BCA v Singh: The BCA's "Third Update"

Late yesterday evening, the British Chiropractic Association at last released a list of research papers.

Other Bloggers will surely examine that list in more detail; I want quickly to draw attention to some statements in the covering statement (the "Update").

First, their reference to their lack of financial resources is, for me, sickening.

This is a knowing claimant in an English libel action, a form of litigation which almost uniquely throws a terrifying costs burden on a defendant, in this case a private individual and journalist. They did not need to do this; and for them to now implicitly plead poverty is markedly to their discredit.

But the most striking assertion in the Update is the statement that the BCA had no wish for its dispute with Simon Singh to "end up in the courtroom".

But to end up in a courtroom is a natural consequence of bringing a legal claim.

Unless the claim is settled or abandoned, the courtroom experience is actually what happens to legal claims.

I suspect they indeed did not wish for this case to end up in a courtroom. They undoubtedly expected for Simon Singh to just capitulate.

They must have been startled when it became clear that Simon Singh was not going to settle, despite the horror of the costs risks involved.

One should only ever threaten litigation if one can go through with it; it seems that the BCA is now suffering from not thinking through the consequences of their actions.

As readers of this Blog will know, I did try and tell them this last August:

"A misconceived libel action can be an incredible financial and reputational disaster of the very first order...

"Litigation is rarely the only course of action. However, bad decisions to litigate can arise when the other options are either not properly set out or considered."

Another striking feature of the Update regards timing.

The original article was published in April 2008; it has therefore taken the BCA some fifteen months to publish this list of references, and then only in response to an incredible internet campaign.

There is no good reason, and - in my view - certainly no legal reason, why there was any delay in doing this.

Indeed, one wonders whether these references were even known to the BCA until late in the litigation.

They are certainly not listed in the original Happy Families leaflet, and the BCA iself states that the list was sent to Dr Singh on 3 November 2008.

There is no explanation for this delay, and the circumstances suggest that many of these references only became known to the BCA once Simon Singh had put them to task when he decided to defend his case.

In passing, I also note that there is no mention of The Guardian's offer of a right to reply. This omission would have a misleading effect on someone reading this Update who was otherwise unaware of this significant opportunity.

Overall, the content of this latest Update is disappointing. As with the previous updates it shows a sad lack of self-awareness by the BCA that bringing a libel case was never an appropriate way to deal with Simon Singh's criticisms.

It was, and continues to be, both a tactical and strategic mistake by the BCA.

And they seem to want to have credit for now publishing supporting material which (had they had it) would have simply been the right thing to have done in the very first place.

Other Bloggers will now undoubtedly assess this "plethora" of evidence.

But the covering Update is the strong evidence that the BCA's libel case was misconceived and ill-thought through right from the beginning.

I fear they still don't get this.