Friday, 11 December 2009

BCA v Singh: Making Legal History

The case of British Chiropractic Association against Simon Singh is now likely to make legal history.

The news broke today that the Court of Appeal panel hearing the appeal of the preliminary hearing on meaning will be joined by the Lord Chief Justice.

The panel will now consist of England's two most senior appeal judges - the Lord Chief Justice and the Master of the Rolls - as well as the formidable Lord Justice Sedley.

This is exceptional and, as far as I am aware, unprecedented for an appeal on just a preliminary point, rather than on a full substantive appeal of a decided case.

This is the heavy artillery of the judiciary.

This panel means that any judgment of the Court of Appeal could have immense effect on the future approach of the High Court to the question of what constitutes fair comment or a factual statement, and it may give firm guidance the extent to which the High Court can again impose a meaning of dishonesty either generally or against corporations in particular.

The Court of Appeal may not take this opportunity to adopt a robust approach, but having the two very most senior appeal judges on one panel rather tells against this. The composition of the panel does not by itself tell us how the appeal will be decided, just the potential significance of the judgment on future cases.

It is thereby probable that this Court of Appeal hearing on BCA v Singh will become a landmark case.

Moreover, should such a panel choose to criticise either party, or indeed the High Court itself, the effect could be damning.

It is becoming very interesting.

And, amusingly, the Lord Chief Justice is called Lord Judge - and you will remember that the permission to appeal was given by Lord Justice Laws...


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teekblog said...

excellent stuff - look forward to this appeal eev more now, hope the senior judges (incl. Lord Judge) pay heed to the report :-)

Zeno said...

Now all we need is the Lord High Executioner to put in an appearance...

Dr Aust said...

Fingers crossed, Jack.

And in a spirit of truly shameless self-publicising, I am going to quote myself:

"It is rather piquant that the two judges whose words and rulings have, in the last week, offered some hints that there may be recognition that the English Defamation Laws are not working, are Lord Chief Justice Judge and Lord Justice (of Appeal) Laws. Laws and Judge, indeed.

Let us hope that if we can finally get some sensible defamation LAWS, there will perhaps be less tendency in future for discussion of matters of public interest to end up in front of a JUDGE."

And pursuant to Zeno's comment, if you wonder what the lord High Executioner thinks, Prof David Colquhoun has already given us a clue. Though he has unaccountably omitted rapacious libel solicitors from his list of those who'll "none of 'em be missed".

Dave Cole said...

Goodness... certainly, the issues here are serious and so I'm glad they're being taken seriously. My concern - particularly given Eady's previous decisions - is that an unfavourable decision will be very damaging not just for Simon Singh but for the cause.

I'm no lawyer, so I'm not sure about what the legally correct way of doing things is, but I am concerned that an important legal change will be made in the courts and not in parliament.

Peter in Dundee said...

The term for the subjects of your amusement Jack is 'nominative determinism'. New Scientist in the Feedback page has long dealt with examples thereof, and called moratoriums on the subject, and broken them repeatedly when particularly juicy examples are sent in.

Mojo said...

From the HMCS Case Tracker page about the case:

"Hearing Status: Float on 22-Feb-10 or 23-Feb-10"

I assume that is the date the hearing is currently scheduled for?

middleclassmayhem said...

We have a brand new track for your campaign called..wait for it...'Change The Libel Laws'
Please make use of it.

Reggie at the Suburban Pirate

Andy said...

Is it just cynical me or does this look like the beginning of a campaign to put upstart bloggers and journalists in their place for daring to tell the courts how ridiculous they are?

Kate said...

Maybe not quite important enough to assign it its own courtroom yet though? Do floating cases mean the same thing everywhere? Wouldn't mind a trip down to London at some point in the future, and I could time it with this, but on the other hand if there's a chance it won't be heard on the day it's scheduled for I might not bother.

Ginger Yellow said...

Am I right in saying that none of the panel were involved in the criticism of Eady's exclusion of evidence from the Desmond libel trial? Should we read anything into that? Generally speaking, is the Lord Chief Justice more or less likely to criticise a fellow judge than a lesser judge would be?

That said, speaking as a lay person, I'm not sure Eady can be criticised in this case - it's the law that's at fault.

John Collins said...

That said, speaking as a lay person, I'm not sure Eady can be criticised in this case - it's the law that's at fault.

I was at the original hearing before Eady in May and it was abundantly clear to me he'd made up his mind and written out what he was going to say before the hearing started.