Joseph & Ors v Spiller & Anor

In a libel action, meaning is determined objectively by the single meaning that the hypothetical reasonable reader would take from the publication as a whole and in its context. A claimant may select among distinct defamatory allegations, but that choice does not apply where the allegations share a common sting. Honest opinion requires comment on a matter of public interest, based on indicated facts that are true or privileged and genuinely believed; spite alone is not decisive. Proving less serious allegations does not justify more serious allegations that remain unproved. Later litigation conduct cannot establish truth of the publication, but deliberate fabrication of a special-damages claim may amount to abuse of process and justify limiting damages to nominal damages.

Members of the musical act The Gillettes brought a first-instance libel claim against their booking agent and its director over a website posting which described them as unprofessional and warned that they might not honour contractual obligations. The defendants relied on truth and honest opinion. The claimants alleged malice and claimed general and special damages, including loss arising from a later cancelled booking. Pre-trial decisions on the honest-opinion defence reached the Supreme Court, which reinstated the defence: [2010] UKSC 53. The trial concerned the meanings conveyed, the availability of the pleaded defences, the relevance of later conduct to truth, and the effect of fabricated evidence on damages.

Disposition. The claim succeeded on the merits. The website posting was defamatory, the defences of truth and honest opinion failed, and each claimant was awarded nominal damages.

1. The meaning of the posting was determined objectively from the perspective of the hypothetical reasonable reader, taking account of the publication as a whole, its context and its prospective client readership. It conveyed a real possibility, rather than a high likelihood, that the claimants might fail to comply with all contractual obligations to clients. It did not convey that they were highly likely not to attend performances.
2. The words describing the claimants as insufficiently professional and unable to abide by their contract were defamatory in context. Although the claimants no longer complained of some of those words, the defendants could rely on them because the allegations were not distinct from the remaining allegations and formed part of the same sting.
3. Under Defamation Act 1952 s5 and s.6, partial proof may suffice only within the statutory limits for multiple charges and mixed fact and opinion. The defendants proved the Bibis contractual breach and various instances of unprofessional conduct. They did not prove the more serious allegations of a contemptuous or cavalier attitude to contractual obligations, or a real risk that the claimants would fail to honour contracts with clients. The later litigation conduct could not be used to prove the truth of the earlier publication.
4. The honest-opinion defence failed in relation to the risk-to-clients meaning. The earlier Supreme Court decision, [2010] UKSC 53, permitted reliance on the Bibis breach and the email as potential supporting material, but the evidence showed that Mr Spiller did not believe there was any real risk that the claimants would breach client contracts. Spite or ill-will alone was insufficient to establish malice, but motive could be considered when deciding whether the opinion was genuinely believed.
5. Mr Joseph’s deliberate pursuit of a fabricated special-damages claim and deception of the court constituted an abuse of process. He could receive no substantial damages, including for an otherwise proved loss, but nominal damages adequately vindicated his reputation. The same result applied to the other claimants because Mr Joseph acted as their agent and there was no finding that they themselves were dishonest.

This was a first-instance trial. The judgment records that pre-trial orders striking out the honest-opinion defence were made by Eady J, upheld by the Court of Appeal on a different ground, and reversed by the Supreme Court, which reinstated the defence: [2010] UKSC 53.