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Thursday, 1 April 2010

BCA v Singh: An Astonishingly Liberal Judgment

Simon Singh today won in the Court of Appeal.

The Court of Appeal held he was expressing "honest opinion".

It is a stunning judgment, quoting Milton and expressly adopting a US legal maxim that: "Scientific controversies must be settled by the methods of science rather than by the methods of litigation".

You can read the judgment in full here.

And so the British Chiropractic Association - which happily promotes bogus treatments even though there is not a jot of evidence - lost.

The BCA - discredited since the plethora - has announced that it is "disappointed" and that it is "considering its position" in respect of what has always been a staggeringly misconceived libel claim.

The judgment is packed with interesting things and will repay careful study.

So I will blog in detail over the weekend, once I have fully digested the case report.

But so far, on a quick read-through, the following elements seem particularly significant:


[On the BCA's conduct]

"By proceeding against Dr Singh, and not the Guardian, and by rejecting the offer made by the Guardian to publish an appropriate article refuting Dr Singh's contentions, or putting them in a proper prospective, the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics." [from para. 18]


[On the fundamental free speech implications of the case, probably penned by Sir Stephen Sedley]

"...the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:

""I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought."

"That is a pass to which we ought not to come again."
[from para. 23]


[On evidence]

"What "evidence" signifies depends heavily on context. To a literalist, any primary fact – for example, that following chiropractic intervention a patient's condition improved – may be evidence of a secondary fact, here that chiropractic works. To anyone (and not only a scientist) concerned with the establishment of dependable generalisations about cause and effect, such primary information is as worthless as evidence of the secondary fact as its converse would be. The same may equally well be true of data considerably more complex than in the facile example we have given: whether it is or not is what scientific opinion is there to debate. If in the course of the debate the view is expressed that there is not a jot of evidence for one deduction or another, the natural meaning is that there is no worthwhile or reliable evidence for it. That is as much a value judgment as a contrary viewpoint would be." [para. 26]


[On the meaning of the words complained of]

"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." [para 30]


[On libel and scientific controversy, and note the strong word "adopt", rather than just "note" or "refer to"]

"We would respectfully adopt what Judge Easterbrook, now Chief Judge of the US Seventh Circuit Court of Appeals, said in a libel action over a scientific controversy, Underwager v Salter 22 Fed. 3d 730 (1994):

""[Plaintiffs] cannot, by simply filing suit and crying 'character assassination!', silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. 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 towards superior understanding of the world around us.""
[para. 34, emphasis added]


[And the stress which needs to be placed on free expression on the now renamed "honest opinion" defence]

"The law of defamation surely requires that language should not be used which obscures the true import of a defence to an action for damages. Recent legislation in a number of common law jurisdictions - New Zealand, Australia, and the Republic of Ireland - now describes the defence of fair comment as "honest opinion". It is not open to us to alter or add to or indeed for that matter reduce the essential elements of this defence, but to describe the defence for what it is would lend greater emphasis to its importance as an essential ingredient of the right to free expression. Fair comment may have come to "decay with … imprecision". 'Honest opinion' better reflects the realities." [From para. 36]


And there is a lot more besides.

One must pay the highest possible tribute to Simon Singh, whose determination not to be bullied, led to this most pleasing of judgments.

Full case analysis over the weekend.


COMMENTS MODERATION

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43 comments:

Scaryduck said...

Scientific controversies must be settled by the methods of science rather than by the methods of litigation...

That, sir, is a major victory for science.

Dr Aust said...

Hmmm. I'm waiting to see what "Dr Mike" from yesterday's pre-hearing thread has to say.

If chiropractic really is "a noble profession", as Dr Mike likes to tell us it is, do you think the BCA might nobly like to call it a day on all this?

What odds that in a few days they will quietly drop the complaint "on the advice of our lawyers"..?

blog said...

Jack,

A couple of questions; firstly, how does this affect Eady, given that he has been invited to go forth and multiply; secondly, what do you think the likelihood of the BCA withdrawing their claim is now given that, if I understand this correctly, their position in the main trial has been made very much more difficult.

xD.

Tony Lloyd said...

