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Thursday, 28 May 2009

BCA v Singh: The Official Ruling

This is the OFFICIAL text of the ruling of the English High Court on the question of meaning at the preliminary hearing of British Chiropractic Association v Simon Singh on 7 May 2009.

The key paragraphs are 12 and 13. I have added emphasis.


1. In this libel action the claimant is the British Chiropractic Association ("BCA"). The defendant is Simon Singh, who wrote a piece in the Guardian on 19th April 2008 during Chiropractic Awareness Week, which was also published online. At the moment I have to decide two questions which have been agreed by the parties. One is to determine what defamatory meaning or meanings the words complained of bear; secondly, to determine in the light of that ruling whether the words complained of made and/or contained allegations of fact, or whether they constitute comment.

2. The BCA is a company limited by guarantee. It was apparently established in 1925. As Lord Scott pointed out in the House of Lords in Jameel & Anor v. Wall Street Journal Europe SPRL [2007] 1 A.C. 359, para.125, when the court is confronted with a corporate claimant in defamation proceedings it is necessary to focus on its objects.

3. The BCA's aims are to promote, encourage and maintain high standards of conduct, practice, education and training within the chiropractic profession in the United Kingdom. It is said to represent about half of the chiropractors registered under the Chiropractors Act 1994, which are between about 1300 and 1400 in number.

4. The words complained of were taken from the third paragraph of the article.

"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 organization is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments."

5. That is the only reference to the BCA in the article. The meanings pleaded on the claimant's behalf are to be found at para.6 of the particulars of claim to this effect: that (a) the BCA claims that chiropractic is effective in helping to treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, although it knows that there is absolutely no evidence to support its claims; and (b) by making those claims knowingly promotes bogus treatments.

6. Are those straightforward words defamatory of the corporate claimant or not? If so does the reasonable reader construe them as asserting fact or merely as expressing an opinion? That is an important distinction long recognized in domestic law as well as in Strasbourg. All of us recognize the importance of the freedom to express trenchant and even offensive opinions on matters of public interest.

7. After some desultory correspondence, the claim form was issued on 10th July of last year together with the particulars of claim. The defence was served on 8th September. At that stage it was being admitted that the article was defamatory of the BCA in the meanings which were put forward by the defendant. There were substantive defences, both of fair comment and justification. There was a reply served on 3rd November.

8. The principles governing the approach of the court to determining meaning are well known and uncontroversial. See, for example, Skuse v Granada Television [1996] EMLR 278, 285-287 and Gillick v Brook Advisory Services [2001] EWCA Civ. 1263. See also Gatley on Libel and Slander 11th Ed. at para.32.2 et seq.

9. I turn, in the light of those principles, to my conclusions as to meaning. As part of this exercise it is necessary to focus on the matter of reference. It is suggested by the defendant that the words refer in truth only to the body of chiropractors as a whole; that in so far as criticism was being directed, the ordinary fair-minded reader would understand that it was being directed at a class rather than at any individual person, whether human or corporate.

10. This is closely related to a submission of Miss Page to which I have not yet been asked to address to the effect that the corporate entity is merely being “put up” when it has no legitimate complaint of its own, purely as a front for an impermissible class action.

11. As so often in libel cases, it is necessary to focus on what was actually published rather than on what might have been published. It is fundamental to have in mind that the article does not confine itself to a general attack on a class of unidentifiable individuals. The defendant could have written such an article if he had chosen, but he referred expressly to and only to the BCA. The claimant does not rely on necessary implication to suggest that people in the know would have been able to identify the BCA as responsible for the conduct being criticized. There it is on the face of the article.

12. What the article conveys is that the BCA itself makes claims to the public as to the efficacy of chiropractic treatment for certain ailments even though there is not a jot of evidence to support those claims. That in itself would be an irresponsible way to behave and it is an allegation that is plainly defamatory of anyone identifiable as the culprit. In this case these claims are expressly attributed to the claimant. It goes further. It is said that despite its outward appearance of respectability, it is happy to promote bogus treatments. Everyone knows what bogus treatments are. They are not merely treatments which have proved less effective than they were at first thought to be, or which have been shown by the subsequent acquisition of more detailed scientific knowledge to be ineffective. Bogus treatments equate to quack remedies; that is to say they are dishonestly presented to a trusting and, in some respects perhaps, vulnerable public as having proven efficacy in the treatment of certain conditions or illnesses, when it is known that there is nothing to support such claims.

