Reference:  UKSC 53
Court: The Supreme Court
Judge: Lords Phillips, Rodger, Walker and Brown and Sir John Dyson
Date of judgment: 1 Dec 2010
Summary: Defamation - Fair comment - Extent to which defence requires that the comment should identify the matter to which it relates
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Instructing Solicitors: Pattinson & Brewer for the Claimants/Respondents; David Price for the Defendants/Appellants; Reynolds Porter Chamberlain for the media interveners
Cs were a musical act. D2, which was owned and run by D1, acted as an agent securing work for them.
On their website, Ds purported to quote from an email from C1 and suggested that Cs would not abide by contracts. The original email sent by C1 to D1 had stated that Cs’ contract with D2 did not hold water. However, on the website D1 quoted C1 as having said that “contracts” hold no water.
At first instance, Eady J struck out the fair comment defence because the words in issue were not capable of being comment, and because the comment was not upon a matter of public interest.
The Court of Appeal overturned these decisions but nevertheless upheld the order striking out the defence on the ground that the facts upon which the comment was said to be based were not sufficiently set out in the words complained of. It concluded that the only breach of contract referred to in the words complained of was that which was alleged to have taken place concerned a booking for Cs at the Landmarc Hotel. As this breach was said to have taken place 14 months before the breach which prompted the publication complained of, it could not be relied upon as supporting the comment in issue. There was no nexus between it and the comment. Ds could not rely upon the breach which had actually prompted the publication of the words complained of because that was not referred to in the publication. That alleged breach had concerned the breach of a term in the contract between the Cs and D2 that once introduced to a new client, they would only undertake work for that client where D2 acted as their agent. This was known as the ‘Bibis breach’. Thus the Court of Appeal concluded that the comment was not based on any fact referred to or set out in the words complained of, hence the upholding of the order to strike out the defence.
Ds appealed to the Supreme Court. Associated Newspapers, Guardian News and Media and Times Newspapers were granted permission to intervene to assist the court in clarifying the defence of fair comment.
(1) 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; whether the proposition set out by Lord Nicholls in Tse Wai Chun Paul v Albert Chen  EMLR 777 was correct, that the fair comment defence required that “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 ought to be in a position to judge for himself how far the comment was well founded.”
(2) Whether the Ds’ fair comment defence ought to be reinstated and to what degree.
Restating the law of fair comment and allowing the appeal:
(1) The test set out by Lord Nicholls is to be restricted so that it merely requires that “the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.” There is no requirement that the reader ought to be able to judge for himself how far the comment was well founded. The defence is to be renamed as ‘honest comment’.
(2) Ds’ fair comment defence would be reinstated. Whilst it could not rely upon the breach concerning the Landmarc Hotel booking, it could rely upon the Bibis breach and upon the email which had been misquoted in the publication complained of as potential support for the comment. Ds alleged that the words used in the email displayed a contempt for contracts. Under the new formulation of the test regarding the extent to which the facts supporting the comment in issue needed to be referred to in the words complained of, these facts were sufficiently referred to (although there was room for arguing that the email was not referred to for this purpose because it was misquoted in the words complained of) so as to offer potential support for the comment.
The test applied by Lord Nicholls meant that comments would be fair because, whilst the commentator had a license to make objectively unreasonable comments, the reader was able to see the disparity between the fact and the comment which sprang from it. Thus the impact of any defamation was limited. Under the new test, the commentator is not required to provide so much information in order for the defence to succeed; he or she need only “identify … in general terms what it is that the comment is about”. This does retain an element of fairness. Lord Phillips gave the example of a comment to the effect that a barrister is a disgrace to his profession. Those who read such a criticism ought to know why the commentator has reached such a conclusion, eg whether it was because he is often late for court or because he has not dealt honestly with the court, if the defence were to be available. This would retain an element of fairness in regard to the treatment of the person defamed.
In the leading judgment, Lord Phillips considered and rejected a number of reforms suggested by Ds to the law of fair comment. However, he did observe that the time is right to recognise that trial by jury in defamation claims is no longer desirable given the complexity of the issues which arise.
Lord Phillips also gave the comment defence its second new name this year, saying that it should be renamed ‘honest comment’ just eight months after the Court of Appeal had said in Singh that it ought to be known as ‘honest opinion’.