This is a brief lay summary of the my blogpost on the Court of Appeal decision in British Chiropractic Association v Dr Singh [2010] EWCA Civ 350.
In essence:
- the Court of Appeal distinguished between evidence and data;
- what evidence means will depend on context;
- however, in matters "concerned with the establishment of dependable generalisations about cause and effect", then contentions about evidence will normally be value judgments not statements of fact;
- matters "concerned with the establishment of dependable generalisations about cause and effect" include but are not limited to scientific debates;
- accordingly Simon's statement "not a jot of evidence" must be a value judgment, and not a statement of fact which he has to justify;
- it follows that Simon's use of "bogus" and "happily" were aspects of this value judgment;
- the meaning of the words complained of is therefore that the BCA was promoting what Simon contends are bogus treatments without regard to the want of reliable evidence of their efficacy;
- it was not open to Mr Justice Eady to equate "happily" with dishonestly - the word instead meant blithely;
- accordingly Simon has the defence of fair comment or "honest opinion", which can be rebutted by the BCA proving he was acting maliciously; and
- the wonderful Easterbrook quotation and the references to Orwell and Milton merely add emphasis to the importance of treating scientific contentions as value judgments.
The BCA now has to decide whether to apply to the Supreme Court (formerly the House of Lords); if the BCA does not, then the case returns to the High Court and can proceed to trial (though there is an outstanding issue as to whether the BCA as a company limited by guarantee (rather than one owned by shareholders) can even sue for libel).
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Monday, 5 April 2010
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23 comments:
That's much better!
Doesn't paragraph 10 sort out the standing of the BCA?
"If the present claim is well founded in law, the BCA is entitled to pursue it."
I read the "well founded in law" as being about the claim rather than the person making it.
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The whole "opinion" thing goes back to the legal dichotomy between facts and opinions that you were explaining in an earlier post.
One issue is that we have opinions about facts. Where facts seem opinion free it is because it is difficult to, reasonably, form any alternative opinion. In this sense an increase global temperatures, the existence of fossils and the "primary fact" mentioned in paragraph 26 are all "facts".
Whether the increase in temperatures is caused by human activity, evolution happened or it was chiropractic that cured the patient are still either true or false. Thus they are either facts or not. But we can still, reasonably, come to varying conclusions about these (only just, in the case of evolution).
It looks, from paragraphs 26 and 27, that the appeal court appreciate that the fact/opinion dichotomy is both artificial and dangerous.
I would like to see reform of this area as a key part of libel law reform. Somehow we're going to have to get into the law what are reasonable opinions about facts. I don't see that it's going to be easy.
Jack said:
"though there is an outstanding issue as to whether the BCA as a company limited by guarantee can even sue for libel"
Surely this should have been determined first? Or does it have to be decided at the trial?
It still seems bizarre to me that we are two years into this case and it still has not been decided whether or not the BCA is entitled to bring the case in the first place!
What has this achieved other than make money for lawyers and waste time out of Simon's life (not to mention the BCA)?
Surely, before delving into the details of the alleged libel, the very first thing that should have been done was to find out whether there was the possibility of bringing a case at all.
I don't agree with your comment that the court distinguished between "evidence" and "data".
The judgment states (para. 26):
"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."
"Data" is "evidence" and it is as much subject to value judgment as any other type of "evidence".
After all, chiropractors maintain that there are "data" to prove that chiropractic procedures are efficacious. Scientists point to the poor quality of such data and argue that they don't prove what the chiropractors contend.
Surely, what the judgment pointed up was the relationship between "evidence" and "facts" and the way that one might argue for a causal link between two "facts" using "evidence". The value-judgment arises in assessing the "evidence" which in turn determines what weight we are prepared to give to explanations of any secondary "fact".
Is there a clock ticking as the BCA make their decision as to what to do next.
I vaguely recall a time when Simon had something like 7 days in order to decide whether he was going to go ahead and appeal or not. (And how it seemed most unlikely that he would given the way things were going... amazing what can happen in a year, eh?)
Are we in a similar position now? Do the BCA have to decide whether to appeal, go to court or fold before any given deadline?
Also... I know someone did some analysis of their finances not so long ago. Does anyone know how able to afford to go on they are? If they're in a position where they as an entity will face ruination - but they as individuals won't - wouldn't they be tempted to just fight on regardless of the odds against?
@ Dave
Trying to figure out just how big a loss the BCA could cope with has a number of difficulties:
1. The latest available accounts are to December 2008, with the 2009 accounts only due for filing on 31st Oct. So we're going on old information.
2. We don't know the seasonality of the cashflow. More likely than not member subscriptions are paid up front. So at some point in the year the bank balance is flush with subscriptions that then get spent over a year. The key bank balance for judging how big a hit they could cope with is, naturally, the low point. But we don't know when that is, or how low it is.
3. They have a substantial (£400k) freehold property. This will give them a buffer. In extremis it could be sold and leased-back. (Although I wouldn't like to be the board member explaning that to the members).
So we don't know the level of costs that would be their tipping point. From what I can see I would guess that £200k would hurt the BCA but not be fatal.
