Spiller & Anor v Joseph & Ors

Factual and Procedural Background

Members of two musical acts, hereafter “Band A” and “Band B,” (collectively, “Plaintiffs”) entered an online promotion arrangement with “Company A,” an entertainment-booking agency directed by “Defendant 1” and his spouse (together, “Defendants”). The agreement allowed Company A to market the bands without obliging Plaintiffs to accept every engagement.

Key incidents followed:

• December 2005 – “Hotel A” booking: Plaintiffs cancelled a performance. Defendants say this was for a more lucrative offer; Plaintiffs say an existing commitment had been overlooked.
• April 2006 – “Venue A” booking: Plaintiffs signed a contract containing a re-engagement clause requiring all repeat bookings to go through Company A.
• March 2007: Plaintiffs arranged a further appearance at Venue A directly, breaching the re-engagement clause. Defendant 1 emailed Plaintiffs alleging contract breach; Plaintiffs’ reply disputed the clause’s validity.
• March 2007 – Website posting: Defendants published a notice on Company A’s website stating Plaintiffs were “not professional” and might not honour contracts. The notice remained online for six weeks and was briefly reposted in 2008.
• Litigation: Plaintiffs sued for libel. Defendants pleaded justification and fair comment. Judge Eady struck out fair comment but allowed justification to proceed. The Court of Appeal upheld that decision. Defendants appealed to the Supreme Court, seeking reinstatement of the fair-comment defence.

Legal Issues Presented

1. Whether a defendant may invoke the defence of fair comment when relying on facts that were not identified, even in general terms, within the impugned publication.
2. Whether the specific facts did referenced—namely the breach at Venue A and Plaintiffs’ email—were capable of sustaining a defence of fair comment (“honest comment”).

Arguments of the Parties

Appellants’ (Defendants’) Arguments

• Section 6 of the Defamation Act 1952 allows reliance on any facts “alleged or referred to” in the words complained of; those words implicitly referred to both the Venue A and Hotel A breaches.
• Judge Nicholls’ fourth proposition in Tse Wai Chun Paul v Albert Cheng (requiring readers to be able to judge the comment for themselves) is wrong and inconsistent with Kemsley v Foot.
• The Court should modernise the common-law defence by focusing on whether an honest person could have made the comment on any facts proved, even if those facts were not in the publication.

Respondents’ (Plaintiffs’) Arguments

• The posting misquoted Plaintiffs’ email and falsely suggested they rejected contractual obligations in general, amounting to malice.
• Fair comment requires the publication to identify the facts on which the comment is based; undisclosed matters (e.g., the Hotel A incident) cannot be invoked after the event.
• Because the only concrete fact mentioned—the email—was inaccurately represented, the defence should fail.

Interveners’ Submissions

• Supported a reformulated test of “honest comment” requiring only that the publication (a) be recognisable as opinion and (b) identify its subject matter in general terms, without obliging full particulars.
• Agreed that spite or ill-will (traditional “malice”) should not defeat the defence if the opinion was genuinely held.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Re-examining Lord Nicholls’ Fourth Proposition: Judge Phillips conducted an extensive historical survey and concluded that the requirement, articulated by Judge Nicholls in Tse Wai Chun, for a publication to equip readers to judge the comment themselves is inconsistent with Kemsley v Foot and with practical realities of modern media.

2. Reformulated Test: The Court held that a defendant must “explicitly or implicitly indicate, at least in general terms, the facts on which the comment is based,” but need not provide detail sufficient for reader verification. The subject matter must be identifiable; complete evaluation by the audience is not essential.

3. Application to Present Facts:

• The website notice did not refer, even obliquely, to the 2005 Hotel A incident; therefore Defendants cannot use that incident as a foundation for honest comment.
• The breach of contract at Venue A and Plaintiffs’ e-mail of 27 March 2007 were referenced (“following a breach of contract” and quotations from the e-mail). These references suffice to identify the subject matter.
• Misquoting the e-mail does not automatically defeat the defence; a jury may decide whether the misquotation materially alters the basis of the opinion.

4. Terminology: The Court endorsed renaming the defence from “fair comment” to “honest comment” and noted that motives such as spite or ill-will no longer constitute “malice” unless they negate honest belief.

Holding and Implications

Holding: APPEAL ALLOWED; the defence of honest comment is reinstated.

Implications: The Supreme Court clarifies that a defamatory opinion is defensible where the publication identifies its subject matter in general terms, even if it does not provide exhaustive particulars enabling readers to verify the charge. The decision narrows Judge Nicholls’ earlier formulation, re-labels the defence as “honest comment,” and signals greater flexibility for publishers while still requiring an identifiable factual substratum. No new statutory precedent is created, but the common-law adjustment materially affects future defamation litigation strategy.