Tuesday, 1 December 2009

BCA v Singh: Composition of the Court of Appeal

It appears that the Court of Appeal is assembling a very powerful panel indeed to hear the appeal by Simon Singh of the adverse ruling on meaning by the High Court.

(Please note that Court composition is subject to change up to the day of the hearing - likely to be 22 February 2010 - but my information has today been confirmed by the Court of Appeal.)

The Court will be presided over by no less than the Master of the Rolls, Lord Neuberger, the most senior of all the civil appeals judges and indeed former Law Lord.

Significantly, he will be joined by Sir Stephen Sedley, the Court of Appeal judge whose liberal and intellectual reputation is equal to that of Sir John Laws, the appeal judge who granted Simon Singh permission to appeal. (Famously, Sir Stephen is a former communist party member who has listed "changing the world" as his recreation in Who's Who.)

The third judge will be Dame Mary Arden, the highly-regarded former Chair of the Law Commission, the body charged with proposing fundamental law reform.

This would be what lawyers call a "strong" Court of Appeal - indeed it is difficult to think of one stronger - especially for an appeal on what is a preliminary issue, rather than a full substantive appeal.

Any guidance given by such a strong Court of Appeal on what constitutes fair comment and justification in libel (or indeed any other issue) is be likely to have a great impact on the future approach of the High Court.

This is no indication as to what the outcome of appeal will be: Simon Singh can still lose. But it is entirely possible that their judgment will become a leading case whatever the result.

My opinion - and it is only a personal opinion and so could well be wrong - is that the terms of the permission ruling by Sir John Laws (see the case report and my commentary here) make it unlikely that the British Chiropractic Association will repeat their success in the High Court, at least to the extent that Simon Singh will have to show that the BCA were knowingly dishonest.

If this does turn out to be the composition of the Court of Appeal then, more than before, it makes the appeal hearing all the more interesting...


Zeno said...

At least Eady is no where to be seen!

Unpremeditated said...

This really is an excellent line-up of some our most thoughtful judges. Whatever the eventual outcome, that has to be good news. Thanks for cheering me up!

Simon Bradshaw said...

Zeno - not surprisingly it's a fundamental rule that you can't sit on the appeal panel reviewing your own decision!

You might think it wouldn't happen anyway seeing as how Court of Appeal panels are generally comprised of Lord Justices (or should that be Lords Justice?) but the CoA can sit with members of the High Court as part of the panel. Also, a High Court judge might be promoted to the CoA so it wouldn't be fair to let him or her then rehear one of their own cases.

Steve Jones said...

A very simple question, why in the original hearing, did the High Court feel it necessary to rule on the meaning of the word "bogus". Surely the essence of libel is the perception left in the mind of a putative reader and any consequent damage, tanginle or otherwise, that results from it.(I'll leave aside the intent of the writer for now).

The High Court is surely an expert on the meaning and intent of the words used within a legal context. However, Simon Singh's article was not written in an obviously legal context.

With with libel we have a jury that can surely be better placed to assess the perceived meaning of the word "bogus" in the context of the article, and the expected readership (otherwise why do we have a jury at all in a libel cases?).

On the point I left, about the writer's intent (something which is crucial in American libel law), my suggestion to the reformation of libel law, is that there should be an initial stage of the legal process which is strictly limited on budget and costs and which can be awarded. It could, for instance, rule on corrections, apologies, clarifications and minor costs.

Only where there was good evidence of aggravating factors, such as substantial tangible damage, reckless or vindictive behaviour by the defendent, would the case be allowed to progress to higher courts. In effect, this would be a tribunal type process. It could actually open up the libel law to those who are ill-served (like the average member of the public without substantial means).

Unfortunately I can't imagine lawyers who specialise in libel law going along with such suggestions as they have the most to lose of all.

Obiter said...

Nice on Jack of Kent - you are to be complimented on your coverage of this case. Our libel laws are now causing much serious material to be withheld from publication and that cannot be in the interests of either science or the general public.

ggalegrant said...

The composition of the court alone shows that that there is a real issue to be decided. I would not be surprised if this continues to the House of Lords in some form or another.

martinr said...

I'm guessing from your piece, and comments such as ggalegrant's, that the composition isn't done "taxirank" style...?

How & by whom is the composition decided?

Kkeep up the good work!).

Niklas said...

An interesting panel, though I notice that Sir Stephen is the same person who advocated a complete national DNA register of all UK residents and visitors to avoid racial bias! I hope that was an abberation, because I wouldn't call that liberal...