Wednesday, 14 October 2009

Permission Granted

Simon Singh was today granted permission to appeal the High Court ruling on meaning, a meaning which I described in May as astonishingly illiberal.

The meaning is that of the following passage in the original Guardian 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."

Simon applied for this permission so he can appeal the adverse ruling, which had held that in that passage:

- he had made factual statements rather than mere comment (and this is legally important as factual statements need to be justified, and this is difficult, whilst comment only needs to be shown to be fair); and

- the factual statements meant that the BCA were knowingly dishonest (and this would be, in my view, impossible to prove and was not Simon's intention nor, again in my view, what he actually said).

But to even make this appeal Simon required permission. This was essential, for such an appeal is not an automatic entitlement and so one has to apply for it.

The test for permission to appeal here was whether Simon has an arguable case to appeal the adverse ruling.

Simon had lost his two previous two applications for permission to appeal - the first at the initial High Court hearing and the second in July "on the papers" by another Lord Justice of Appeal.

Both refusals were to the effect that Simon did not have an arguable case.

After two such refusals the main options for Simon were to either proceed to trial (or settle) on the basis of the adverse ruling on meaning, or to make his third and final application by way of an oral hearing before the Court of Appeal.

He chose to go for the third, oral application.

This was partly because any eventual application to the European Court of Human Rights may formally require him to have exhausted his domestic appeals; and partly - and most commendably - because he simply believed it was right that he should have the chance to defend his article on the basis of what he believed he had said (and what almost everyone else seems to think he said).

Nonetheless, no lawyer would have put his chances for this application at more than 50:50, even for limited permission to appeal only the meaning of dishonesty so that he could mount a less onerous justification defence.

This was because the Court of Appeal is extremely reluctant to overturn the preliminary rulings in cases currently before the lower courts, especially appeals concerning meaning in defamation cases.

So even without all the special features of this case, this was just not the sort of application in which one tends to succeed.

Therefore our hopes were not high at 10.00 this morning in Court 75, deep in the Hogwartian maze of the Royal Courts of Justice, a courtroom accessible only through countless corridors and numerous cold stone stairwells.

The British Chiropractic Association did not attend, and so the parties' and lawyers' benches in court were half empty. The BCA did not need to turn up, for it was Simon's application, and not their application. However, this imbalance did give the courtroom a strange feel, especially as the public gallery was packed with Simon's cheerful supporters.

We waited for the appeal judge, Lord Justice Laws, one of the most highly-regarded and senior members of the Court of Appeal, with a formidable intellectual reputation.

When the hearing commenced it quickly became apparent that no further submissions were to be required from Simon's barristers. This was a good sign.

Lord Justice Laws then announced that the application would be granted.

He proceeded to give a very carefully worded judgment, which is characteristic of Lord Justice Laws, and so it is important to wait for the formal publication of the judgment, which should be in a few days.

That said, four aspects of the judgment immediately struck me as interesting - but please do note that my observations here are subject to the actual published judgment.

First, Lord Justice Laws was careful set out in full the paragraph which followed the alleged libel in the passage, where Simon explains his use of the word "bogus". It may be recalled that this paragraph was not expressly mentioned by Mr Justice Eady in the initial ruling.

Second, Lord Justice Laws explicitly mentioned Article 10 of the European Convention of Human Rights (which protects free expression) and the requirement under Article 10 for a balancing exercise. It appeared to me - and I will be interested to read the judgment carefully on this when it is published - that the implication was that the initial ruling had not sufficiently engaged Article 10 of the Convention.

Third, Lord Justice Laws seemed to accept that it was arguable that it was disproportionate to really expect a defendant to show that a corporate entity could have a subjective dishonest intent.

Fourth, and most importantly, Lord Justice Laws gave permission for a full appeal on the meaning of the alleged libel.

This means that Simon can now re-argue before the Court of Appeal that his article was fair comment.

The appeal will not therefore be limited to deciding which factual meaning Simon will need to justify.

This Court of Appeal hearing will be in around six months time, perhaps in time for the next Chiropractic Awareness Week.

However, a warning. It is important to note what this decision does not mean:

- the High Court's adverse ruling has not been overturned: it is entirely possible for the Court of Appeal to still uphold the High Court's original adverse ruling; and

- the Court of Appeal has not criticised or in any way ruled against the BCA's case.

The Court of Appeal has held that Simon has an arguable case for a full appeal on meaning; but this certainly does not mean that they will necessarily accept his case at the full appeal, and so his case may still be rejected.

But it does turn the litigation clock back to the very beginning of the preliminary hearing and gives Simon a well-deserved (and legally rather unexpected) opportunity to argue before the Court of Appeal what his article actually meant.

