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Monday, 18 August 2008

On English Libel Law - A Brief Guide for the Perplexed

The legal action that the British Chiropractic Association has brought against Simon Singh means that many in the blogosphere are trying to understand the complexities of English libel law. So here is a brief guide.

1. The "claimant" (in this case the BCA) will first need to show that they have been defamed. This is a common law test and it usually means that the claimant's reputation has suffered. A defamatory statement in permanent form is called a "libel" (in transient form, it is a "slander").

The BCA are tereby complaining that a direct (or implied) statement about the BCA by Simon Singh has had the effect of lowering their reputation (rather than say the reputation of the Chiropractic generally).

2. Once the claimant has established that the statement is defamatory, the onus then shifts to the "defendant" (here, Simon Singh). This "reverse burden" of proof means that English libel law is regarded as unfair to defendants and too advantageous to the claimant.

3. There are three common defences: privilege, fair comment, justification. The defence adopted will depend mainly on what the claimant says is the defamatory meaning of the alleged libel. It does not appear that the defence has been served yet.

4. In English civil litigation, the losing party at Court will usually pay the legal fees in full for both parties (cf. USA). So if this case does go to Court, then either Simon Singh or the BCA will have a very hefty legal bill. This costs risk is the genuinely scary feature of English libel litigation - the costs often dwalf any damages. The legal costs of a libel case can be up to a million poumds.

5. The combination of the reverse burden of proof with the terrifying costs risk has meant that English libel law has often been abused by bullies, crooks and charlatans to close down public debate: Jeffrey Archer, Jonathan Aitken, David Irving, Robert Maxwell, etc.

6. Most cases, however, do not get to court. Only a small percentage of claim forms end up with fixed trial dates. For example, a case can be withdrawn or settled.

In summary, the BCA have adopted an action which means that they want the English High Court to ban Simon Singh from saying something which they allege to be defamatory about them. They also want damages and their costs for bringing the case. I suspect that they are expecting Simon Singh to settle, so as to avoid the terrifying costs risk.

18 comments:

Les Rose said...

You don't mention the defence's option of requesting further particulars of claim. I found this very useful when I was accused of libel. The whole thing faded away.

Derrik said...

Interesting post.

I think the sceptic crowd would quite like to see a case go to court that effectively put Chiropractic on trial. Do you think that is likely or will any case focus on more legal issues like free speech etc?

If the BCA withdraws its complaint would there be any way for Simon to get his costs back?

HolfordWatch said...

This is so useful because I think that it is perplexing for those of us in the UK but incomprehensible to those from the US.

I look forward to learning more.

"Richard Keen" said...

I think any defence will have 2 strands.

The first will be to argue free speech defences to try to argue that he can engage in public debate on matters of public health.

The second will be to say his position is supported by the science. In other words to put chiropractic on trial.

Jack-could a legal fighting fund be set up to assist Simon and bankroll him in the event of losing on a technicality?

Smarter Than The Average said...

Thanks for tracking the ins and outs on this for the layman, Jack.

Regarding point 5: can we look forward to a post on your thoughts regarding libel tourism?

Holfordwatch said...

@Smarter than the average - Duncan Campbell has a good discussion concerning british law: British libel laws violate human rights, says UN.

"Britain's libel laws have come under attack from the United Nations committee on human rights for discouraging coverage of matters of major public interest...

The intervention by the UN comes in the wake of international disquiet over the use of British courts for "libel tourism", whereby wealthy plaintiffs can sue in the high court in London over articles that would not warrant an action in their own country...The committee warns that the British libel laws have "served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as libel tourism"."

Earlier this year Rachel Donadio wrote up a fine summary of the libel tourism issue: Libel without borders.
"The case is fanning widespread concern that English libel law is stifling writers far beyond the borders of the United Kingdom. Today, any book bought online in England, even one published exclusively in another country, can ostensibly be subject to English libel law. As a result, publishers and booksellers are increasingly concerned about “libel tourism”: foreigners suing other foreigners in England or elsewhere, and using those judgments to intimidate authors in other countries, including the United States. Last year, the Association of American Publishers, Amazon.com, the American Society of Newspaper Editors and others filed an amicus brief in New York, arguing that such litigation “constitutes a clear threat to the ability of the U.S. press to vigorously investigate and publish news and information about the most crucial issues before the U.S. public.”"

