In English libel proceedings, the "reverse burden of proof" is so counter-intuitive and so seemingly outrageous, it is difficult to comprehend just why it exists at all.
The effect of this reverse burden is to put the defendant in a weak position from the very beginning of the case, in terms of both what legally needs to be proved and the (often terrfying) costs in doing so.
It also means that the claimant (a far better word than the archaic plaintiff, by the way) can actually win a case even though the defamatory statement is true simply because the defendant is not evidentially or financially able to prove its truth.
Nonetheless, it is worth trying to understand why the tort of libel is structured in this way, and I will try an explain it by analogy with other English torts.
Imagine a Farmer, and imagine that I am in his field.
He comes and says "get orf my land". He threatens to sue me as a trespasser. The Farmer can prove he owns the field and he can also prove that I am standing in his field. He doesn't have to prove damage, for - like libel - trespass is actionable without proof of damage.
"Aha," I say, "I have a legally-valid contractual licence (like a ticket for a rave); I have a legal right to be on this land; and so I have a complete defence to your action for trespass."
"No you haven't," replies the Farmer.
In court, it would then be for me to prove that I have a licence, and not for the Farmer to disprove it.
(It would be the same with the owner of a copyright suing someone claiming to have lawfully downloaded a copyrighted work, though there damage would have to be shown.)
I do not think this is necessarily unreasonable: I claim to have a licence and so it is for me to show that is the case.
But this is, like in libel, a reverse burden: I am having to prove my defence.
So what has gone wrong in libel?
Imagine now a Reputable Person.
I defame that person - almost literally I de-fame her. By analogy, I am trespassing on her reputation.
In theory, the Reputable Person has to prove that she has a reputation in England & Wales and that I have defamed that reputation. In this way, the Reputable Person is in a position similar to the Farmer.
Once the Reputable Person has shown this, then the law says it is for me to prove that I am lawfully defaming that reputation, just like an alleged trespasser can try and show he has a legal right to be in the field.
Where, in my view, libel has partly broken down on this issue is that the courts just nod through what the Reputable Person needs to show to get the claim off the ground.
Any link with England & Wales seems to be enough; no scrutiny is put to whether someone actually has a relevant reputation; and any criticism (even calling Steven Berkoff ugly) is held to be defamatory.
And so the burden is instantly thrown on to the other side - to show that the statement was justified or fair comment or privileged. And with this burden goes all the terrifying costs risks.
In my view, libel should not be treated like trespass or copyright infringement; the claimant should have to certify the falsity of the defamatory factual statement before a claim can be brought, and that this certification should be open to cross-examination by the defendant.
But courts should be far more rigororus in putting the claimant to test on what already has to be proved to bring a libel case: that there is an applicable reputation in England & Wales in the first place, and that the statement defames that reputation.
If the courts did this then the reverse burden of proof (and the costs) would not be such a problem.