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.
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