BCA v Singh: Court of Appeal Permission To Appeal - Text and Commentary

In a quick break from my Sabbatical, I set out below the full official text of the Court of Appeal decision granting Simon Singh permission to appeal the ruling on meaning made by the High Court.

[Update: the judgment is now online here.]

The decision was made by Sir John Laws, a highly regarded Lord Justice of Appeal with a formidable intellectual reputation.

The judgment is in italics. I also set out in brackets my comments on each paragraph of the judgment. These comments are only my views, and others may have different views.

(The Sabbatical, by the way, is because of a potential non-fiction book on Bad Law - watch this space...)


[2009] EWCA Civ 1154

British Chiropractic Association (Respondent) v Simon Singh (Appellant)

1. This is a renewed application for permission to appeal against the rulings of Eady J made on 7 May 2009 upon two preliminary issues in a libel action. Permission was refused on consideration of the papers by Keene LJ on 21 July 2009. The proceedings relate to two sentences in an article written by the appellant, the defendant in the action, and published in the Guardian on 19 April 2008. The appellant is a writer, journalist and television producer in the fields of science, maths and medicine. The respondent, claimant in the proceedings, is a professional or trade association representing some 1,350 chiropractors. The respondent runs an annual event called “Chiropractic Awareness Week”. The article complained of was a response to Chiropractic Awareness Week 2008. It was in the Guardian’s Saturday Comment & Debate section under the heading “Beware the spinal trap” and a subheading “Some practitioners claim it is a cure-all but research suggests chiropractic therapy can be lethal”. It was also published in the online edition of the Guardian.

[There are two points of context here which are perhaps interesting: the mention of Chiropractic Awareness Week and the fact the article was published in the Comment & Debate section of The Guardian. Whilst these points will not affect the full appeal hearing, I think it noteworthy that they are mentioned in the judgment giving permission to appeal.]


2. The alleged defamatory words consist as I have indicated in two sentences in the article. They appear at the end of the third paragraph. To set the context, I will set out the whole of the third and fourth paragraph as follows:

“You might think that modern chiropractors restrict themselves to treating back problems, but in fact some still possess some quite wacky ideas. The fundamentalists argue that they can cure anything. And even the more moderate chiropractors have ideas above their station. [There follow the two sentences complained of]. 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 organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.”

That is the end of the sentences complained of. The next paragraph is in these terms:

“I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world's first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions.”

[Here, Laws LJ (as Lords Justices of Appeal are stylised) refers expressly to the follow-on paragraph in the original article, where Simon Singh sets out why he used the word bogus. This follow-on paragraph was of course not mentioned at all in the original High Court ruling. Again, it is interesting how Laws LJ is contextualising the "words complained of" (which is the legal term for the alleged libel).]


3. The meaning of the words complained of, which is attributed in the respondent’s pleading and upheld by the judge in the first ruling complained of, is as follows:

“…that the claimant:
(a) claims that chiropractic is effective in helping to treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, although it knows that there is absolutely no evidence to support its claims; and
(b) by making those claims, knowingly promotes bogus treatments;”

That is the pleaded meaning.

[Here Laws LJ goes back to the meaning of the words complained of which was actually put forward by the British Chiropractic Association. Interestingly, Laws LJ does not mention the gloss then put on that alleged meaning by the High Court, ie: "That is in my judgment the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct". Indeed, that part of the High Court's judgment is deftly not mentioned in this Court of Appeal judgment. What was missed by many rushing to support the BCA after the adverse ruling at the preliminary hearing was that the allegation of dishonesty against Simon Singh was not the BCA case as pleaded in court.]


4. The primary defence put forward by the appellant was one of fair comment. The second ruling by the judge was that the words complained of constituted or contained allegations of fact and were not, as the appellant contended, comment and therefore the defence did not run. The judge said this at paragraph 14 of his judgment:

“I therefore would uphold the claimant’s pleaded meanings. It will have become apparent by now that I also classify the defendant’s remarks as factual assertions rather than the mere expression of opinion. Miss Rogers reminded me, by reference to Hamilton v Clifford [2004] EWHC 1542 (QB), that one is not permitted to seek shelter behind a defence of fair comment when the defamatory sting is one of verifiable fact. Here the allegations are plainly verifiable and that is the subject of the defence of justification.”

[Fair Comment is a defence to libel which can be rebutted by alleging malice; however statements of fact need to be justified. Laws LJ is simply setting out here what the High Court dealt with this issue at the preliminary hearing.]


5. I propose to grant permission. There is no dispute but that the subject matter of the piece was of genuine public interest. There is, as I understand it, no question as to the good faith of the appellant, no suggestion that he was actuated by malice. But in that case the litigation proceeds presumably on the footing that the appellant wrote what he honestly believed on a matter of public interest and for the purpose of serving the public interest. Moreover, the meaning attributed by the judge to the words complained of imported a subjective state of mind, although the respondent is a corporate claimant. That may itself be a matter of difficulty, and is adverted to in Miss Page’s argument for the appellant. This view of meaning must presumably have fuelled the judge’s conclusion that he was faced with assertions of fact rather than comment.

