Saturday, 9 May 2009
From a legal perspective Simon Singh is now in a difficult position.
But there are options.
He could, for example, adopt a Quixotic and defiant approach, to keep going, so not to admit defeat and to not let the CAM practitioners "win".
However, on the assumption that the best way to combat the irrational and illogical promoters of complementary and alternative medicine is perhaps not to be irrational and illogical oneself, the options available should be looked at carefully.
Option One: To Proceed To Trial
As I set out yesterday, this is to invite almost certain defeat. Indeed, it may be that Singh's lawyers will be prevented from putting the case which Eady now requires them to do. And the loss will cost Singh over £100,000; perhaps several times more.
The BCA's "victory" would of course appear to be a sham. And the English legal system would be (further) discredited.
From a rational perspective, this must be the least attractive approach.
Option Two: To Appeal
Singh can appeal to the English Court of Appeal to overturn the ruling on meaning. This is unlikely, as such rulings are usually held to be the province of the trial judge.
That said, Eady's ruling was astonishing, especially in its failure to refer to the following paragraph of the original article, where it is actually and plainly set out what was meant by "bogus". The Court of Appeal may also take an "Article 10" point on freedom of expression.
If the Court of Appeal turns Singh down, then (unless the new Supreme Court (ex House of Lords) accepts jurisdiction) he can then apply to the European Court of Human Rights in respect of the breach of his Article 10 right of free expression. The argument here would be that Eady's ruling was such a disproportionate exercise of judicial power that it endangered free expression. Such an application could take three years to be heard, and of course the European Court may still decide against Singh.
The appeal option therefore hardly has any guarantee of success, and further defeats may entrench and embolden the BCA's apparent victory. It the appeals are unsuccessful, either the trial must go ahead or Singh must settle.
On the other hand, Singh surely deserves an opportunity to put his defence on the terms on which he wrote the original article, and appeal is the only way of making this possible. As it stands, Eady's ruling prevents him from explaining to the court why he wrote the article in the first place.
Also note that Singh's application to strike out the claim as the BCA does not have an appropriate reputation capable of being defamed (as it is a non-trading company) is still to be heard, even by Eady (the "corporate point"). This application was adjourned on Thursday, pending any decision to appeal. So even if Singh loses an appeal on the the ruling on meaning, this corporate point still has to be determined (and potentially appealed as well).
Option Three: To Settle
Simon Singh had/has on his side:
-the weight of scientific research and evidence;
-the support of the international scientific community;
-that he defined what he meant by "bogus";
-the financial resources needed to litigate at this level;
-a strong legal team; and
-full defences on fair comment and justification.
And he still was placed in a difficult legal position by Eady's ruling.
One could reasonably conclude that the legal process is an inefficient method for dealing with such truth claims, and nothing good will come from litigating this matter any further. A line can and should be drawn.
Bringing this case to an end would enable wider and forceful (if differently worded) scrutiny to commence of the BCA and all its misconceived promotions. They are effectively evading any of this by continuing this litigation.
Given the extraordinary meaning ruled by Eady, which Singh did not intend and was not proposing to defend, there would be no disgrace for him to settle and to even apologise for that extraordinary meaning.
Would this be a "victory" or "vindication" for CAM? Only in the make-believe world of English libel law...
No scientist or skeptic would normally continue with a flawed methodology. English libel law is such a methodology. Whatever happens in this case, nothing will be proved to a scientifically-acceptable level by the manoeuvres and rulings in the courtroom.
That said, whilst legitimate and arguable appeals are available, it may be that Singh has not yet reached that point where he has to drop his attempt to defend what he said.
Please tell me and the other readers of this blog what you think to be the rational response to this difficult situation.