The following has appeared on the Court Service Daily Cause List:
NOTICE FOR JUDGMENT
NOTICE
Take notice that on THURSDAY, 1ST APRIL, 2010 in COURT 4, at 9.30am, Judgment will be given in the following APPEAL From The Queen's Bench Division
A2/2009/1196 British Chiropractic Association -v- Singh.
So judgment day has arrived for Simon Singh and it will be on Thursday.
The judgment being handed down is that of Simon's appeal against the preliminary ruling on meaning.
For background, the High Court's original ruling is here and the transcript of the Court of Appeal hearing is here.
The judgment will be significant for Simon.
It will determine whether he can defend his statements about the British Chiropractic Association as "fair comment" or whether he will have to "justify" his statements as facts.
And, if the latter, whether he has to then "justify" that the BCA were dishonest as opposed to reckless or, as was suggested at the hearing, acting blithely.
(The worst case scenario for Simon is that the Court of Appeal upholds the ruling of the High Court.)
However, the terms of the judgment will probably have wider importance, beyond Simon's case.
The sheer seniority of the judges involved - the Lord Chief Justice, the Master of Rolls and Sir Stephen Sedley - will ensure the greatest possible impact for this judgment.
For example, the Court of Appeal may seek to use this case to entirely recast fair comment to cover any evaluative statement in relation to science and public health, even if it looks like a statement of fact.
If so, then the writer of a robust statement such as "there is no evidence that..." could even be protected, as well as someone writing the more comment-like "there is not a jot of evidence that...". The effect of this would mean that as long as there is no malice, the publisher of the statement will have a defence to a libel action.
The Court of Appeal may also provide guidance on what the High Court should do in cases such as Simon's when the judge determines meaning rather than, as is traditional with defamation, the jury.
The judgment is therefore likely to become a "leading case" for science writing and perhaps even libel generally even if, for some unwelcome reason, the Court of Appeal finds against Simon in this particular case.
Whichever party loses, there will be the possibility of applying for leave to appeal to the Supreme Court, though such applications are rarely successful.
So, unless there is such an application, the case will return to the High Court, though it may be that the BCA will seek to settle if the judgment goes against them.
I plan to go to hear whether Simon has won or lost.
If you are in London then do come along to console or celebrate, depending on the result.
And if you cannot come along, I will also tweet the result here as soon as it is appropriate for me to do so.
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32 comment(s):
I really hope that a) it isn't an April Fool's joke and b) you can come along to SITP that evening and tell us all about it! :-)
Jack - is there a precisely worded question that the judges will rule on, or are they simply opining generally as they see fit.
If they disagree with Eady's definition of the meaning of the sentences complained of, I presume they would the give their own, definitive defintion of the meaning of the sentence?
And then once they have given it must both sides live with the definition given, or can they appeal again?
Botogol - I would presume that the meaning of what Jack wrote is that either side can apply to appeal any ruling on meaning given tomorrow to the Supreme Court.
I would guess, though, that the chances of a Supreme Court taking on an appeal on meaning, when tomorrow's ruling will have been made by a panel of three such senior judges after deliberating the specific question at length, would be vanishingly slim. So likely any application for leave to appeal would be turned down...
I suppose a slightly different question is whether, if the much-debated words were ruled a "statement of fact" (as per Eady J's original ruling), Simon & co could still appeal to the European Court of Human Rights - e.g. by arguing that forcing Simon to defend himself by arguing a meaning that was:
(i) not his intended meaning; and
(ii) effectively impossible to prove since he would have to be able to read the BCA's minds;
- could/would constitue a denial of his right to free expression.
[DISCLAIMER: : entirely non-legal judgement: IANAL]
The important questions are:
1. What time is it likely to end?
2. What pub are any drowning of sorrows/celebrations likely to be at?
Dr Aust-
I don't know the ECtHR case law on the issue you raised, but I'm not sure it works. I'm pretty sure that i) would struggle as the ECtHR will probably be reluctant to second guess the factual findings of the court. I'm also unsure that the ii) defense that his (allegedly) libelous statement is difficult for him to prove is sufficient. If this were true, anyone could make any statement about any other person's mental state and be exempt from an action.
Protecting reputations is probably a legitimate cause, and libel law is probably a proportionate way of protecting it.
Hi Lloyd
Thanks for the clarification - interesting.
I wonder if there is a corollary of your (ii) - if "mental state" is seen as something that by definition must be legally testable, then what kinds of evidence can be produced to indicate said state? Could one legitimately make a:
"If they had looked at the evidence, and they would presumably have had to have looked, then they must have known..."
