Reference:  EWCA Civ 350;  EMLR 1
Court: Court of Appeal (Civil Division)
Judge: Judge LCJ, Neuberger MR and Sedley LJ
Date of judgment: 1 Apr 2010
Summary: Libel – Fair comment (‘honest opinion’) – Whether words fact or comment/opinion
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Appearances: Adrienne Page KC - Leading Counsel (Appellant)
Instructing Solicitors: Bryan Cave for Mr Singh; Collyer Bristow for the BCA
The BCA, a company representing chiropractors, sued for libel in respect of an article by S in the “Comment and Debate” section of The Guardian. The words complained of stated accurately that the BCA claimed that its members could help treat children with certain childhood disorders. The words complained of went on: “although there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.” The Defendant pleaded fair comment and justification. At the trial of preliminary issues on meaning and comment the Judge upheld the BCA’s meanings, namely, that the words imputed to it that it knew that there was no evidence to support its claims and that the BCA therefore knowingly promoted bogus treatments. He described this as ”the plainest allegation of dishonesty”. He went on to rule that the words were accordingly fact not comment. S appealed both findings.
Whether the Judge’s findings as to meaning and/or comment were vitiated by errors of law and/or were plainly wrong
Allowing the appeal and setting aside the Judge’s findings:
The material words were expressions of opinion. In particular, the Judge erred by treating the statement that there was not a jot of evidence to support the BCA’s claims as an assertion of fact. This was, in the Court’s judgment, a statement of opinion, and one backed by reasons. Once the statement was properly characterised as a value judgment, the remaining words from which the defamatory meaning has been derived lost their sting. The natural meaning of the passage was not that the BCA was promoting what it knew to be bogus treatments but that it was promoting what S contended were bogus treatments without regard to the want of reliable evidence of their efficacy. The Judge’s findings were set aside.
The Court highlighted the risk inherent within the usual approach of deciding whether words are comment only after first determining meaning according to the single meaning rule. At  the Court suggests this may not always be the best approach, “because the answer to the first question may stifle the answer to the second”.
The Court also analysed the reasons why, in the context of debate about a subject such as medical science, the words are likely to be highly value-laden and thus readily characterised as opinion not fact. The decision highlights the importance of the words complained of being considered in their context.
The Court signalled strongly that the tradition of referring to the defence as ‘fair comment’ should be abandoned in favour of ‘honest opinion’ as it “better reflects the realities”.