Full case report

Joseph & others v Spiller & another

Reference [2009] EWCA Civ 1075
Court Court of Appeal (Civil Division)

Judge Pill, Hooper, Wilson LJJ

Date of Judgment 22 Oct 2009


Summary

Defamation – Fair comment – s.6 Defamation Act 1952 – Public interest – Words capable of being comment – Justification – Breach of contract – Employment Agencies & Employment Business Regulations 2003


Facts

The Claimants were a musical act. The Second Defendant, which was owned and run by the First Defendant, acted as an agent securing work for them.
The Defendants criticised the Claimants on their website, principally by quoting from an email from the First Claimant in a manner which made it appear that the Claimants would not abide by contracts.
At first instance the defences of qualified privilege and fair comment, as well as parts of the justification defence, were struck out. The Defendants appealed in regard to the decisions concerning fair comment and justification.


Issue

(1) Whether the words complained of were capable of being comment;
(2) Whether they were in the public interest (in the sense required by the law of fair comment);
(3) Whether the pleaded comment could arise from such of the facts included or referred to in the words complained of as were true;
(4) Whether, in regard to an agreement between the Claimants and the Second Defendant, by reason of the failure of the Defendants to incorporate the terms of the contract with the Claimants in one document, there had been a breach of contract.


Held

(1) By reason of their juxtaposition with the stated facts, the words complained of were capable of being comment.
(2) The comment was arguably in the public interest because the Claimants offer their services to the public.
(3) Once one excluded the false fact in the words complained of concerning what the First Claimant had said in an email, the remaining fact referred to concerned an alleged breach of contract which took place in December 2005 (14 months before the alleged breach of contract which caused the publication complained of). On an application of s.6 Defamation Act 1952, the defence of fair comment could not be permitted to subsist by reason of an alleged breach which took place a considerable period of time before the breach which had prompted the publication of the words complained of.
(4) Applying the Regulations, the fact that the contract term in issue was set out in a separate document did not cause it to be unenforceable; thus that term could be breached


Comment

A relatively rare consideration of s.6 Defamation Act 1952 which concludes that, in essence, the word “refer” in that section bears its ordinary meaning.


Download this Judgment


Instructing Solicitors

Howard Kennedy for the Claimants; David Price & Co for the Defendants