Whilst the final judgement is not anticipated until early 2012, Advocate General Kokott has now delivered her opinion.
Mr O’Brien, represented by Browne Jacobson LLP and Cloisters Chambers, brought a claim because, as a part-time, fee-paid judge, he was excluded from the judicial pension scheme. In July 2010 the Supreme Court sought ECJ input on:-
- Can national law determine whether or not judges are “workers who have an employment contract or employment relationship”?
- Can national law discriminate (a) between full time and part-time judges or (b) between different kinds of part-time judges in the provision of pensions?
The Advocate General considers that it is for national law to decide if a part-time judge is a worker, but there were limits to this discretion. Member States are not allowed to exclude complete categories of part-time worker.
The court does not need to follow the Advocate General’s opinion, but it unusual not to do so.
Posted by Edward Benson, specialising in: employment law; advises on contracts, policies and procedures, trade union negotiations; experienced in tribunals; contributes to seminars and training.
Edward Benson
0115 976 6211
ebenson@brownejacobson.com
Comment must be “honest” – it doesn’t have to be “fair”
Thursday, December 2nd, 2010In a significant development to defamation law, the Supreme Court in Spiller v Joseph has clarified the defence of fair comment (also renaming it “honest comment”).
It is not necessary for a publisher to have identified the matters on which comment is based in sufficient detail to enable a reader to judge for themselves whether the comment is well founded. Instead, an honest comment ”must explicitly or implicitly indicate, at least in general terms, the facts on which it is based” so that “the reader can understand what the comment is about and the commentator can, if challenged, explain…”. However, a defendant is not permitted to get support from facts that were not referred to by the comment, or facts that the defendant did not know when he made his comment.
This clarification allies the defence more closely with the realities of publication on the internet, in editorials and in blogs, and makes a little progress towards the more robust reform position currently proposed in the Defamation Bill. The ruling will please publishers and proponents of free speech – but on the other hand, it might make the judicial process for persons defamed in unbalanced attacks more difficult.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
Tags: advertising, Brands, defamation, defamation law, fair comment, honest comment, litigation, media, Supreme Court
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