So, in summary, this is the best possible outcome for this application for permission to appeal.

And it is also the best possible reward for Simon's awesome determination to be able to properly defend in court what he said about the British Chiropractic Association's promotion of chiropractic for various children's ailments.

I will set out the full judgment on this site as soon as it is published with a detailed commentary.


Please provide a name with your comment; purely anonymous posts will not be approved.


Edward Baker said...

One small step... in the right direction at least!

Hanny said...

Great news! Thanks for keeping everyone updated! :)

Martin said...

Unfortunately work commitments this week meant that I couldn't make it into London for the hearing (or Westminster SITP :( ), and my phone had been confiscated by security at the sensitive place I was visiting, so it wasn't until this evening that I finally heard the news, on a train near Waterloo.

Needless to say I startled a number of nearby passengers.

Excellent news, and well deserved. I'm very curious to see whether the BCA issue any further press releases in the manner of their previous rather sulky rants.

CynoSure said...

When I first read Simon's article, I didn't think the BCA were knowingly dishonest, and nothing in his article made me think they were, or that he said they were.

But when they decided to sue instead of providing evidence, I changed my mind.

I am now convinced they are full of shit and know it.

Banksy said...

Congrats to all on this encouraging development.

Here's to a successful conclusion.

Will watch with interest for inclusion in McNae 21st edn.

Alice said...

Thanks for this wonderfully detailed post, Jack. I loved it from the Hogwartian labyrinths to the four interesting parts of the judge's decision. While this is only a small step, it certainly gets Simon - and us supporters! - into less murky and treacherous ground. And it's good to know that some judges regard freedom of speech as important.

So we'll see what happens next . . .

Gammidgy said...

As terrible as this case is for Simon and his finances, it is good fun to see it rumble onwards, generating more and more adverse publicity for the quacks as it goes.

incurable hippie said...

Thanks for this, it really explains the legal stuff that normally goes over my head :)

Lave said...

Awesome stuff.

Thanks for the break down JoK, I really appreciate the time you put into these step by step break downs of what was actually said.

Niklas said...

Thank you so much for your blog post. Lord Justice Laws has hit it on the head :) I'm looking forward to the commentary on the written judgement.

Now we "just" have to win two more court hearings....

Botogol said...

yo know, I'm actually still with Eady (retires to dodge bricks and missiles hurled in his direction)

pace what SS says that *meant* in his heart - it still seems to me that what he actually SAID in that article was that the BCA happily, and therefore *knowingly* promote bogus treatments.

and seems to me he would be right.

Niklas said...

From the BCA website:

14th October 2009: The British Chiropractic Association (BCA), notes the decision of Lord Justice Laws in granting Dr. Simon Singh leave to appeal to the Court of Appeal.
It looks forward to the opportunity of presenting its case where the issues can be heard and the BCA's position can be made clear.

< ends >

So they are clearly not giving up yet. For a moment when I read that they hadn't turned up to the hearing I thought they were trying to find a way out.

Here's a tip: when you're in a hole, stop digging!

Andrew Gilbey said...

It's a miserable day in New Zealand, especially as the cost of registering my ancient motorbike is about to go up by 200%.

But It's still a good day!

Simon could actually make scientists cool!

AndyN said...

Brilliant news. Congratulations Simon and his team.

Jack, still loving the blog. Always informative and insightful. Keep up the good work.

David Colquhoun said...

Brilliiant account. Thank you.

Having been threatened by chiropractors myself, I really appreciate what Simon has done.

The tortuousness of the legal process is quite baffling to me -positively Hogwartian. Is there any hope that now parliament itself has been Carter-Rucked, something will be done about the law, at last?

Twaza said...

Thanks very much Jack.

Have you seen this article?

Jon Wessel-Aas, a Norwegian lawyer, discusses the European Convention on Human Rights (ECHR) Article 10, and how this has been used in Norway to protect the freedom of the press and TV from libel and defamation litigation?

Dr* T said...

Clear, succinct, well-presented and helpful , as usual - many thanks.


Twaza said...

I have just followed your twitter link to the News on the BCA website. The bad news about their libel action is nicely juxtaposed to the good news about NICE's decision to recommend spinal manipulation as an option for persistent low back pain.

However, the good news may not be quite as good as it seems.

Firstly, the BCA's wording gives the impression that NICE recommend chiropractic. And it seems to suggest that this will be provided by the NHS. However, spinal manipulation can be provided by physiotherapists and osteopaths, and NICE guidelines are not legally binding on the NHS.

