Joseph & Ors v Spiller & Anor

In a defamation claim, a contractual term incorporated into an agreement may nevertheless be unenforceable where statutory requirements governing employment agencies have not been met. Regulations governing employment agencies and businesses can apply to artists engaged for individual performances under contracts for services. Where the agency failed to comply with requirements concerning the recording and provision of agreed terms, the relevant re-engagement term was unenforceable and could not establish an actionable breach for justification.

At the interlocutory stage, however, a lesser contractual breach could not be assessed finally for whether it justified the sting of the publication. Allegations that performers were generally unprofessional and untrustworthy were factual rather than comment. Publication of a private contractual dispute to an open-ended audience was not fairly warranted for qualified privilege.

The claimants, members of a musical group, sued over statements published on the defendants’ website alleging that they were unprofessional, had breached contractual terms and might not honour future bookings. The defendants pleaded justification, fair comment and qualified privilege.

The claimants applied to strike out those defences. The principal issue was whether a contractual re-engagement term, requiring bookings from clients previously introduced by the defendants to be made through the defendants for 12 months, was incorporated into the claimants’ agreement and enforceable under the Conduct of Employment Agencies and Employment Business Regulations 2003. The defendants also sought permission to amend their particulars of justification.

1. The re-engagement term was incorporated into the contractual arrangements. The artist agreement expressly referred, by hyperlink, to full terms and conditions containing a term expressed to bind both the client and the artist. It was unrealistic to ignore that cross-reference. The term therefore applied to the claimants as well as to hirers.
2. The claimants were “work-seekers” for the purposes of the statutory regime. The definition of employment in the Employment Agencies Act 1973 included professional engagements and contracts for services. The fact that the engagements were for individual musical performances did not exclude the Regulations.
3. The defendants had contravened Regulation 14(2) by failing to record the relevant terms in the required manner and provide copies to the claimants. Applying the principle stated in Anderson Ltd v Daniel [1924] 1 KB 138, the re-engagement term was unenforceable between the claimants and the second defendant. The claimants’ direct booking with Bibis therefore could not amount to an actionable breach for the purposes of justification.
4. The arguments based on Regulations 16 and 6 did not independently require rejection of the term. The decisive ground was the non-compliance with Regulation 14(2). Other allegations concerning the Landmarc booking could remain, since their sufficiency to justify the defamatory sting was a matter for trial rather than strike-out.
5. The defendants were permitted to amend the justification defence to plead that the claimants had behaved in an unprofessional and untrustworthy manner and to rely on the proposed cash-payment allegations. The claimants had themselves pleaded a substantially corresponding meaning, and the amendment was therefore properly arguable: see Maisel v Financial Times Ltd (1915) 84 LJKB 2145.
6. The fair comment defence was struck out. The central allegations were factual in character, and a one-sided account of a private contractual dispute was not a matter of public interest. Qualified privilege was also struck out because the defendants had no duty to publish the allegations to an open-ended class, and such publication was not fairly warranted by the occasion.
7. The trial was to proceed only on justification, in its reduced and amended form. The defences of fair comment and qualified privilege were struck out.