Jack of Kent said...

Les Rose - there are indeed a number of tactical and substantive ways to deal with a libel (or other) claim. I thought it useful just to mention the main three substantive defences. But the Civil Procedure Rules and the Defamation Act are boxes of treats for litigators in this field.

Derrick - as lawyers say, it depends! In certain cases, yes.

Richard - a fighting fund seems a good idea. Perhaps this idea will get picked up!

Smarter/HW

The points about libel tourism are important, as they show how oddly distinctive English libel law is an international context.

That said, the BCA case is not a tourism case. An english court is the correct forum. What would make it a tourism is some foreign group of Chiropractis (or other Woos) tried to sue someone in the English courts when they really should sue elsewhere.

Note, notwithstanding Duncan Campbell, there is no "British" libel (or any other) law. It is English (and Welsh) libel law. Scotland and Northern Ireland have their own legal systems. This sort of error is common with newspaper reports of legal issues...

HolfordWatch said...

Sure - I was really taking Smarter than the average's comment as relating to pt 5 only rather than the Singh case in particular.

And yes - I certainly shouldn't have reproduced the error of "british law". *Slaps own wrist.* Even now, ancestors whose favourite imprecation was Gentlemen of the jury are spinning in their final resting-places.

NRG said...

Its great to see this moving out from just appearing on bad science blogs and being looked at from different angles, hopefully the story will keep spreading. Fantastic summary of the legal side of things, looking forward to seeing more posts on the subject as the case progresses (or fails to progress, with any luck)

LeeT said...

How do you think pre-action protacols would apply to a case like this? I understand claimants have to follow certain protacols before the action starts. Do you think the chiropractors have done this or are there further things they need to do?

Jack of Kent said...

NRG - Many thanks. From you, as with Holford Watch, a real compliment. People reading these comments would do well to click on to your blogs. And NRG, do say hello to Brum for me. I did like the old yellow and blue buses.

Hi Leet - good to have you on board here on this one. I do not know the answer to your question. They should have done. And I would presume they have done so, else they may well be hit for an early costs order, but I just do not know.

LeeT said...

In my experience many people who should know better such as company secretaries and credit managers are not aware of the existence of pre-action protacols. Are the chiropractors?

I am just wondering if the Chiropractors took legal advice before writing the letter. Often, to save money, people will write threatening letters without consulting with some one who knows anything about the law.

In commercial debt collection it is an offence to send out a letter threatening legal action when you know you have no intention of going to court. I don't think the same can be said of libel law.

One last thought, we have employment and land tribunal so why not libel tribunals? They could be a quick and cost effective way of defending your reputation. That way free speech would be protected and people could still be held accountable for what they said or did.

Jack of Kent said...

Hi LeeT

The implication of the original Sunday telegraph article is that the BCA have gone further than merely sending a threatening letter.

They appear to have actually issued a claim form.

I will have a think about your tribunal suggestion and that could be a blog for another day.

Jack

Anonymous said...

One other pernicious development is no win, no fee cases that often result in the losing side not just paying costs but a success fee of up to the same again. It makes it very easy for people to launch claims - justified and otherwise - but very risky to defend.

Kate said...

Just reading through this again and I have a quick question in light of this article in New Scientist: http://www.newscientist.com/article/mg20227086.200-comment-dont-criticise-or-well-sue.html

which says: 'Once the claimant has established they have a reputation in England, and that there is a defamatory statement, they have an automatic right to bring legal proceedings without having to show any damage has been suffered.'

Can I just clarify that all that the claimant needs to show is that the comments were defamatory, but not that their reputation has suffered as a result of these comments?

Kate said...

Woops, just realised that article was written by you. How embarrassing. Never mind!

andrew said...

What a pickle for a young, bright chap like Mr Singh to have got himself into.

The Big Bad World is not such a nice place as one is brought up to expect...

Very probably the whole thing will be overshadowed by the MPs scandal and not get in the papers at all and nobody will be any wiser or care anyway.....

Marcin said...

I actually wonder if the BCA is the kind of company that has a reputation that is capable of being protected in this way - it is after all not a trading company, and the policy arguments for state organisations and political parties to be outside of the defamation laws would seem to apply to professional bodies.