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."
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.
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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.
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