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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.

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Joshua Rozenberg
May 16th, 2010
4:05 AM
The Hansard link, which did not appear in my earlier response, is:

Simon Singh
May 13th, 2010
2:05 PM
Thanks for your reply. I will drop Henry Bellingham MP and Tom Watson MP a note in order to clarify the situation with respect to my case.

Joshua Rozenberg
May 11th, 2010
4:05 PM

I am grateful to Simon Singh for clarifying the position. I was relying on remarks by MPs in a debate on March 30.

Henry Bellingham, the Conservative front-bench spokesman, said:

It is also worth bearing in mind that there are many examples of scientists who have been sued using conditional fee arrangements to defend themselves. The briefings that we received from a number of organisations pointed out that, in four recent cases, scientists or academics being sued by large corporations used conditional fee agreements with a 100 per cent uplift to defend themselves. It happened with the British Chiropractic Association v. Simon Singh, GE Healthcare v. Thomsen and Charman v. Orion Press. In all those cases, a CFA was used not by a plaintiff suing a small media outlet but by a defendant being sued by a large corporation.

And Tom Watson, from the Labour side, said:

Simon Singh, in particular, has been outrageously treated by the British Chiropractic Association for daring to suggest that chiropractic is a pseudo-science, or hokey medicine. He has been intimidated by that process, but as the hon. Member for North-West Norfolk said, he is defending himself using the CFA.

From what Simon Singh says, these comments clearly do not tell the full story.

Simon Singh
May 11th, 2010
2:05 PM
Thanks for covering my case (Singh v BCA), the issue of libel and libel reform. However, I am not sure I quite understand the third paragraph from the end of page 2. My legal team was only partly covered by a no-win-no-fee agreement; without checking the numbers (which we are still tallying), I estimate only 25% of my £200k legal bill was on a no-win-no-fee. So had I lost the appeal I would still have had to pay my own massive legal bill of £150k PLUS the legal bills of the BCA. My understanding is that the BCA was on a more generous no-win-no-fee, so the BCA would have presented me with a bill for £250k (again very much an estimate). In short, I do not want anyone to get the impression that no-win-no-fee arrangements helped me. If anything, the fact that the BCA had a no-win-no-fee arrangement almost scared me into backing down last year. I am confident that no-win-no-fee agreements in libel cases are currently acting against fairness and access to law. I am not sure that recent proposals to reform no-win-no-fee in libel were the best way forward, but I am very much in favour of cutting success fees in order to cut the overall cost of libel cases.

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