Simon Singh (appellant/defendant) v
British Chiropractic Association (respondent/claimant)
Court of Appeal, 23 February 2010
Lord Chief Justice, Master of the Rolls, Lord Justice Sedley
It was an interesting and very enjoyable day to be in court, especially given what happened after lunch: the British Chiropractic Association's case received a sustained battering by three of the most senior appeal judges in England, all of whom made favourable reference to the need for scientific debate.
But before we get carried away, please note that this is a case which Simon Singh can still lose - and for the reasons I set out below.
And please also be careful to read the "Health Warning" at the end of this blogpost.
Before the Trial
So to begin with the court room was packed.
There were the great and the good of the skeptic world: Wendy Grossman, Professor Richard Wiseman, Dr Evan Harris MP, and so on. The press bench was full, including Nick Cohen and Padraig Reidy; there were famous bloggers and activists, such as Crispian Jago and Alan Henness. And then there were dozens and dozens more, just coming in and crowding in at the back. The usher even found 'deck' chairs for people to sit in the side aisle, and one bench usually reserved for lawyers and clients was made over to the public.
It would normally take a major multiple murder trial, one lawyer told me, to have this many members of the public at a court hearing.
For me, all this had the rather surreal feel of a Skeptic in a Pub meeting transported suddenly into the designated court of the Master of the Rolls.
Sadly, those standing all had to exit the court, including a family from Leicester who had travelled down especially: but there was no more room.
There was a heartening atmosphere in the court room, even before the hearing began. And this positive though anxious atmosphere remained throughout what became a rather exciting day.
The hearing was estimated to last one day, and the lawyers agreed that Simon's QC spoke before lunch (for it was his appeal), with the BCA QC speaking after lunch; Simon's QC would have an opportunity to then briefly reply.
Simon's QC set out the basis of the appeal.
The judge at the High Court had been wrong in principle; the wrong tests had been applied; even if there was an allegation of dishonesty then there should still be a comment defence in certain circumstances; Simon was not alleging dishonesty anyway; the article as a whole should be considered as providing a context, especially the reference to bogus in the paragraph which followed the statement in question; but in any case the meaning of the "words complained of" was plainly clear: it was a comment - an evaluative judgment - on a matter of public interest.
The judges were relatively restrained before lunch. There were a couple of quite amusing exchanges about the "average Guardian reader" (and indeed whether he or she would speak French, as one potential alternative of "happily" in this context - I missed the exact word - was canvassed). Simon's QC settled on "blithely" as being what should meant by "happily" in the article.
What happened after lunch
The consensus in the Knights Templar pub during lunch was that the morning seemed to have gone well. Simon's QC had not been seemingly thrown by any of the incisive questions. We trooped back to an only slightly emptier courtroom.
And then the fun really began, and the BCA QC was on her feet.
The Lord Chief Justice - although careful to say that his comments would not influence the appeal before him - said he was "surprised" that the BCA had not taken advantage of the right to reply offered to them by The Guardian. Why did they not publish an article in response saying that Simon's contentions were a load of rubbish?
The BCA QC tried to deflect the blame onto Simon for not apologising or making any of the requested public statements.
The Lord Chief Justice did not seem impressed by this.
The BCA QC then listed various ECHR judgments which showed that it is not necessarily unfair to force a defendant to prove various matters of fact: this was a rather dry period, not unlike an Alistair Darling budget.
But then she moved on to the Guardian article.
The judges questioned the BCA QC repeatedly on the statement in dispute, trying to understand what it was which actually upset the BCA.
One question - "would happily promoting treatments which had not a jot of evidence be considered by your client to be defamatory?" - was met by a lengthy silence and (in my view) a non-answer.
But it was another question which may prove devastating to the BCA.
"What if Simon Singh had said there was no reliable evidence?"
"We wouldn't be here today."
But, responded the judge, isn't that what "evidence" means, especially in a scientific context? Is that not how medicine and science develops? Is that not what a reader of the Guardian article would understood the statements to have meant?
The judges then moved on to the following paragraph in Simon's article.
Is this not where he sets out what he means by bogus? He refers to some seventy trials which showed no evidence. Is it not clear what he meant by "not a jot"?
The BCA QC struggled on: not a jot, she argued, meant literally none whatsoever. But, said a judge, surely science doesn't work like that: when a scientist says there is not a jot of evidence, doesn't he mean there is not a jot of reliable evidence?
And then the BCA QC made what seemed to be a tactical mistake.
She compared herself with the BCA, saying that if she was accused as a barrister of promoting a bogus case without a jot of evidence, it would be open to someone to verify whether there was any evidence.
This did not seem to go down well as a serious point.
We can tell whether a case is bogus, responded one judge, we are judges. We can evaluate whether there is an evidence, just as a scientist can evaluate whether there is evidence, and if a scientist says there is not a jot of evidence, surely he means there is not a jot of reliable evidence?
And questions continued relentlessly along this line.
It was becoming painful.
It was not going well for the BCA.
The Lord Chief Justice then added - again stating that this was not influential to the outcome of this particular appeal - that he was "baffled" as to how this case had got this far, and at what must be considerable expense to the parties.
He described the "artificiality" of the case: if the BCA could rebut the contention that there was no evidence, why didn't they simply publish it?
As before, the BCA sought to deflect the blame onto Simon for not apologising or making any other public statement, but the question just hung there.
The BCA QC's submissions came to an end.
A devastating reply?
Simon's QC rose in reply.
She first noted in passing that the BCA's claims were no longer on their website.
She then, wonderfully, quoted from a US law report:-
"Scientific controversies must be settled by the methods of science rather than by the methods of litigation...More papers, more discussion, better data, and more satisfactory models-not larger awards of damages-mark the path toward superior understanding of the world around us."
Underwager v Salter, 22 F.3d 730
The judges seemed impressed - they had been clearly sympathetic during the whole hearing as to the importance of scientific debate, and this final quote seemed (to me) to articulate the views of three judges in the court.
The hearing then came to an end; the Lord Chief Justice said they will reserve judgment; it will be handed down in due course.
I just sat there on a high.
It had been thrilling to watch three of the country's senior judges tear into the BCA case, even though it was sad that it had come this far.
As Professor Richard Wiseman tweeted just after the hearing, the "Appeal made me ashamed & proud of being British. Ashamed it was happening & proud judges made BCA look like petty fools".
That was a fair comment.
Nonetheless, Simon may still lose: the Court of Appeal could decide that even if the High Court ruling is incorrect, it is not so incorrect that they should disturb the judgment.
There is also the chance that they could hold that Simon should have followed a "Reynolds" type process before publication, even though this was a comment piece and not the result of investigative journalism.
Even if the judges seemed sympathetic in the hearing, any lawyer will tell you that does not indicate that they will decide in your favour.
So we must wait for the judgment.
But, caveats aside: it was a good day in court.
Health Warning: the above is based on my recollections and notes; any reported speech not in quotation marks is my paraphrase; I am also biased, as a supporter of Simon Singh. Do not take anything here as indicating how the Court of Appeal will determine any of the points before it; and any legal observations are entirely subject to the final published judgment.
No purely anonymous comments will be published; always use a name for ease of reference by other commenters.