This post has been superceded - now see Offical Text of Ruling.
Yesterday the English High Court made an astonishing and highly illiberal ruling in the libel case brought by the British Chiropractic Association against Simon Singh.
The ruling was by Sir David Eady, the presiding judge. He has decided the "meaning" which should be given to the passage complained of in Simon Singh's original article.
The passage is:
"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."
As part of libel litigation, the court does have to rule as to the meaning of the relevant passages. This ruling in turn provides which are the appropriate defences. If it is ruled that the passage was "comment" then the defendant has to prove that it was a "fair comment". If the passage was a statement of fact, then the defendant has "justify" the fact.
Yesterday Singh's lawyers argued that the passage was a comment and the BCA's lawyers argued it was a statement of fact. Interestingly, the BCA did not contend in their oral argument that the passage was a statement about their dishonesty but really their recklessness and irresponsibility in promoting such treatments. Both parties also put in written submissions which were before the judge.
I was in court. The judge did not take a single note during the oral submissions of the BCA, and he hardly took a note during Singh's submissions. The reason for this soon became painfully clear. He had already prepared his ruling before even hearing the oral arguments.
When the initial oral submissions concluded, Eady did not (as was widely expected) reserve the decision until a later date. He instead began to read out his prepared judgment. This was before noon on the preliminary hearing's first day; the hearing was effectively over by lunchtime.
The judge ruled that, notwithstanding that the passage in Singh's article was a comment piece and published on the comment page, it was a statement of fact. This was an unhelpful ruling, and my heart sank for a moment, but it was not one for which Singh was unprepared. Singh would have preferred to have had a comment ruling, but he did have a full justification defence too, see here. So not ideal, but not a disaster.
But the judge continued. The word "bogus" meant deliberate and targeted dishonesty. So it did not mean that chiropractic for the six named children's ailments (including asthma) was simply wrong, or that it was contrary to established medical practice or research, or even that it completely lacked evidence.
"Bogus" meant a lot more. The judge held that by the mere use of the word "bogus" Simon Singh was stating that, as a matter of fact, the BCA were being consciously dishonest in promoting chiropractic for those children's ailments.
This shock ruling went far further than what the BCA had asked for in their oral submission (though it may have been in their written submission).
This ruling also did not even refer to the fact that Singh's use of the word "bogus" is actually set out in the following paragraph of the following paragraph in the original article:
I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world's first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions.
The judge's omission here was notwithstanding Singh's lawyer had strongly emphasised it in oral submission. Indeed, on the basis of the pre-prepared ruling which the judge read out, there is no direct evidence that the judge had actually read this following paragraph.
Where does this now place this litigation?
The ruling means that, as it stands, Simon Singh would have to prove at full trial that the BCA were being deliberately dishonest. This is not only extremely difficult but it was undoubtedly not Simon Singh's view in the first place. The BCA, as with many CAM practitioners, may well be deluded, irresponsible, and sometimes rather dangerous; but calling their promoted treatments "bogus" was not an express statement of their conscious dishonesty.
Indeed, unless there is hard evidence of dishonesty, it may not even be professionally possible for Simon Singh's lawyers to put the required case to the court: English barristers and solicitors are prohibited from alleging fraud unless there is sound and cogent evidence before them on which to base the allegation.
Basically, it would be very unwise and perhaps impossible for Simon Singh to go to full trial with this ruling on meaning.
One option is for Simon Singh to appeal. He has to decide this within three weeks. That said, the English Court of Appeal is usually unlikely to overturn a first instance decision on meaning: it is the sort of point on which English higher courts will defer. However, he would need to exhaust domestic processes before he can refer the case to the European Court of Human Rights as breach of Article 10 (freedom of expression).
Another possibility is settlement, and there would surely be no shame in settling because of this bizarre and illiberal ruling on meaning.
And is English libel law a form of bogus justice? I could not possibly say...