Simon Singh is preparing to announce his decision as to whether he will appeal or not.
So it is perhaps a good moment for me to step back and examine the wider legal context of this case, to take stock and to share some general observations with you.
I will also explain why I believe English libel law should be reformed in respect of public health and public safety issues.
(Please note it is English libel law - not UK or British libel law. Scotland and Northern Ireland have their own legal systems. Only Wales shares English law. Yes: it not even the entire UK's legal system which is the cause of international libel tourism and of the chilling effect.)
And I will make a friendly suggestion as to what the British Chiropractic Association should really do to protect their reputation.
1. The Reputation Of The British Chiropractic Association
I will start with - what is legally speaking - the very heart of the case: the reputation of the British Chiropractic Association.
It is this reputation which is supposedly at stake in this litigation, and it is this very reputation which the British Chiropractic Association is seeking to protect through this litigation.
On this basis, it may not have been a pleasant week for the British Chiropractic Association.
Their victory at the preliminary hearing does not seem to have played at all well either in the mainstream media or the blogosphere.
(On this, please see this excellent digest of coverage by Chris Kavanagh.)
And the coverage in such a beacon of the mainstream media as The Economist was probably what not the British Chiropractic Association, their media advisers, and their lawyers, were expecting.
It may even appear to some people that the reputation of the British Chiropractic Association itself has suffered, rather than been vindicated, by all of this. Some may say that its reputation could suffer more as this case continues.
If so, the British Chiropractic Association was warned about the potential adverse effects of this libel action (hat tip to Edd for reminding me).
As I was once told by the (probably) best media litigator in the City: a competent libel lawyer can tell you whether you have a case; but a good one will tell you whether you should actually bring it.
2. The British Chiropractic Association's Misconceived Libel Case
By various accidents and quirks of English libel law, the British Chiropractic Association was always in a strong position in this litigation.
I have always described their case as misconceived, but not weak.
BTW "Misconceived" is lawyerly and courtroom speak: but there is perhaps a shorter (and indeed recently much-analysed) word which can in my view be an almost-perfect synonym for every time a lawyer ever says something is misconceived.
3. How to Evaluate the British Chiropractic Association's Reputation: A Practical Approach
The British Chiropractic Association promotes chiropractic, a form of complementary and alternative medicine.
To paraphrase the Bishop of Southwark, such promotion of chiropractic is what the British Chiropractic Association does.
Chiropractic consists mainly of spinal manipulations, and so it is an activity which can be dangerous and may have adverse side-effects.
But it is a completely legal activity, and the British Chiropractic Association exists to promote it. There can be nothing wrong with this.
In its pamphlet - now seemingly withdrawn - "Happy Families" - the British Chiropractic Association stated:
Although a natural process, birth is sometimes traumatic for both mother and baby,
Chiropractic may help you and your baby recover from any birth trauma.
Treatment aims to relieve the stress that can affect your baby’s neck and head, especially if forceps or other medical assistance was involved, or if it was a breech birth.
There is evidence to show that chiropractic care has helped children with the following symptoms:
Sleep and feeding problems
Frequent infections, especially in the ears"
Here chiropractic is not only being promoted for children but, on a natural reading, even babies.
Again, there is surely nothing too surprising - or necessarily wrong - with this because again promoting chiropractic is what the British Chiropractic Association does.
But note: chiropractic is here being promoted for children and babies not just for back pain, but for a wide number of ailments, including potentially very serious afflictions such as asthma and serious ear infections.
This is where I think the public interest becomes fully engaged in this legal case, and any rights that the British Chiropractic Association has in its reputation must become qualified by - and yield to - the priorities of public health and public safety.
This imperative is because the efficacy of the manipulation the spines of children (who almost by definition have not fully developed) and babies must be something in which there is a legitimate public interest.
This public interest is then amplified significantly with matters as potentially highly serious as asthma and frequent ear infections
As a lawyer would say: this requires "anxious scrutiny".
Now, at the time the Happy Families leaflet was produced, the British Chiropractic Association purported to provide scientific evidence in support of these propositions.
However, as my summary of Singh's defence indicated, this evidence was at best misconceived:
Simon Singh lists a number of trials where Chiropractic has been shown to be ineffective: Olafsdottir (2001), Ernst (2003), Husereau (2003), Ernst/Canter (2006).
He then provides a detailed critique of the Wiberg (1999) trial cited by the BCA, and in particular where it did not meet most of the standards required and expected of a properly-done clinical trial.
2. Sleeping Problems
Simon Singh is unaware of any published clinical trials investigating (let alone supporting) the efficacy of Chiropractic in dealing with sleeping problems.
He points out that the BCA's reference is to a page in a book (Anrig & Plaugher) discussing two case reports.
3. Feeding Problems
Similarly, Simon Singh is unaware of any published clinical trials investigating (let alone supporting) the efficacy of Chiropractic in dealing with feeding problems.
He points out that the BCA's reference is to a page in a book (again Anrig & Plaugher) discussing feeding habits of parents, with no research or evidence.
4. Frequent Ear Infections
Simon Singh is also unaware of any published clinical trials investigating (let alone supporting) the efficacy of Chiropractic in dealing with frequent ear infections.
He points out here that the BCA reference is to an unpublished ongoing trial.
Simon Singh lists a number of trials where Chiropractic has been shown to not be effective: Balon/Aaker (1998), Balon/Mior (2004), Hondras (2005) and Ernst/Canter (2006)
He then points out that the BCA's citation (Kukurin) is to a letter to the editor commenting on a pilot study.
6. Prolonged Crying
Simon Singh is also unaware of any published clinical trials investigating (let alone supporting) the efficacy of Chiropractic in dealing with prolonged crying.
