facts relied upon in relation to the plea of justification are equally relied on as facts upon which the comment was based. ' THE PROCEEDINGS BELOW 23. On 27 April 2009, just over one month before the date fixed for the trial, the claimants issued an application for summary judgment, alternatively for an -order striking out the defences, on the basis that there were no issues to go to the jury. Thus began the tortuous interlocutory proceedings that have culminated in this appeal. With hindsight it is apparent, and with a little foresight it should have been apparent at the time, that this relatively modest dispute raised issues of complexity, some of which might not prove decisive, and that the best course would be to proceed
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with the substantive hearing before a judge alone. In the event Eady J gave judgment on the claimants' application on 22 May 2009 ([2009] EWHC 1152 (QB), [2009] All ER (D) 215 (May)). 24. One issue, which occupied much time before the judge and the Court of Appeal, but which is no longer live, related to the effect on the claimants' contractual obligations of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, SI 2003/3319. Neither party had been aware of these at the material time and it is not necessary to say any more about them. 25. The claimants sought to persuade Eady J to strike out the particulars of justification on the ground that those particulars could not possibly justify the defendants' posting. The judge declined to do so, holding that the plea of justification was sufficiently arguable to be a matter that had to be left to the jury. He gave the defendants permission to add to their particulars of justification conduct of the claimants that post-dated the defendants' posting. This related to the Colombes booking. The allegation was that the claimants had offered to play for an additional 30 minutes for a cash payment in respect of which they intended to evade both VAT and the claimants' commission. 26. The claimants were, however, successful in persuading Eady J to strike out the defense of fair comment. He gave the following reasons for doing `[58] The defense of fair comment is attacked on three grounds. First, it is said that no part of the words complained of is capable of being classified as comment; that is to say, a jury would be perverse to come to such a conclusion. It is necessary to remember, in this context, that the defense is wide enough to embrace not only expressions of opinion in the more common sense but also, in some cases, inferences of fact where it is clear they are not objectively verifiable: see e.g. Gatley on Libel and Slander (11 edn 2008) para 12.7. For example, where a conclusion is expressed by the commentator in circumstances where it is obvious to the reader that he cannot know the answer (e.g. In relation to someone's secret motives); it would be taken as comment rather than fact. [59] Here, the real sting of the libel (although this may well be for the jury to decide in due course) would appear to be the allegations that the claimants take a generally cavalier attitude to contractual obligations and are not to be trusted in business dealings. It seems to me that they are factual in character rather than the expression of opinions. All that is specifically relied upon is the allegation of a breach, which forms the subject matter of the justification defence. It may be thought, therefore, to add very little. [60] Also I cannot see that a (one-sided) summary of a private contractual dispute can be said to constitute a matter of public interest. (I have already ieferred to the misquotation from the first claimant's e-mail of 27 March, where the impression was given that he was speaking of contracts in general rather than of the particular re-engagement term sought to be imposed by the defendants. This does not arise for consideration in the present context, although it would plainly be relevant if the plea of fair comment were to survive in determining whether or not it had been made with reference to "facts truly stated".)' 27. The Court of Appeal [2009] EWCA Civ 1075, [2010] ICR 642 declined to reinstate the defence of fair comment. Pill U gave the only reasoned judgment, with which Hooper and Wilson LJJ agreed. Pill U held that the words in their posting identified by the defendants as comment were, indeed, comment rather than allegations of fact (see [29]-[31]). Pill U did not refer to authorities which indicate that; if there is an issue of whether words are fact or comment, this is a matter for the jury. His finding can be upheld on the basis that the words in .Question are unarguably comment, and it has not been challenged in this court. 28. So far as concerns the question of whether the comment related to a matter of public interest, Pill U said this, at [37]:-
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`I see no merit in the argument that the comment cannot constitute a matter of public interest. Those in the business of entertaining the public, a business in which many people are engaged, will be concerned, when serving the public, to know which artists can be relied on to perform their contracts and which cannot. The comment is arguably in the public interest.' ' The last sentence suggests that Pill U considered that this issue was one for the jury, whereas the authorities indicate that it is a question of law for the judge. The claimants have, however, treated Pill LJ's ruling as a finding that the subject matter of the comment was a matter of public interest' and have not challenged that finding. 29. Pill LI accepted a point raised by the claimants by a respondent's notice. They contended that the defence of fair comment was bad because the comment was founded on the statement allegedly made by the claimants in their e-mail of 27 March 2007, which was falsely described in the defendants' posting. They argued (i) that a defense of fair comment can only be founded on a comment which refers to or identifies the facts on which the comment is based and (ii) that those facts must be true. 30. The defendants argued that, by virtue of the provisions of section 6 of the Defamation Act 1952, they could also rely to support their comment on the breach by the claimants of the Landmarc contract in 2005. In rejecting this submission Pill U applied the fourth proposition of Lord Nicholls in Cheng's case:- 140] The words complained of however, do also allege that the claimants have "not been able to abide by the terms of their contract" and that the email was written "following a breach of contract", thus possibly attracting an application of s 6 of the Defamation Act 1952. Under the heading "Fair Comment", the section provides: "In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expressions of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved." ... [42] Clearly, the defendants' real complaint against the claimants was a breach by the claimants of the re-engagement clause in the contract between the claimants and the second defendant. There is no reference to that in the words complained of. The contract is not identified in the publication, still less the term allegedly breached. Moreover, the single specific allegation of fact in the words complained of is plainly untrue. [43] Mr. Price relied, in a s 6 context, on the more general allegations repeated above. In para 10.2 of the re-amended defence, the defendants rely on the facts set out at in para 9, other than in para 9.16. Paragraphs 9.1 to 9.12 refer to the contract between the claimant and the second defendant and to the re-engagement term. Paragraphs 9.13 and 9.14, however, refer to an alleged breach of a booking arrangement with Landmarc in Bournemouth in December 2005. That alleged breach was "sufficiently identified" in the words complained of, it was submitted. [44] As Lord Nicholls stated in Cheng's case at para 19, the comment must explicitly or implicitly indicate, at least in general terms, what…
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