- kind of argument? This is something that I think Botogol has argued here and on his own blog.
The BCA certainly tried to use this kind of "had he looked at the evidence, he couldn't possibly have thought X..." line against Simon in public statements earlier in the case.
As to the ECHR argument overall, is it any sort of issue whether a corporation or company (as opposed to an individual) can be said to have a mental state, or to "know" something?
And if it comes down to a question of what a corporation/association (like the BCA) knew or didn't know at a particular time: is there a legal right in England equivalent to the US subpoena power by which Simon could seek to discover any or all documentation the BCA had relating to the writing of Happy Families? Couldn't he claim it was necessary to have this in order that he be able to seek to prove the BCA's "state of knowledge"? And again, if he can't have that information, isn't his ability to justify his words (and defend himself from the defamation allegation) then unfairly compromised? It is perhaps one thing if there is no evidence... but what if evidence were to exist and one couldn't get access to it? I wonder that if that again might be the sort of thing that would persuade the ECtHR that the English law as is constituted an infringement of human rights?
As far as I know, we don't know precisely who wrote the Happy Families leaflet in the first place. It strikes me that "discovery" of the process of the writing of the leaflet might be another possible source of significant discomfort to the BCA, in terms of how, and whether, they had critically assessed the scientific evidence on things like chiropractic for colic. After all, we now have a published assessment, done by Bronfort et al. for the General Chiropractic Council, and this says the evidence tell us chiropractic is ineffective in treating colic or childhood asthma. And this in a report done by chiropractors, not by sceptics.
Sorry for the long ramble. Just sort of thinking out loud. A lot of these kinds of issues, about what was or wasn't scientific evidence, and how it was appropriate for it to be weighed up, already seemed to be in play in the discussion at the Appeal Hearing. But I guess Thursday will reveal more on that.
Dear Lloyd,
The use of "proportionate" and "libel law" is interesting to mere mortals.
Just to remind people that the ECtHR is not a general appeals court. It is a court of interpretation on the European Convention on Human Rights, but with the added powers to directly award damages.
Consequently, Singh would be claiming that either the law or the legal precedent created violated one or more articles of the Convention - most likely Article 10 (Freedom of Expression), though he might be able to claim something under Article 8 too (Right to respect for private and family life)
April Fools' Day followed by Good Friday?
The BCA for Fools' Day, & Singh on Good Friday perhaps?
Hi Dr Aust
Your point about the BCA's use of the "if he had looked at the evidence..." etc argument is very interesting.
If the argument works then Simon has a defence. If the argument doesn't work then surely Simon has (another) case against the BCA for libel. If they win then they lose, if they lose then they lose. A nice little Catch 22!
"Discovery" would be fun, fun, fun. The internal workings of the BCA in court, being cross examined and reported on across the world!
my predictions : the court of appeal will rule
1) 'not-a-jot of evidence' means that, in SS's opinion, the mass of material available, in toto, does not amount to evidence of any scientific significance. That is a comment.
2) the BCA can be assumed to be completely familiar with all the latest scientific evidence, stuidies, theories and thinking about chiropractic. That is, after all, what they are for.
3) SS's words mean that the BCA promoted treatments even though they *knew* these treatments were not supported by sufficient scientific evidence to warrent that. That is a statement of fact.
These judgements will be interpreted by the bandwagon as grossly illiberal and damaging to SS and completely unfair and the owrst thing since Polanski appeared on video link..
But actually they ar quite fair and SS will go one to win his libel case becasue ....drum roll.... he is right!
VIZ -
- there is no proper evidence for those treatments.
- the BCA knew that perfectly well
- but they promoted the treatments anyway.
Which is all he said...
Nice to see this little bundle of silliness and rank blogger hysteria reaching a full and final conclusion. The amount of inconvenience caused by this ill advised attempt to seek publicity for a book at the expense of a noble profession exceeds the frontiers of rationality.
However,it is now time to pay the piper. A less benevolent profession might ask for the carcass to be trailed around the outer walls of Troy behind a chariot...I am sure the chiropractic profession will not seek this indignity, although few would might blame them if they did.
As for the rabid infantile bloggers, and yes you know who you are......they will have to return to being heroes in their own lunch breaks....And as they say,watch out that the door does not hit you on the ass as you leave the room.
Dr Mike
Mike said:
"The amount of inconvenience caused by this ill advised attempt to seek publicity for a book at the expense of a noble profession exceeds the frontiers of rationality."
The Irony.