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Your point about time limits is interesting: do you have an answer for us, Jack?
Wasn't the question of malice dealt with, and dismissed, at the appeal?
Thanks for such comprehensive, comprehensible coverage.
A question from a layman: What, if anything, does this ruling mean for Justice Eady?
Will it have any repercussions for him? Will it affect his career path or the kinds of cases over which he presides?
I do not think money is an issue for the BCA. Doctor of Chiropractic salaries are known to exceed that of many others in primary contact health field including general practitioners.
The point being, that the profession can, and is likely to, pursue this matter to a satisfactory conclusion, regardless of the meddling reversal of reality and rankly unfathomable ruling of the err uhmm judiciary.
If you care to look at the history of chiropractic you will see that the profession has established itself against the wishes of others by not allowing itself to be compressed..."Wilkes"
Dr Mike
Hi Dr. Mike
I know your in Canada (or somewhere overseas) and I'm in London but do you want to bet a pint on the BCA pursuing the matter? I bet the BCA will now settle. One pint (ok, maybe two!) to be settled when you're next in the UK?
Tony Lloyd,
I've not seen anything to indicate 'Dr Mike' is in Canada. I do hope you aren't thinking that I, 'Mike from Ottawa', am the same person as 'Dr Mike'. Given the witless and blustering commentary that is the metier of 'Dr Mike', I might find any such suggestion defamatory. :-)
Doing a bit of googling, it appears the BCA has 28 days from the date of the CoA's order to apply to the Supreme Court for permission to appeal (UKSC Practice Direction 1).
I can't speak to the UK Supreme Court, but it is rare that our Supreme Court grants leave to appeal from a unanimous Court of Appeal decision. You'd pretty much only see that if there has been a conflicting decision from another court of appeal (always a possibility with 10 provincial courts of appeal) where only the Supreme Court could resolve the issue and it was one of general applicability.
But, who knows. The BCA might apply for permission to appeal just to keep its options open while it further considers its position. Such things aren't uncommon and you couldn't necessarily read much into it.
Mike from Ottawa
"But we can still, reasonably, come to varying conclusions about these (only just, in the case of evolution)."
Not in the case of evolution either, as it happens.
Just to be clear, a reasonable person might come to a different conclusion than that evolution is true, but they could not do so reasonably.
I will offer a translation of Dr Mike's last:
"If you care to look at the history of chiropractic I think you will find that chiropractors market their services aggressively, and use legal threats and lawsuit to intimidate and silence anyone who casts doubt on their claims"
So the modern profession is simply being true to its roots. How nice.
"I've not seen anything to indicate 'Dr Mike' is in Canada."
I have:
http://tinyurl.com/yktueqv
The site is quite interesting.
"I do hope you aren't thinking that I, 'Mike from Ottawa', am the same person as 'Dr Mike'"
That would be defamatory!
Mike from Otowa...you charge me with witless blustering.........here read this buddy.
"Just to be clear, a reasonable person might come to a different conclusion than that evolution is true, but they could not do so reasonably".
Now thats a champion ramble....
Dr Mike
"Just to be clear, a reasonable person might come to a different conclusion than that evolution is true, but they could not do so reasonably".
I don't see anything rambling about that. I would think Ottawa-Mike is drawing a distinction between the, habitual, rationality of a person and the rationality of a single belief. "Dr" Mike cannot get his head around the idea that a "reasonable" person might not always act reasonably.
"Dr", think in terms of a good footballer (or hockey player, if you will). If they have one bad game then they play badly for that game, but it does not stop them remaing a good footballer/hockey player.
You've still to accept or decline my bet!
Yes Tony,thank you for rescuing my reasoning skills...obviously it was my grave error to think that the Otowas confused blabber was nothing short of obfuscatory trifle. Hmmmmm roll eyes.
And yes ok..the bets on.
Dr Mike
Tony Lloyd. Pity you didn't make your bet with Dr Mike before he wrote this on the eve of the judgment. I think we ought to recall his confident bombast in its full glory:
"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.
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"
Tony,
Thanks for the point to the 'Dr Mike's Chiropractic Masters' website. It's a hoot. I wonder if our 'Dr Mike' will tell us if that's him beaming from its front page.
And your impression of my comment on reasonable and reasonably concluding, you've got it spot on. The same might apply to the claims of the BCA that prompted this kafuffle, which a reasonable person might credit, but not reasonably.
Meanwhile, here in commentland, 'Dr Mike' with his inability or unwillingness to spell the name of Canada's capital city, is as funny as ever.
Mike from Ottawa
from the link to that Dr Mike, if I were a prospective patient, this sentence would fill me with alarm:
"Join me and discover how to create lifetime patients"
I thought the idea was, like, to cure people?
It appears not.
I do wonder why anyone would _want_ to become a "lifetime patient". I'd be interested to know as well whether patients are told, in those terms, up front that the chiropractor's goal is to make them a "lifetime patient".
Why would you want to be a lifetime patient of your dentist.
Why be a lifetime patient of your MD.
Why should you care about your spinal hygiene and be a lifetime patient of your chiropractor.
Why care about your health at all....
Get the point. I hope.
Dr Mike
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