A judgment handed down at the Supreme Court this morning recognises the need for reform in defamation proceedings, and points to two key areas. [Read the background to the case, Spiller v Joseph, here]
One of the most contentious areas in libel reform — jury trials — was put at the centre of the agenda when Lord Phillips questioned their effectiveness in defamation cases:
[…] has not the time come to recognise that defamation is no longer a field in which trial by jury is desirable? The issues are often complex and jury trial simply invites expensive interlocutory battles, such as this one before the court, which attempt to pre-empt issues from going before the jury.
It’s a reform that Lord Lester tackled in his private member’s bill earlier this year, which proposed that the presumption to jury trial should be reversed. The Supreme Court judgment today will put further pressure on the government to review whether jury trials are really the best forum for defamation cases.
The judgment will also have an impact on one of the most notoriously complex areas of libel law — the fair comment defence. Lord Phillips proposed that the defence be renamed “honest comment” and suggested removing the requirement that it be based on a matter of public interest. He added:
“Would it not be more simple and satisfactory if, in place of the objective test, the onus was on the defendant to show that he subjectively believed that his comment was justified by the facts on which he based it?”
Lord Phillips recommended that the whole area should be reviewed by the Law Commission.