13. It is alleged that the claimant promotes the bogus treatments "happily". What that means is not that they do it naively or innocently believing in their efficacy, but rather that they are quite content and, so to speak, with their eyes open to present what are known to be bogus treatments as useful and effective. That is in my judgment the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct.

14. I therefore would uphold the claimant's pleaded meanings. It will have become apparent by now that I also classify the defendant's remarks as factual assertions rather than the mere expression of opinion. Miss Rogers reminded me, by reference to Hamilton v Clifford [2004] EWHC 1542 (QB), that one is not permitted to seek shelter behind a defence of fair comment when the defamatory sting is one of verifiable fact. Here the allegations are plainly verifiable and that is the subject of the defence of justification. What matters is whether those responsible for the claims put out by the BCA were well aware at the time that there was simply no evidence to support them. That is an issue capable of resolution in the light of the evidence called. In other words, it is a matter of verifiable fact. That is despite the fact that the words complained of appear under a general heading "comment and debate". It is a question of substance rather than labelling.

15. Those are the matters on which I have been invited to rule so far.

37 comments:

Lave said...

§12 & §13 really make a nice straw man for the BCA to burn down.

Schroedinger99 said...

Interesting ......

Re point 13

So if I say that the Catholics who officiate at Lourdes "happily" promote their "bogus" miracle cures I can only mean that I don't believe that these Catholics believe in miracle cures?
Of course the Catholics who officiate at Lourdes honestly believe in miracle cures, but they, like the chiropractors and Judge Eady, are fools!

paulathomas said...

Thankyou for this. On a first reading it seems that the offending word is 'happily'. Interesting, and at first sight odd, connotation drawn of 'knowingly'. This judgment appears to link happiness to knowledge in a way I cannot really understand.

Schroedinger99 said...

Moreover ...

I see a problem for the BCA here (a point I’ve tried to make on Twitter even though the 140 character limit does not lend itself to the scrutiny of complex ideas).

If Simon can establish in court that there really is not a jot of evidence for the BCA’s claims that its members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, then, even though Simon has (following Judge Eady’s ruling) has to establish that the BCA knew this, the BCA, presumably, has to establish (or at least rely on the inference) that it did not know this.

In other words, if the facts of the matter could be established to the satisfaction of a court, the BCA could (logically speaking – not, I realize, necessarily the same as legally speaking) defend its position by claiming that its members are naïve (if not negligent) in promoting and supplying “treatments” for which there is no credible evidence.

This, to my way of thinking, puts the BCA in a somewhat invidious position.

Ben said...

Re the first highlighted point of paragraph 12 - I read this as:

They make claim X.
Claim X has no supporting evidence.
Saying the above is defamatory.

This sounds quite worrying, and could be more broadly interpreted.

Andy said...

Okay, try this one...

If Simon is found to be libellous in his statement, the following logic applies:

1) The BCA therefore are unknowingly promoting bogus treatments (a scientific fact, since we know there is no strong evidence for some of their claims).

2) Not knowing about something that they should, could lead one to say that they are ignorant.

3) As the saying goes: "ignorance is bliss" and bliss could be said to define happiness

Therefore if Simon is found to be guilty, the irony is that the logic proves him to be innocent, as the BCA would (logically speaking) be "happily" promoting bogus treatments. There is no need for intent of dishonesty for this statement to apply, which, of course, Simon never meant in the first place.

Chris K said...

The worst part of that ruling is the bit in para 12 where Eady says:

"Everyone knows what bogus treatments are. They are not merely treatments which have proved less effective than they were at first thought to be, or which have been shown by the subsequent acquisition of more detailed scientific knowledge to be ineffective. Bogus treatments equate to quack remedies"

It's here that he redefines bogus into something entirely different than what Simon intended. It's also here where he decides that for Simon to win he has to show that no BCA members believe in chiropractic treatments.

Great job... this decision really does deserve to be appealed now I read it again!

BSM said...

"Everyone knows what bogus treatments are."

I thought I did until I read Mr Eady's definition.

I don't know who Mr Eady has been sitting next to on the Clapham omnibus, but it wasn't me.

To be less facetious, this is surely the bit of his ruling that is most easily contestable.

Michaela said...

Best of luck with the appeal and I hope you get legal representation

Botogol said...

seems to me that the case will now turn on whether or not there is any evidence to support the idea that chiropractic is effective for colic etc.

if there is evidence, singh loses
if there is no evidence of effectiveness then singh wins.

having read it, I don't think singh needs to appeal it. he can just go to court.

Schroedinger99 said...

Sorry missed a vital word out:

In other words, if the facts of the matter could be established to the satisfaction of a court, the BCA could (logically speaking – not, I realize, necessarily the same as legally speaking)defend its position ONLY by claiming that its members are naïve (if not negligent) in promoting and supplying “treatments” for which there is no credible evidence.

Botogol said...

and having re-read it: it's all a lot more reasonable than the public meeting, and various blog-posts last week would have led us to believe isn't it? In fact it's hard to take much exception to it.

Lesson for all of us: before rushing in to criticise the judge... wait to read his judgement.

Anonymous said...

I think the most interesting comment in that ruling is...

"What matters is whether those responsible for the claims put out by the BCA were well aware at the time that there was simply no evidence to support them."Taken as a single sentence (with no reference to context) it could appear that Judge Eady was not swayed by the BCA's "plethora" of evidence.

Schroedinger99 said...

I realize I'm essentially repeating a point I’ve already made, but I've just reread this bit under "14":

"What matters is whether those responsible for the claims put out by the BCA were well aware at the time that there was simply no evidence to support them. That is an issue capable of resolution in the light of the evidence called. In other words, it is a matter of verifiable fact."

Thus (going with this "meaning" & assuming the absence of scientific evidence for the claims made can be established) for Simon to win, the court has to establish that the BCA were well aware at the time that there was simply no evidence to support their claims.
For the BCA to win, the court has to establish that the BCA were not aware at the time that there was simply no evidence to support their claims.

In other words, the BCA win by establishing that they practise a form of “medicine” in spite of the fact that they have not attempted to make themselves aware of the science (or lack of science) relating to that form of “medicine”.

The more I think about Eady’s ruling, the more I come to the conclusion that it is much worse for the BCA than he intended and might at first appear.
If (assuming the case goes ahead with this “meaning”) the BCA lose they are charlatans, if the BCA win they are negligent.

[Disclaimer: I am not a lawyer and I do not think the BCA are charlatans. Neither, for that matter, does Simon Singh. I am merely exploring the logic of Judge Eady’s crazy ruling.]

Botogol said...

doesn't ANYONE think the BCA might, in fact, be charlatans?

Libel suits work well, don't they.

Schroedinger99 said...

Botogol said...

"and having re-read it: it's all a lot more reasonable than the public meeting, and various blog-posts last week would have led us to believe isn't it? In fact it's hard to take much exception to it."

I do take exception to it!

I do not agree that "happily" = "knowingly"; I do not agree that "bogus" = "dishonestly presented". I think these are unreasonable equations.

As I said earlier: The Catholics who officiate at Lourdes honestly (and happily) believe in and promote their entriely bogus miracle cures.

Chris C said...

Does Eady's ruling necessarily mean that the BCA does not really believe in the treatments it promotes. Couldn't it just be that the BCA were aware that these treatments lacked evidence, but nevertheless continued to promote them? This is how I've read it at least. Simon does not have to demonstrate that they did not believe in those treatment; he only only has to demonstrate they knew of the lack of evidence.

What I'm getting at is that since there is no evidence for Chiropractic for those particular treatments, and that this is the view held by the overall scientific/medical community, it obviously means that the BCA must be promoting those treatments without evidence, moreover the BCA must be aware of this scientific opinion, unless of course they wish to concede that they, a professional 'medical' body, have not actually kept up with the wider evidence and opinion of their own field!

So, could it not be demonstrated at trial that (a) the scientific standard of evidence is what must be met in order for a treatment to be considered effective; (b) that the Chiropractic treatments under dispute have not met this standard, and have consequently been widely rejected by the scientific community as being ineffective; and (c) that in knowing about the scientific opinion of Chiropractic for those treatments, the BCA were knowingly promoting treatments which have not met the aforementioned standard of evidence, and are therefore knowingly promoting treatments which have been roundly rejected as ineffective. It would then seem that the BCA would have to show that the evidence they presented does meets that standard of evidence, which of course they cannot do.

Just a thought.

(And I'm not a lawyer either.)

Botogol said...

@schroedinger99

yes, but what do you think 'happily' *actually* meant, in *that particular* sentence?

A "This organization is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments"

happily is an important word. It could have been omitted

B "This organization is the respectable face of the chiropractic profession and yet it promotes bogus treatments"

I am actually with Eady, here. To me
Sentence (B) would imply the BCA are most likely naive or careless.

Sentence (A) clearly implies that the BCA are dishonest.

I think Eady is correct. On this.

Schroedinger99 said...

Botogol said...
"Doesn’t ANYONE think the BCA might, in fact, be charlatans?

Libel suits work well, don't they?"

I am sure some chiroprators are charlatans. In my experience (not necessarily a definitive measure) however most cheerleaders for bogus “medicine” (in all its forms) genuinely and sincerely believe the nonsense they spout.

Schroedinger99 said...

@ Botogol

I appreciate the point you are making, but my intuitions here are the mirror image of yours. To me, (B) more strongly implies dishonesty.

The insertion of "happily" implies naivety and gullibility - think e.g. of the term "Happy-clappy".

Jack of Kent said...

@Schroedinger99

Presumably, in this context, that would the sound of no hands clapping?

*Gets coat...*

Adam said...

Bogus - not genuine or true (Concise OED). The only reasonable arbiter of meaning in language is usage (not Judges).

And if I naively belief a bogus treatment to be effective, then I am likely to happily promote it, surely

zeno said...

I agree with Chris C. The BCA should be painfully (sorry!) aware that there was, at best, scant good evidence to support chiroquacktic for even back pain, and certainly none, other than anecdotal and wishful thinking, for the likes of colic and asthma. If there had been substantial good evidence for chiroquacktic for colic, etc and only a bit against, then they could be excused for thinking it was not bogus. However, that is obviously not the case.

Would it be sufficient to claim that the BCA, as a responsible trade association, who aim to: "...promote, encourage and maintain high standards of conduct, practice, education and training within the profession in this country and throughout its member’s careers" should have been aware that there was no good evidence for colic, etc? The problem then comes down to what can be considered 'good evidence': the BCA would no doubt claim that their anecdata were sufficient, but this brings us back to their members' duty to effectively abide by what the ASA would consider to be good evidence, ie: "Substantiation will be assessed by the ASA on the basis of the available scientific knowledge."

Can they really deny that they were not aware of the controversy? Of course not. But I doubt they have to show that: it's up to Simon to prove the opposite.

Kate said...

Following on then, zeno!

I suppose the problem with this is the comments in paragraph 14 of the ruling which say: 'one is not permitted to seek shelter behind a defence of fair comment when the defamatory sting is one of verifiable fact.'

If Simon was accusing the BCA of deliberate dishonesty, and did so without first making sure that they were aware that their claims were 'bogus' (in the Justice Eady sense), then the article could have been defended as 'fair comment' in the sense that any reasonable person would assume that the BCA kept themselves up to date with the literature directly related to their profession. However, because the judge has ruled that his article was a statement of fact this means that that line of defence may not be possible. On the other hand, like I said, the ruling also states that 'Here the allegations are plainly verifiable and that is the subject of the defence of justification', which I assume is basically saying that the justification defence that Simon already prepared would be sufficient, depending of course on how the rest of the trial went and the BCA's responses to that defence.

Dudley said...

Does anyone know if the case would be heard by a jury?

Schroedinger99 said...

@ Dudley

I don't suppose any appeal on the meaning judgment would be heard by a jury; but the main case could be I guess.

In the McLibel case, the judge decided to allow McDonald's claim that the case was too complex to be understood by a jury, but I've no idea what the score is with Simon's case.

Dudley said...

No, I wasn't suggesting that the appeal would be heard by a jury, but rather the main trial should Simon decide to pursue the case.

The significance of my question is that a jury could well adopt a more commonsense approach in coming to a verdict than would a judge, and, provided the judge allowed all the relevant evidence to be admitted, then this could well swing in Simon's favour.

If I were on the jury I would want to know the basis for Simon's claims. The lack of evidence supporting any benefit of chiroquactic treatment of infantile colic would have some influence on a jury, especially those members with youngsters of their own.

Anonymous said...

Is it just me or is it a sad reflection of our society that we, joe public, are considered too thick to know when something is bogus. Hmm, then again a worrying majority buy into the drug pharmacy claims and I have yet to meet someone in the conventional medical world who can provide a satisfying definition of what health is. Alternative treatments may not be cure-alls but at least they don't kill quite so many people - eek, that's probably me being libelous now?

Anonymous said...

@Dudley My understanding of the way defamation cases work is that juries are asked to make particular decisions on issues of fact, rather than overall decisions about cases. I may be wrong however.

I suppose it's possible that if Simon was to defend the case via justification, he may argue as a litigant in person that he has evidence that the BCA knowingly practices fraud, and it's possible that Eady would allow a jury to make a decision about that. I suspect that would be unlikely though.

Meanwhile the costs of the case rise. I'd be curious to know if the BCA are using a conditional fee arrangement - ie no win no fee - which lawyers can use to 'uplift' their fees by a very large proportion (50pc? two thirds?) and obviously if Simon loses, he would almost certainly bear the legal costs of the case.

That would probably bankrupt him. He might have to pay damages of £10,000 on the higher end of teh scale, but costs of £200,000 would be more than likely.

Mark said...

I have come a bit late to this but is seems to me that anyone criticising Mr Justice Eady’s decision has to deal with his first main point where he says

“What the article conveys is that the BCA itself makes claims to the public as to the efficacy of chiropractic treatment for certain ailments even though there is not a jot of evidence to support those claims. That in itself would be an irresponsible way to behave and it is an allegation that is plainly defamatory”

Unless this initial point can be answered, the arguments earlier in this blog (even they are successful which they ought to be) about the meaning of the word bogus or about whether Simon Singh’s remarks implied dishonesty on the part of the BCA will not be sufficient to overturn the ruling.

What is hidden in the judge’s remarks, however, is the unstated assumption that the BCA is a scientifically respectable body.

Whether something is defamatory depends on the reputation of the person to whom the remark is applied. If a member of the public says, without any supporting evidence, that a treatment works, it is not “plainly defamatory” to say of him that he has not a jot of evidence for his assertion. But it would be defamatory to say the same thing of a doctor.

Lawyers may say that the truth of Simon Singh’s statements about the BCA can only be established at the trial of the libel action rather than as a preliminary point. But some things are self evident. If it is self evident that a man with stroke induced aphasia speaks only gibberish, it would not be defamatory to point that out; even though to say the same thing of professor could be defamatory.

But what is self evident to an educated person may not be self-evident to an ignorant one and unfortunately we are still living in C. P. Snow’s world of two cultures. The non scientific culture is alive and well and living in the High Court of Justice. Any scientifically educated person can see, at a glance, the unscientific nature of the BCA’s claims but it is clear that Mr Justice Eady lacks a scientific education. Let us hope that those in the Court of Appeal are more scientifically educated.

David B said...

Some comments here seem to misunderstand the structure of a libel case. The first step is to establish what was said and by whom. In this case there is no dispute about that. The next step is to establish the meaning of the allegedly defamatory words, and whether they are in fact defamatory (or at least capable of being defamatory). 'Defamatory' means roughly 'damaging to reputation'. It has nothing to do with whether or not the words are true or justified. A true statement (e.g. "George W. Bush is a mass murderer") might well be highly defamatory. Only if the defamatory nature of the words is established does the case go on to the next step, which is to consider whether the defamation can be defended, on such grounds as privilege, justification (i.e. roughly that the defamatory words are true), or fair comment.

In the present case the judge has decided that the words are defamatory, i.e. roughly that they are damaging to the reputation of the BCA. I haven't read all the legal precedents, but Eady's decision seems reasonable if not watertight. The BCA holds itself out as a respectable medical-scientific organisation (unlike, e.g, a Catholic priest at Lourdes). Nevertheless, it happily makes claims for the value of treatments which it must know are unsupported by scientific evidence, and therefore bogus. In common sense, this is clearly an imputation of dishonesty, which is defamatory. If Singh didn't intend his words to have this meaning, what meaning did he intend them to have?

Of course Singh may well have a convincing justification of his words. I hope he has. But nobody should expect (under English law) to be able to make accusations of dishonesty with impunity, just because he is a journalist.

Robin said...

Before any more tears are shed for Mr.Singh, did any
of you bother to do any research yourselves. Here's
one study done in Denmark ( 1999):

1. Wiberg JMM, Nordsteen J, Nilsson N. The short-term effect of spinal manipulation in the treatment of infantile colic: A randomized controlled clinical trial with a blinded observer. J Manipulative Physiol Ther 1999;22:517-22.



Read it yourselves

http://www.chiroweb.com/mpacms/dc/article.php?id=36406&no_paginate=true&p_friendly=true&no_b=true


Maybe Ben Goldacre wouldn't approve but it does demonstrate enough efficacy for chiropractors to try clinically.

I've also read Singh und Herr Ernst's chapter on
chiropractic thereapy ( for free on Amazon.com)
and found numerous errors and misrepresentations
that those who read will believe.
I'll be happy to point them out if people really want
to know.
Unless of course, you've decided that all chiropractors are dodgy and should limit themsleves to low back pain if that.

Robin said...

Before any more tears are shed for Mr.Singh, did any
of you bother to do any research yourselves. Here's
one study done in Denmark ( 1999):

1. Wiberg JMM, Nordsteen J, Nilsson N. The short-term effect of spinal manipulation in the treatment of infantile colic: A randomized controlled clinical trial with a blinded observer. J Manipulative Physiol Ther 1999;22:517-22.



Read it yourselves

http://www.chiroweb.com/mpacms/dc/article.php?id=36406&no_paginate=true&p_friendly=true&no_b=true


Maybe Ben Goldacre wouldn't approve but it does demonstrate enough efficacy for chiropractors to try clinically.

I've also read Singh und Herr Ernst's chapter on
chiropractic thereapy ( for free on Amazon.com)
and found numerous errors and misrepresentations
that those who read will believe.
I'll be happy to point them out if people really want
to know.
Unless of course, you've decided that all chiropractors are dodgy and should limit themsleves to low back pain if that.

Robin said...

Thanks for not including my comment just because I don't
agree with you.

Schroedinger99 said...

@Robin

The study you cite has been extensively rubbished by others.
http://jackofkent.blogspot.com/2009/06/bcas-worst-day-yet.html. It had a small sample with a significant dropout rate and was only single blinded. More problematically, the study says nothing about the efficacy of chiropractic per se; only about the efficacy of chriopractic compared with Dimethicone; but Dimethicone does not work either.

adele pace said...

"I don't know who Mr Eady has been sitting next to on the Clapham omnibus, but it wasn't me

...or maybe the Clapman Omnibus His Honour got on had just picked up a load of members from the British Chiropractic Association :)

Ian said...

Simon Singh needs to find the "evidence" that holistic therapies do not work before opening his mouth again. Science of Belief?

Simple!