He points out here that the BCA's citation is to a non-publicly available paper (Budgell) which looks at the experience of chiropractors and does not look at clinical trials.
After these detailed expositions, Simon Singh then sets out the risks for children who receive Chiropractic treatments for these ailments rather than those which have been subjected to clinical trials."
Now, at this stage, I invite you to re-read the excerpt from the British Chiropractic Association's Happy Families and the summary of Singh's defence.
Concentrate on each particular ailment mentioned and what Singh was stating in response, and whilst you do this, bear in mind that all this is in the sensitive context of spinal manipulations of children and babies.
Everyone following this case should be aware of the exact claims the British Chiropractic Association were making and what Singh had to say about the evidence they had put forward to support each of those claims.
So to return to the reputation of the British Chiropractic Association.
What would any reasonable and objective person think of the British Chiropractic Association, and of its promotion of chiropractic to children and babies, if Singh's defence is actually valid?
Of course, we may not now know if it is "legally" valid, because of the ruling in the preliminary hearing. And so for now the situation is worryingly left uncertain and unsatisfactory.
But, as Heresiarch wisely pointed out in a comment on an earlier post on this site, the formal litigation is (unless appealed) now about alleged fraud and not treatment.
There can surely now be no problem with the British Chiropractic Association now dealing fully with the points raised in Singh's defence.
So I urge the British Chiropractic Association to respond publicly and swiftly to Singh's critique of its supporting evidence for the Happy Families contentions, regardless of what happens to this misconceived libel litigation.
If the British Chiropractic Association does not respond, it may be that reasonable and objective people can draw their own conclusions about what the British Chiropractic Association did with the Happy Families leaflet.
Here the reputation of the British Chiropractic Association may really be at stake.
4. Why Can The British Chiropractic Association Sue For Libel When it Not Even A Real Person?
Now I turn to the counter-intuitive point that the British Chiropractic Association can sue in the first place.
I regard this part of defamation law as Alice in Slanderland.
It is a legal fiction that companies and other corporations have "personality". As Jules Winnfield says in Pulp Fiction, personality can go a long way.
And the presumption in English law is that those with natural and "legal" personality have exactly the same standing. Of course, companies don't really exist: they have no tangible existence.
As the (sometimes - though not always - brilliant) English judge Lord Denning said, companies have "no body to be kicked and no soul to be damned". In my view, they should also have no reputation which can be sued upon.
Or if they should, it should be a narrow right to sue similar to "slander to title" - so if I alleged (which I do not) that the British Chiropractic Association was really promoting homeopathy when it's objects state it should be promoting chiropractic, it may perhaps have a legal remedy. After all, the Bishop of Southwark is not the Bishop of Liverpool.
Some years ago, in an important decision for free speech, the English courts ruled that public bodies (or at least statutory corporations) could not sue for defamation: this is the Derbyshire case. Sadly, more recently, the rights of trading companies to sue for defamation - such as Tesco - have been upheld.
The British Chiropractic Association is not Tesco. It doesn't even have shareholders. It is a "company limited by guarantee", existing to be a representative body of a profession.
It can sue for defamation simply because of the historical quirks of English libel law. But, in my view, the circumstances in which such a "legal" person can sue for defamation - if any - should be limited.
Singh is intending to make this "corporate point" if his case continues, regardless of the result of any appeal (or non-appeal).
I think he should.
5. Libel Reform and Public Health and Safety: A Proposal
But I would go even further than the "corporate point".
In the field of public health, it really should not be open for any provider or promoter of treatment - human or corporate - to sue for defamation in respect of their provision or promotion of those treatments, unless they can show malice by the defendant.
(And the same goes for public safety.)
The rights of providers and promoters to their reputations - however legitimate - are less important than ensuring that there is full and frank discussion of the merits of such treatments.
There should be a change.
And such a change is all perfectly possible in English libel law.
There is a doctrine of "qualified privilege" which protects defendants in a range of sensible contexts. It covers, for example, complaints to the police or certain communications between employees. It is now even being extended to cover "responsible journalism" with the so-called "Reynolds Defence" .
With qualified privilege, claimants with any legitimate right to their reputation can still sue for defamation if they can show malice (a high hurdle in English law).
But it is the claimant which has the burden of proof, not the defendant.
Qualified privilege has the underlying policy objective of ensuring candid but non-malicious debate.
It should be urgently extended to cover matters of public health and public safety.
Singh's case had not really progressed far enough for this "qualified privilege" point to be raised. The case has only got to the preliminary hearing on meaning. This is more a point for a further hearing or the full trial, even if last week's ruling is not overturned.
I hope the point is made: we desperately need a "Simon Singh Defence" to complement the "Reynolds Defence".
6. My Friendly Suggestion for the British Chiropractic Association
As for the British Chiropractic Association, I would remind them that libel should be about reputation, and libel litigation should be about effectively protecting such reputation.
Their press release states that the result of this preliminary hearing on meaning has "vindicated" the British Chiropractic Association (though of course such a meaning remains untested by full trial and so any claim for vindication is actually misconceived).
However, with such a vindication, perhaps they should now consider dropping this case?
The correct response to Singh's challenge on the evidential basis for chiropractic for children and babies with the non-back related ailments should always have been for the British Chiropractic Association to hold their evidence up to scrutiny.
It remains an important matter for public concern. The public interest here cannot be withdrawn like an unwelcome and misconceived leaflet.
As Frank Frizelle said to the New Zealand chiropractors and their lawyers in a similar case:
"Let’s hear your evidence, not your legal muscle."
And providing the hard evidence is what the British Chiropractic Association should now do: that is, if their purported interest in protecting their reputation is not entirely [blank].