[This is the key paragraph of the judgment.

Laws LJ makes a couple of highly interesting observations. First he states (rightly in my view) that the subject matter was of public interest. He then notes that there was no doubt as to the good faith of Simon Singh and that there was no allegation of malice. (This is notwithstanding the barmy press release put out afterwards by the BCA alleging malice: I will blog more on this allegation and the press release when I return from Sabbatical.)

Leading on from these two observations. Laws LJ then states that the "litigation proceeds presumably on the footing that the appellant wrote what he honestly believed on a matter of public interest and for the purpose of serving the public interest". In my opinion, this statement is an implicit rebuttal of the mention of dishonesty in the High Court's original ruling. It suggests to me that, given these two observations, it was not open to the High Court to state that the meaning of the words complained of was the plainest allegation of dishonesty. However, this is my view and others may disagree with me on this point.

Laws LJ then refers to the BCA being a corporation, and he makes the important point that it is difficult to prove a subjective state of mind when dealing with a corporation (rather than a natural person.]


6. It is arguable, and I will stress we are only here dealing with whether permission should be granted, that the judge has conflated the two issues:
(1) What is the meaning of the words?
(2) Read in that meaning, are they fact or comment?
It is also arguable that his apparent application of a test of verifiable fact, so that if that was what the words asserted they could only be defended by a plea of justification, is legally erroneous; certainly it raises issues as to the application of Article 10 of the European Convention on Human Rights.

[Laws LJ is emphasising that this "conflation" is only arguable. He is also raising the point that even if the words complained of were an allegation of fact it may still be possible that they can be met by a defence of fair comment.

What he also says, as a certainty and not as something merely arguable, is that this case raises issues in respect of Article 10 of the ECHR, which provides for a right to free expression under English law.]


7. The judge’s approach may moreover be said to impose an altogether disproportionate burden on the appellant, requiring him to prove for example that chiropractic treatments for the specified childhood conditions are bogus in the sense of the terms selected by the judge.

[Again, this is stated to be arguable, not a conclusion. However, the mention of "disproportionate" refers to Article 10 of the ECHR, where a person's right to free expression can only be interfered with on certain grounds and when proportionate to do so. Laws LJ again does not mention the "terms selected by the judge"; but the suggestion here is that it is arguable that forcing Simon Singh to fight the case on the basis of "That is in my judgment the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct" would infringe his rights under the Human Rights Act and the ECHR.]


8. There are other points in the grounds. I grant permission to appeal at large, because overall I consider it arguable that the result of the judge’s findings risk striking the Strasbourg balance between the right of reputation and the right of free expression too far in favour of the former and against the latter. I wish to stress that nothing I have said indicates any view as to the final result in this appeal; I have merely assembled the reasons why it seems to me that this case ought to go forward to a full appeal, when of course the matters in the litigation in the preliminary issues will be properly resolved.

[By granting permission at large, rather than just on the justification point alone, means that it is open to the Court of Appeal to hold that the words complained of were comment (and so can be defended as Fair Comment). The mention of Strasbourg is to the ECHR - and it is interesting that the granting of permission at large rests on these wide human rights grounds, and not on a technical point of libel law.]


9. As I indicated to Miss Page at the beginning of the hearing, I do feel constrained to add that the 47-page skeleton argument was so voluminous and discursive as to be of very modest assistance in determining this application. A substitute skeleton -- not, I suggest more than 20 pages in length -- should be prepared for the appeal, expressing the material points crisply and clearly and without repetition.

[This is perhaps a fair point; but given that permission to appeal had been refused twice before, one hopes that the twenty pages which could have been cut would have been the wrong ones; after all, often hears that 50% of advertising spend is wasted, but no one knows which 50%.]

____

Overall, the effect of this permission is to turn the litigation clock back to the start of the preliminary hearing. The Court of Appeal will deal with the parties' cases afresh and, in theory, could arrive at exactly the same decision as the High Court in May, that is that Simon Singh needs to prove dishonesty as a fact.

That said, the terms of the permission of appeal suggest that it may be unlikely that such an adverse ruling will be made again: the contextualisation of the words complained of, the issues raised by the BCA being a corporate claimant, the express mention of Article 10 and the need for proportionality - all these indicate that the Court of Appeal may perhaps take a more more balanced view of the question of meaning than the High Court. But this is not certain.

So there remains a hard and expensive journey ahead for Simon Singh. The appeal hearing will be in February; and any full trial will be at least later next year.

On the other hand, Simon Singh still has a year to decide whether to countersue the BCA for their defamation of him; and the BCA also appear to be under financial strain (hat tip Zeno). It may well be that this case will settle.

But with this excellent permission decision of the Court of Appeal, Simon Singh's position has gone from one where his chances of even getting permission on his third attempt were less than 50:50 to one where the BCA will be hoping to be able to repeat their success at the preliminary hearing before the Court of Appeal.

This permission decision is, in its way, as liberal as the preliminary ruling was illiberal; the focus now shifts to the full Court of Appeal hearing in February 2010.




The text of the Court of Appeal decision is Crown Copyright, and this should be stated should you wish to republish it elsewhere.


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