Saturday, 8 November 2008

On the BCA's case against Simon Singh

[This post summarises the BCA Claim, for a summary of Simon Singh's defence see here.]

This post provides a fair and accurate report of the case which the British Chiropractic Association is bringing against Simon Singh.

This post is drawn from the actual Claim Form and Particulars of Claim filed by the BCA at the High Court, copies of which have been properly obtained from the court file under the provisions of the Civil Procedure Rules (such documents, called "statements of case" can be obtained by non-parties).

Even though this post repeats the alleged "libel", it is protected from any claim by virtue of Schedule 1 of the Defamation Act 1996. The BCA's lawyers should know this, though should they need to have the law explained to them they can of course email me at jackofkent @ gmail .com .

To Recap

The news that the BCA is suing Simon Singh broke in August 2008 in the Sunday Telegraph.

The article was posted in full by Svetlana on a Russian server here.

The best summary of what is already on the web on this case is the superb Holford Watch.

The Claim

It can be confirmed that the claim is for libel and not for any other legal claim (such as malicious falsehood).

For an introduction to the law of libel (or a refresher!), see my earlier post.

The BCA contend that it "has been seriously injured in its credit and reputation".

Accordingly, the BCA are seeking damages and an injunction against Simon Singh (and his agents) from publishing the alleged libel "or similar allegations defamatory" of the BCA.

The Alleged “Libel”

The BCA’s complaint is about the content of a single passage in Simon Singh’s original piece:

"The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments."

(Emphasis added, see below.)

The BCA's focus on this passage means that none of the rest of Simon Singh's article is defamatory and so there seems no reason that the rest of it cannot now be reproduced (subject to copyright).

Defamatory Meaning

It is not enough in libel proceedings to assert a passage is defamatory, a defamatory meaning for that passage needs also to be established.

The BCA's alleged defamatory meaning for the passage is as follows:

"In their natural and ordinary meaning, the defamatory words set out above meant and were understood to mean that the Claimant:

(a) claims that chiropractic is effective in helping to treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is absolutely no evidence to support its claims; and

(b) by making these claims, knowingly promotes bogus treatments.

(Again, emphasis added.)

So, in essence, when Simon Singh says that he sees "not a jot of evidence" (by which he must mean no scientifically credible evidence) for the efficacy of Chiropractic for each of these ailments, the BCA says he means "absolutely no evidence" (by which they must mean no evidence at all).

Note that this is not about "evidence" in a vacuum or for the general efficacy of Chiropractic, but evidence for the efficacy of Chiropractic for each of the following children's ailments:

1. colic
2. sleeping problems
3. feeding problems
4. frequent ear infections
5. asthma
6. prolonged crying

What Should Be The Evidence For Such Claims?

The legal issues to be decided seem to be:

1. what (if any) are the defamatory meanings of the passage in question; and

2. in respect of each meaning, is there any defence such as "fair comment" or "factual justification".

The BCA have to show that Simon Singh said that the BCA, when making claims as to the efficacy of Chiropractic in respect of each of the six stated children's ailments, did so on inappropriate or no evidence.

If they succeed in establishing this, then Simon Singh has to show that in saying such a thing it was either fair comment or a matter of fact.

So it would thereby appear that this case (should it go to trial) will deal square-on with what would constitute the appropriate evidence that should be in place for BCA to make the claims it did regarding the efficacy of Chiropractic for each of the six children's ailments above.

This is an exciting prospect.

I will shortly set out a fair and accurate report of the next available court document, the Defence which Simon Singh filed at court in response to the above.


HolfordWatch said...

Thank you for this interesting update on this case and your scrupulous attention to making sure that readers can follow your distinction here of libel and malicious falsehood and what is the point of dissent that will end up in court.

Le Canard Noir said...

This is a game of very high stakes. I cannot believe the chiropractors wish to risk their cosy myths being shattered in a court of law. Are they gambling everything on a hope that the court will allow anecdotes and hearsay as acdeptable forms of evidence for their profession?

My guess is that they will take it to the brink and then fold - hoping Singh will get scared first.

Jonathan Hearsey said...

I can't believe that this is still going on.

Thank you for the update - balanced as ever.

I have a dreadful feeling that this might bring down the rational manipulators within the NHS which would be a shame.


John H said...
This comment has been removed by a blog administrator.
Dr* T said...

Thanks for an excellent update.

I agree this is an exciting case, and I'm also surprised at the chiros response. I have a feeling it won't last the distance, however.

I look forward to reading more as it becomes available.

Ducktor Duck said...

It appears that you have been chucked off the Sacral Musings forum!

Are the osteopaths running away from this too?


Guy said...

I'm interested in limb (b) of the allegedly defamatory meaning, and "knowingly". There would seem to be no reason for inserting "knowingly" unless it were the claimant's contention that accusing it of knowingly promoting bogus treatments is worse than accusing it of ignorantly doing so, or unless it were uncertain at the date of the claim as to whether there was indeed extant evidence for efficacy in all of the ailments discussed.

If the latter, could the BCA's case end up resting in any part on the assertion that Singh's article must be defamatory because, contrary to what it says he asserts, the BCA promotes bogus treatments ignorantly, without regard for the lack of evidence?

Andy said...

Readers might be interested in this: