Igor Judge is turning out to be a really rather good Lord Chief Justice of England and Wales. Despite his well-deserved reputation for upholding tough sentences, he knows when to be merciful: in January, Lord Judge suspended the prison term imposed on Munir Hussain for inflicting serious injuries on an escaped intruder.
And this sensitivity to the public mood was demonstrated again the following month when the Lord Chief Justice lent his weight to a case involving an arcane point of libel law, not the natural territory of a criminal specialist. Sitting with Lord Neuberger and Lord Justice Sedley — who must have supplied much of the legal reasoning as well as the quotation from Milton’s Areopagitica — he delivered a much-praised judgment on Maundy Thursday.
The point at issue was whether a short passage published in the comment section of the Guardian in April 2008 was indeed comment or, in reality, an allegation of fact. On this subtle distinction a huge amount turned.
What the science writer Simon Singh had written in the newspaper was: “The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.”
According to Mr Justice Eady, this was “a matter of verifiable fact”. That meant there could be a lengthy hearing at which the association would call experts to prove that chiropractic could help children with colic and Singh would call experts to show it could not. Unless the writer could prove that his facts were true, the association would win the libel claim it had brought against him.
As the Court of Appeal noted, libel judges have sometimes found themselves cast in the role of historian or investigative journalist: one thinks of David Irving’s case against Deborah Lipstadt, which established in 2000 that Irving was “an active Holocaust denier” as well as “anti-Semitic and racist”. But these were cases in which defendants had made clear assertions of highly damaging fact. What Singh had written, in the view of the appeal judges, was opinion.
And why did that matter? It is because the defendant in a libel action — in this case, Singh — bears the onus of proving that his facts are true. No such burden rests on the shoulders of a writer who claims instead that his words amounted to fair comment — or “honest opinion”, to use the term preferred by the appeal judges.
“The opinion may be mistaken,” they added, “but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth.”
This was an immensely practical judgment. At a stroke, it tipped the balance infavour of writers. After taking legal advice, the British Chiropractic Association decided, as expected, to drop its claim. “The decision provides Dr Singh with a defence,” it said on 15 April, and the association had withdrawn “to avoid further legal costs being incurred by either side”.
Even if Singh had lost his appeal, he could still have avoided having to pay the immense costs of a contested libel trial. A couple of days before the ruling, parliament was told that Singh was one of several writers who were being defended under conditional fee agreements with 100 per cent uplifts. What this means is that the defendants’ lawyers would charge them nothing if they lost. But if the claims against them were dismissed, the claimants would end up having to pay twice the defence lawyers’ normal legal costs.
The government did not seem to understand that no-win, no-fee agreements were used by worthy defendants as well as by the wealthy claimants whom the Justice Secretary, Jack Straw, was trying to restrain. Little wonder that the Lord Chancellor’s rushed-through attempt to reduce the permissible uplift in libel and privacy cases from 100 per cent to 10 per cent was thrown out when Labour MPs on a committee considering delegated legislation staged a farewell rebellion.
And this mixture of cherry-picking and window-dressing had been the only libel reform that Straw could have got through before the general election. He had realised far too late that defamation laws were tending to favour claimants, in part an unintended consequence of allowing success fees to be recovered from the losing party when the government abolished legal aid for personal injury claims. It was fortunate indeed that the Court of Appeal found a way of redressing the balance.