The last words of the judgement:

"the appeal must be allowed"

Does that mean Judge Eady's ruling on the meaning is set aside or that it is replaced?

Paul said...

It appears now established that when X says, out loud, "Y happily promotes bogus Z", X is not necessarily defaming Y but may (at most) be saying that Y is deluded about Z.

I look forward to courageous chiropractors and creationists being X. The way is now clear for them. They should be jumping at the chance to publicly claim that science is deluded. Snag is that they're obliged to attend to the response.

Oh. Hang on. They've already been doing that (and, oddly, without being sued) for a long time anyway. And ignoring the responses.

Dang.

Oh well.

VinylTiger said...

"...is to invite the court to become an Orwellian ministry of truth"

Wasn't Ministry of Truth responsible for rewriting history and destroying evidence of previous histories?

I don't think that that describes the piostion of a court in asking person X to defend his words - be they fact or opinion.

Apart from that it's an AWESOME judgement!

Ray said...

Jack (or anyone else who knows some English law): will Singh be able to recover the costs of defending himself?

Suzanne said...

The words of Judge Easterbrook (Para 34) say it all. Ms Page (acting for Simon) introduced them during her summing up and I remember the chaps at the front getting quite excited about them and wanting a reference.

Did that mean that our judges weren't familiar with Easterbrook's comments and so had Ms Page done her homework less well would we be looking at a very different outcome today?

Mojo said...

@Tony Lloyd:

"Does that mean Judge Eady's ruling on the meaning is set aside or that it is replaced?"

Both, I think: set aside and replaced by the Court of Appeal's ruling.

Dr Aust said...

Ray wrote:

"Will Singh be able to recover the costs of defending himself?"

I've asked that before, Ray. I would assume that if the BCA drop the complaint, or continue to trial and ultimately lose, then they are liable for both sides' costs - though various articles suggest successful defendants never recover the full costs inferred. This is one of the issues underlying the libel reform campaign. It is also exacerbated by libel lawyers' "success fees" (extra they charge for winning the case, on a pro rata basis, above and beyond their "billable hours")

What I have wondered is whether it is possible for the two sides to voluntarily reach some other cost agreement, e.g. with both sides meeting their own costs, in the event of the BCA throwing in the towel. There is a school of thought that suggests the BCA might be going on because they have already incurred so much in legal fees that they can't afford to back out.

Mojo said...

The judgment concludes, "This appeal must be allowed."

Is the use of "must be" rather than, for example, "is" in any way significant?

Looking at other recent judgments, I see forms of words like "I would allow the appeal", although this might be because these are cases where the main judgment was given by an individual judge with the others agreeing to it rather than a collective judgment of the court. I've found collective judgments which conclude "We allow the appeal" or "This appeal is allowed", which is a little less emphatic than the final line of the current case.

Lloyd Jenkins said...

"And so the British Chiropractic Association - which happily promotes bogus treatments even though there is not a jot of evidence - lost."

Happy Days!

Thanks for all the blogging on this so far JoK.

And Ray- not in full. That's one of the big drivers behind the 'chilling effect': you will, even if completely in the right, lose money.

Lallands Peat Worrier said...

Thanks for the digested references, Jack. I've been a touch busy myself of late, and haven't been able to keep up with Singh case in any real detail. For all those who aren't comfortable with judicial deliberation and resolution of these matters - who prefer them to fence and dart in our public discursive spaces - this judgement looks all to the good. We'll just have to wait and see whether this sour judicial doughball, lobbed down the gullet of the BCA, will be enough to kill off whatever is left of their appetite for further litigation.

Ian said...

So Jack, the fact that you are willing to repeat the offending words both on here and on twitter, means that you don't think the BCA are likely to continue to the Supreme Court and eventually win this case?

I presume from this that you think this eminently sensible judgement, coming from authors of such seniority has fatally damaged the BCA's case?

Go Simon!!

Botogol said...

@Tony Lloyd @Mojo

The appeal court said that they didn't like Eady's findings on meaning, especially 'happily' claus

30 - 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.