Billy Joe said: "The irony". I think Chutzpa is a better word here. The definition of Chutzpa, in the very old joke, is a man who kills his parents and then pleads in mitigation that he is an orphan. or,as in David Irving's plaint after he sued Lipstadt and lost, that Lipstadt had suppressed his freedom of speech.
Dr Mike
- I bet the noble chiropractics would quite happily break his neck.
Oh...hang on..
@ amie
“Chutzpah” is too nice a term. There’s something admirable in chutzpah (true, perhaps not in killing your parents. But, having done so, coming up with the “orphan” crack is fairly good).
Dr Mike’s post had little to admire.
“The amount of inconvenience caused by this ill advised attempt to seek publicity for a book at the expense of a noble profession exceeds the frontiers of rationality.”
- This implicitly asserts the, extremely doubtful, claim that Chiropractic is a “noble” profession.
- “Rationality is thought of in many different ways. None of those ways involve a limit on inconvenience.
”A less benevolent profession”
And just how is Chiropractic a “benevolent profession”? Its members are not solely motivated by benevolence: they are in it to make money out of it. The BCA is not solely motivated by benevolence: it puts out leaflets promoting Chiropractic so that its members can make money. Is it the act of not asking “for the carcass to be trailed around the outer walls of Troy” that is held to be a “benevolent” act? It should be noted that if I called Boris Johnson an incompetent buffoon he would not sue for libel, let alone indulge in references to Homer. On the basis Dr Mike puts forward politicians would be held to be a supremely benevolent profession.
“I am sure the chiropractic profession will not seek this indignity,”
It is looking more and more unlikely that the chiropractic profession would get “this indignity” were it to seek it. To refrain from seeking it is about as magnanimous as my decision to let Lady Gaga keep the number one spot.
“As for the rabid infantile bloggers” And to Mike, with knobs on!
It is easy on the internet, shielded by anonymity, to slip into muddled rants that insult the other side rather then criticise their opinions. It’s why lots of people feel threatened by it. Particularly as the global communications allow a few people who are little more than “heroes in their own lunch breaks”* to hold what they see as institutional and professional misbehaviour to account.
(* ably abetted by the likes of Jack, David Colquhoun, the editor of the BMA etc.You know, people who know about this stuff.)
Dr Mike - you're back!
For anyone wanting to read more from Dr Mike on the nobility of chiropractic, there is a (very) extended comments thread from last Summer over here. Good knock 'em down drag 'em out fun, though it is a marathon read.
"benevolent profession"
A profession that makes medical claims about its treatments that cannot be backed up with proper, peer-reviewed evidence of its efficacy is not benevolent (certain not towards its patients).
No Mr Boto,I am sure that the chiropractic profession will be most satisfied that this gentleman has received a lesson, and in future will not try to further his aims by publically speaking about matters he knows nothing about.
The idea that the word bogus and promoting can have meanings other than the context within which they were written, closely following on the back of a sensationalist paperback...has certainly caused the chiropractic profession to display a degree of understandable consternation.
The blog cranks and the barrack room lawyers can say what they want as they seem to not have day jobs like others oh' yes,they have been crawling out of the woodwork. They can twist the whole this sad episode to suit their own clearly warped agenda...even call this stupidity a crusade for freedom of speech, "god preseve us from public lunacy", but at the end of the day the fact remains....The piper MUST be paid.
Dr Mike.
Best of luck to Simon, a real hero of the people, and to all of you in the UK fighting for Libel law reform.
I don't know if it's the same Dr. Mike, but there's a "Dr. Mike" here:
http://www.chiropractic-masters.com/
I'll leave others to their own judgements on the "nobility" evidenced.
Fantastic new today that Lords Neuberger and Sedley have allowed Simon's appeal. Phew!
BBC are reporting that Simon has won his appeal.
Message to the BCA: Bring it on, IF you think you're hard enough. However, if you would rather remain in existence, it might be a nice idea to drop the suit and pay Mr Singh's costs.
This is a good day, with the prospect of better to come.
Simon wins! BCA are nutters after all.
Now, can we please have some common sense about science?!
Judgement available here.
A very pleasing outcome. Am awaiting the transcript of judgment. If it shows up on any of my sources before Jack gets it (unlikely), I will do my best to post it.
For what it is worth, for the Dr Mike types out there, I have absolutely no axe to grind against chiropracty (or indeed homeopathy or any other woo "science") up until the point where they make scientific claims for it that can't be supported. Going beyond that to use libel laws to do what appears to be an attempt to stifle debate is, in my opinion, not something that leaves a good taste in my mouth.
A shame that nobody at BCA appeared to have ever heard of the Streisand effect.
