Tuesday, 16 December 2008

On where is the BCA's Reply?

This Blog has long been covering the misconceived libel case brought by the British Chiropractic Association against the science writer Simon Singh.

(Singh said it was inappropriate for the BCA to promote chiropractic (a type of spinal treatment) for six children's ailments unrelated to the spine.)

By now the BCA should have filed at the High Court a "Reply" to the "Defence" of Singh (see here).

But according to the English High Court, no Reply has yet been filed.

This is peculiar. There are some possible explanations:

1. the BCA have not done a Reply, but this would mean they have (in effect) accepted the Defence as it stands;

2. the BCA have served the Reply on Singh, but not filed it at court, but this would mean their lawyers are perhaps incompetent;

3. the BCA are seeking to keep the Reply as some sort of closed document, but this would mean that they are embarrassed at what their Reply says; or

4. either I or the High Court have made a mistake (never to be ruled out).

I wonder which one it is?

(By the way, the case features in the current Private Eye.)


Simon said...

It may be that they've found a serious problem with Simon's defence, but it's taking a while for them to find the sublaxation that caused it.


The silence is really enigmatical...

But I think - none of four. Another version is possible:
5. the BCA have not done a Reply, because they are embarrassed at what Singh's Defence said (It is simply their delay. Isn't it possible?).

Jack of Kent said...

I have today emailed the BCA's media queries people and asked why it appears that a Reply has not been filed at the High Court.

Anonymous said...

Have allocation questionnaires been filed yet? It is only at this stage that the Claimant must file any reply (See CPR 15.8)

Jack of Kent said...

Thanks Anonymous. I don't want to blind with legalistic science!

According to the High Court, the Allocation Questionnaires are indeed filed...

Mojo said...

Any chance of a brief explanation of what "Allocation Questionnaires" are?

Mojo said...

"3. the BCA are seeking to keep the Reply as some sort of closed document..."

Under what circumstances would they be able to do this, and to what extent? Even if the content was not made public, surely there would be some sort of record that it had been filed?

Jack of Kent said...

An Allocation Questionnaire is a form which the parties put to the court about which "track" (jargon) the case should be allocated to.

I have been told by the High Court that the case has been allocated to the standard (for defamation cases) "multitrack", though I have not seen the questionnaires.

The media contacts people at the BCA have not got back to me about my query (see my comment above). There was, however, a surge of hits on this post for a couple of hours after my email to them, and these were not from the usual Facebook and Skeptic referral sites...

Jack of Kent said...

Within minutes of posting the last comment, the BCA's media inquiries people sent me an email:-

"Thank you for your request. We are indeed the PR Consultancy for the BCA but as such our remit is limited to the mainstream media on matters relating to the promotion of Chiropractic. Thanks….

Carl Courtney

So we still don't know, and they don't even tell me to whom I should refer my query. Please note that there are many reasons why PR people give such a "non-answer". It's what they are paid for.

However, I do like Carl's
"Thanks...". You can just tell you dealing with a cool PR executive... :-)

Dr Aust said...

I should think the BCA are frantically trying to work out whether they will do themselves more damage by going on or bailing out, and trying to get Carl and his mates to come up with ways to spin either course.

They want to look respectable, invoke wounded professional dignity etc etc to keep their HPC cred (which suggests they have to keep on, defend their reputation etc not to mention their long history of aggressive legal tactics)... But: to have all their madder claims tested in court, as per Singh's filed defence, will make them look (in the full media glare) like primo Snake Oilers - even if, as you said, if they were to win.

Can't wait to see which way they decide to go. Although under the circumtances I suspect they will wait the maximum amount of time to "see which way the wind's blowing"

Jack of Kent said...

Dr Aust

Thank you for your post - your analysis of this case so far has been superb.

I agree with your sentiment. Is it not striking that BCA are using a glossy PR company to "promote" chiropractic? I am struck by Carl's use of "promotion" here, and it is perhaps telling.

One would think that if the treatment was sound, all the BCA would need would be simple PR (ie, media relations for the BCA), and not to pay a commercial agency to "promote" the practice.

I am also still amused by the condescending and unhelpful response from Carl at Publicasity...

Jack of Kent said...

Mojo @ 16.55 yesterday

Hi Mojo

A party can apply for court papers to be kept from public access. The scope of the protection would (I think) depend on the terms of any Order granted. Such an Order can (I also think) be challenged.

Tony Lloyd said...

Hi Jack

Is there a time limit for the BCA to file? What happens if they miss it? Do nice things happen, like them getting stung for costs, judged to be frivolous litigants etc?

Jack of Kent said...

Hi Tony

Sadly not, it means that the BCA's case will depend on the initial (vague and in my view rather rushed and perfunctory) claim form, and that Singh's defence will stand uncontroverted.

It is a substantive omission, not a procedural necessity.

Best wishes, Jack

Jack of Kent said...

I will try again in the New Year to get to the bottom of this Reply issue...


Oh, I guessed that it is so :( These chiropractors would not do against themselves.

What a foolish situation! :(

Jack, but how will the court make an adjudicate, when these 'sirs" (chiropractors) intend to keep silence like deaf walls?

Dr Aust said...

Thanks for the compliment, Jack.

I was just reading the brief later post where you had been looking at "Sacral Musings" and the rustlings from Chiro-world. I so hope it is true that the BCA are determined to go to court, assuming that Singh has the financial wherewithal to keep his libel team on the job.

If the day ever comes, I would confidently predict a stampede of evidence-based medicine experts ready to appear for Singh's side. In fact, I reckon most of them would happily pay all their own expenses.

Richard Keen said...

It is worth bearing in mind that the job of serving a Reply upon a Defendant is usually done by a partner or at least qualified lawyer. The job of actually filing it at the court is usually left to the trainee.

Given a Judge will almost always end up working from a copy in a bundle provided to him by lawyers rather than from the actual court file, the fact a trainee might spend an hour surfing the web and forget to file the Reply (despite being told to do so) does not generally matter to the parties or the Judge.

It is of course annoying, but checking the court file will do no more than ascertain whether a Reply (or other such document) has been filed at court. It will not determine whether one has been served, and even whether it has been put in a bundle for a Case Management Conference or substantive hearing.

Whilst I believe that both Simon and the BCA are represented by top-flight solicitors, these things do happen even with the best firms, though the defaulting trainee usually gets a shouting at when their boss finds out!

Dr Aust said...

PS I've done an update on the case here. We shall have to wait and see if I get a writ from the BCA.


Important question. Can High Court deliver a judgment without considering the reply of chiropractors and the opinions of experts?
If - yes, then the Court will do it.
Sadly, but it will not be a decision in favour of defendant.
That is why, Singh's side must insist on considering by the court the expert's opinions . And experts themselves must take the initiative to address a court.
Then Simon Singh will win.