BUT because they already decided that not-a-jot was 'comment', the meaning of happily 'loses it's sting, and is moot - so they didn't need to actually rule that one meaning is chosen over another

31 - .... Nor is it necessary to decide whether. ... we should substitute our preferred meaning for that found by the judge.

Botogol said...

Overall comment - what a beautifully-written piece of prose the judgement is. Elegantly and sparsely phrased, concise in meaning, clever, witty, erudite. Wonderful.

And quoting Milton as well.

Samphire said...

Dr Aust

Why would the two sides come to agreement on costs? The claimant (BCA) lost. Therefore it will have to pay Simon's costs.

It will be for the BCA to appeal any costs order and a costs judge will decide how much of the claim is allowable. Simon will not get all his costs back but he will recover a good proportion of them.

As for further litigation, when three of the most senior judges in the land have spoken there's really nowhere else to go so, even if it is possible for the BCA to seek leave to appeal, I very much doubt it would get it.

In short, the judgement has put the BCA's back right out of alignment and beyond the combined help of all the chiroraptors in the world. Calloo, callay.

Cosmic Navel Lint said...

A pleasing result: both for Singh and for science.

It is to be hoped that the "fair comment" and "honest opinion" clarification will have far reaching ramifications in future libel cases - especially where those seeking to defend palpable hocus-pocus is concerned.

Damned fine result! Well done Singh - and bravo on having the nerve to stay with it, as this was by no means a foregone conclusion.

Jack, I look forward to reading your fuller piece over the weekend.

Stephen said...

A superbly crafted judgment. It is an excellent example of the Court of Appeal trying to "amend" our libel laws because our politicians are too supine to do so.

Unless the BCA can get leave to appeal from the Supreme Court they are sunk without trace. Their prospects of getting leave - very slim. Their prospects if the do get leave - very slim. If the Supreme Court agrees to take the case on it might just do so in order to affirm the Court of Appeal's position which would be no bad thing.

So I would certainly expect the BCA's lawyers to advise them to get out now. As for costs yes Simon SIngh would in that case recover much of his costs but for reasons which I have never understood such recovery is only on a partial basis.

So the winner is .... the lawyers!

I would not attach undue significance to the use of "must be" allowed rather than "is" but if it has significance it is helpful to Simon SIngh because it carries an implication of forcefulness which many appeals do not.

It was fairly obvious from the composition of the Court of Appeal for this matter that it was being taken very seriously - quite rightly - and from the reported exchanges it did seem that Eady J was going to be reversed. Frankly it won't affect him much - many judges get reversed on appeal and life goes on for them. Although the subject of much vilification when I heard him speak on privacy law last year he struck me as being a decent and intelligent man wrestling with some difficult issues. Most privacy cases are now decided on their own facts - it is rare for points of law to emerge - which means that appeals are very unlikely so it is something of a novelty for him. Perhaps this judgment will give him pause for thought in future libel cases. But then again perhaps this judgment will mean far fewer libel cases - especially given the new "honest opinion" defence.

simon jenkins said...

A victory for science indeed that I heartily agree with. I do have a chiropractor in the family and I am sympathetic inasmuch as many people may have jumped on a bandwagon that "all" chiropractors are labelled and tarred with the same brush. The BCA should dissolve now and officials should be forced to seek re-election.

jimjim237 said...

Congratulations to Simon. Hopefully a sense of reality will finally prevail however this seems far from certain.

Today's BCA statement closes with:-

"To reiterate, the BCA brought this claim only to uphold its good
name and protect its reputation, honesty and integrity"[1]

Well why in the name of Pasta did they not simply publish the evidence that demolished Mr Singh's asssertions? Oh wait ... there isn't any - as has been unambiguously identified in the new GCC report[2], figure 7[3] is particularly relevant.


[1] http://www.chiropractic-uk.co.uk/gfx/uploads/textbox/Singh/BCA%20statement%201st%20April%202010.pdf
[2] http://www.chiroandosteo.com/content/18/1/3
[3] http://www.chiroandosteo.com/content/18/1/3/figure/F7

Demetrius said...

What I did like to see was the quote referring to Milton's Areopagitica. On Saturday 30 October 2009 I posted a longish one on "Libel Laws, Financial Losses, Life & Liberty" with a reference to this work at the very end.