Transcript link
http://www.bailii.org/ew/cases/EWCA/Civ/2010/350.html
Dr Mike....just what on earth do you mean when going on about "...The piper MUST be paid..."?
Botogol got it wrong:
"SS's words mean that the BCA promoted treatments even though they *knew* these treatments were not supported by sufficient scientific evidence to warrent that. That is a statement of fact."
The judges said:
"Once the allegation that there is "not a jot of evidence" to support the claims is properly characterised as a value judgment, the word "happily", even if synonymous with "knowingly", loses its sting. But we respectfully doubt whether the judge was justified in any event in attributing to the word any significance beyond, say, "blithely". The natural meaning of the passage, in other words, was not that the BCA was promoting what it knew to be bogus treatments but that it was promoting what Dr Singh contended were bogus treatments without regard to the want of reliable evidence of their efficacy – a meaning which takes one back to the assertion that there was not a jot of evidence for the BCA's claims."
This judgement supports my (and others') stance against Botogol's gratuitous accusation of a bandwagon effect by those who supported SS regarding the opinion that "happily" did not necessarily imply "knowingly".
I said "ignorantly" as in "happily ignorant". The judges said "blithely". I am happy with that.
@billyjoe - On the contrary - I think I got it part right part wrong.
I made three predictions.
1) 'not-a-jot of evidence' means that, in SS's opinion, the mass of material available, in toto, does not amount to evidence of any scientific significance. That is a comment.
== That is almost precisely what they say in 26 and 30. TICK
2) the BCA can be assumed to be completely familiar with all the latest scientific evidence, stuidies, theories and thinking about chiropractic. That is, after all, what they are for.
== this wasn't addressed by the court.
3) SS's words mean that the BCA promoted treatments even though they *knew* these treatments were not supported by sufficient scientific evidence to warrent that. That is a statement of fact.
== On this one, yes, I think my prediction was essentially wrong: The appeal court said that they preferred 'blithely' to 'knowingly' (as a meaning of 'happily') BUT they also said that they weren't actually insisting that their preference should supplant Eady's (31 -Nor is it necessary to decide whether...we should substitute our preferred meaning for that found by the judge.)
The cleverest thing about the judgment though - the REALLY clever thing - is that having decided that not-a-jot was a statement of opinion, the meaning of the happily clause - and whether that clause was fact or comment - is moot, so they didn't have to decide.
Botogol,
You were wrong in the passage quoted, which is the one that has been the main bone of contention between you and those who have tried to show you on many occasions that your insistence that "happily" absolutely implies "knowingly" is wrong and that it could just as justifiably mean "ignorantly" or "blithely".
More importantly, that is also clearly what SS meant.
It has been the basis of your insulting suggestion that the support for SS had become a bandwagon effect, not based in reality. Moreover you smugly castigated us for it on your website.
"The appeal court ... also said that they weren't actually insisting that their preference should supplant Eady's"
Really?
Here is what they said:
"Nor is it necessary to decide whether ... we should substitute our preferred meaning for that found by the judge."
They said it is not NECESSARY to decide that question.
This is obviously a reference to the preceding paragraph which states in part:
"Once the allegation that there is "not a jot of evidence" to support the claims is properly characterised as a value judgment, THE WORD "HAPPILY" EVEN IF SYNONYMOUS WITH "KNOWINGLY" LOSES ITS STING"
It is not NECESSARY to decide that question because, even if it is interpreted to mean "knowingly", that meaning loses it's sting.
However they clearly accept that "happily" can mean "blithely" - which is all we have been claiming in support of SS - and they clearly prefer that meaning.
Instead of grasping at straws, I suggest you offer a humble and abject apology both here and on your website.
May I suggest you head it "I was wrong".
Dr Mike said...
No Mr Boto,
Cute use of childish manipulation of a name to make a point about respect. Not that you are likely to be accused of credibility.
I am sure that the chiropractic profession will be most satisfied that this gentleman has received a lesson,
That there really is not a jot of evidence to support these bogus claims happily promoted by BCA. That is a lesson the BCA should learn. The public, too.
and in future will not try to further his aims by publically speaking about matters he knows nothing about.
I am not a lawyer, but I wonder if that is an example of actual libel.
Why is it that the defenders of chiropractic, homeopathy, reiki, and other unicorn medicine resort to claiming that critics do not know what they are writing about, rather than providing evidence to support their bogus claims?
Perhaps it is the lack of a jot of evidence.
The BCA accusing Simon Singh of libel for pointing out the failures of chiropractic seems to be just a BCA publicity stunt that backfired.
at the end of the day the fact remains....The piper MUST be paid.
It appears that BCA will pay for this mistake for a long time.
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