BCA v Singh: The First Court Hearing Is Ordered

The English High Court has ordered that a "preliminary hearing" take place between the British Chiropractic Association and Simon Singh.

This preliminary hearing will probably take place in the next two to three months, and it will determine exactly how this case will be heard at full trial.

The High Court's rulings at this preliminary hearing will have an important impact on the nature and scope of the defence - or defences - which Simon Singh will have to mount.

The High Court's Order states:

"It is Ordered...That a preliminary hearing be listed before a Judge with a time estimate of 1 day...

"(1) to determine what defamatory meaning(s) the words complained of bear;

"(2) to determine, in the light of the ruling at (1) above, whether the words complained of made and/or contained allegations of fact or whether they constitute comment;

"(3) to decide any other issue suitable for preliminary determination by the Judge at the same hearing, as agreed by the parties."

(The High Court has also ordered that the full trial will be heard by a judge witout a jury.)

The "words complained of" in the original Guardian article were:

"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."

When the BCA launched their Claim, they stated that the "words complained of" had the following defamatory meaning:

"In their natural and ordinary meaning, the defamatory words...meant and were understood to mean that the [BCA]:

"(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."

Please note, however, it is for the High Court to determine the defamatory meaning(s) - if any - of any "words complained of": the Claimant's contention is just a starting point. (Generally, see my discussion of the BCA Claim here.)

Please also note that the BCA may have subsequently revised or reformulated their Claim in any "Reply", but as yet no Reply has been filed at Court.

Simon Singh in his extensive and (in my view) powerful Defence denies that the "words complained of" carry such a defamatory meaning, and even if they did (and/or if they carry any other defamatory meanings), he would rely on the defences of both fair comment and justification.

The effect of the preliminary hearing will be to determine whether Simon Singh will have to mount at the full trial the defences of both fair comment and justification, each of which will involve costly extensive preparation and expert evidence.

And remember that Simon Singh seems to be funding his own defence and, as is the rule in English civil litigation, taking the terrifying risk of having to pay the BCA's costs as well if he loses.

I suspect that the BCA is hoping either to force Simon Singh to have to run both defences, or to run the defence of justification alone. Notoriously, it is in the general nature of English libel law that any defence of factual justification is always harder (and more costly) for the defendant to prove.

I also suspect that the preferred outcome for Simon Singh will be that the "words complained of" are held to have no defamatory meaning at all or that they are held to be comment alone, meaning that he only has to prove that it was a "fair comment" in respect of the material before him.

However, even if the BCA prevails at this preliminary hearing, and so forces Simon Singh to run with both defences, his Defence demonstrates that he is actually well placed to meet such a challenge; it will just be a lot more work and more expensive.