Alec said...

Will the BCA have to pay lots of money?

Dave Gorman said...

Like others I'm interested in what this means for Eady. This judgement is very critical of him. Does this cast any doubt on his position in the future?

I guess this lays down a legal precedent that would prevent him (or anyone else in his position) from making the same, strangely illiberal, interpretation of such words in any future case, but this case aside, when someone so senior gets something so wrong does anyone get to question his fitness for the job?

Rob Heywood said...

Perfick!

Bill Hilton said...

@Demetrius

I've just written a post on the use of Areopagitica in the judgment, and, more generally, on the view of Milton as a hero of free speech. It may be of some interest, especially if you're as anally retentive about this sort of thing as I am:

http://billhilton.posterous.com/shortish-somewhat-geeky-discussion-of-miltons

Mike from Ottawa said...

O frabjous day! Callooh! Callay!

Dr Aust said...

Samphire - the BCA haven't lost yet - they only lost the limited appeal on meaning, though this does make it much more likely they will ultimately lose the libel claim.

I think what I was getting at was that I often suspect the BCA are trapped by the amount of money they have already "invested" in the libel claim. Let's estimate each side's costs so far as around £ 200K, for the sake of argument. If the BCA bail now, they are out £ 400K (both sides' costs). There is therefore a temptation to plough on, as then they might prevail and get all their money back. Of course, they might lose even more, since if it goes to a full hearing and takes two more years we could be talking, say, half a million apiece, so a total bill for the loser of a cool million quid.

It is the classic gambler's problem of having to force oneself not to chase a loss.

All I meant by "an agreed settlement" was that if someone offered them a partial deal on costs then that might help persuade them to call it a day. I know Simon Singh would still be (wholly unjustly) out of pocket, but given the kind of man he is, he might not care that much since he has prevailed on the point of principle.

Talking of which, we already know Simon is prepared to lose his own money on a point of principle. We know since he kept going after Eady's initial ruling when his lawyers almost certainly advised him that he was now highly likely to lose the case at trial, that the appeal on meaning was a long shot, and that the "percentage" choice would be to cut his losses and offer a limited apology.

The big question is, are the BCA prepared to do the same - that is, to risk losing even more money to stand up for a principle? Their statements say yes. But their actions, methinks, will speak louder.

Giles Robertson said...

Thank you for the analysis. Could you provide support for the claim that the passage from Milton was penned by Sedley? (I don't doubt it, but I'd like to know how you arrived at that conclusion).

Anonymous said...

I was following your twitters last night (last night for me, that is). In all the excitement, I forgot the April fool's day thing. The devil sign would have been wonderful.

As it is, what a brilliant considered outcome. My faith in justice is restored.

Andrew Gilbey

Steve said...

Excellent result.

Paragraphs 10-12 (litigation) look to be quite damning of the BCA's decision to pursue Simon through the libel courts and say that this is not in the public interest.

Surely this is a massive point?

Madam Miaow said...

The choice to resort to libel laws rather than argue this out leads me to mistrust and even despise chiropracty as a body. Don't they have a philosophy as a guiding light? I'd never trust them with my health when something is apparently so deeply rotten at the heart of their outlook. In my humble opinion, that is. Allegedly.

John Collins said...

In reply to Dr Aust - I believe that even if the BCA plough on and win outright they will still end up paying the bill for the May hearing repaying Simon what he paid for that plus his costs plus the Appeal costs for both sides up to and including yesterday.

So unless they win and get blindingly brilliant damages awarded against Simon they'll still lose a whole lot on the exercise unless the conditional fee people pick up the tab.

However the conditional fee people may well take a look at yesterday's result and say time to call it a day.

Evan Harris MP said...

Deep breath in..

1) Judge Eady like any judge is used to losing on appeal. He lost big time in Bower/Desmond case. I guess they are sanguine since the point of appeals is a second view.

The decision to disallow Simon's appeal on the papers - he needed to apply in person - more legal fees - seems very questionable now but I am told that is routine.

