The British Chiropractic Association has decided to sue Simon Singh, Britain’s leading science writer, for libel. They do not like something he said about them in a Guardian comment article.
At the moment , the only current source for this information is the Sunday Telegraph article - see link here.
However, in that article, Antoni Jakubowski, a member of the association's governing council, states that: "It wasn't a decision taken lightly” and "I know that a lot of thought went into this".
One would hope so. A decision to sue anyone should indeed never be taken lightly, and usually it should not be made at all.
A misconceived libel action can be an incredible financial and reputational disaster of the very first order.
It can be the maddest, saddest decision any person ever makes.
Ask Andrew Wakefield.
And also ask McDonalds about McLibel.
I set out below ten questions which BCA members should now ask the BCA. After all, the BCA is supposed to be promoting its members' interests and uses its members' money in doing so.
The answers to these questions may indicate to BCA members whether a sound decision was made or not.
These questions are not intended to be controversial, and they merely deal with matters which one would expect a responsible professional representative body to have dealt with carefully when pressing the red litigation button.
And these questions are also intended to be the sort of questions which any professional should ask of his or her representative body in these circumstances.
1. Who made the decision to litigate?
It should be made clear who made this important decision. Lawyers do not sue by themselves. Some person or group of persons must be responsible - and accountable for - this decision.
Not only who. but…
2. When and how was the decision made to litigate?
The news came to light last Sunday.
However, the Guardian article was published in April. If the decision was made soon after the alleged libel was published, then one must wonder why it took until this week for it to surface. If the decision was made more recently, then why was there such a delay?
And what process was followed to make sure it was a sound and properly-discussed decision? Was anyone missed out?
Also, what were the factors taken and not taken into account?
Then, after who, when, and how…
3. Why was this decision made?
Can the BCA provide both a clear statement of its objective in bringing this claim and an explantion for how it sees litigation as meeting that objective?
And is it a legitimate objective? One worthy of a professional association, proposing to litigate with its members' money?
Litigation is rarely the only course of action. However, bad decisions to litigate can arise when the other options are either not properly set out or considered.
What other options, if any, were rejected in favour of litigation, and why? The BCA should be also able to show why litigation was preferred over the other options.
And if it seems a good decision to make then…
4. What legal advice was sought and followed?
English libel litigation is highly specialised and, unless the claimant is a media company, then it is unlikely an in-house lawyer (if any) would have any relevant expertise.
Therefore, a responsible would-be claimant would usually instruct both a specialised solicitor and an experienced defamation barrister.
(In essence, generally speaking, a solicitor will prepare the case for trial, and the barrister will then present the case to the court.)
Both the solicitor and the barrister should have given to BCA their views on:
- the merits of the case,
- the potential defamatory meanings (if any) in respect of BCA's reputation (if any),
- which defences will be available to the defendant for each of those meanings, and
- whether the documentary evidence (and any expert evidence) will bear the forensic weight to be placed on it.
Any decision to litigate should be fully informed by - and consistent with - views on each of these points. Was it?
Any decision to litigate should always be on the assumption that it will go all the way and that you could lose.
It cannot just be assumed that the defendant will settle or surrender.
So there should also be advice now in place on costs and timings, which brings us to….
5. What financial provision has been made for bringing and potentially losing the claim?
Trials are unpredictable: either side can lose. In English civil litigation, the losing party pays the costs of the winning side.
Litigation is expensive. The BCA claim, which presumably will require expert evidence, could cost between two hundred and three hundred thousand pounds at first instance, and perhaps about the same again on appeal.
Before litigating, therefore, a responsible litigant would put in place financial provisions for a worst case scenario: a long trial requiring substantial expert evidence (think McLibel again), and losing at first instance or at the court of appeal.
Furthermore, some cases take an expensively long time to even get to court, sometimes up to three or four years, and may then never even get there. Ask Andrew Wakefield again.
The BCA have a prospect of taking a bad financial hit (as does Simon Singh).
Members of the BCA will need to know that any such hit will not adversely affect their workings of their representative body.
This is not the only thing to think through…
6. Was the decision considered from a media perspective?
What consideration, if any, was given to the predictable “Streisand Effect” of the alleged libel being repeated and popularised?
See, for example, here (deftly placed on a Russian server) and now also on many other sites.
And what consideration, if any, was given to the potential adverse impact this case could have on the reputation of the BCA and Chiropractic generally?
Libel litigants often suffer a counterproductive impact on their reputations generally, even if they prevail at court.
Also, by suing over an issue related to the efficacy of Chiropractic, the BCA are potentially also putting at risk the reputation of the whole discipline. They have needlessly created the scope for "Chiropractic on Trial", which they can be seen to lose.
A sensible libel litigant thereby has a comprehensive media strategy in place before commencing.
Which leads us to a related question…
7. Why is there still no press release or formal public statement?
Again, conceivably, there may be a good reason. But the lack of any public explanation is also prompting some rather damaging speculation.
And there is speculation as to a question which is "the Elephant in the Chiropractor's Waiting Room"…
8. Why not sue The Guardian?
This one rather stands out. Conceivably, there may be a good reason. But the lack of a public answer to this question is prompting some rather damaging speculation.
All of the above questions may have comforting answers, but…
9. In any event, is launching such an action really what the BCA should be doing?
The BCA can sue; it may perhaps have a good chance of success on some technical basis; and the actual decision to sue may have been soundly made, and the whole case may be financially resourced.
But is it really what such a professional body should be doing?
My own view, which I have expressed elsewhere, is that it appears that the BCA are seeking to censor an eminent science writer's contribution in (a) an expressly comment piece in (b) a quality newspaper to (c) the debate on a significant public health matter, that is (d) the treatment of sick children. This seems very unfortunate indeed.
At this point, read the "offending" article - here - again.
Yes, it is really harsh. But other professions, especially law and medicine, routinely put up with a lot worse.
And now think about the sheer costs of the BCA and the costs which the BCA wish to inflict on Simon Singh. Think about the reputational damage this could inflict on the BCA and chiropractic generally. And think, in particular, about whether you really want to be associated with such legalistic - and, in some people's views, even "bullying" - tactics. Does your profession not deserve a different approach?
But, even if it does seem a really good and sensible thing to do…
10. Most importantly, who (if anyone) is responsible for keeping the decision to continue with this case under review?
Once a claim is launched, it can take on a life of its own. There can be a reluctance to make any decision to drop a case.
However, a responsible claimant will keep the situation under constant review, taking account of the range of legal, reputational, and commercial/financial developments.
And a responsible claimant will take the difficult decision to drop a case when appropriate, even if it seemed a good idea at the time to bring it. Any stubbornness here may lead to a far worse outcome.
This all could become very serious stuff: so it is legitimate for BCA members - and others - to ask whether the BCA actually know what they are doing. And whether this action is really in the best interest of BCA members.