And secondly, the evidence supporting the use of spinal manipulation for persistent low back pain is very weak, as it is based on unblinded randomized controlled trials with subjective outcome measures. This means that the reported outcomes are likely to be biased by negative placebo effects in the untreated groups, and cognitive biases in both the treated and untreated groups.

TK said...

The BCA's response - well they would say that, wouldn't they.

Dr Aust said...

Splendid news... I have been inspired to augment my running commentary of the day with an actual (related) post.

Ben Murphy said...

So the wheels of the law grind on. Thanks to Jack for your reporting, and let's hope Simon's persistence is ultimately rewarded.

Thomas Dent said...

What is a 'subjective dishonest intent' exactly?

What Singh himself meant or intended is of course neither here nor there. The legal issue is what an ordinary reasonable reader would or could take the meaning to be.

I am afraid this will still be balanced on a knife-edge at appeal. The meaning could be that 'the BCA were culpably negligent in recommending such-and-such treatments given the complete lack of evidence for their efficacy'. This is still a factual and defamatory claim, although perhaps easier to defend.

I think Singh probably did intend to defame the BCA as professionally incapable or negligent (- though not necessarily dishonest). If he is able to prove this in court then good luck to him!

Andy said...

So, can the last few months of scrutiny of the BCA's plethora have any bearing on the appeal outcome (in terms of fairness, etc)?

Ben Emlyn-Jones said...

I'm very pleased for Simon. I've used a chiropractor before and would do so again; my dad swears by his! But that's not the point.

Pastor Neimoller, a victim of the Nazis, wrote this:

"First they came for the Jews and I didn't speak out because I'm not a Jew.
Then they came for the Communists and I didn't speak out because I'm not a Communist.
Then they came for the Blacks and I didn't speak out because I'm not black...
...and then they came for ME, and there was nobody left to speak out for me".

This little verse illustrates how important it is for us to campaign for each other's civil rights whether or not we agree with them. An attack against one is an attack against all.

Congratulations on Tuesday's meeting, Jack. I've just seen it on TV. My only dissapointment was a potential betrayal of principles on my part. As a self-respecting Woo I'm not meant to attend a Skeptics event and agree with the speakers! Don't tell my friends eh? :-)

Michael Kingsford Gray said...

@Thomas Dent:
The judge was referring to the supposed 'intent' of the BCA, not Simon's intent.
In particular, how a corporate body can be said to have 'intent' at all...

Niklas said...

Here is a quotation from Lord Justice Laws worth perusing:

"There is no dispute that [Simon’s original article] is in the public interest, with no suspicion of malice and there is no question of good faith."

Note that if we were in the USA Simon would have won his case already: as his article was judged to be "in the public interest" the BCA would have to show malice, but there is "no suspicion of malice".

We need a similar precedent to New York Times v. Sullivan here in England:

EvanH said...

This is great news and shows that Simon's courage in proceeding after the first rejection of the right to appeal has been rewarded.

The recent publicity of the impact of libel law in science and in writing and in medical journals, has now been fuelled by the impact of libel on Parliament. There is nothing like Parliament itself being impacted to get politicians to take notice.

I have secured a debate on the issue next Wednesday afternoon where the parliamentary side of these issues will be raised. There needs to be a campaign within and outside Parliament for wide reform of English libel law. So far the Lib Dems have signed up at their conference so we need the other parties to recognise the problem also.

Dr Evan Harris MP

Dr. Brian Blood said...

Thomas Dent might like to refer to this posting:

It includes a reasonably good explanation of what 'subjective dishonest intent' means in law.

HDB said...

Thank you once again, Jack, for making legal topics accessible and for making it clear why these things are important. This blog is a fine public service. Let me at least buy you a virtual drink in lieu of a real one.

BillyJoe said...

Botogol seems to me that what he actually SAID in that article was that the BCA happily, and therefore knowingly promote bogus treatments.

Or conversely: seems to me that what he actually SAID in that article was that the BCA happily, and therefore ignorantly promote bogus treatments.

Get it?
Happy in their ignorance

Richard W said...

Botogol: "it still seems to me that what he actually SAID in that article was that the BCA happily, and therefore *knowingly* promote bogus treatments."

I would disagree; 'happily' to me suggests that 'in blissful ignorance' the BCA were promoting bogus treatments.

Great blog, Jack, thank you. I was lucky enough to see Simon speak at the TAM London conference a couple of weeks ago. He was terrific.

Good luck for the next round!

jjbs said...

we on the continent think, these libel laws are very un-brittish. We will follow this case with interest. Congratulations for this step.

jjbs said...

we on the continent think, these libel laws are very un-brittish. We will follow this case with interest. Congratulations for this step.