I also find Eady to be an urbane man and I admire his privacy judgements like Moseley. And a malicious falsehood case recently Quinton vs Peirce. http://bit.ly/axFAvL I urge against personal attacks on him esp from politicians! Seperation of powers and all that...

2) BCA are entitled to go to Supreme Court and it seems they would take it as this CA judgement is quite radical. Indeed the Supreme Court would be keen to get their hands on it. But chances of success for BCA are limited it seems.

3) The secondary judgement here on meaning is not so useful in case law as the views on what is honest opinion in science debate because it is rather fact specific and as JoK points out the key ruling is that words like those used are honest opinion. If goes to trial meaning need not be argued if that defence holds.

4) The first test of this authority on comment defence is what the Wilmshurst lawyers make of it.

5) I don't agree with any compromise on costs. No reason why SL should be out of pocket and a disgrace if he is. If SS were on CFA then question about success uplift of course!

6) JoK has not blogged about the refs in the judgement which suggest that the Court felt that if the law was reformed that would be no bad thing.

7) Btw I thought both silks - Page and Rogers - did a great job.

..Exhale..

skepticat said...

@Ray

"Jack (or anyone else who knows some English law): will Singh be able to recover the costs of defending himself?"

I don't know about the law but at the press conference after the hearing yesterday there was no suggesion that Simon would recover his full costs. It seems to be accepted that anyone who has the temerity to try to defend themselves from this kind of bullying is going to be out of pocket even if they do so successfully. (Remember the Guardian is still short of some £175,000 after Matthias Rath threw in the towel. Simon said the absolute best case and optimistic scenario would leave him at least £10,000 short.

Here's my own blog on yesterday:

http://www.skepticat.org/2010/04/up-yours-bca/

Alastair Macrae said...

The show's not over till the fat lady sings.
What has been settled - unless the BCA appeal against the outcome of Simon's appeal- is merely a sideshow to the sideshow to the main event.
The issue of libel reform has rather taken over, even from Singh v BCA.
And if the sideshow to the shideshow took this long, I despair of any of us living to see the final curtain fall on this slow motion farce.

While I am pleased for Simon and his team, I find it hard to see any victory in this shambles. I see rather, a system so stupidly inefficient and ludicrously expensive that had it any form of real world competion, it would have been driven into extinction around the time everyone else stopped wearing periwigs.

grasshopper said...

Given the contentious use of the word 'happily' by Mr Singh, I am delighted by the intentional use of 'unhappy' in
"... the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics."

Stephen said...

Eady is the main defence we have against the News of the World sticking a camera through our windows. I'm more than prepared to believe he's messed up in Singh (he did, this happens) and the media in general has smelt blood in the water.

tweeds said...

Like @Giles Robertson I'd like to ask about the guess that Sedley LJ was responsible for the inclusion of Orwell and Milton - beautifully written but has he made allusions like these previously? Unfortunately I'm not familiar enough with his judgments to know.

Russell Blackford said...

I've now written a brief note on the case over at Metamagician and the Hellfire Club (in addition to my initial link to this post.)

|Georgr Wright said...

This is also a victory for the magnificent classical education that the judges clearly enjoyed. A scientific and practical education (as advocated by the ghastly Ed Balls) would not have delivered this judgment

BillyJoe said...

Botogol,

"BUT because they already decided that not-a-jot was 'comment', the meaning of happily 'loses it's sting, and is moot - so they didn't need to actually rule that one meaning is chosen over another"

But they did prefer "blithely" to "knowingly" as the meaning of "happily".

I am still waiting for you to apologise to all those on this blog who repeatedly pointed out to you this alternative, and at least equally legitimate, meaning of the word "happily" and who you repeatedly denigrated here and on your website as being part of a mindless bandwagon effect.

You have been completely dismissive of this interpretation and of those who suggested it. And now that this interpretation has been vindicated, you attempt disingenuously to mitigate your error with obfuscation.

Maverick Collecting said...

Adding to what Jay was asking, I successfully taught myself enough landlord and tenant/rent act law to force my Landlord (or to be more accurate; his useless solicitor) to withdraw the case, I received an offer (from the court) of but a fraction of what I had costed, and a fraction of a fraction of what they would have wanted from me had they won...or I folded!